P.G.AGARWAL, J. - (1.) I have heard Mr. H. Roy, learned counsel for the petitioners and also heard Mr. A. K., Goswami, learned counsel for private Respondent No. 4 and Mr. N. C. Phukan, learned Senior Government Advocate for the Respondent/State and Mr. K. Goswami, learned counsel for Respondent Nos. 3,4,6,9,15 and 16.
(2.) In this writ petition, the dispute is in between the direct recruit and promotee to the post of Sub-Inspector, Food and Civil Supplies. The appointment to the post of Sub- Inspector of Food and Civil Supplies is governed by the Assam Supply Services Rules, 1970 and the said Rules had originally provided for direct appointment to the said post. In the year 1989 vide order dated 21.3.89 the said Rules were amended providing that 75% of the vacancy in the cadre of S.I. of Food and Civil Supplies shall be filled up by direct recruitment and the remaining 25% shall be filled up by promotion from the select list prepared for this purpose. The dispute in the present writ petition is in respect of the appointment made in the year 1992. In the month of January 92, 19 petitioners before us were appointed as direct recruit, whereas the Private Respondents No. 3 to 25 were appointed on promotion in the month of March, 1991. The provisional gradation list was published on 30.3.1990 and thereafter a final gradation list of 173 S.I. as on 1.12.98 was published vide letter No. DSE. 62/97/106 dated 1.12.98. Some of the Respondents, feeling aggrieved by the said order of final gradation list approached the Administrative Tribunal, Assam in Case No. 26 ATA/99 where in some of the petitioners before us were also party/Respondents. The said case was disposed of by the Tribunal vide order dated 15.9.99 with the following observation and direction : "19. The learned counsel of the appellants submits that, according to the standing Government instructions under No. AAP. 27/50 dated 31.3.60 of the then Appointment Department of the Government of Assam, a promotee appointed is to be given seniority over a direct recruit appointed and it is also reiterated in the draft model service Rules, circulated by the Administrative Reforms & Training Department of the State Government in the framing of the service rules for the State Government employees, for whom the service rules are yet to be framed. The learned counsel of the appellants prays to the Tribunal for directing the Government of Assam for taking a final decision in the matter regarding the issue of inter-se-seniority between a promotee S.I. of F & C S and direct recruit SI under the F & CS Department of the State Government. 20. The learned Senior Government Advocate states that the Tribunal may be pleased to issue direction to the Government of Assam for considering the whole matter and to take appropriate decision with regard to the issue of inter-se-seniority between a promotee S.I. of F & CS under the F & CS Department and a direct recruit SI of F & CS under the Department. 21. We have considered the matter. 22. From a consideration of the chronology of the events as stated above, it is obvious that there has been an omission on the part of the Government of Assam in not expicitly laying down a provision by amending the existing provision of the Rule 32 of the Assam Supply Service Rules, 1970 in the matter of inter se-seniority between a promotee Sub-Inspector of Food & Civil Supplies and a direct recruit sub-Inspector of Food & Civil supplies, when the State Government, as per the Assam Supply Service (Amendment) Rules, 1989 introduced the provision of filling up 25% of the vacancies in the post of Sub-Inspector of Food & Civil Supplies by promotion and remaining 75% by way of direct recruitment as against the earlier provision of filling up the entire vacancies in the post of Sub-Inspector of Food & Civil Supplies by direct recruitment. In view of this position of the matter, it is essential to make an explicit provision in the matter by incorporating a suitable amendment to the existing provision of Rule 32 of the Assam Supply Service Rules, 1970. In view of the urgency and importance of the matter, it should be taken up on a top priority basis. This exercise should be completed within 31 st December, 1999. We direct the Secretary to the Government of Assam, Food & Civil Supplies Department (on behalf of the State of Assam) to take immediate necessary action on the matter. A compliance report is to be submitted by him to the Tribunal within one week thereafter, i.e. within 7.1.2000. 23. Subject to the directions, stated above the appeal case is disposed of. There is no order as to cost." Thereafter by Notification dated 5th of May/ 2000, the Rules of Assam, Food & Civil Supplies Rules were amended and the Rule 32(6) was inserted to the following effect : "3. In the Principal Rule, in Rule 32, after Sub- Rules (5) the following new Sub-Rule (6) shall be inserted namely- ' (6) The inter-se-seniority of Sub-Inspectors of Food & Civil Supplies appointed under Sub-Rule (2) of Rule 11, as amended, shall be fixed over the Sub-Inspector of Food & Civil Supplies appointed under Sub-Rule (1) of Rule 11, as amended, if promotion and direct recruitment take place in the same year." Purpsunt to the said amendment a provisional gradation list was published on 15.5.2001 wherein Respondents No. 3 to 25 were given seniority over the writ petitioners and hence the present writ petition.
(3.) Shri K. Goswami, learned senior advocate has at the out set submitted that under Article 309 of the Constitution of India, Rule making power is in the executive domain of the Governor and Administrative Tribunal, Assam has no jurisdiction to direct framing of Rules. The decision of the Tribunal was not challenged and we find that the Governor, in exercise of the powers under Article 309, had framed the amended Rules by Notification dated 5th of May / 2000. Hence, we do not like to enter into the question as to whether the Tribunal had the power to direct framing of rules or not.;