Gauhati High Court
Ranjit Kumar Nath vs The State Of Assam And 4 Ors on 20 February, 2020
Author: Songkhupchung Serto
Bench: Songkhupchung Serto
Page No.# 1/7
GAHC010168372016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 451/2016
1:RANJIT KUMAR NATH
S/O LT. LABARAM NATH R/O G.C. LANE, GALIAHATI UNDER BARPETA
POLICE STATION, IN THE DIST. OF BARPETA, ASSAM-781301.
VERSUS
1:THE STATE OF ASSAM AND 4 ORS
REP. BY THE SECRETARY, JUDICIAL DEPARTMENT, GOVT. OF ASSAM,
DISPUR, GUWAHATI-6.
2:DISTRICT and SESSIONS JUDGE
BARPETA
ASSAM- 781301
CHAIRMAN
SELECTION COMMITTEE FOR THE PROMOTION POST OF UDA
OFFICE OF DISTRICT LEGAL SERVICES AUTHORITY
BARPETA
ASSAM-781301.
3:ADDITIONAL DISTRICT and SESSIONS JUDGE FTC
BARPETA
ASSAM- 781301. MEMBER
SELECTION COMMITTEE FOR THE PROMOTIONAL POST OF UDA
OFFICE OF DISTRICT LEGAL SERVICES AUTHORITY
BARPETA
ASSAM- 781301.
4:CIVIL JUDGE SENIOR DIVISION
BARPETA
ASSAM- 78 1301. MEMBER
SELECTION COMMITTEE FOR THE PROMOTIONAL POST OF UDA
OFFICE OF DISTRICT LEGAL SERVICES AUTHORITY
BARPETA
ASSAM- 781301.
Page No.# 2/7
5:MEMBER SECRETARY
BARPETA
ASSAM- 781301
MEMBER
SELECTION COMMITTEE FOR THE PROMOTIONAL POST OF UDA
OFFICE OF DISTRICT LEGAL SERVICES AUTHORITY
BARPETA
ASSAM- 781301.
6:SRI KALYAN JYOTI DAS
S/O- SRI NILAKANTA DAS
R/O METUA KUCHI
BARPETA MANDIR ROAD
P.S. and P.O.- BARPETA
DIST.- BARPETA
PIN- 781301
ASSAM
Advocate for the Petitioner : MR.K CHOUDHURY
Advocate for the Respondent : MR.B C DASR-5
BEFORE
HONOURABLE MR JUSTICE SONGKHUPCHUNG SERTO
ORDER
Date : 20-02-2020 Heard Mr. K. Sarma, learned counsel for the petitioner and also heard Mr. B.C Das, learned counsel for the respondent No.5 and Mr. D. Doley, learned Government Advocate appearing for the respondent No.1.
2. On 29.06.2015, Office of the District Legal Services Authority, Barpeta, issued an advertisement for filling up 1(one) post of Upper Division Assistant along with the eligibility terms and conditions and one of them was that the candidate must have rendered 7 years of service as Lower Division Assistant in any Government Institution as on 30.01.2016. The petitioner submitted his application for the same but his application was rejected on the Page No.# 3/7 ground that he is only Copyist working in the establishment of District & Sessions Judge, Barpeta. However, the applications of the other two persons were also rejected. Since no eligible candidate was available, the committee decided to issue another advertisement. Accordingly, another advertisement was issued on 01.12.2015 for the same post under the same terms and conditions. This time also no eligible candidate applied for the post, therefore, the committee once again decided to issue another advertisement and accordingly, on 21.01.2016 fresh advertisement was issued but with the same terms and conditions. Being apprehensive that his candidature may not be accepted again the petitioner has filed the present writ petition praying for quashing and setting aside of the Resolution dated 30.11.2015 of the selection committee which rejected his application and also praying for appropriate order or direction directing the respondents to accept his application for facing the recruitment process as per the last advertisement.
3. The leaned counsel for the petitioner submitted that in 2014, a draft service rule for Assam District Court Employees Service was framed but as per the Rule-1(ii) of the same it was to come into force only on the date of publication in the Official Gazette. The learned counsel further submitted that at Rule-13 of that rule, it was also provided that the post of Copyist and Typist shall be re-designated as Junior Administrative Assistant which is equivalent to LDA. However, the Rules have not been published till date.
The learned counsel also submitted that though the rules have not been published, this High Court, vide Circular dated 04.10.2019, informed all District & Sessions Judges, Chief Judicial Magistrates, Presiding Officers of all Tribunals and Special Courts that for the purpose of promotion to UDA all Copyist/Typist shall be treated as equivalent to LDA since selection was made through a common recruitment process requiring same qualification and from the Page No.# 4/7 common select list, appointments were made either to LDA or Copyist/Typist. Therefore, the petitioner who was appointed as Copyist vide order dated 26.02.2007, and has completed 7 years of service at the time the advertisement was issued ought to be eligible for the post of UDA.
4. Mr. B.C Das, learned counsel appearing for the District Legal Services Authority, Barpeta, on the other hand submitted that vide order dated 01.12.2015, the Deputy Secretary to the Government of Assam, Legislative Department informed all the District & Sessions Judge- cum-Chairman of District Legal Services Authorities that Assam District & Sessions Judge Establishment (Ministerial) Services Rules, 1987 shall be applicable for the recruitment to the post of LDAs/UDAs sanctioned for the District Legal Services Authorities. Therefore, the recruitment to UDA in the Office of District Legal Services Authority, Barpeta has to be in terms of the Rules of 1987 stated above and not as per the circular issued by the High Court.
The learned counsel further submitted that Legal Services Authority is not under High Court but it is an authority under an Act, therefore, it cannot be compelled to follow the circular issued by the High Court.
5. I have considered the submissions of both the learned counsels in the light of the documents placed before me. For better appreciation and easy reference, the contents of the advertisement dated 21.01.2016, is reproduced here below;
"OFFICE OF THE DISTRICT LEGAL SERVICES AUTHORITY :: BARPETA FRESH ADVERTISEMENT Dated: 21-01-2016 Applications are invited through standard form from the citizen of India, as defined under Articles 5 and 6 of the Constitution of India, for filling up a promotional post of Upper Division Assistant in the office of the undersigned.
Page No.# 5/7
Sl. Name of the post No. of Scale of pay
No. posts
01 Upper Division 01 PB2 Rs. 5,200/-
Assistant to Rs. 20,200/-
Grade Pay Rs
2900/-
1. The candidate must have rendered more than 7 years of service as Lower Division Assistant in any Govt. Institution as on 31-01-2016.
2. Preference will be given to the candidates who possess the experience in the field of legal side.
3. The application should be submitted through proper channel.
4. The candidate should have knowledge in computer.
5. Applications must accompany attested copies of all relevant document/testimonials in support of their educational and other qualifications including experience.
6. One self-addressed envelope of 5 cm x 11 cm affixing postal stamp of Rs. 5(five) only is to be enclosed with the application.
7. Incomplete applications will be rejected without assigning any reason. No application will be entertained after the date fixed 01-02-2016.
8. Candidates in service should apply through proper channel with copy of Service Book and NOC from his/her employer.
9. Date of interview/test will be informed to the candidates later on.
10. No. TA/DA will be paid for appearing in the interview/test.
11. Application should reach the undersigned on or before 01-02-2016.
Sd/- Dist. & Sessions Judge-cum-Chairman, DLSA, Barpeta".
6. On careful perusal of the above advertisement, specially the terms and condition No.1 a candidate to be eligible for appointment to the post of UDA in the Office of District Legal Page No.# 6/7 Services Authority he or she must have rendered more than 7 years of service as LDA in any Government institution as on 31.01.2016. Rule-4 of the Assam District & Sessions Judges Establishment (Ministerial) Service Rules, 1987 provides as follows;
"(4) Upper Division Assistant- By promotion on the basis of seniority-cum-merit from amongst the Lower Division Assistants of the District and Sessions Judges Establishment who have rendered not less than 5 years on the 1 st day of the year in which the promotion is made."
The above provision of the Rules of 1987 which governs recruitment to the post of UDA sanctioned for the Legal Services Authority as per the circular issued by the Deputy Secretary to the Government of Assam, Legislative Department dated 01.12.2015, a person to be eligible for promotion/appointment to the post of UDA should have rendered not less than 5 years of services as LDA in the District & Sessions Judges Establishment. Therefore, even if the Rules of 1987 has to be followed as per the circular dated 01.12.2015 of the Deputy Secretary, Government of Assam, Legislative Department what is required for an intending candidate applying for the post of UDA in the Office of the District Legal Services Authority is that he or she should have served as Lower Assistant Grade for 5 years. In the circular issued by the Registrar (Admin)-cum-in-charge, Centralized Recruitment, Gauhati High Court, dated 04.10.2019, Copyist/Typist are to be treated equivalent to LDA for the purpose of promotion. Once the petitioner's post which is Copyist is taken as equivalent to LDA as per the circular of the Registrar since he has already completed more than 5 years of service in that grade (as required under the Assam District & Sessions Judges Establishment (Ministerial) Service Rules, 1987) there is no reason why he should not be eligible for applying for the post of UDA in the Office of District Legal Services Authority, Barpeta. Therefore, this writ petition is disposed of with a direction to the Chairman of District Legal Page No.# 7/7 Services Authority, Barpeta to consider the application of the petitioner as and when submitted, and if found to have served for more than 5 years his application should be accepted subject to fulfillment of other eligibility criterias if there is any.
JUDGE Comparing Assistant