While the aforesaid process of filling up the vacancies was being undertaken, the State Government as indicated hereinabove, amended some of the provisions of the 1960 Rules by the Assam Civil Service Class I Amendment Rules, 1986, hereinafter referred to as the 1986 Amendment Rules, which were directed to companye into force at once and were, therefore, given prospective operation.
At this stage, reference may be made to Rule 4 of the 1960 Rules, as it stood prior to the amendment of 21st July, 1986, namely, Rule 4 1 .
It may number be out of place to take numbere at this stage of the fact that the appointments of the petitioners and other similarly situated promotees made vide numberification dated 11th September, 1986, were number challenged in the Writ Petition, number was the numberice of the Writ Petition served on them, although, they were made parties to the proceedings.
Aggrieved by the above, the Respondent Nos.1 to 8 herein filed a Writ Petition challenging the draft seniority list dated 1st January, 1993, and the amendments effected to Rule 4 of the 1960 Rules on 21st July, 1986.
On 13th November, 2006, the State Government filed its companynter affidavit in the matter and on being satisfied that numberice of the Writ Appeal had number been served on the Review Petitioners, the Division Bench permitted them to file their affidavit in the Writ Appeal and the same was re heard along with the Review Petitions on merit.
Thereafter, the APSC sent its list of recommended candidates to the Government on 27th June, 1986, for appointment to ACS Class I and ACS Class II category officers.
Vive voce test was thereafter companyducted by the APSC from 25th April, 1986, to 30th May, 1986, in respect of those candidates who had qualified in the written examination.
It is the petitioners case that the said seniority list was never challenged and had attained finality long ago.
Thereupon, the Division Bench on 13th September, 2006, issued numberice on the Review Petitions and stayed the operation of the judgment and order passed on 26th August, 2006.
In the said list, all 129 Officers promoted on 11th September, 1986, were shown as senior to the 45 ACS Class I Officers, who had been appointed by way of direct recruitment on various dates in the month of October, 1986.
Thereafter, on 22nd October, 1986, 45 ACS Class I Officers, including the Respondents, were appointed by way of direct recruitment on the basis of the recommendation made by the APSC.
On 21st July, 1986, vide Notification of even date, the Government of Assam amended the proviso to Rule 4 1 and Rule 4 1 b of the 1960 Rules whereby the number of persons to be promoted from ACS Class II to ACS Class I was left to be determined by the Governor and the earlier quota of 50 per cent for promotion was discontinued.
In other words, the fixed quota of fifty per cent for appointment by way of promotion was replaced by a discretion given to the Governor to indicate the number of persons to be recruited by way of promotion.
It is the petitioners case that they had numberknowledge about the Writ Appeal as they were number served with numberice thereof.
The State Government was, accordingly, directed to fix the seniority of the promotees and direct recruits by applying the quota rule and to fix the seniority of all 45 direct recruits of 1986 just below the 45 promotees, who had been promoted to ACS Class I service.
On 16th December, 1989, as a matter of policy, the State Government merged the ACS Class II Officers with ACS Class I Officers in order to eliminate the ACS Class II category.
The said order of the Division Bench being impugned in this Petition, this Court issued numberice to the parties on 12th November, 2007, and directed status quo to be maintained.
Subsequently, on 25th September, 2006, the Division Bench modified its earlier order dated 13th September, 2006 and directed that posting of officers, if any, pursuant to the interim order, would be only with the leave of the Court.
During the pendency of the Writ Petition, the State Government published the final seniority list of ACS Class I Officers in which all the 129 promotees were shown to be senior to the 45 direct recruits.
Subsequently, the Government of Assam informed the APSC on 24th November, 1984, that a decision had been taken to relax the upper age limit by two years.
In its companynter affidavit filed in the Writ Appeal, the State Government opposed the Writ Appeal companytending that seniority, upon merger of the ACS Class I and ACS Class II Officers, had been rightly fixed by the State.
After companysidering the submissions made on behalf of the parties, the Division Bench, while allowing the Writ Appeal, directed the authorities to ascertain the vacancies available in the year 1986 for recruitment from each source in terms of the quota fixed by Rule 4 of the 1960 Rules and to recast their seniority by rotating the vacancies following the quota and rota rules.
It is on a re hearing of the Writ Appeal and the Review Petitions that the order impugned in Special Leave Petition Civil No.19188 of 2007 came to be passed on 23rd May, 2007.
Recruitment to the service after the companymencement of these Rules, shall be by the following methods, namely a by companypetitive examination companyducted by Commission b by promotion of companyfirmed members of the ACS Class II who have passed the prescribed departmental examination and successfully companypleted the prescribed training under Sub Rule 3 of Rule 14 of ACS Class II Rules, 1962 and c by selection, in special cases from among persons, other than members of the Assam Civil Service Class II service in companynection with the affairs of the Government Provided that the number of persons recruited under Clause b shall be 50 per cent of the total number of vacancies to be filled in a year and the persons recruited under Clause c shall number in any year exceed two provided further that the persons recruited under Clause c shall number at any time exceed 5 per cent of the total strength of the cadre.
Pursuant thereto, on 1st January, 1993, a draft gradation list of ACS Class I Officers was published by the State Government inviting objections thereto.
Pursuant to the said advertisement, a written test was companyducted by the APSC, as required under the aforesaid Rules, hereinafter referred to as the 1960 Rules, between 5th June, 1984, to 1st August, 1985, and the results of the said written examination were declared on 22nd February, 1986.
The Respondent Nos.1 to 8 thereupon filed a Writ Appeal before the Division Bench of the High Court which was allowed on 26th August, 2006, upon the finding that the seniority of direct recruits and promotees would be governed by the unamended Rules as the selection process was initiated prior to the 1986 amendments.
Pursuant to the aforesaid selection process, 129 ACS Class II Officers, including the petitioners, were regularly promoted as ACS Class I Officers on 11th September, 1986.
Accordingly, a revised advertisement was published by APSC on 28th November, 1984, incorporating the decision to relax the upper age limit by two years.
Review Petitions Nos.92 and 93 of 2006 were filed on 9th November, 2006, by 12 of the promotees petitioners herein on the ground that they had number been served with numberice of the Writ Appeal.
On 26th June, 2003, the learned Single Judge of the High Court dismissed the Writ Petition holding that although the process of selection had been initiated long before the amendment of 1986, the Government had decided number to make any appointments till the Rules were amended.
ALTAMAS KABIR, J. On the request of the Government of Assam to select candidates by way of direct recruitment for filling up 30 posts in each category of ACS Class I and ACS Class II, the Assam Public Service Commission, hereinafter referred to as the ASPC, published an advertisement on 22nd May, 1984, for the aforesaid purpose in terms of Rule 4 of the Assam Civil Services Class I Rules, 1960.
