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Judgment
SUMAN SHYAM, J
Heard Mr. P. K. Roy Choudhury as well as Mr. S. U. Ahmed, learned counsel appearing for the writ petitioners. I have also heard Mr. D. Saikia,
learned Senior Additional Advocate General, Assam appearing for the official respondents as well as Mr. A. D. Choudhury, learned counsel
representing the private respondents.
In both these writ petitions, the Notification dated 20.07.2018, by means of which 47 Officers in the rank of Extension Officer (Fishery) and
Extension Officer (Credit) have been allowed to temporarily hold the charge of the Block Development Officer (BDO) under the Department of
Panchayat & Rural Development, has been put to challenge.
The facts of the cases, briefly stated, are that writ petitioners herein are holding the substantive post of Extension Officer (Panchayat) and
Extension Officer (Women and Children).The service conditions of the Extension Officers in the Department of Panchayat & Rural Development is
governed by the Assam Panchayat and Rural Development Officers Service Rules, 2013 (for short Rules of 2013â€). As per the Rules of 2013, there
are four different categories of Extension Officers in the department viz. Extension Officer (Fishery), Extension Officer (Credit), Extension Officer
(Panchayat) and Extension Officer (Women and Children).
The post of BDO are required to be filled up 40% by direct recruitment to be conducted through the Public Service Commission and the remaining
60% by promoting departmental candidates belonging to the cadre of Extension Officer (Credit), Extension Officer (Panchayat) and Extension Officer
(Women and Children) at the equal ratio of 20% from each category. In so far as the cadre of Extension Officer (Fishery) is concerned, the Rules
mandate that those officers are to be considered for promotion to the post of Assistant Development Commissioner (P & RD), which is a post
enjoying higher pay scale than the post of BDO. By the impugned order dated 20.07.2018 the department has decided to temporarily promote 44
Extension Officer (Fishery) and 3 Extension Officer (Credit) to hold the post of BDO, which according to the writ petitioners, was in clear violation of
the mandate of the Rules. Hence, these writ petitions.
Citing the provisions contained in Rule 3(g) of the Rules of 2013, Mr. Roy Choudhury has strenuously argued that the Extension Officer (Fishery) is
the feeder post for the cadre of Assistant Development Commissioner and the Rules do not permit their promotion to the post of BDO. As such, the
question of allowing the Extension Officer (Fishery) to hold the temporary charge of BDO cannot arise under the Rules. Referring to the plea of locus
raised by the respondents, Mr. Roy Choudhury has argued that the writ petitioners herein who are holding the temporary charge of BDO in many of
the Blocks included in the impugned order dated 20.07.2018 cannot be displaced, even as an ad hoc measure, so as to accommodate such
departmental candidates who cannot be promoted to such posts under the Rules. Therefore, submits Mr Roy Choudhury, it is a clear case of replacing
one set of ad hoc employees by another which runs counter to the law laid down by the Supreme Court in the case of State of Haryana and others v.
Piara Singh and others, reported in (1992)4 SCC 118.
By placing reliance on another decision of the Supreme Court in the case of Nawal Kishore Mishra and others v. High Court of Judicature of
Allahabad through its Registrar General and others¸ reported in (2015)5 SCC 479, Mr. Roy Choudhury submits that the impeachment of the writ
petition on the ground of maintainability is completely untenable on account of the fact that even if the posts against which the respondents have been
allowed to hold the charge falls in the 40% category, even then, since the writ petitioners belong to the cadre of Extension Officers and are entitled to
be promoted to the rank of BDOs, such temporary measure would also amount to infraction of their rights leading to prejudicial affect on their service
career. Under the circumstances, a prayer has been made to set aside the impugned order and permit the petitioners nos 2, 9 and 15 in W.P.(c) No
4845 of 2018 and the writ petitioner in W.P.(C) No 5110/ 2018 to continue to hold the charge of BDO until such time they are regularly promoted.
Offering strong resistance to the argument advanced by Mr. Roy Choudhury, Mr. D. Saikia, learned Senior Additional Advocate General, Assam,
submits that officers in the rank of Extension Officer (Fishery) enjoy a higher pay scale and the promotional posts available to them is also higher than
the post of BDO. Therefore, the cadre of Extension Officer (Fishery) cannot be equated with the other three category of Extension Officers which
position clearly flows from the Rules itself. Mr. Saikia submits that although the Rules mandate filling up of 40% of the vacancies in the rank of BDO
by means of direct recruitment through the Commission, no such appointment could be made despite the sincere efforts being made by the department
since the year 2015 on account of the fact that the Commission has not been fully functional due to several enquiries presently pending in connection
with the functioning of the Commission. Since the office of BDO plays a very crucial role in the administration of the Panchayat institutions at the
block level,taking note of the fact that direct recruitment in the said posts may not be possible in the near future, the Government has taken a
conscious decision to place some of the Extension Officers (Fishery) as in-charge BDOs. The learned Senior Additional Advocate General submits
that such a decision has been taken in the exigencies of public service and purely as a temporary measure. Since the same does not in any way affect
the right of the petitioners, no interference in the matter is called for.
Referring to the claim of the petitioners that their appointment as in-charge BDOs should not be disturbed until such time the post of BDO in the
promotional category are filled up by following the due procedure of law, Mr. Saikia submits that the Government has already initiated necessary steps
for filling up the 21 vacancies presently available in the cadre of BDO for being filled up by promoting the departmental candidates in accordance with
Rule 11 of the Rules of 2013 and subject to their meeting the eligibility norms, the petitioners cases would be duly considered for promotion. But since
their orders of holding temporary charge of BDO have not been issued by the competent authority and considering the higher ability and competence
of the Extension Officers (Fishery), the department has exercised its discretion to place them as in-charge BDOs under the circumstances prevailing
in the department. As such, Mr. Saikia submits that there is no merit in the writ petition and the same be dismissed.
Joining issues, Mr. A. D. Choudhury, learned counsel for the private respondents, has also argued that this is a frivolous litigation initiated by the
petitioners in as much as they do not have any right that can be enforced in the writ petitions since his clients have been accommodated as a
temporary measure against the posts reserved for direct recruitment. Mr. Choudhury submits that the petitioners cannot claim to be appointed either
temporarily or on permanent basis against the 40% direct recruitment quota for BDOs and as such the entire claim made in the writ petitioner is
baseless and deserves to be rejected by this Court.
I have considered the submissions made by the learned counsel for the parties and have also examined the materials available on record.
There is no dispute about the fact that all the writ petitioners Nos 2 to 21 in W.P. (C) No 4845 /2018 and the petitioner in W.P.(c) 5110/ 2018 are
holding the substantive posts of Extension Officer (Panchayat) and Extension Officer (Women & Children).Under the Rules of 2013, these posts
along with the posts of Extension Officer (Credit) constitute the feeder cadre for filling up 60 % of the next higher post of BDO. The remaining 40%
posts are admittedly required to be filled up by means of direct recruitment through the Commission. If that be so, the petitioners cannot have any
claim for being appointed or being absorbed against those 40% posts of BDOs which are meant for direct recruitment. Moreover, it is also not a case
where the private respondents have been regularly promoted to the post of BDO.
Dealing with an issue of similar nature, the Hon’ble Supreme Court in the case of Mukul Saikia and others v. State of Assam and others
reported in (2009) 1 SCC 386 has held that the petitioners therein, who had taken part in the selection process for direct recruitment as CDPOs, would
not have any locus to assail the regularisation of candidates against posts available under the promotional quota since their claim is essentially based on
their merit position in the select list conducted for filling up the posts meant for direct recruitment. Holding that two categories of candidates stood in
different footing, the Supreme Court had turned down the challenge made in the writ petition to the absorption of CDPOs against the posts available
for the promotional quota holding that the seeking appointment against the post for direct recruitment would not have any locus to challenge the
absorption of ad-hoc appointees against the promotional posts.
In the case in hand the petitioners do not assert any claim for absorption against the 40% posts of BDOs which are meant to be filled up by direct
recruitment. They are also not disputing the fact that the Extension Officer (Fishery) enjoy a superior status under the Rules and therefore, the said
category of posts cannot be equated with the post of Extension Officers in the other three categories i.e. Extension Officer (Credit), Extension Officer
(Panchayat) and Extension Officer (Women & Children).There is no dispute about the fact that the arrangement made by the impugned order is of
temporary nature and no substantive promotion has been given to the private respondents to the post of BDO. In view of the above, applying the
ration laid down in the case of Mukul Saikia and others (supra) no locus can be recognized in favour of the writ petitioners to assail the order dated
20/07/2018.
In so far as the decision relied upon by Mr. Roy Choudhury in the case of Nawal Kishore Mishra (supra), I find that that was a case where some
of the posts of District Judge, which were advertised for being filled up by direct recruitment, were filled up by promoting the departmental candidates
on the ground that suitable candidates from the category of SC, ST were not available. Assailing the aforesaid decision of the High Court, the
candidates whose name appeared in the select list had approached the Court inter-alia contending that even if suitable candidates belonging to the
reserved category were not available, even then, those posts could not have been filled up by way of promotion.. What must be taken note of is that in
the case of Nawal Kishore Mishra (supra) the posts which were meant for being filled up by direct recruitment were utilized for promoting
departmental candidates. It was in such context that the Supreme Court had disapproved the action of the authorities. After a minute scrutiny of the
facts of this case I am of the view that the ratio laid down in the case of Nawal Kishore Mishra (supra) would not have any application in the present
case.
In the counter affidavit filed on behalf of respondent Nos.2, 4 and 5, it has been categorically mentioned that there were 88 posts available for
direct recruitment to the post of BDO out of which 37 posts had been filled up regularly leaving 51 vacant posts which were available to the
department. Similarly, it has also been mentioned that 60% of the promotional posts constitute 131 posts out of which 21 are still lying vacant. In their
rejoinder affidavit the writ petitioners have not denied or disputed the said statement made by the departmental authorities.
It is trite that the departmental authorities would be competent to initiate all such measures as may be necessary in the exigencies of public service
and writ court, in exercise of power of judicial review under Article 226 of the Constitution would not seat in appeal over such decisions unless it can
be shown that such an exercise has resulted into violation of fundamental rights or any legal right of the citizens. In the present case, as noted above,
the writ petitioners, being the Extension Officer falling in the category of feeder posts for filling up the 60% posts of BDO by means of promotion,
they cannot have any claim against the remaining 40% posts of BDO which are to be filled up through direct recruitment. The explanation offered by
the departmental counsel for making temporary arrangement appears to be reasonable and well supported by the materials brought of the record.
Upon due consideration of the materials on record, I am of the considered opinion that the writ petitioner do not have any right that can be enforced in
these writ petitions.
For the reasons stated herein above, I am of the view that no case is made out for interference with the order dated 20.07.2018. The writ petitions
are accordingly dismissed.
Before parting with the record, it would be pertinent to mention here-in that right to be considered for promotion has been recognized as a
fundamental right. Since the department has admitted that there are 21 vacancies of BDOs which are required to be filled up by promoting
departmental candidates and taking note of the submission of the learned Senior Additional AG that the process for promoting suitable candidates has
already been initiated by the department and also considering the grievance expressed in these writ petitions, it is hereby provided that the official
respondents would initiate appropriate steps in accordance with the Rules for considering all the eligible departmental candidates for regular promotion
to the post of BDO against the existing vacancies falling in promotional quota, as expeditiously as possible, but not later than three months from the
date of receipt of a certified copy of this order. With the above observation, these writ petitions stand closed. Interim order passed earlier shall stand
vacated. There would be no order as to cost.