Gauhati High Court
Page No.# 1/28 vs The Union Of India And 22 Ors on 1 December, 2021
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/28
GAHC010225232014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1899/2014
MRS. ANOWARA BEGUM and 8 ORS
W/O ABU NASHER AMINUL HOQUE WARD NO. 2, P.O. MANGALDAI DIST.
DARRANG, ASSAM.
2: MRS. BILIMA BORGOHAIN
W/O LT. GHANA KANTA BORGOHAIN VILL- BORHAM GOHAIN GAON
P.O. MACHKHOWA DIST. DHEMAJI
ASSAM.
3: MRS. RAJESWARI DEVI
W/O SRI GANAPATI DEKA WARD NO. 7
P.O. MANGALDAI DIST. DARRANG
ASSAM.
4: MRS. BASANTI DUTTA BARUAH
W/O SRI MOHIDHAR DUTTA WARD NO. 41
GITA NAGAR
GUWAHATI-24
DIST. KAMRUP
ASSAM.
5: SMTI. BHAGYABATI DEKA
W/O HOLIRAM KALITA VILL and P.O. PANITEMA DIST. KAMRUP
ASSAM.
6: SMTI. ANJONA BORDOLOI
W/O DULAL CHANDRA BORA WARD NO. 9
NA- KHULA P.O. JAGIROAD
DIST. MORIGAON
ASSAM.
7: MRS. KALYANI CHETIA
W/O SRI RATAN RATOWARI VILL- RUPNAGAR
P.O. C.R. BUILDING DIST. DIBRUGARH
Page No.# 2/28
ASSAM.
8: MRS. KRISHNA HAZARIKA
D/O LT. KRISHIRAM HAZORIKA R/O HOUSE NO. 56
LANE NAMGHAR PATH
P.O. PANJABARI DIST. KAMRUP
ASSAM
GUWAHATI- 37.
9: SMTI. PRANITA TALUKDAR
W/O MUKUT SINGHA CHUTIA WARD- CHUNSALI BILPAR P.O. NOONMATI
GUWAHATI-20
DIST. KAMRUP M
ASSAM
VERSUS
THE UNION OF INDIA and 22 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HUMAN
RESOURCE DEVELOPMENT DEPARTMENT OF WOMEN AND CHILD
DEVELOPMENT CD SECTION SHASTRI BHAVAN, NEW DELHI- 110001.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
SOCIAL WELFARE DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE DIRECTOR
DEPARTMENT OF SOCIAL WELFARE
ASSAM
UZAN BAZAR
GUWAHATI-1.
4:SRI NITUL GOSWAMI
CHILD DEVELOPMENT PROJECT OFFICER
LAKWA ICDS PROJECT
HAILAKANDI
P.O. LAKWA DIST. SIVASAGAR
ASSAM
PIN- 785686.
5:SRI BUDHIN BORA
CHILD DEVELOPMENT PROJECT OFFICER
KATLICHARA ICDS PROJECT
P.O. KATLICHARA DIST. HAILAKANDI
Page No.# 3/28
ASSAM
PIN- 788161.
6:SRI PRADIP CHANDRA KALITA
CHILD DEVELOPMENT PROJECT OFFICER
RAMKRISHNA NAGAR ICDS PROJECT
P.O. RAMKRISHNA NAGAR
DIST. KARIMGANJ
ASSAM
PN- 788166.
7:SRI NARAYAN CHANDRA DAS
CHILD DEVELOPMENT PROJECT OFFICER
KACHUGAON ICDS PROJECT
P.O. KACHUGAON DIST. KOKRAJHAR
ASSAM
8:SMTI. RANU BARUAH
CHILD DEVELOPMENT PROJECT OFFICER
BARBARUAH ICDS PROJECT
P.O. BARBARUAH
DIST. KARBI ANGLONG
ASSAM
PIN- 786001.
9:SRI TARUN HANDIQUE
CHILD DEVELOPMENT PROJECT OFFICER
SAPEKHATI ICDS PROJECT
P.O. SAPEKHATI DIST. KARBI ANGLONG
ASSAM
PIN- 785692.
10:SRI SAJAL DAS
CHILD DEVELOPMENT PROJECT OFFICER
NORTH KARIMGANJ ICDS PROJECT
P.O. NORTH KARIMGANJ
DIST. KARIMGANJ
ASSAM
PIN- 788701.
11:SRI CHITTARANJAN DAS
CHILD DEVELOPMENT PROJECT OFFICER
CHAPOR SALKOCHA ICDS PROJECT
P.O. CHAPOR SALKOCHA DIST. DHUBRI
ASSAM.
12:SMTI. DAMAYANTI TALUKDAR
CHILD DEVELOPMENT PROJECT OFFICER
Page No.# 4/28
JALESWAR ICDS PROJECT
P.O. JALESWAR DIST. GOALPARA
ASSAM
13:PANKAJ KUMAR BORA
CHILD DEVELOPMENT PROJECT OFFICER
TINGKHONG ICDS PROJECT
P.O. TINGKHONG DIST. DIBRUGARH
ASSAM.
14:SRI KANAK DEKA
CHILD DEVELOPMENT PROJECT OFFICER
SOUTH HAILAKANDI ICDS PROJECT
P.O. SOUTH HAILAKANDI DIST. HAILAKANDI
ASSAM. PIN- 788163.
15:SRI ABDUL RAFIQUE CHOUDHURY
CHILD DEVELOPMENT PROJECT OFFICER
UDARBOND ICDS PROJECT
P.O. UDARBOND DIST. CACHAR
ASSAM
PIN- 788030
16:SRI JYOTI PRASAD SARMA
CHILD DEVELOPMENT PROJECT OFFICER
MACHKHOWA ICDS PROJECT
P.O. MACHKHOWA DIST. DHEMAJI
ASSAM
PIN- 787058.
17:SRI MOHENDRA MOHON ADHIKARI
CHILD DEVELOPMENT PROJECT OFFICER
SONAI ICDS PROJECT
PO. SONAI DIST. CACHAR
ASSAM
PIN- 788119.
18:SRI MOHESWAR BORO
CHILD DEVELOPMENT PROJECT OFFICER
BARHAMPUR ICDS PROJECT
P.O. BORHAMPUR DIST. NAGAON
ASSAM.
19:SRI NIRANJAN SAIKIA
CHILD DEVELOPMENT PROJECT OFFICER
UJANI MAJULI ICDS PROJECT P.O. UJANI MAJULI DIST. JORHAT
ASSAM
Page No.# 5/28
PIN- 785105.
20:SRI NAGENDRA TALUKDAR
CHILD DEVELOPMENT PROJECT OFFICER
BADARPUR ICDS PROJECT
P.O. BADARPUR DIST. KARIMGANJ
ASSAM
PIN- 788806
21:SRI RAMAKANTA HALOI
CHILD DEVELOPMENT PROJECT OFFICER
SOUTH KARIMGANJ ICDS PROJECT
P.O. SOUTH KARIMGANJ DIST. KARIMGANJ
ASSAM
PIN- 788711.
22:SRI TEZENDRA BARUAH
CHILD DEVELOPMENT PROJECT OFFICER
PANITOLA ICDS PROJECT
P.O. PANITOLA DIST. DIBRUGARH
ASSAM
PIN- 786184.
23:SRI DIMBESWAR MAHANTA
CHILD DEVELOPMENT PROJECT OFFICER
JAMADHARHAT ICDS PROJECT
P.O. JAMADHARHAT DIST. DHUBRI
ASSAM.
24:ALL ASSAM SOCIAL WELFARE STATISTICAL EMPLOYEES
ASSOCIATION
HOUSE NO .4
BYLANE NO.4
NIRIBILI PATH
PANJABARI ROAD
SIXMILE GUWAHATI-22
DISTRICT KAMRUP(M)
ASSAM
REPRESENTED BY
25:RAIZAUDDIN AHMED
PRESIDENT
ALL ASSAM SOCIAL WELFARE STATISTICAL EMPLOYEES ASSOCIATION
S/O LATE ABDUL AZIZ
R/O HOUSE NO. 4
NIRIBILI PATH
PANJABARI ROAD
Page No.# 6/28
SIXMILE
P.O.-KHANAPARA
GUWAHATI-22
DISTRICT-KAMRUP(M)
ASSAM.
26:BINOD CHETRI
SECRETARY
ALL ASSAM SOCIAL WELFARE STATISTICAL EMPLOYEES ASSOCIATION
S/O D.B.CHETRI
R/O BAGHARBARI
PANJABARI
P.O.-PANJABARI
SIXMILE
P.O.-GUWAHATI-37
DISTRICT-KAMRUP(M)
ASSAM.
27:KAMAL KR. DAS
MEMBER
ALL ASSAM SOCIAL WELFARE STATISTICAL EMPLOYEES ASSOCIATION
S/O LATE GOLAP CH. DAS
R/O GANDHI BASTI
P.O.-SILPUKHURI
GUWAHATI-03
DISTRICT-KAMRUP(M)
ASSAM
28:MD. ABDUL JALIL
MEMBER
ALL ASSAM SOCIAL WELFARE STATISTICAL EMPLOYEES ASSOCIATION
S/O LATE AMIR ALI
R/O HOUSE NO 19
SUNDERBAN NAGAR
SOUTH NOTBOMA HATIGAON
P.O.- HATIGAON
GUWAHATI-38
DISTRICT-KAMRUP(M)
ASSA
Advocate for the Petitioner : MS.D GHOSH
Advocate for the Respondent : MR.B SINHA
Page No.# 7/28
WP(C)/23/2014
MRS. ANOWARA BEGUM and 4 ORS
W/O ABU NASHER AMINUL HOQUE
W/NO.2
P.O. MANGALDAI
DIST- DARRANG
ASSAM
2: BILIMA BORGOHAIN
W/O LT. GHANA KANTA BORGOHAIN
VILL. BORHAM GOHAIN GOAN
P.O. MACHKHOWA
DIST- DHEMAJI
ASSAM
3: RAJESWARI DEVI
W/O SRI GANAPATI DEKA
W/NO.7
P.O. MANGALDAI
DIST- DARRANG
ASSAM
4: BASANTI DUTTA BARUAH
W/O SRI MOHIDHAR DUTTA
W/NO.41
GITA NAGAR
GHY-24
DIST- KAMRUP
ASSAM
5: KRISHNA HAZARIKA
D/O LT. KRISHIRAM HAZORIKA
R/O H/NO.56
LANE NAMGHAR PATH
P.O. PANJABARI
DIST- KAMRUP
ASSAM
GHY-37
VERSUS
THE UNION OF INDIA and 2 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF HUMAN RESOURCE DEVELOPMENT DEPARTMENT OF
Page No.# 8/28
WOMEN AND CHILD DEVELOPMENT CD SECTION
SHASTRI BHAWAN
NEW DELHI-01
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
SOCIAL WELFARE DEPARTMENT
DISPUR
GHY-6
3:THE DIRECTOR
DEPARTMENT OF SOCIAL WELFARE
ASSAM
UZAN BAZAR
GHY-1
------------
Advocate for : MS.M BARMAN
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS
WP(C)/3848/2021
NITUMONI DEVI AND 25 ORS.
C/O. MRIDUL ADHIKARY
HOUSE NO.39
VILLAGE AND P.O. SAUKUCHI
DISTRICT- KAMRUP (METRO)
ASSAM. PIN- 781034.
2: MRS. JUNTI HAZARIKA
C/O. BAKUL HAZARIKA
HAIBARGAON
P.O. AND DISTRICT- NAGAON
ASSAM. PIN.782002.
3: MRS. PRIYAMA BRAHMA
C/O. LATE PRANAB BARGAYARY
HOUSE NO.107
BELTOLA BAZAR
GUWAHATI-871028.
4: MRS. RUPALI HAZARIKA
C/O. KUMUD BAISHYA
BHOOT NATH PATH
SANTIPUR
GUWAHATI-9
Page No.# 9/28
DISTRICT - KAMRUP (METRO)
ASSAM.
5: MRS. BIVA RANI DIHINGIA
C/O. MAHENDRA NATH DIHINGIA
HOUSE NO.56
JAWAHAR NAGAR
OPPOSITE AASC
KHANAPARA
GHY -22
DISTRICT - KAMRUP
ASSAM.
6: MRS. BIVARANI MEDHI
W/O. MUKUTA RAJA
R/O. L.K. ROAD
NAGAON
P.O. HAIBHARGAON
DISTRICT - NAGAON
ASSAM. PIN.782002
7: MRS. DIPANJALI DIHINGIA
C/O. UPTAL CHANDRA GAGOI
PEARL ENCLAVE
JATIYA SEWALI PATH
BELTOLA
(NEAR AMARNATH MANDIR)
GHY-28
DISTRICT- KAMRUP (M)
ASSAM.
8: MRS. PRANITA TALUKDAR
W/O. MUKUT SINGHA CHUTIA
R/O. CHUNSALI
BILPAR
GUWAHATI-20.
9: SAYEDA SAJIDA PARBEEN
W/O. RASHIDUL RAHMAN
R/O. MUNICIPALITY GODOWN ROAD
P.O. AND DISTRICT. NAGAON
ASSSAM. PIN.782002.
10: HEMAPRABHA DAS
W/O. GOPAL DAS
R/O. GREEN ORCHID
Page No.# 10/28
SAIBABA MANDIR
RADHANAGAR
GUWAHATI (M)
ASSAM.
PIN- 781022.
11: MRS. RULIMONI SAIKIA
W/O. HEMANTA BARDALAI
R/O. VILLAGE - KALIBARIPATH
DMORUAKURI
P.O. ITACHALI
DISTRICT - NAGAON
ASSAM. PIN.782003
12: MRS. USHA DEVI
C/O. DINESH SARMA
NORTH GUWAHATI
GUWAHATI-30
DISTRICT - KAMRUP (METRO)
ASSAM.
13: MRS. BIBHA MALI
C/O. PALASH TALUKDAR
HOUSE NO.1
BYE LANE NO.9
DR. ZAKIR HUSSAIN ROAD
SARUMATARIA
GUWAHATI
DISTRICT - KAMRUP (M
ASSAM. PIN.781036.
14: MRS. JURI BARUAH
W/O. KALYAN BARUAH
GOTANAGAR
GOPALTHAN
GUWAHATI-11
DISTRICT - KAMRUP (METRO)
ASSAM.
15: MRS. BANALATA TALUKDAR
C/O. SAFIN AHMED
BHARALUMUKH
Page No.# 11/28
SANTIPUR
GUWAHATI-09
DISTRICT - KAMRUP (METRO)
ASSAM.
16: SMTI JHARNA DAS
C/O. P. K. MEHDI
HOUSE NO.24
BIRUBARI
GUWAHATI-16
DISTRICT- KAMRUP (M)
ASSAM.
17: MRS. BABITA DAS
C/O. UTPAL DAS
ARNAPURNA COMPLEX
BY LANE NO.2
RAJRAGH ROAD
CHANDAMARI
GUWAHATI -03
DISTRICT - KAMRUP
ASSAM.
18: MRS. SONTI BAISHYA
W/O. AMARJIT DAS
HOUSE NO.16
HEMBARUA PATH
ZOO ROAD TINIALI
GHY-24
DISTRICT - KAMRUP (M)
ASSAM.
19: MRS. MAMATA GOGOI
W/O. PRADIP GOGOI
R/O. JAWAHARNAGAR HOUSEFED APARTMENT
TRIPURAROAD
BLOCK - G
NO.203
BELTOLA
GOWAHATI-29.
20: MRS. BABITA DAS
W/O. LATE BIVAB DAS
R/O. HAPPY VILLA
BOLORAM BORA ROAD
Page No.# 12/28
UZANBAZAR
P.O. LATASIL
GUWAHATI -01
KAMRUP (M)
ASSAM.
21: MRS. MANASHI BHUYAN
C/O. PRANAB KUMAR DEKA
HOUSE NO.4
MILAN NAGAR
AMBIKA NAGAR
GHY-24
DISTRICT - KAMRUP (M)
ASSAM.
22: MRS. DIPALI DAS
W/O. BHAGABAN HALOI
R/O. DISPUR
SARUMOTORIA
SBI COLONY
GUWAHATI-6
KAMRUP (M).
23: MRS. RESMIN SULTANA AHMED
W/O. ALTAMAS BAIG
ID
SWEET ENCLAVE
ANKUR PATH
BELTOLA
SURVEY
GUWAHATI-28.
24: MRS. BABITA MALAKAR
W/O. KAILASH CHANDRA DEKA
R/O. VILLAGE AND P.O. - PACHARIA
DISTRICT- KAMRUP
ASSAM. PIN. 781104.
25: MRS. SANGITA TANTIA
C/O. ZAKIR HUSSAIN SARKAR
HOUSE NO.42
MILONPUR
CHANDMARI
GUWAHATI-03
DISTRICT - KAMRUP (M)
ASSAM.
Page No.# 13/28
26: MRS. RUPALI BARMAN
W/O. MINTU DAS
R/O. PANDU SADILAPUR
GUWAHATI-12
DISTRICT- KAMRUP (M)
ASSAM.
VERSUS
THE UNION OF INDIA AND 2 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA
MINISTRY OF HUMAN RESOURCE DEVELOPMENT DEPARTMENT OF
WOMEN AND CHILD DEVELOPMENT (CD SECTION)
SHASTRI BHAVAN
NEW DELHI-110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
SOCIAL WELFARE DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE DIRECTOR
DEPARTMENT OF SOCIAL WELFARE
ASSAM
UZAN BAZAR
GUWAHATI-781001.
------------
Advocate for : MR. U K NAIR
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 2 ORS.
WP(C)/2635/2013
ALL ASSAM SUPERVISORS' ASSOCIATION ICDS
REGISTERED UNDER SOCIETY REGISTRATION ACT
1860
REGISTERED OFFICE AT BELTOLA
HOUSE NO. 107
GHY- 28
REP. BY THE GENERAL SECY.
SMTI. RAJESWARI DEVI
W/O- SRI GANAPATI DEKA
R/O- BARUAPARA
WARD NO. 7
Page No.# 14/28
MONGALDOI
P.O. and P.S.- MONGALDOI
DIST.- DARRANG
ASSAM.
VERSUS
THE UNION OF INDIA and 2 ORS
REP. BY THE SECY.
DEPTT. OF WOMEN AND CHILD DEVELOPMENT
MINISTRY OF HUMAN RESOURCE DEVELOPMENT
GOVT. OF INDIA
NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
SOCIAL WELFARE DEPTT.
DISPUR
GHY- 6.
3:THE DIRECTOR OF SOCIAL WELFARE DEPTT.
ASSAM
UZANBAZAR
GHY- 1.
4:NARAYAN DAS
S/O LT. BIGENDRA CH DAS R/O VILL- GURIHATI
P.O. and P.S. KHOIRABARI
DIST. UDALGURI
ASSAM.
5:MD RAIZUDDIN AHMED
S/O LT. ABDUL AZIZ
R/O HOUSE NO. 4
BYE-LANE NO.4
OPPOSITE TO HITESWAR SAIKIA COLLEGE
PANJABARI ROAD
SIX MILE
P.O. KHANAPARA
DIST. KAMRUP M
ASSAM.
6:MAHESWAR BORO
S/O LT. CHANDIRAM BORO R/O PANJABARI
P.O. KHANAPARA
DIST. KAMRUP M
ASSAM.
7:BINOD CHETRI
S/O D B CHETRI R/O BHAGARBARI
PANJABARI
GUWAHATI
Page No.# 15/28
DIST. KAMRUP
ASSAM.
8:ABDUL RAFIQUE CHOUDHURY
S/O LT. RASHID ALI CHOUDHURY R/O HOUSE NO. 36
M G ROAD
UZAN BAZAR
GHY-1.
------------
Advocate for : MR.S U AHMED
Advocate for : MR.K C ROYR-1 appearing for THE UNION OF INDIA and 2 ORS
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date : 01-12-2021 All these writ petitions raising a common cause of action were heard together and are disposed of by this common judgment and order.
2. The basic grievance in WP(C)/1899/2014 is with regard to an order dated 22.11.2013 by which 20 numbers of Statistical Assistants have been promoted to the rank of Child Development Project Officer (CDPO), which according to the petitioners, is beyond the prescribed quota of 4%. Further prayer has been made for issuance of a direction to revert back the 11 numbers of excess promotees who had joined the post of CDPO. In WP(C)/23/2014, the amendment in the year 2013 of the Service Orders of 1994 is questioned by which a quota has been fixed for promotion to the rank of CDPO from the rank of female Supervisors. While as per the petitioners, the quota should be 75 percent, the same has been reduced to 40 percent which is further sub-divided. WP(C)/2635/2013, makes a similar challenge whereby inclusion of Statistical Assistant in the feeder cadre for promotion to the rank of CDPO is questioned by the All Assam Supervisors' Association. WP(C)/3848/2021 pertains to a challenge on the Service Orders of 1994 as well as the Amendment Orders of 2013 fixing a certain quota for promotion to the rank of CDPO from the feeder cadre as well as for direct recruitment.
3. Heard Shri UK Nair, learned Senior Counsel assisted by Shri M Islam, learned counsel for the petitioners whereas the State is represented by Shri D Saikia, learned Advocate General, Assam, who is assisted by Shri D Nath, learned Senior Government Advocate. Shri I Ahmed, learned counsel appears Page No.# 16/28 for the private respondent nos. 24, 25, 26 and 27 in WP(C)/1899/2014. Also heard Shri B Sinha, learned counsel for respondent nos. 4, 8 to 21 and 23 in WP(C)/1899/2014 as well as Shri R Islam, learned counsel for the respondent nos. 4, 8, 9 and 10 in WP(C)/23/2014. The records produced by Shri D Nath, learned State Counsel have been carefully examined.
4. Shri Nair, learned Senior Counsel for the petitioners has submitted that the entire scheme of giving all kinds of benefits to the women and children of the country is a centrally sponsored one and amongst the various posts which are required to be manned to implement the Scheme, there is a post of CDPO for which one of the feeder cadres is the post of Supervisor to which all the petitioners belong. By referring to a communication dated 20.05.1986 issued by the Department of Women and Child Development, Ministry of Human Resource Department, the learned Senior Counsel submits that all the States and Union Territories were apprised of the decision taken by the Department, as per which, firstly, CDPOs and Supervisors of ICDS Projects would continue to be the employees of the respective State Governments / Union Territories; the Recruitment Rules to the post of CDPOs and Supervisors of ICDS Projects will continue to be framed by the State Government. Under Clause-1 (e) of the communication, the Recruitment Rules to be framed is required to provide for filling up 75% of the posts by promotion from female Supervisors of ICDS Projects and the remaining 25% by direct recruitment. Request was accordingly made to review the existing Recruitment Rules for the aforesaid posts of CDPO and Supervisor.
5. Attention of this Court has also been drawn to an affidavit filed by the Union Ministry in an erstwhile writ petition, being WP(C)/2635/2013 wherein it has been laid down that the ICDS Project is a centrally sponsored scheme wherein the Central Government is responsible for programme, planning and operating costs and the State Governments are responsible for supplementary nutrition and day-to- day programme and presentation, including recruitment of officers, service conditions etc. The Government of India was to provide 90% of the funds for administrative and operating costs, while 10% of the cost is to be borne by the States / UTs as per the norms for the year 2009-10. For supplementary nutrition, the Government of India bears expenditure on 50:50 basis. Shri Nair has tried to project that the State is the nodal agency of the Scheme which is of the Central Government.
6. Ultimately, the Govt. of Assam had issued an Executive Order dated 01.08.1994 and the same Page No.# 17/28 was published in the Assam Gazette on 10.01.1995 from which date, the orders had come into force. Clause-2 lays down the definition of various terms. As per Clause 2 (e), Government has been defined as Government of Assam and Service has been defined in Clause-2 (i) which means that Assam Social Welfare Service. In Clause-3, the various classes under the service have been stated and the post of CDPO is under Class II. Under Clause-5 (c), it has been stated that the post of CDPO and of equivalent Grade shall be filled up by direct recruitment through the Commission as per norms fixed jointly with "Ministry of Welfare", Government of India by the Social Welfare Department. In Annexure-1 to the said order, the post of CDPO had a cadre strength of 63 which was required to be filled up in ratio of 40% by promotion from the cadre of ACDPO / Assistant Superintendent, Home and allied cadre and 60% by direct recruitment.
7. The said Order had undergone an amendment vide an Executive Order dated 30.09.2013 and the relevant amendment in the instant case is regarding Clause-5. The mode of recruitment appearing in the original Clause-5 which was direct recruitment has been amended to include an avenue for promotion also whereby the ratio has also been stipulated as 60% to be filled up by direct recruitment through the APSC and 40% to be filled up by promotion from feeder grades which also included the post of Supervisors for the first time. The aforesaid ratio of 40% for promotion has been further divided to 34% from ACDPOs / Supervisors and after abolition of the post of ACDPOs from the cadre of Supervisor on seniority basis; 4% to be filled up from Statistical Assistants; 0.4% from the post of Assistant Superintendent, Home and allied cadres, 0.8% from Ministerial Staff of the Directorate and 0.8% from the post of Field Investigator. The qualifications required for appointment as CDPO have also been laid down in sub-clause (f).
8. The contention of the petitioners is that neither the Orders of 1994 nor the Amendment Orders of 2013 are sustainable in law inasmuch as, it is in gross violation of the communication dated 20.05.1986 issued by the Government of India. Shri Nair, learned Senior Counsel has submitted that the guidelines laid down in Clause (e) so far it relates to recruitment to the post of CDPOs have been blatantly violated. Whereas the said guidelines provide for filling up of the post of CDPOs at the ratio of 75% by promotion and 25% by direct recruitment, the Service Orders of 1994 does not prescribe for promotion in the substantive part and it is only in the annexure that the recruitment by promotion has been incorporated.
Page No.# 18/28
9. Shri Nair, learned Senior Counsel further submits that by the Amendment Orders of 2013 further prejudice has been caused to the petitioners by reducing the percentage of promotion from 40% to 34% for ACDPOs and Supervisors. It is contended that the communication from the Central Government dated 20.05.1986 which is the mainstay of the present writ petition prescribes for filling up of the post of CDPOs by promotion from female Supervisors up-to 75% of the posts and the remaining 25% by direct recruitment. It is accordingly submitted that both the Service Orders of 1994 as well as the Amendment Service Orders of 2013 are unsustainable in law. In this connection, attention of this Court has also been drawn to the affidavit-in-reply filed on 04.06.2015 wherein a reply under the Right to Information Act has been given by the Government of India, Ministry of Woman and Child Development wherein it has been categorically stated that no approval is sought by the States / UTs before framing of such recruitment Rules.
10. To sum up, the contentions made on behalf of the petitioners can be summarised in the following manner.
(i) The entire scheme under which the ICDS Project is functioning is a scheme formulated by the Central Government;
(ii) The State Government being a nodal agency to implement the said Scheme is under an obligation to follow the guidelines of the Central Government made in the communication dated 20.05.1986;
(iii) The legislative competence of the State Government is questioned while framing of the Service Orders and the Amendment Orders as no approval from the Central Government was taken;
(iv) While the communication dated 20.05.1986 of the Central Government directed for filling up of 75% posts by promotion from female Supervisors and remaining 25% by direct recruitment, the Service Orders of 1994, in its substantive part pertaining to recruitment did not prescribe for recruitment to the post of CDPO by promotion though in the annexure to the said Rules, 40% has been stated to be filled up by promotion;
(v) The amendment of the year 2013 causes further prejudice to the petitioners by reducing the promotional avenue from 40% to 34% so far as ACDPOs / Supervisors are Page No.# 19/28 concerned.
11. Per contra, Shri D Saikia, learned Advocate General, Assam representing the official respondents submits that the entire basis of filing the writ petition is fallacious. It is submitted that the mainstay of the writ petition is the communication dated 20.05.1986 issued by the Government of India. The said communication is neither a statute nor any regulation and does not possess any statutory colour. On the other hand, it is the State Government which is empowered under the law to enact such Regulation / Recruitment Rules by following the guidelines of the Ministry with suitable modification(s). Further, amongst the decisions conveyed vide the communication dated 20.05.1986, there is a decision that CDPOs and Supervisors of ICDS Projects will continue to be employees of the respective States / Union Territories. By referring to the Service Orders of 1994 published by the State Government, the learned Advocate General has submitted that while in the mode of recruitment to the post of CDPO, direct recruitment has been made the sole mode as per Clause 5 (c), in the annexure, it has, however, been laid down that 40% would be by promotion from the cadre of ACDPO / Assistant Superintendent of Home & Allied Cadre, who have rendered 8 years continuous service, 60% was to be by direct recruitment. The learned Advocate General therefore, submits that though there was no mandatory requirement to follow the guidelines containing the letter dated 20.05.1986 verbatim, the essence of the guidelines appears to have been taken into consideration while framing the aforesaid Service Orders of 1994. The said Orders had undergone the amendment which is published vide notification dated 30.09.2013. By drawing the attention of this Court to the said notification, Shri Saikia has submitted that the promotional mode of entering into the services of CDPO was introduced in the substantive portion of the order, namely, Clause 5. While 60% stipulated to be filled up by direct recruitment through APSC, 40% was to be filled up by promotion from various posts of equivalent cadre and the post of Supervisor has also been introduced as a feeder cadre. The said 40% has been further divided for various posts in the feeder cadre and 34% has been allotted to ACDPOs / Supervisors.
12. By reverting back to the Service Orders of 1994, more particularly, Clause 5 (c), Shri Saikia, learned Advocate General submits that the expression "as per norms" has to be understood to be the eligibility criteria / qualification required to be posted as CDPO and a bare look at the Service Orders of 1994 and the Amendment Orders of 2013 would reveal that such norms have indeed been prescribed and therefore, the contention of the petitioners that norm has to be understood to be in the context of the ratio of direct recruitment vis-a-vis promotion is fallacious. It is submitted that the incumbents Page No.# 20/28 being State Government servants, it is the State which will have the exclusive domain to deal with the subject. It is further submitted that since it is an undisputed position that the CDPOs and Supervisors of ICDS Projects would be employees of the respective State Governments / Union Territories and borne on the appropriate cadre, it would be within the realm of the State Government to lay down the service condition, including the recruitment Rules in question.
13. On behalf of the State, it is further contended that the Service Rules are notified under Article 162 of the Constitution of India and therefore, there cannot arise any question regarding the legality of the same on the ground of competency. On the other hand, the letter dated 20.05.1986 is a mere communication and not issued / published under Article 73 of the Constitution which relates to the executive power of the Union and is not even a Gazette notification.
14. Shri Saikia, the learned AG by referring to the additional-affidavit dated 28.04.2020 has further submitted that before the Service Orders of 1994 and the amendment dated 13.09.2013 were published, the same was done by following the due process of law. The consultation with / approval by all the prescribed authorities, including the APSC were duly made and in this regard, reference was made to Entry 41 of List-II of the Seventh Schedule of the Constitution of India. In support of his submissions, the learned Advocate General has placed reliance upon the following case laws:
i) Rai Sahib Ram Jawaya Kapur & Ors. Vs. State of Punjab, AIR 1955 SC 549;
ii) GJ Fernandez Vs. State of Mysore & Ors., MANU/SC/0050/1967;
iii) JR Raghupathy & Ors. Vs. State of A.P & ors., (1988) 4 SCC 364;
iv) Dr. Krushna Chandra Sahu & Ors. Vs. State of Orissa & Ors., (1995) 6 SCC 1;
v) Union of India Vs. Pushpa Rani & Ors, (2008) 9 SCC 242;
vi) State of West Bengal & Ors. Vs. Kaberi Khastagir & Ors., (2009) 3 SCC 68;
vii) Joint Action Committee of Air Line Pilots' Association of India & Ors. Vs. Page No.# 21/28 Director General of Civil Aviation & Ors., (2011) 5 SCC 435;
viii) Syndicate Bank Vs. Ramachandran Pillai & Ors., (2011) 15 SCC 398; and
ix) Gulf Goans Hotels Company Ltd. Vs. Union of India & Ors., (2014) 10 SCC 673.
15. The case of Rai Sahib Ram Jawaya Kapur (supra) has been cited to bring home the submission that to have a statutory colour of a notification issued by the Central Government, the same has to be done in exercise of powers under Article 73.
16. In the case of GJ Fernandez (supra), the Hon'ble Supreme Court has held that Article 162 of the Constitution of India empowers the State Government to make administrative Rules.
17. In the case of JR Raghupathy (supra), the Hon'ble Supreme Court was dealing with a similar matter which revolved around a guidelines framed by the State Government. It was held that unless such guidelines were issued in terms of the constitutional provision, those will not have any legal enforceability.
18. The Hon'ble Supreme Court in the case of Dr. Krushna Chandra Sahu (supra) laid the emphasis of exercise of powers under the proviso to Article 309 of the Constitution of India to make a notification statutory in nature and has also laid down that Rules can be supplemented by executive instructions either under Article 73 or Article 162 of the Constitution.
19. In the case of Pushpa Rani (supra), it has been laid down by the Hon'ble Supreme Court that all matters relating to a post would fall within the exclusive domain of the empire and the power of judicial review can be exercised only if it can be demonstrated that such action is contrary to any legal provision or is patently arbitrary or is vitiated due to mala fide.
20. In the case of Kaberi Khastagir (supra), an identical issue pertaining to the State of West Bengal came up for consideration before the Hon'ble Supreme Court. In the said case, the Hon'ble Calcutta High Court (both Single Bench and Division Bench) had held that the ICDS was a centrally sponsored Page No.# 22/28 scheme and accordingly, the State was a nodal agency. It was further held that the State was required to make promotions as per the provision of the said Scheme. Reversing the said decision, the Hon'ble Supreme Court has upheld the contention of the State that the respondents were State Government employees and though the Scheme was promulgated by the Central Government, the implementation thereof was left with the State Governments which were authorised to appoint staff of the project. It may be mentioned that the prayer of employees, who were writ petitioners, were identical to the prayer in the present case which is with regard to filling up 75 percent of the posts of CDPO from Supervisor.
21. In the case of Joint Action Committee of Air Line Pilots' Association of India (supra), it has been reiterated by the Hon'ble Supreme Court that it is only the authority which has been vested with powers to exercise its discretion can alone pass the order.
22. In the case of Ramachandran Pillai (supra), the Hon'ble Supreme Court has explained as to how any executive instructions would have the force of statutory Rules. It has been held that it has to be shown that the said instructions were issued either under the authority conferred on the Central Government or State Government or other authority by some state or the Constitution.
23. In his reply, Shri Nair, learned Senior Counsel has submitted that it is apparent that no approval was sought for by the State from the Central Government before publication of the Service Orders of 1994 or its amendment in the year 2013. By drawing the attention of this Court to the affidavit-in-reply dated 04.06.2015 filed by the writ petitioners in WP(C)/23/2014, the learned Senior Counsel submits that in reply to a query made under the Right to Information Act, 2005 (RTI Act), it has been stated that no approval was sought by the States / UTs before framing such recruitment Rules.
24. Shri I Ahmed, learned counsel appearing for respondent nos. 25, 26, 27 and 28 in WP(C)/1899/2014 submits that the challenge is not maintainable as all the stakeholders have not been made party respondents in the writ petition. Specifically espousing the cause of the Statistical Assistant Employees Association, the learned counsel has submitted that while the challenge is not maintainable, any decision taken would have a material bearing upon his clients and the writ petition is bereft of any pleadings concerning the said respondents. It is contended that in the Service Orders of 1994, there was no promotional prospect for the Statistical Assistant to be promoted to the post of CDPO. In the year Page No.# 23/28 2002, there was a decision to fill up 89 posts of CDPOs from the rank of ACDPOs / female Supervisors and the said decision was the subject matter of challenge in WP(C)/5346/2002. This Court, as an interim measure, directed to keep 20 percent of the post of CDPOs vacant. The writ petition was disposed of vide a judgment and order 03.03.2004 by which an exercise was directed to be performed on the extent of promotional avenues covering all categories of employees of the Statistical wing and till such directions are complied with, the interim order would continue. It is further contended that the Supervisors' Association unsuccessfully preferred an appeal, being WA/426/2005 which was dismissed vide judgment and order dated 14.12.2005. Thereafter also, there were other numbers of litigations as a result thereof, the present quota of 4 percent was allotted to the Statistical Assistant. It is contended that the present amendment being an outcome of the directions passed in a number of proceedings in the Court which have been suppressed in the writ petition, the same cannot be the subject matter of further challenge. Shri Ahmed further makes a very significant submission that in the main writ petition i.e., WP(C)/23/2014, the petitioners have approached the Court in their individual capacity. The petitioner no. 1 has retired in the meantime, and all others have been promoted and therefore, there is no live cause of action to be adjudicated.
25. Similarly, Shri B Sinha, learned counsel for respondent nos. 4, 8 to 21 and 23 in WP(C)/1899/2014 while endorsing the submissions of Shri I Ahmed, learned counsel for some of the private respondents submits that the issue at hand has already been decided and the same has also upheld by the Division Bench of this Court in the earlier round of litigation. The present challenge is accordingly barred by the doctrine of res judicata.
26. The rival submissions made by the learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully examined.
27. The foundation of the challenge is the communication dated 20.05.1986 issued by the Ministry of Human Resource Development, Government of India. Though certain guidelines appear to have been laid down for filling up of the post of CDPOs and Supervisors in the ICDS Projects, what is required to be seen is whether such guidelines are statutory in nature. The corollary which would arise for determination is whether such guidelines are mandatory. A close look at the communication dated 20.05.1986 would reveal that the same is a mere communication without the involvement of either Page No.# 24/28 Article 73 or Article 309 of the Constitution of India. Therefore, the said communication cannot be construed to be a statute or having the colour of a statute. The answer to the corollary issue would be that such guidelines cannot be construed to be mandatory for the reasons that the same is not statutory in nature and nor any consequences have been laid down for not following the same. On the contrary, the Service Orders of 1994 has been issued as an Executive instruction in exercise of power under Article 162 of the Constitution of India. Since the communication dated 20.05.1986 itself makes it clear that CDPOs and Supervisors would be the employees of the respective State Government / Union Territory and borne on the appropriate cadre / service of the State Government / Union Territory, framing of the Recruitment Rules would be a function which is essentially within the domain of the State Government / Union Territory.
28. Further, this Court has noticed that though the foundation of the challenge is violation of the guidelines contained in paragraph 1 (e) of the communication dated 20.05.1986 wherein percentage were fixed for promotion from female Supervisors, in the ensuing Service Orders of 1994, no such percentage was fixed. In fact, Supervisors were not even made a feeder post for promotion to the rank of CDPOs. However, no challenge was made on this issue by the petitioners. It is only after publication of the amendment of 2013 that the present challenge is made. This Court has noticed that vide the same amendment of 2013, the post of Supervisors has been made a feeder post for promotion to the rank of CDPO. When the entire benefit of promotion to the petitioners has been given by the amendment of 2013, in the opinion of the Court, the present challenge concerning the percentage of promotion would not be maintainable.
29. Though on behalf of the petitioners, it has been argued that in the application filed under the RTI Act, it was answered that before promulgation of the impugned notification, the approval of the Central Government was not taken, the pleaded case of the petitioners is that whether such approval was required to be taken or not and that was not the information sought under the RTI Act. Therefore, no aid can be taken from the said RTI reply.
30. In the case of Gulf Goans Hotels Company Ltd. (supra), the Hon'ble Supreme Court dealt with the issue "what is law". The relevant paragraphs are extracted hereinbelow:
Page No.# 25/28 "15. The question "what is law?" has perplexed many a jurisprude; yet, the search for the elusive definition continues. It may be unwise to posit an answer to the question; rather, one may proceed by examining the points of consensus in jurisprudential theories. What appears to be common to all these theories is the notion that law must possess a certain form; contain a clear mandate/explicit command which may be prescriptive, permissive or penal and the law must also seek to achieve a clearly identifiable purpose. While the form itself or absence thereof will not be determinative and its impact has to be considered as a lending or supporting force, the disclosure of a clear mandate and purpose is indispensable.
16. It may, therefore, be understood that a Govt. policy may acquire the "force of 'law'" if it conforms to a certain form possessed by other laws in force and encapsulates a mandate and discloses a specific purpose."
31. This Court has noticed that the doctrine of repugnancy would also not be applicable in the present case inasmuch as, there is no corresponding statute or any other notification having the traits of a statute of the Central Government holding the field. This Court has already held that the communication dated 20.05.1986 is neither a statute nor can be deemed to have any statutory force.
32. What further intrigues this Court is that the original Service Orders of 1994 did not stipulate the post of Supervisor to be a feeder cadre for the promotion to the post of CDPOs. However, no challenge was made at that time to exclude the post of Supervisor from the feeder cadre for promotion to the rank of CDPOs. The promotional avenue for the Supervisors to the cadre of CDPOs was made open only by the Amendment Orders of 2013. Though it is a fact that only 34 percent was allotted for such promotion, the petitioners will not have the locus to challenge the said percentage as it is by the impugned notification dated 30.09.2013 that an avenue for their promotion was opened for the first time. The petitioners would be barred from maintaining the present challenge by the doctrine of approbation and reprobation inasmuch as, it is the same impugned notification which has given them the benefit of promotion.
33. This Court also finds force in the submissions made by the learned counsel for the private respondents that the issue has already been conclusively decided which has been given the stamp of Page No.# 26/28 approval by the Hon'ble Division Bench and in fact, it is in compliance with such direction that a further division of the percentage of quota for promotion to the rank of CDPO was made and 4 percent was reserved for promotion from the rank of Statistical Assistant. No convincing reply was found from the petitioners as to why the doctrine of res judicata would not be made applicable in the present case.
34. It is submitted at the Bar that so far as WP(C)/23/2014 is concerned, the petitioner no. 1 had retired in January, 2017 and the petitioner nos. 2 to 5 have already been promoted and therefore, there is no existing grievance. So far as WP(C)/1899/2014 is concerned, the petitioner nos. 1, 4, 5 and 6 have retired whereas petitioner nos. 2, 3, 7 and 8 have already been promoted to the rank of CDPO. It also appears that the issue has remained only academic.
35. So far as WP(C)/3848/2021 is concerned, though a challenge has been made both to the Service Orders of 1994 as well as the Amendment Orders of 2013, including a prayer for maintaining the percentage fixed by the communication dated 20.05.1986 by the Central Government, apart from lack of merits of such challenge, the inordinate delay in making such challenge is itself a ground to dismiss the writ petition. The Hon'ble Supreme Court in a catena decisions has held that settled position should not be made unsettled after lapse of a considerable period of time. In this connection, the case of PS Sadasivaswamy Vs. State of TN, reported in AIR 1974 SC 2271, may be referred to wherein the Hon'ble Supreme Court has held as follows:
"2. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work...................."
Page No.# 27/28 Further, in the case of Santoshkumar Shivgonda Patil & ors. Vs. Balasaheb tukaram Shevale & Ors., reported in (2009) 9 SCC 352, the Hon'ble Supreme Court has laid down as follows:
"11. It seems to be fairly settled that if a statute does not prescribe the time limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein."
The Hon'ble Supreme Court in the case of Shiba Shankar Mohapatra & Ors. Vs. State of Orissa & Ors., reported in AIR 2010 SC 706 has laid down in the following manner:
"29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum..............."
36. As indicated above, the Hon'ble Supreme Court in the case of Pushpa Rani (supra) has laid down that in cases of present nature, the power of judicial review are to be sparingly exercised. For ready reference, the relevant paragraph is extracted hereunder:
"37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the Page No.# 28/28 employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
37. In view of the aforesaid facts and circumstances, this Court is of the view that no case for interference in exercise of powers under Article 226 of the Constitution of India is made out. Accordingly, the writ petitions are dismissed.
38. No order as to cost.
JUDGE Comparing Assistant