Shri S. Viswanathan vs The Lt. Governor and Others

Ashim Kumar Banerjee, J.—Since both these writ petitions pertain to identical controversy they were heard analogously and are being disposed of by this common judgment. Both these writ petitioners are working as Junior Assistants in the A & N Islands Integrated Development Corporation Ltd. (hereinafter referred to as ANIIDCO). In the seniority list, they were placed at Serial Nos. 14 and 15 respectively. They became eligible for promotion in the post of Senior Assistant in 2005. There were several vacancies in the post of Senior Assistant. Those were not filled up. The petitioners made several representations for filing up those posts through promotion. The Board of Directors of ANIIDCO in a meeting held on January 22, 1993 published Recruitment Rules for the post of Senior Assistant. The number of posts mentioned in the Recruitment Rule was 18 and the qualification mentioned for promotion to the said post was Junior Assistant having qualifying regular service of five years in the cadre having qualification of Bachelor''s degree from recognized University, preferably Commerce or equivalent. The petitioners completed five years in 2005. On May 8, 2006, the Board again met in its 87th meeting to decide the issue of filling up five posts of Senior Assistants from amongst the Junior Assistants as per qualification prescribed in the Recruitment Rules. On June 2, 2006 ANIIDCO issued circular expressing their intention to hold a departmental examination for the said purpose. On June 8, 2006 the Board approved 27 posts for Senior Assistants. The Board, in the said Circular dated June 8, 2006 decided that out of 27 sanctioned posts they would fill up 17 posts of Senior Assistants. The Board in its meeting scheduled to be held on November 22, 2006 proposed to relax the educational qualification for the post of Senior Assistants which gave rise to the present litigations.

In the proposal as contained in page 50 of the writ petition in W. P. No. 203 of 2006, the Board proposed that the promotional quota of five posts would be divided in ratio of 67 :33 amongst the staff fulfilling educational qualification and experience and staff not fulfilling educational qualification respectively. For the later category they proposed to relax the educational qualification to Class X as a one time measure. They, however, observed that to avail such relaxation in educational qualification the required experience would be seven years instead of five years.

Before the said meeting could be held, the petitioners approached this Court and obtained an order of injunction on November 22, 2006. As a result of such injunction, the Board, however, could not place the said proposal in its meeting.

Affidavits were exchanged between the parties. The matter was ultimately heard by me on the abovementioned date.

Mrs. Anjali Nag, learned counsel appearing for the petitioners contended that the petitioners originally were appointed on contractual basis in 1994. They were ultimately regularized in 2000 and since then they were stagnating in the post of Junior Assistant, although they became eligible for promotion in 2005. She also contended that in the Recruitment Rules prevalent as on the date when the vacancy arose and the Board decided to go in for a recruitment process for the post of Senior Assistant, the eligible qualification was Graduate, preferably Commerce. Hence, the subsequent proposal for relaxation of the educational qualification even if taken could not be implemented while filling up the vacancies so decided in the Board meeting dated May 8, 2006.

In support of her contention, she relied upon three decisions of the Apex Court which are as follows:

(1) (1996) 8 Supreme Court Cases 43 : U. P. Jai Nigam & Ors. vs. Narinder Kumar Agarwal;

(2) (1997) 10 Supreme Court Cases 419: State of Rajasthan vs. R. Dayal & Ors.;

(3) (1998) 6 Supreme Court Cases 165 : State of M. P. & Anr. vs. Dharam Bir.

Relying on the said decisions, Mrs. Nag contended that since the post fell vacant prior to the proposed relaxation the Board was not entitled to implement such decision if taken in its meeting for the purpose of filling up those posts.

Mr. A. K. Ray, learned senior counsel appearing for ANIIDCO contended that the proposal was scheduled to be placed in the meeting of the Board and unless and until a decision was taken to the said effect the writ petition could not be held to be maintainable. According to him, the writ petitioners approached this Court at a premature stage.

Mr. Hemraj Bahadur, learned counsel appearing for the added respondents contended that the added respondents were working as Junior Assistants for a long time and they were seniors to the petitioners. The authority decided to give them an opportunity to compete for the next post in the promotional process by relaxing the requisite qualification. Such decision could not be said to be arbitrary or unreasonable. On the other hand, this was a fair approach on the part of the Administration to relieve the senior employees working in the feeder posts from stagnation.

I have considered the rival contentions of the parties as well as the decisions cited before me. I, however, feel that the decision in the case of State of Rajasthan (Supra) is relevant herein. In paragraph 8 of the said decision, the Apex Court relied on an earlier decision reported in (1983)3 Supreme Court Cases 284 (Y. V. Rangaiah & Ors. vs. J. Sreenivasa Rao & Ors.).

The Apex Court in the case of Y. V. Rangaiah (Supra) observed that the vacancies which occurred prior to the amended rules coming into force would be governed by the old rules and not by the amended rules. The similar view was taken by the Apex Court in the case of State of Rajasthan (Supra).

In the instant case ANIIDCO declared the vacant posts in its office order dated June 8, 2006 by which they published the decision of the Board in its meeting held on May 8, 2006, wherefrom it appears that the Board decided to fill up 17 posts of Senior Assistants at that time. The Recruitment Rule prescribed eligible qualification as Graduate. Hence subsequent proposal for relaxation of the qualification by making a division of the promotional posts in 67 : 33 ratio, even if taken in the meeting of the Board of Directors could be applied prospectively and not retrospectively. Hence the Board is free to take such decision, if they want. Such decision would however be made applicable to the vacancies which would be arising on that date or thereafter. The subject posts were declared vacant on May 8, 2006. Hence the Board must fill up those posts in accordance with the Recruitment Rules prevalent at that time.

It was sought to be argued on behalf of the ANIIDCO that in terms of the existing rules the Board had power to relax qualification. Such power of relaxation, in my view, could not be availed of by the Board, the way they proposed to do it in its meeting scheduled to be held on November 26, 2006. There are circumstances in which such exercise is made. For example, if there is no suitable candidate found with eligible qualification and experience, the Board might in the second attempt relax the educational qualification or the experience by recording reasons therefore. If the senior candidates are to be accommodated, the Board might find ways and means to relieve them from stagnation by proposing a scheme for the said purpose. The Board can also relax the qualification for them in case of future vacancies.

The Board has not yet taken any decision in this regard. They would be free to take a decision in this regard but in the light of the observations made by me herein.

The interim order passed earlier is vacated. Writ petitions are disposed of accordingly without any order as to costs.