Decided on September 03,1973



- (1.) The petitioner was appointed as Upper Division Assistant on 19th February, 1958 in the Assam Secretariat as a direct recruit by competitive examination conducted by the Assam Public Service Commission under Rule 5 (1) (b) (iii) of the Assam Secretariat Subordinate Service Rules,1954 (briefly '1954-Rules'). Prior to this appointment he had served in the Supply Department under the Government of Assam as Sub-Inspector of Supply for about five years between 1950 to 1955 and also prior to that, as Sub-Inspector of Schools in Class II of Assam School Service. The petitioner states that he entered Government service in 1948 and his present age is about 47 years. According to the petitioner, respondents 5 and 6 were Lower Division Assistants in the Secretariat on the date of the petitioner's appointment as Upper Division Assistant (briefly 'U. D. Assistant'). This fact is however denied in the counter-affidavit wherein it is stated that these two respondents had entered as Lower Division Assistants in the Secretariat on 1st February, 1946 (not on 1st November, 1946 as mentioned in para 2 of the counter-affidavit) and 7th November, 1946 respectively and they were promoted as U. D.Assistants on 1st February 1948 and 18th January, 1948 respectively prior to the appointment of the petitioner as U. D. Assistant. It appears the above statements in the counter-affidavit are correct as will even appear from Annexure XI to the petitioner's affidavit-in-reply, which is an extract from the Amalgamated Roll of 1960, showing the relative positions of the petitioner and the respondents 5 and 6.
(2.) The Assam Secretariat Subordinate Service Rules, 1963 (briefly '1963-Rules') were made by the Governor of Assam on 22nd October, 1963 repealing the 1954-Rules. The petitioner was confirmed in his post on 22nd August, 1968 under Rule 25 of the 1963-Rules. His grievance is that he was legally entitled to be confirmed in February, 1960 and his seniority should have been fixed in accordance with Rule 26 of the 1954-Rules. The petitioner made several representations against his non-confirmation resulting in his supersession by a number of junior Lower Division Assistants and promoted after 1958 to U. D. posts. The representations did not meet with success and the respondents 5 and 6, amongst others, were promoted to the posts of Assistant Superintendent. The petitioner filed appeal to the Governor on 28th October, 1970 and got a reply on 31st December, 1970 to the effect that the matter relating to the inter se seniority of the petitioner amongst the U. D. Assistants was under consideration. The petitioner has filed orders appointing the respondents 5 to 20 officiating Assistant Superintendents as per Annexures X, XIII, XIV, XV, XVI and XVII and prays for quashing the same.
(3.) The petitioner averred that the respondents 5 to 20 were not recruited to the U. D. cadre in any category in 1958 and their recruitment being after 1958 they were not entitled to be placed above the petitioner for any purpose whatsoever. He further submitted that under the 1954-Rules he should have been confirmed after completion of two year's service and the respondents 1 to 4 were bound to confirm and fix the inter se seniority of the petitioner under Rules 22 and 26 of the 1954-Rules and as such the orders giving priority in confirmation and promotion to the respondents 5 to 20 are illegal, ultra vires and void. The petitioner further submits that the petitioner's vested rights under the 1954-Rules with regard to confirmation and fixation of inter se seniority were affected by the 1963-Rules and as such the 1963-Rules are null and void.;

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