Page No.# 1/19 GAHC010006022023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/160/2023 1. Danswrang Brahma, Son of Sri Kuntiram Brahma, R/o-Village Gomabil, P.O.- Dotoma, P.S.- Dotoma, District- Kokrajhar, BTR, Assam, Pin-783347. 2. Radhika Narzary, Daughter of Late Kripanath Narzary, R/o- Village Dawaguri No.1, P.O.- Goladangi, P.S.- Gossaigaon, District- Kokrajhar, BTR, Assam, Pin-783361. 3. Nagen Chandra Boro, Son of Sri Baliram Boro, R/o- Village Naptipara, P.O.- Barkalachowka, P.S.- Kalaigaon, District- Udalguri, BTR, Assam, Pin- 784525. …… Petitioners -Versus- Page No.# 2/19 1) The State of Assam, represented by the Commissioner & Secretary, Food, Civil Supplies & Consumers Affairs Department of Assam, Janata Bhavan, Dispur, Guwahati-781006. 2) The Bodoland Territorial Council, represented by the Secretary, Food, Civil Supplies & Consumers Affairs Department. Bodofa Nwgwr, Kokrajhar, BTR, Assam, Pin- 783370. 3) The Secretry, Food, Civil Supplies & Consumers Affairs Department, Government of Assam, Janata Bhavan, Dispur, Guwahati- 781006. 4) The Director of Food, Civil Supplies & Consumers Affairs, Assam, Bhangagarh, Guwahati- 781005. 5) The Council Head of Department, Food, Civil Supplies & Consumers Affairs, Kokrajhar, BTR, Assam, Pin- 783370. 6) The Joint Director, Food, Civil Supples & Consumers Affairs, Kokrajhar, BTR, Assam, Pin-783370. 7) The Deputy Director, Food, Civil Supplies & Consumers Affairs, Udalguri, BTR, Assam, Pin- 784509. ……Respondents. BEFORE HON'BLE MR. SOUMITRA SAIKIA For the Petitioner: Mr. D. Das, Senior Advocate Mr. S. Khound Advocate For the Respondents: Mr. D. Nath, Senior Govt. Advocate Ms. R.B. Bora, SC, BTC Date : 27.02.2025 Page No.# 3/19 Judgment and Order Heard Mr. D. Das, learned Senior Counsel assisted by Mr. S. Khound, learned counsel for the petitioners. Also heard Mr. D. Nath, learned Senior Government Advocate for the State of Assam and Ms. R.B. Bora, learned Standing Counsel for the Bodoland Territorial Council (BTC). 2. The writ petitioners were appointed as Junior Assistants/LDA (Grade-III) under the BTC (Bodoland Territorial Council) in Head of the Department/District Sub-Divisional Offices within the BTC area. Pursuant to an advertisement issued for filling up for the State vacancies by way of a selection process, which included a written test and an interview, the petitioners participated in the said selection process and were duly selected and appointed to the post of Junior Assistant in the BTC area. 3. Subsequently, petitioners no. 1 and 2 services as Junior Assistant were regularized on 30.03.2013 in the Office of respondent no. 6, namely the Joint Director, Food, Civil Supplies & Consumer Affairs, Kokrajhar, BTR. Similarly, the petitioner no. 3 was regularized by an order dated 30.07.2013 issued by the Secretary, BTC, Kokrajhar and was posted as a Junior Assistant in the Office of respondent no. 7. 4. The service conditions of the petitioners are governed by the Assam Page No.# 4/19 (Food and Civil Supplies) Service Rules, 1970. Pursuant to the initiative taken by the higher authorities to fill the vacant posts of Sub Inspector in the Department by promotion, the authorities of the Autonomous Council, along with the respective Deputy Commissioners of the concerned Districts, were requested to provide the names of willing and eligible applicants for the respective establishments. 5. It is contended on behalf of the petitioners that the process for recruitment to the posts of Sub Inspector of Food & Civil Supplies is prescribed under Rule 11 of the Rules of 1970. According to the Rules, 25% of the vacancies in the Cadre of Sub Inspector of Food & Civil Supplies are to be filled by promotion from amongst the Ministerial Cadre, provided they possess outstanding ability and have rendered at least five years of continuous service in the Ministerial Cadre. Under the Rules it is provided that the Ministerial Cadre will include the posts of Lower Division Assistant (LDA), Accounts Assistant (Junior) in the Office of the Director of Food & Civil Supplies, as well as in the District and Sub-Division Offices. 6. Referring to the said provisions of the Rule, learned Senior Counsel submits that there is no dispute that the petitioners, who are serving as LDAs, belong to the ministerial service. Therefore, under Rule 11 of the Assam (Food and Civil Supplies) Service Rules, 1970, 25% of the total vacancies in the cadre of Sub Inspector of Food & Civil Supplies are to be filled by promotion from amongst such ministerial staff. It is submitted that all the petitioners, who were serving as ministerial staff, Page No.# 5/19 meet the eligibility criteria to be considered for promotion to the next higher post of Sub Inspector in the 25% vacancies reserved for the ministerial staff. Being eligible for promotion, the applications of petitioner nos. 1 and 2 were duly forwarded by the Joint Director of Food, Civil Supplies and Consumer Affairs, Kokrajhar, under cover of a letter dated 23.12.2021, to the Director of Food, Civil Supplies and Consumer Affairs, Assam. Similarly, the Deputy Director of Food, Civil Supplies & Consumer Affairs, Udalguri, by letter dated 27.12.2021, forwarded the application of petitioner no. 3. All these applications were accompanied by the original service books, ACRs for the period from 01.04.2016 to 31.03.2021, and other relevant documents. 7. The petitioners, however, were not found suitable for promotion by the Selection Committee. Another candidate, namely Atiful Rahman, whose case was also not considered by the Selection Committee in its meeting dated 26.09.2019 on the grounds of a three-month break in service, subsequently approached this Court by filing WP(C) No. 5158/2021. The selection committee did not consider the relaxation sought by him due to this break in service. 8. The said writ petition was finally heard and disposed of by a Judgment and Order dated 31.03.2022. The Co-ordinate Bench disposed of the writ petition and held that the Assam (Food and Civil Supplies) Service Rules, 1970, cannot prevent the petitioner therein namely said Atiful Rahman from being considered for promotion to the post of Sub Inspector. This is because the requirement of five years of Page No.# 6/19 continuous service in the Food, Civil Supplies & Consumer Affairs Department applies only to departmental officers and not to employees working under the amalgamated establishments of the Deputy Commissioners of the District. 9. The Co-ordinate Bench held that the 1970 Rules pertain to members of the Assam Food and Civil Supplies Department and, therefore, cannot be applied to the service conditions of employees under the amalgamated establishment of the Deputy Commissioners. It was further held that the establishment of the Deputy Commissioner falls under the General Administration Department, not the Food, Civil Supplies, and Consumer Affairs Department. Consequently, the minutes of the selection committee meeting dated 26.09.2019, as it pertains to the said petitioner, and the letter dated 02.08.2020 were set aside. The respondents were instructed to convene a review DPC to reconsider the petitioner’s case for promotion to the post of Sub Inspector. 10. Pursuant to the Judgment of the Co-ordinate Bench, respondent no. 4, by the W.T. Message dated 20.10.2022 bearing Memo No. DS 100/2018/147-A, cancelled the Letter dated 20.12.2021 bearing Memo No. DSE/100/2018/142, which had previously recommended the eligible applicants, including the petitioners. The W.T. Message refers to the Judgment and Order dated 31.03.2022 passed in WP(C) No. 5158/2021. Page No.# 7/19 It is submitted by the learned Senior Counsel for the petitioner that the W.T. Message dated 20.10.2022 and the action of the respondent authorities in cancelling the recommendations of eligible candidates, including those of the petitioners, for promotion to the post of Sub Inspector of Food, Civil Supplies & Consumer Affairs are arbitrary and unjustified. Therefore, the petitioners have assailed the same in the present proceedings. 11. It is submitted that the petitioners are governed by the Assam (Food and Civil Supplies) Service Rules, 1970. The petitioners have completed the requisite service and, therefore, are eligible to be considered for promotion to the next higher post of Sub Inspector of Food & Civil Supplies. There are sufficient posts available to allocate 25% of the vacancies to be filled from amongst the eligible candidates from the ministerial staff, such as the present petitioners. It is urged that the petitioners have a legitimate expectation of being considered for promotion to the next higher post. Given their eligibility, the process of selection for promotion should not have been cancelled by the respondent authorities. 12. The learned Senior Counsel further submits that the affidavit filed by respondent no. 3 clearly states that the cases of the petitioners are similar to that of said Sri Atiful Rahman. The affidavit also confirms that the petitioners are governed by the Assam (Food and Civil Supplies) Service Rules, 1970. Additionally, it is submitted that a review petition was filed against the Judgment and Order dated 31.03.2022, Page No.# 8/19 passed in WP(C) No. 5158/2021, and the same was dismissed on 07.03.2024. The Government is contemplating filing an appeal against the said order. 13. The learned Senior Counsel further submits that subsequent to the filing of the affidavit-in-opposition, an additional affidavit was filed by respondent no. 3 on his behalf as well as on behalf of respondent no.4. In the said additional affidavit, it is averred that all three writ petitioners were appointed by the Council Head of the Department, Food, Civil Supplies & Consumer Affairs, Kokrajhar. It is further stated that the Assam (Food and Civil Supplies) Service Rules, 1970, pertain to members of the Food & Civil Supplies Department and, as such, do not cover the service conditions of employees working under the amalgamated establishment of the Deputy Commissioner. Consequently, the cases of the petitioners cannot be considered for promotion to the next higher post of Sub Inspector under the Assam (Food and Civil Supplies) Service Rules, 1970. 14. In light of this, the matter was referred to the Appropriate Authority in the Government for its views. Under such circumstances, the present writ petition has been filed, praying for a direction to the respondent authorities to set aside and quash the W.T. Message dated 20.10.2022 bearing Memo No. DS 100/2018/147-A issued by the Director, Food, Civil Supplies & Consumer Affairs. Alternatively, the petitioners seek a direction to the respondent authorities to reconsider the case of the petitioners for promotion to the next higher post and to Page No.# 9/19 hold a selection process for the promotion of the petitioners to the Cadre of Sub Inspector. 15. The respondent authorities have contested the case by filing an affidavit-in-opposition. It is noted that subsequently another affidavit has been filed by the respondent Department. 16. The learned counsel for the parties have been heard, and the pleadings available on record have been carefully perused. The case presented before this Court by the petitioners is that they were appointed and are currently serving as Junior Assistants in various district headquarters and sub-divisions under the Bodoland Territorial Council (BTC). Their recruitment was undertaken by the BTC Authorities through an Advertisement dated 05.03.2008. Pursuant to a communication dated 20.12.2021 received from the Director, Food, Civil Supplies & Consumer Affairs Department, Assam, addressed to all Principal Secretaries of Autonomous Councils, all DCs, and all SDOs, requesting for submission of names of eligible candidates for selection and promotion to the post of Sub Inspector of Food & Civil Supplies, the names of the three writ petitioners were duly furnished to the Competent Authority along with their ACRs, Service Books, and other relevant documents. It is worth mentioning that under Rule 11 of the Assam (Food and Civil Supplies) Service Rules, 1970, 25% of the vacancies for the post of Sub Inspector of Food & Civil Supplies are to be filled by promotion from the ministerial staff. Page No.# 10/19 17. There is no dispute that the petitioners, who are serving as Junior Assistant, are considered ministerial staff rendering services at their respective places of posting. Respondent no. 3 filed an affidavit dated 02.09.2024, in which there is a clear averment in Paragraph 4 that the cases of the petitioners are similar to that of WP(C) No.5158/2021 (Atiful Rahman Vs. State of Assam & Ors.). The affidavit also states that the petitioners' cases are governed by the same service Rules, particularly Rule 11. However, in light of the steps taken to file an appeal against the Judgment and Order dated 31.03.2022 passed in WP(C)/5158/2021 the department deemed it proper to await for the verdict in the proposed appeal. Subsequently, respondent no. 3, on his own and on behalf of respondent no. 4, filed an additional affidavit on 11.12.2024. In this affidavit, it is clearly stated that, in view of Paragraph 12 of the Judgment of the Co-ordinate Bench dated 31.03.2022 passed in WP(C) No.5158/2021 (Atiful Rahman Vs. State of Assam & Ors.), the earlier communication dated 20.12.2021 was cancelled by W.T. Message No. DS 100/2018/147-A dated 20.10.2022. The department also filed a review petition, which was dismissed. Following the dismissal of the review petition, the directions contained in the order dated 31.03.2022 in WP(C) No.5158/2021, directing the respondents to constitute a review DPC, were complied with, and the incumbent, Atiful Rahman, who was serving as a Junior Assistant in the Food & Civil Supplies Department in Bilasipara, was promoted to the next higher post of Sub Inspector. 18. The respondents attempted to present the case by asserting that, Page No.# 11/19 although the earlier affidavit stated that the petitioners' cases are similar to that of Atiful Rahman, the promotion granted to Atiful Rahman was in accordance with the directions of the High Court in the order dated 31.03.2022 passed in WP(C) No.5158/2021. It was further stated that a proposal for amending the Assam (Food and Civil Supplies) Service Rules, 1970 is currently in progress regarding the promotion of ministerial staff to the next higher post of Sub Inspector. This amendment would restrict the promotion to only those ministerial staffs appointed by the Commissioner of Food & Civil Supplies, Public Distribution and Consumer Affairs & Legal Metrology, Assam, and would exclude those appointed by the Council Head or the District Head. The learned Senior Government Advocate, Assam submits that the processes for amending the Rules are underway, and the views of various departments are being sought for. Therefore, it was submitted by the respondents that, under these circumstances, the process for promoting the petitioners and other similarly situated candidates, who are employed as ministerial staff under the district offices, has been cancelled. The learned Senior Government Advocate further argued that Rule 11, which provides for promotion to 25% of the vacancies from ministerial staff, must be interpreted as a quota reserved specifically for ministerial staff employed under the Commissionerate of the Department of Food & Civil Supplies. Ministerial staff working in the various districts, on the other hand, is governed by the Assam Ministerial District Establishment Service Rules, 1967, and their promotional avenues are adequately available under those Rules. Page No.# 12/19 19. Having considered the arguments made, the pleadings on record, and the Assam (Food and Civil Supplies) Service Rules, 1970, it is seen that the petitioners were appointed by the Council Head of Department, Food, Civil Supplies & Consumer Affairs, BTC, Kokrajhar, on 28.02.2011, and that Food & Civil Supplies is one of the transferred subjects to the Bodoland Territorial Council (BTC), constituted under the 6th Schedule of the Constitution of India. There are no separate Service Rules governing employees of departments transferred to the 6th Schedule councils, nor is there evidence to suggest that ministerial staff in the 6th Schedule areas are excluded from these Rules. The Assam (Food and Civil Supplies) Service Rules, 1970 do not distinguish between employees appointed in the Commissionerate and those in district establishments, and no amendment has been made to the Rules as on date. While the Government has the power to cancel the selection process for promotion such a decision must be supported by valid reasons. In this case, the respondents made contradictory submissions. On one hand, it is contended that the petitioners' cases are similar to that of Atiful Rahman in WP(C) No.5158/2021, but on the other hand, it is again contended that the judgment in that case, which held that the Assam (Food and Civil Supplies) Service Rules, 1970 do not apply to ministerial staff, meant the petitioners were not entitled to promotion under these Rules. Instead, it is contended that the Assam Ministerial District Establishment Service Rules, 1967 applies. Further, the respondents do not dispute that after the dismissal of their review petition against the judgment in WP(C) No.5158/2021, Atiful Rahman’s case was reviewed by the DPC, leading to his promotion to Sub Page No.# 13/19 Inspector. 20. It is needless to mention that the authorities have the power to supplement the Rules through an appropriate memorandum or notification until the Rules are duly amended through the proper procedure. 21. On perusal of the judgment and order dated 31.03.2022 passed in WP(C)/5158/2021, it is revealed that a Co-ordinate Bench, in Para 12, after noticing Rule 2(i), 3, and 11, held that employees working in the Deputy Commissioner’s establishment are not part of the Food & Civil Supplies and Consumer Affairs Department. The Co-ordinate Bench ruled that the Rules of 1970 pertain to the members of the Assam Food and Civil Supplies Department and, therefore, cannot govern the service conditions of employees in the amalgamated establishments of the Deputy Commissioner, which fall under the General Administration Department, not the Food & Civil Supplies and Consumer Affairs Department. The Bench further held that under the Rules of 1970, service is defined to include only 6 categories of posts as specified in Rule 3, and each of these categories forms an independent cadre, meaning that members of one category cannot claim appointment to another category according to the provisions of the Rules. This judgment has attained finality as the Review Petition preferred by the state stood rejected and no further Appeal has been rejected. In other words, the cadre defined under the 1970 Rules is limited to the 6 categories of posts mentioned in Rule 3, none of which Page No.# 14/19 include ministerial posts, such as Lower Division Assistant, Accounts Assistant, and Accounts Assistant Junior. Additionally, Rule 11(ii) of the Rules of 1970 provides for promotion to the posts of Sub-Inspector in the Food & Civil Supplies and Consumer Affairs Department, with 25% of the vacancies being filled from the ministerial cadre. 22. From a careful reading of the provisions of the Rules of 1970, it is clear that there is a clear provision for filling up 25% of the vacancies in the cadre of Sub-Inspector by way of promotion from the ministerial cadre. However, the classification of the service or the cadre, as reflected under Rule 2 and 3 of the Rules of 1970, do not include any ministerial cadre or posts such as Junior Assistant, Accounts Assistant and Accounts Assistant Junior. 23. Therefore, it is clear that the Rules of 1970, as they do not include any ministerial cadre, will not govern the services of persons employed in the ministerial cadre. In the State of Assam, as far as ministerial services are concerned, there are two sets of rules: the Assam Ministerial District Establishment Service Rules, 1967, and the Assam Directorate Establishment Ministerial Service Rules, 1973. The Rules of 1967 govern the recruitment and conditions of service of persons appointed to the Assam Ministerial District Establishment Services, which include posts specified under Rule 3, such as the post of Junior Assistant. The Rules of 1973, on the other hand, regulate the recruitment and conditions of service of persons appointed to ministerial services in various offices of the Heads of Department of Page No.# 15/19 the Government of Assam, with the posts included in the service, as defined under Rule 3, also encompassing the post of Junior Assistant, among others. 24. From the perusal of these two Rules, it is clear that posts falling under ministerial services are governed by two sets of service rules: the Rules of 1967, which pertain to ministerial staff employed in various districts, and the Rules of 1973, which govern the service conditions of ministerial staff employed under the directorate. The promotional avenues for ministerial staff governed by each of these Rules are also provided within the respective rules. What is not in dispute is that every office, whether in the district or the directorate, under various departments and the state government, where ministerial staff are employed, their service conditions are governed by either of these two Rules, depending on the Heads of department under which they are recruited. 25. Irrespective of the departments in which these ministerial staffs are employed or the places where they render their service, their service conditions are governed by either of these two sets of Rules depending on whether they render this services render the Directorate or the District Heads. Insofar as the Department of Food & Civil Supplies and Consumer Affairs is concerned, it is not in dispute before this Court that the Rules of 1970 are the only set of service Rules governing the service conditions of employees employed under the said department. It is also not in dispute that the Rules of 1970 have Page No.# 16/19 no provision that governs the service conditions of ministerial staff employed under the said department. However, what is clear from the Rules of 1970 is that under Rule 11, there is a specific provision for filling up the post of Sub-Inspectors up to 25% from the ministerial staff employed in the Office of the Director, as well as the offices of the District and Sub-divisions of the Food & Civil Supplies and Consumer Affairs Department. Therefore, it is clear from the perusal of these Rules that although the Rules of 1970 do not en-cadre any ministerial posts, it does provide an avenue for ministerial staff to be considered for promotion to 25% of the posts of Sub-Inspector from the ministerial cadre employed at the Directorate, the District, and the Sub-divisional offices. In conclusion, while the service conditions of ministerial staff are governed by the Rules of 1967 or the Rules of 1973, the Rules of 1970 nonetheless provide a source for recruitment to the posts of Sub-Inspector by promotion from the ministerial cadre for 25% of the vacancies in that cadre. 26. Therefore, the submissions of the government counsel that the ministerial staffs are governed by the Rules of 1967 and/or by the Rules of 1973, and therefore have any claim for promotion under the Rules of 1970, are fallacious and cannot be accepted. The Rules of 1970 do not require any interpretation, as it is clear that one of the sources of recruitment to the cadre of Sub-Inspector in the Food & Civil Supplies and Consumer Affairs Department is by way of promotion, up to 25% of the vacancies, from the ministerial staff employed in various offices of the Directorate, District, and Sub- Page No.# 17/19 Divisions. Therefore, in light of the avenues provided under the Rules of 1970 for the recruitment of ministerial staff, it would be incorrect to assert that only the promotional avenues under the Rules of 1967 and 1973 are available to the ministerial staff and that they have no avenues for promotion under the Rules of 1970, as has been sought to be projected by the respondents. This, in the view of the Court, is a wrong interpretation of the Rules of 1970, particularly Rule 11 of the Rules of 1970. Moreover, as discussed above, this view has already been held by the Co-ordinate Bench in the judgment and order dated 31.03.2022 passed in WP(C)/5158/2021, and the review petition filed by the respondents against the same judgment and order was dismissed. As of now, there is no dispute that no further appeal has been preferred by the respondents, and therefore, the judgment and order dated 31.03.2022 passed in WP(C)/5158/2021 has attained finality and is binding on the respondents. 27. Where the statute provides avenues for promotion, the same cannot be curtailed on the pretext of impending amendments sought to be made to the Rules of 1970. As of today, the Rules of 1970, more particularly Rule 11 thereof, have not been amended, and under the said Rules, the petitioners have made out their claim for being considered for promotion to the post of Sub-Inspector, by way of promotion, with respect to 25% of the vacancies. Under such circumstances, the departments must consider the claims of the petitioners and other similarly situated persons employed as ministerial staff and permit them to submit their candidatures through the proper Page No.# 18/19 channel when the process for promotion to the post of Sub-Inspector is initiated by the department under Rule 11 of the Rules of 1970. 28. Having said that, it is also noticed that the petitioners' cases were considered by the Departmental Promotion Committees, and by the minutes of the meeting held on 26.09.2016, the petitioners' cases were rejected on the ground that “all ACRs were recorded and reviewed and accepted by the Joint Director in a consolidated manner and not on a year-to-year basis.” The said minutes also rejected the case of one Atiful Rahman, who had assailed the said rejection before this Court in WP(C)/5158/2021, and which came to be allowed by order dated 31.03.2022, directing the respondents to consider his case for promotion. A perusal of the minutes of the D.P.C. reveals that the rejection of promotion for Atiful Rahman and the writ petitioners are based on separate grounds. 29. In addition to the above, the said minutes and/or the findings of the D.P.C. have not been assisted in the present writ petition. The prayer made in the writ petition is to consider the petitioners' request for promotion and set aside the WT message dated 20.10.2022, whereby the selection process was cancelled. The prayer in the writ petition, therefore, is moulded by directing the respondents to initiate a fresh process of recruitment to the posts of Sub-Inspector and fill up the posts up to 25% of the vacancies by promotion from the ministerial staff employed in the Directorate, District, and Sub-Divisional offices. The petitioners, being employed under the B.T.C. Council Head as Page No.# 19/19 ministerial staff and being governed by the Rules of 1967, as submitted by the respondent counsel, are entitled to be considered for promotion, subject to the satisfaction of all norms and requirements. The respondent authorities cannot withhold the promotion process for the posts of Sub-Inspector solely on the ground that proposed amendments to the Rules of 1970 have been sought and are currently under consideration by the Government. 30. The department is duty-bound to provide sufficient avenues for promotion to its employees, in the manner provided under the Rules, in order to avoid stagnation and frustration amongst the employees. 31. The writ petition is therefore allowed in terms of the above and disposed of. JUDGE Comparing Assistant