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PETITIONER: UPEN CHANDRA GOGOI

       Vs.

RESPONDENT: STATE OF ASSAM & ORS.

DATE OF JUDGMENT:       20/03/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      This appeal is from a judgment and order dated 3.8.1988 of the  High Court  of Gauhati setting aside the appointment of  the   appellant  as  officer  on  special  Duty  in  the Secretariat of the Assam Legislative Assembly pursuant to an advertisement dated 18.6.1985.      The post  of an officer on Special Duty (O.S.D.) in the rank of  joint Secretary  in the  Assam Legislative Assembly Secretariat was created in November, 1983. One P.N. Hazarika who was serving as Deputy Secretary in the Assam Legislative Assembly Secretariat  was promoted  to the post of O.S.D. so created.  The  post,  however,  fell  vacant  in  1985  when Hazarika  was   promoted  as  the  Secretary  of  the  Assam Legislative Assembly secretariat.      On 18.6.1985  an advertisement  was issued by the Assam Legislative Assembly  Secretariat inviting  applications for the post  of O.S.D.  in the  rank of  joint  secretary.  The following qualifications  were prescribed  for this  post in the advertisement:-      " Candidate  must be an Advocate of      High  Court   or  a  pleader  of  a      District court who has practised as      such for  at least  7  years  or  a      judicial officer  qualified  to  be      appointed   as    a   District   or      Additional     District      Judge.      Preference will  be given  to those      who possess practical experience of      Legislative procedure,  Drafting of      Bills, Rules, Regulations etc." The appellant  applied for  the said  post pursuant  to this advertisement. A  qualifying examination  and viva voce were held. The  appellant was  selected and appointed to the post of O.S.D. on 17th of September, 1985. The post of O.S.D. was re-designated as  the post  of joint  Secretary on  30th  of September, 1986.      Respondent no.5 filed a writ petition in the High Court of Sauhati  challenging the selection and appointment of the appellant to the post of O.S.D. and asking for various other

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reliefs. This writ petition to the extent that it challenged the appointment  of the  appellant, has  been allowed by the High  court.  It  has  set  aside  the  appointment  of  the appellant as O.S.D. on the ground that the appellant did not possess the necessary qualifications for the post.      The appellant  joined judicial  service of the State of Assam as a judicial Magistrate Grade III. He had completed 8 years of  service as  judicial Magistrate  Grade III when he was sent  on deputation to the Assam Legal Service as Deputy Secretary and  Legal Remembrance  in the Assam Legal Service with a  lien on his post as judicial Magistrate Grade III in the Assam  judicial Service,  when are set out above for the post of O.S.D. require that the applicant must be a judicial Officer  qualified   to  be   appointed  as  a  District  or Additional district  Judge or  he should be an advocate of a High Court  or  a  pleader  of  a  District  Court  who  has practised as  such for  at least  7 years. The appellant had not practised  as an advocate or pleader for 7 year. We have to examine whether he was a judicial officer qualified to be appointed as a District Judge. The appellant was holding the Substantive post  of Judicial  Magistrate Grade  II  in  the Assam Judicial  Service and was on deputation in a Grade III post in  the Assam  Legal Service.  Under the Assam Judicial Service  Rules,  1967,  the  posts  of  District  Judge  and Additional District  Judge are  Grade I  post in  the  Assam Judicial Service.  Under Rule  5 sub-rule (4)(a) appointment to a  post in Grade I shall be made either by promotion from Grade Ii  or by  direct recruitment  from  the  Bar  on  the recommendation of  the High  Court.  under  sub-rule  (4)(b) appointment to a post in Grade II shall be by promotion from Grade III  or by  direct recruitment  from the  Bar  on  the recommendation of  the High Court. Under Rule 6 appointments to posts  in Grade I and II by promotion from the next grade below  shall  be  on  merit  and  ability,  seniority  being considered only  when merit  and ability  are  approximately equal.  The   appellant  who   held  the  post  of  judicial magistrate  which  is  a  Grade  III  post  was,  therefore, eligible for  appointment to a Grade II post provided he met the requisite  criteria for  promotion. He  was not eligible for appointment  to  Grade  I  post  of  District  Judge  or Additional District  Judge. He had first to secure promotion to a  Grade II  post before  he could  become  eligible  for promotion to  a Grade  I post. The appellant, therefore, was not a  judicial officer  qualified  to  be  appointed  as  a District or Additional District Judge. It is the case of the appellant that  since he  had put  in 8  years of service in Grade III  he was  eligible for  promotion to  Grade II  and thereafter to  Grade I.  We fail  to see  how this helps the appellant. In  order that  he  should  be  qualified  to  be appointed as  a District  or Additional  District  Judge  he should be holding at least a post in Grade II.      It is  next contended  by the  appellant that  in  1986 Assam  legislative  Assembly  secretariat  Rules  came  into effect. under  these Rules  qualifications were  prescribed, inter alia,  for the  post of  joint Secretary  in the Assam Legislative Assembly  Secretariat. In  Schedule Ii  of these Rules  the  minimum  qualifications  prescribed  for  direct recruitment to  the post of joint Secretary are seven years’ standing practice  at the  Bar or  "person qualified  to  be appointed to  Assam judicial  Service Grade-I  and Grade- II and the  Assam Legal  Service Grade-  II and Grade-III". The appellant contends  that since  he was  holding a  Grade-III post in  the Assam  Legal Service  on deputation, he had the necessary  qualification   for  being   appointed  as  Joint Secretary. The Assam Legislative Assembly Secretariat Rules,

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1986, however,  came into  force only  on  28.10.1986,  much after the  appointment of  the appellant. We fail to see how the qualifications  prescribed  subsequently  can  help  the appellant. The  respondents have  also contended  that these qualifications were inserted by the appellant himself in the Draft Rules  in order  to validate  his own  appointment. Be that as  it may,  the subsequent  Rules  cannot  affect  the qualifications prescribed  for the  post of O.S.D. Under the advertisement of  18th of  June,  1985.  The  appellant  was appointed pursuant to this advertisement. He had to meet the qualifications  prescribed.  The  appellant  has  drawn  our attention to  Rule 38  of  the  Assam  Legislative  assembly Secretariat Rules  1986, under  which  all  orders  made  or action taken  before these  Rules came  into force  shall be deemed to  have been  made or taken as if these were made or taken under  these rules.  rule 38  can apply only to orders lawfully made  or action  lawfully taken  before these Rules came into  force. It cannot validate an action which was not lawful at inception.      The High  Court has,  therefore, rightly  come  to  the conclusion that the appellant did not possess the prescribed qualifications at  the time when he was appointed in 1985 as officer on  Special Duty. We are informed that the appellant has since been reverted to Assam Judicial Service in a Grade III post and has thereafter also been promoted to a Grade II post.      In the premises, the appeal is dismissed with costs.