D. Biswas, J.@mdashIn this writ petition, Md. Jakir Hussain, who is working in the Assam Seeds Corporation Limited, hereinafter referred to as
the Corporation, as Junior Assistant (Accounts) with effect from 28.12.87 has prayed for all or any of the following reliefs:
(i) To quash the advertisement dated 23.4.93 (Annexure-5) for recruitment and appointment to the post of Accounts Officer in Assam Seeds
Corporation.
(ii) direction for consideration of the case of the Petitioner as departmental candidate for promotion and appointment to the post of Accounts
Officer either in the present vacancy or in the future vacancy; and
(iii) direction for formulation of Rules regulating appointment, promotion and other conditions of service.
2. With reference to the reliefs prayed for, let us now address to the case of the Petitioner.
3. The Petitioner has controverted the advertisement dated 23.4.93 (Annexure-5) for recruitment and appointment to the post of Accounts Officer
in the Corporation on the ground that appointment to various posts in the Corporation has been made from time to time on convention as there is
no service Rule regulating the subject and that the Managing Director contrary to the prevalent convention notified the impugned advertisement
prescribing higher qualifications for the post of Accounts Officer in excess of the powers delegated to him by the Board of Directors vide
resolution adopted against Item No. 16 in its meeting dated 3.2.93. According to the Petitioner, the qualification prescribed by the Managing
Director in excess of powers delegated to him is arbitrary and capricious and this has operated as a clog on his candidature for the aforesaid post.
4. Both the learned Counsel for the Petitioner and the Respondents advanced their submissions for and against the above contention. In order to
appreciate their respective stand, let us first refer to the resolution dated 3.2.93. It would appear from the resolution (Annexure-4) that the Board
of Directors authorised the Managing Director to search for a qualified accounts personnel for the post of Accounts Officer. It is evident from the
resolution of the Board that no qualification was prescribed for the post of Accounts Officer. In pursuance of the resolution, the Managing Director
issued the impugned advertisement (Annexure-5) wherein the following qualifications have been prescribed:
Chartered Accountant/Cost Accountant preferably having 2 or 3 years experience in a Govt. or private sector undertaking.
5. To justify the requirement of higher qualification prescribed by the Managing Director, the learned Counsel for the Respondents has drawn
attention of this Court to the averments made in para 19 of their counter wherein it is stated that the Corporation is a company registered under the
Indian Companies Act and its affairs are governed by its own Memorandum and Articles of Association and Clause 116 of Articles of Association
prescribes the powers of appointment. Clause (21) of Article 116 empowers the Directors to appoint at their discretion and remove such
Secretaries, Officers, Clerks, Agents and Servants as they may from time to time think fit. Therefore, it would appear that the Directors have been
vested with the powers of appointment and to regulate the service conditions of the officers and other employees of the Corporation. The authority
given by the Board of Directors to the Managing Director is, therefore, based on the powers vested on them under the Memorandum of
Association.
6. Article 145 of the Memorandum of Association provides that notwithstanding anything contained in any of these Articles the Governor may,
from time to time, issue such directives or instructions as may be considered necessary in regards to finances, conduct of business and affairs of the
company. This provision makes it obligatory on the part of the Corporation to carry Out the instructions issued by the Governor from time to time.
The learned Counsel for the Respondents referred to a letter dated 14th December, 1992 issued by the Joint Secretary to the Government of
Assam whereby the recommendation of the Estimate Committee of the State Assembly has been forwarded. From the recommendation at SI. No.
9, it would appear that the Estimate Committee recommended immediate steps to create an audit and accounts cell by recruiting qualified Cost
Accountant. Acting on this recommendation of the Estimate Committee and, in pursuance of the resolution of the Board, the Managing Director
prescribed the minimum qualification required for the post of Accounts Officer. Since the Corporation is bound to follow the instructions of the
Government of Assam, the action of the Managing Director in prescribing the aforesaid qualification for the post of Accounts Officer cannot be
said to be arbitrary or capricious. This having been done in the interest of the Corporation, no oblique motive can be attached lo it. The
Corporation or its executive had no option but to act upon the recommendation of the Estimate Committee in the interest of the Corporation
(Para-19 in the affidavit in-opposition). This being a matter of public policy and endorsed by the State Government, it will override all conventions,
norms and practices. The steps taken by the Corporation cannot be said to have varied from existing service conditions of the Petitioner.
Therefore, the principle laid down in T.R. Kapur and Others Vs. State of Haryana and Others, cannot be invoked. Similarly the decision in
Mohinder Singh v. State of Haryana and Ors. (1989) 3 see 93 at para-11 cannot be imported and applied to salvage the cause of the Petitioner
since he did not have the requisite qualification at the time when selection was being made and even as on today. Therefore, in the opinion of this
Court, the advertisement dated 23.4.93 cannot be said to be bad in law and does not warrant any interference under Article 226 of the
Constitution. This disposes of the prayer of the Petitioner for issue of a writ to quash the advertisement dated 23.4.93.
7. Now, it is proposed to deal with the prayer of the Petitioner that a direction be issued to the Respondents to consider his case as departmental
candidate for promotion to the aforesaid post. It may be mentioned here at the very outset that the post has already been filled up in pursuance of
the aforesaid advertisement. However, the relief sought for by the Petitioner relates to the vacancy that may arise in future as well. The claim of the
Petitioner that he is a graduate in Commerce and in course of service obtained Master degree in the stream ought to have been taken into
consideration for his promotion/appointment to the post of Accounts Officer. The learned advocate representing him pleaded that the Petitioner
can legitimately expect consideration of his candidature as a departmental candidate for promotion to the aforesaid post, but for the higher
qualification prescribed by the Managing Director, his expectation has been wiped out. To appreciate this argument, let us have a picture of the
hierarchy of the Corporation in the Accounts Branch which is reproduced below:
(1) Junior Accountant (45 posts)
(2) Senior Accountant (2 posts)
(3) Superintendent (Accounts)
(4) Assistant Accounts Officer (1 post)
(5) Accounts Officer
(6) General Manager (Finance).
8. The Petitioner joined the service of the Corporation in 1988 as Junior Assistant (Accounts), now re-designated as Junior Accountant. It is
submitted on behalf of the Respondents that the posts are generally filled up by promotion but the Petitioner who is a junior employee in the
Corporation belonging to the cadre of Junior Assistant (Accounts) cannot have any legitimate expectation for consideration for
promotion/appointment to the post of Accounts Officer stealing a march over a good number of senior Officers working above him in different
higher grades. The argument of the learned Counsel appears to be reasonable. The seniority position of the Petitioner is such that under no
circumstances, his case can be considered for promotion to the post of Accounts Officer in supersession of a number of officers working above
him. The Petitioner did not apply for the post when the advertisement was issued as he did not possess the minimum necessary qualification
prescribed in this behalf. Neither from seniority point of view nor on consideration of his qualification, he appears to have had any edge over his
seniors or the direct candidates. Therefore, his expectation that he would be considered for promotion to the aforesaid post cannot be said to be
legitimate. The principles laid down in Navjyoti Coo-Group Housing Society etc. Vs. Union of India and Others, on the principle of legitimate
expectancy can under no circumstances be applied in this case as no benefit due to him was being adversely affected. An officer can legitimately
expect promotion/appointment on the basis of merit-cum-seniority provided the post is proposed to be filled up is in the next higher grade and is
required to be filled up by promotion only. The decision taken by the Managing Director to prescribe higher qualification is based on overriding
reason of public policy formulated by the Estimate Committee and is not in derogation of any right vested in the Petitioner. Examined and viewed
from all angles, the Petitioner cannot be favoured with a direction for consideration of his case for promotion/appointment both in the present
vacancy, if any, or in the future vacancy that may arise.
9. The last point argued by the learned Counsel for the Petitioner relying on the decision in Shri Yendrembam Babusaheb v. State of Manipur Ors.
1995 (2) GLT 363 that there being no Rules regulating appointment, promotion and other terms and conditions of service of the officers and
employees of the Corporation, a direction to frame Service Rules within a given time frame be issued to the Corporation. The learned Counsel for
the Respondent-Corporation referring to para 21 of the counter submitted that there is a registered trade union recognised by the Management
and, therefore, the Petitioner in his individual capacity cannot ventilate any grievance relating to the service condition. However, the learned
Counsel states that the formulation of service rules is in process in compliance with the provisions of the Industrial Employment (Standing Orders)
Act, 1946 and the draft is pending with the Respondent No. 1 for clearance from his end.
10. It would, therefore, appear from the submission made above that the formulation of the Service Rules is in progress and it is expected to be
notified soon. Since this is not a contentious issue between the parties,, the matter can be disposed of with a direction that the Service Rules should
be framed by the Corporation within a period of six months from the date of this judgment.
11. For reasons above, the Civil Rule is proposed to be disposed of with a direction that the Corporation shall endeavour to formulate the Service
Rules within a period of six months from to-day. Other reliefs claimed are rejected.
12. The Civil Rule is thus disposed of with the direction as above.