All Assam Heads of The Departments Ministerial Officers Association vs State of Assam

Hansaria, C. J. (Actg)

The All Assam Heads of Departments'' Ministerial Officers'' Association, hereinafter the Association, is before this Court as it has felt aggrieved at the denial of promotion to the ministerial officers to the rank of Inspector of Supply. The Association prays that the benefit of promotion to the post of Inspector of Supply made available by Rule 10 (2) of the Assam Supply Service Rules, 1970, hereinafter the Rules, should be given effect to and the official respondents be directed accordingly.

A perusal of Rule 10 of the Rules shows that the post of Inspector of Supply can be filled up from three different sources :

(1) by promotion from the Select List approved by the Commission for this purpose from amongst the members of the service confirmed in the post of SubInspector of Supply or from amongst the SubInspector of Supply who have rendered five years of continuous service on the first day of the year in which the selection is made

(ii) by selection under subrule (3) of Rule 13 strictly on the basis of merit from amongst the ministerial staff and accounts staff in the office of the Director of Supply and in the Supply Offices in the District and SubDivisions who are of outstanding ability and have rendered at least 5 years service as Upper Division Assistant and Accountant respectively on ,the first day of the year in which the selection is made and are graduates; and (iii) by direct recruitment under Rule 17. The Note to this Rule states that the proportion of vacancies to be filled up in any year according to subrules (1), (2) and (3) shall be 50, 25, 25 respectively.

What has stood in the way of the members of the petitionerAssociation is the view of the Assam Pay Commission 1979. As per recommendation of this Commission, the post of Inspector of Supply should be filled up by promotion from Sub Inspector of Supply. It is, however, an admitted position that pursuant to the report of the Assam Pay Commission, the Rules were not amended prior to 21.3.89. Question, therefore, to be decided is whether the quota made available to the ministerial officers could be denied prior to 21. 3. 89.

As the Rules had conferred a substantive right on the ministerial officers, we are of the firm view that merely on the basis of the recommendations of the Pay Commission, which had been generally accepted by the State, the right conferred on the ministerial officers would not have been taken away without altering the Rules which came to be so done only on 21.3. 89. It is an admitted position in law that the Service Rules made under the proviso to Article 309 of the Constitution of India which power was invoked while framing the Rules, have the force of law and policy decision cannot override the Rules framed under Article 309 of the Constitution. In this connection, we may refer to S. L. Sachdev vs. Union of India, AIR 1981 SC 411 and J. Kumar vs. Union of India, AIR 1982 SC 1064, according to which no executive direction can be given which is inconsistent with the Rules framed under the proviso to Rule 309 of the Constitution.

In view of the above, we are satisfied with the claim laid by the petitionerAssociation and we direct the respondents to fill up the posts of Inspector of Supply as per the quota made available, by Note to Rule 10 of the Rules.

The petition is disposed of accordingly.

S. K. Homchoudburi,J.I agree.