D. Biswas, J.
1. By this judgment we propose to dispose of Writ Appeal Nos. 438/04 and 439/04 which have arisen out of common judgment and order dated c 24.11.2004 passed by the learned Single Judge in WP(C) Nos. 1043/03 and 2195/03.
2. Before the point of controversy is taken up for consideration, it would be apposite to recapitulate hereinafter the facts of the case in brief. WP(C) No.1043/03 has been filed by Junior Subject-Matter Specialists (hereinafter referred to as 'JSMS') working in the Department of Agriculture, challenging the vires of Rule 12(4)(v) of the Assam Agricultural Service Rules, 1980, on the ground of alleged inconsistency amongst certain provisions embodied therein. Further prayer has been made for consideration of the case of the JSMS only for promotion to the next higher cadre, i.e., Sub-Divisional Agricultural Officer (for short 'SDAO'). The purpose behind the writ is to keep the Agricultural Extension Officers out of the purview of promotion. WP(C) No. 2195/03 has been filed by the Agricultural Extension Officers (for short 'AEO') working in the same department for direction for consideration of their case for promotion to the posts of Sub-Divisional Agricultural Officer in accordance with the provisions of the Rules of 1980, subject to clearance of back log of reserved vacancies in accordance with the provisions of the Assam SC and ST (Reservation of Vacancies and posts) Act, 1978 and the rules framed thereunder. The learned Single Judge allowed the Writ Petition (C) No. 1043/2003 filed by the JSMS and dismissed the writ Petition (C) No. 2195 of 2003 filed by the AEOs'. The learned Single Judge read down the provisions of Rule 12(4)(v) holding, inter alia, that the Junior Subject-Matter Specialists alone are eligible for consideration for promotion to the post of Sub-Divisional Agricultural Officers. Thus, the scope for promotion of the incumbents to the cadre of Agricultural Extension Officers has been totally obliterated.
3. It has been extensively argued at the Bar that as a matter of practice, ' the State Government have never promoted AEOs directly to the posts of Sub-Divisional Agricultural Officer. All along, promotion to the cadre of Sub-Divisional Agricultural Officers has been made from and amongst the eligible JSMS only. It has also been argued to justify that the JSMS are of higher pedestal than the AEOs. The pleadings as well as the materials on record and the submissions advanced by the learned Counsel for the parties including the learned State Counsel suggest that the AEOs have never been directly promoted to the posts of Sub-Divisional Agricultural Officer. However, Mr. P.K. Goswami, learned senior counsel argued that past practice contrary to the provisions of law is of no significance and it cannot scuttle down the rights of the employees vested on them for consideration for promotion as per provisions of the Rules framed under Article 309 of the Constitution. Mr. Goswami pointed out that a statute has to be interpreted in its own language without being influenced by the background, past practice and other extraneous matters unless the provisions therein are ambiguous and not capable of interpretation without the aid of past practice etc. Mr. Goswami, learned senior counsel further submitted that the past practice, preceding documents, the objects and reasons of an enactment are relevant for interpretation of a statute only to remove confusion and not otherwise. According to Mr. Goswami, interpretation on the basis of past practice etc. are permissible also to remove the hardship which, according to him, is not the case here. Mr. A.M. Mazumdar, Mr. D.K. Mishra and Mr. R.P. Sarma, learned senior counsels, however, countered the above contentions of Mr. Goswami. According to them, there are conflicting and contradictory provisions in the Rules which necessitate reliance on the past practice, etc., for interpretation. We have applied our mind to the above contentions. We are of the view that scrutiny would be confined to the provisions of the Rules relevant for answering the question whether the cadres of JSMS and the AEOs are independent, and the incumbents of both the cadres have vested rights under the Rules for consideration for promotion to the next higher grade.
4. It may be clarified here that the incumbents to the posts of JSMS and AEO are members of Assam Agricultural Service Class-II as provided in Rule 3(l)(c) of the Rules, 1980. For better appreciation, Rule 3(l)(c) is quoted below:
3. Class and Cadre - (l)(c) Class II - It shall include the cadres of-
(i) Junior Subject Matter Specialist; and
(ii) Agricultural Extension Officer
5. It would appear from above that the Class II service under the Rules of 1980 comprise of two cadres, namely, (i) Junior Subject Matter Specialists and (ii) Agricultural Extension Officer. There is nothing in. the Rules of 1980 to show that the incumbents of these two independent cadres are interchangeable or that one is superior to the other. Rule 6 provides that the posts of Agricultural Extension Officer and Junior Subject Matter Specialist in Class II are to be filled up by the Governor on the basis of the recommendations made by the Commission in accordance with the procedure prescribed thereunder. The Rule relating to recruitment and appointment does not provide for composite selection and appointment. The provisions relating to direct recruitment as embodied in Rule 6 is, however, subject to the provisions in Sub-rule (3) of Rule 11, which reads as follows:
11(3). 25 per cent of the strength of the cadre of Agricultural Extension Officer and Junior Subject Matter Specialist shall be filled by promotion, subject to availability of suitable candidates, provided that any shortfall of this reservation due to non-availability of adequate number of suitable candidates in a particular year or years shall be carried forward to the subsequent year(s).
6. Rule 5 deal with the method of recruitment. Clause (a) of Sub-rule (3) of Rule 5 provides for direct recruitment against 75 per cent of the strength of the cadres of Agricultural Extension Officer and Junior Subject-Matter Specialist in accordance with Rules 6 and 18 and the remaining 25 per cent by promotion from subordinate staff. There is no ambiguity in the language employed with regard to recruitment procedure to the posts of AEO and JSMSection 75 per cent of the posts in both the cadres are to be filled up by direct recruitment and 25 per cent by promotion. The incumbents of both the cadres are eligible for promotion to the post of Sub Divisional Agricultural Officer Class I of the Service as provided in Clause (b) of Sub-rule (1) of Rule 3. The promotion to the posts of Sub Divisional Agricultural Officer from the cadres of AEO and JSMS is regulated by the provisions of Rules 12 and 13. Sub-rule (4) of Rule 12 reads as follows:
Rule 12(4): Subject to suitability as may be decided by the Board and by the Appointing Authority, as set forth in Rule 13 and also subject to possessing qualifications and experience as prescribed hereinafter, an officer shall be eligible for promotion from one cadre to another of the service in the manner provided below:
(i) From Joint Director to Additional Director
(ii) From Deputy Director to Joint Director.
(iii) From Subject Matter specialist to Deputy Director
(iv) From Sub-Divisional Agricultural Officer to Subject-Matter Specialist.
(v) From Agricultural Extension Officer and Junior Subject-Matter specialist to Sub-divisional Agricultural Officer.
7. The above provision is further clarified by Clause (e), Sub-rule (5) of Rule 12, which is quoted below:
12(5)(e) - For promotion to the cadre of Sub-Divisional Agricultural Officer an officer must have at least, a degree in Agricultural Science or M.Sc. (Agricultural Bot) and must have rendered service for a minimum period of 5 years in the corresponding lower cadre of the service on the first January of the year of promotion:
Provided the above mentioned qualification, shall be relaxed for officer already in service and possessing B.A. or B.Sc. (or B.Com.) degrees but this relaxation will apply to promotion to posts mentioned in Schedule HI to the Rules only and for that purpose the promotion in the cadre of Subject Matter Specialist will be done from the cadre of A.A.S. Class-II.
Rule 13 provide for the general procedure of promotion. The provisions therein are not relevant for answering the issues raised in these appeals.
8. As quoted hereinbefore, the provisions of the Rules of 1980 leave no shadow of doubt that the two cadres of AEO and JSMS comprise two different and independent cadres, and the incumbents of both the cadres are eligible for promotion to the posts of Sub-Divisional Agricultural Officer. The scheme for selection and appointment as provided in the Rules make it abundantly clear that there should be separate recruitment process for both the cadres. We are unable to discern that the posts of Sub-Divisional Agricultural Officers are to be filled up by the JSMS only and not by the AEOs.
9. A plain reading of the provisions of Rule 12(4)(v) and Rule 12(5)(e) quoted hereinbefore clearly suggest that there is no ambiguity in the Rules insofar as the following propositions are concerned:
(i) The AEOs and JSMS constitute two independent cadres belonging to Class II of the Assam Agricultural service.
(ii) That the incumbents, of both the cadres are eligible for consideration for promotion to the post of Sub-Divisional Agricultural Officer.
10. The undisputed fact is that the appointment to the cadre of AEOs has always been made directly in accordance with the provisions enumerated above. The cadre strength of the JSMS has never been filled up permanently in accordance with the provisions of the rules. The controversy has arisen in view of the State action in manning the posts of JSMS by transferring the AEOs on the basis of their seniority, and thereafter promoting some of them (JSMS) to the posts of Sub- Divisional Agricultural Officers to the exclusion of the AEOs. This practice of the State Government did not adversely affect the promotion prospect of the AEOs since it is only they who became JSMS on transfer on the basis of seniority and eventually considered and promoted to the posts of Sub-Divisional Agricultural Officers. But this does not mean that the AEOs as a cadre are perpetually estopped from asserting their rights under the Rules. The practice of promotion of the JSMS to the exclusion of the AEOs has been contrary to the provisions of the Rules relating to promotion which entitle the incumbents of both the cadres for consideration for promotion. This practice, howsoever old, cannot 'divest the vested right of the AEOs under the Rules for promotion to the posts of Sub Divisional Agricultural Officers. The provisions of the Rules have to be followed in letter and spirit. The claim of the AEOs for compliance of the provisions of the Rules in the matter of promotion cannot be ignored till the Rules are in force. A right vested under the Rules framed under Article 309 of the Constitution on a class of officers cannot be divested by any State action contrary to the provisions of the Rules'.
11. The JSMS have challenged the vires of the provisions of Clause (v) of Sub-rule (4) of Rule 12 in the writ petition WP(C) No. 1043/03. Let us decide what is their status in the cadre of JSMS. Admittedly, they have not been recruited directly to this cadre and, therefore, they are not permanent incumbents of the cadre. They are the senior AEOs who have been transferred and posted as JSMS to hold the posts. Because of their long continuance, it may at best be construed to be deemed deputation and nothing else. They continue to hold lien to the cadre of AEOs unless severed in accordance with the provisions of Fundamental Rules. They being the officers in the cadre of AEOs cannot insist upon for consideration of their case for promotion to the posts of Sub-Divisional Agricultural Officer in their present capacity as JSMS. In fact, the writ petition filed by them has been on wrong foundation. If their prayer for declaring the provisions of Clause (v) of Sub-rule (4) of Rule 12 as ultra vires is allowed, it is they who will be adversely affected. Reading down of the provisions of this Clause (v), as has been done by the learned Single Judge, will also adversely affect their promotion prospect. There being no permanent incumbent to the cadre of JSMS, none of the AEOs including the writ petitioners in WP(C) No. 1043/03 would be entitled to consideration for promotion to the posts of Sub-Divisional Agricultural Officer if the impugned decision is allowed to attain finality.
12. It is undisputed that the seniormost Agricultural Extension Officers have been transferred and posted as Junior Subject Matter Specialists. The notification dated 18th October, 1996 reads as follows -
GOVERNMENT OF ASSAM
AGRICULTURE DEPTT:::: AGRICULTURE BRANCH ORDERS BY THE GOVERNOR
NOTIFICATION
Dated Dispur, the 18thl October, 1996
No. AGA.287/96/115: In the interest of public service the Governor of Assam is pleased to transfer the following senior most Agril. Extension Officers allowing them the status of Junior Subject Matter Specialist and equivalent posts, in the identical scale of pay of Rs. 1,835-4,325 with special pay of Rs. 50 p.m. where applicable, and other allowances as admissible under the Rules, and post them at the places shown against each of their names, with immediate effect and until further orders.
Name of officers and Place of posting
Present designation
l.XXXXX
2.XXXXX
3.XXXXX.
13. The above notification shows that it is purely an order of transfer of the Agricultural Extension Officers with the status of Junior Subject-Matter Specialist, an equivalent post in the identical scale of pay. The word 'status' does not indicate, even by stretch of imagination, that it was severance of their lien in the cadre of AEOs for the purpose of encaderment in the cadre of JSMS. The special pay of Rs. 75 attached with the post of Junior Subject-Matter Specialist does not place it at a higher pedestal for the simple reason that special pay is attached to the post and not to the concerned incumbent. A post with special pay in a different cadre for the arduous nature of job cannot be treated as higher in status than a post in the same scale of pay in a different cadre. It is not the case that the special pay has been attached to certain posts in the same grade of the same cadre. Had it been so, our answer would have been altogether different. It also cannot be argued that in view of the order dated 18th October, 1996 passed by the State Government, the JSMS cannot be transferred back to their original cadre. Nowhere it is indicated that such transfer was ordered after taking option from the AEOs in order to permanently allocate them to the cadre of JSMS. The State is at liberty to revert back the JSMS back to their original cadre of AEOs. This position stands vindicated by the statement in para 4 of the affidavit-in-opposition dated 3.6.2003 filed by the State. The State has emphatically stated that the posts of JSMS is not a promotional post from the cadre of Agricultural Extension Officers as the scale of pay of both the posts are same and that the JSMS get special pay of Rs. 75 which is not countable for purpose of fixation of pay, pension etc. We find enough force in this submission of the State Government. In para 5 it has been stated that the posts of JSMS have -been filled up by way of transfer of officers on the basis of seniority from the cadre of AEOs and that the officers of both the cadres are eligible for consideration for promotion. The stand taken by the State, in our opinion, is in conformity with the provisions of the Rules of 1980.
14. The dispute arose between these groups of officers, all belonging to the cadre of AEOs, with regard to their right for promotion to the posts of Sub-Divisional Agricultural Officer. The State Government by the order dated 22nd January, 2002 upgraded 100 posts of JSMS to the post of Sub-Divisional Agricultural Officers. The writ petitioners in Writ Petition (C) No. 1043/2003 (transferred and posted as JSMS) asserted their right for promotion to the post of Sub-Divisional Agricultural Officers to the exclusion of the AEOs. It is argued that the 100 posts of JSMS have been upgraded along with their incumbents. Therefore, the seniormost JSMS will automatically stand promoted to the posts of Sub-Divisional Agricultural Officer on such upgradation. Let us, therefore, have a look at the order of upgradation to determine the legality and validity of this claim. The order dated 22nd January, 2002 issued by the Government reads as follows:
I am directed to convey the sanction of the Governor of Assam to the upgradation of 100 (one hundred) posts of SMS (Jr.) with different designation shown in the statement at Annexure-I carrying the scale of pay of Rs. 4,390-11,4325 p.m. to the cadre of Sub-Divisional Agril. Officer in Agriculture Deptt. in the scale of pay of Rs. 5,725-175-660-250-7,350-EB-250-8,100-325-11,025-400-11,825 p.m. These posts were originally created and retained vide Govt. letters shown in the statement at Annexure-II.
The above upgradation will be come into force with effect from the date of entertainment of the upgraded posts.
Consequent on the upgradation of 100 posts of SMS (Jr.) mentioned at a the statement at Annexure-I will simultaneously be stand abolished from the date of entertainment of the upgraded posts of SDAO by promotion under the Assam Agriculture Service Rules, 1980. This issues with the concurrence of Finance Deptt. vide their U.O. No. FEC-I.422/2001 dated 5.7.2001.
15. A cursory glance of the language employed in the above notification would show that the upgradation was in respect of the posts only and not of the incumbents to the posts of JSMS. The words 'The above upgradation will come into force with effect from the date of entertainment of the upgraded posts' is indicative of the intention of the State. Had it been an automatic upgradation of the incumbents along with the posts, there would have been a different phraseology in the notification. The notification indicates that the above upgradation will come into force from the date of entertainment of the upgraded post. The provision for abolition of 100 posts of JSMS as provided in third para of the notification speaks of abolition of 100 posts of JSMS on entertainment of the upgraded posts of Sub-Divisional Agricultural Officer by promotion under the Assam Agriculture Service Rules, 1980. The phrase 'from the date of entertainment of the upgraded posts of SDAO by promotion under the Rules' clearly unfurls the intention of the Government. The word 'entertainment' would definitely mean filling up the posts of Sub-Divisional Agricultural Officers by way of promotion in accordance with the provisions of the rules. The provisions of the Rules of 1980, as discussed hereinabove, lay down in clear terms as to how the posts of Sub-Divisional Agricultural Officers are to be filled up. Two distinct cadres of AEOs and JSMS have been created under the Rules and the incumbents of both these cadres have been made eligible for consideration for promotion to the posts of Sub-Divisional Agricultural Officer. Therefore, the claim of the JSMS that they stood promoted to the posts of Sub-Divisional Agricultural Officers on upgradation of 100 posts has no leg to stand.
16. It is true that the Rules do not provide for any quota for filling up the promotional vacancies and it is for the State to fill up this gap, if necessary, by issuing administrative instructions. Absence thereof will also not pose any problem for the present since consideration for promotion will have to be made presently from and amongst the officers in accordance with the seniority in the cadre of AEOs only as there is no permanent incumbent to the cadre of JSMS. From that point of view, the officers posted as JSMS being senior to the AEOs will have the priority for consideration against the vacancies in the cadre of Sub-Divisional Agricultural Officers provided they are within the zone of consideration. If not reverted back to their original cadre, i.e., the cadre of AEOs, at least they will have to be considered for proforma promotion. Mr. BJ Talukdar, learned Senior Govt. Counsel with reference to the affidavit-in-opposition submitted that the Government is proposing to consider the officers of both the cadres for promotion to the upgraded posts of the Sub-Divisional Agricultural Officer. This stand, as is evident from the affidavit-in-opposition, leaves no room for doubt not only about the existence of two separate and independent cadres but also of the rights of the officers of both the cadres for consideration for promotion to the next higher grade. According to the State Government, publication of two separate gradation lists for the JSMS and the AEOs do not confer any right on the members of either of the cadres for consideration for promotion to the exclusion of the other. The provisions of the Rules being clear, publication of two gradation lists cannot be construed as permanent allocation of the Senior AEOs to the cadre of JSMS. They are mere transfree as is evident from the notification of transfer.
17. It has been endeavoured at length on behalf of the incumbents to the cadre of JSMS that the past practice and certain observations in the file of the Finance Department would be decisive for interpretation of the Rules. Reliance has also been placed in this regard on the decisions in Srimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi, reported in : [2002]1SCR393 , Vinod Kumar Sangal v. Union of India and Ors. reported in : [1995]3SCR734 and in Dr. Ms. O.Z. Hussain v. Union of India reported in 1990 (Supp) SCC 688. We have carefully considered the ratio available in the aforesaid decisions of the hon'ble Supreme Court. The decision in Srimant Shamrao Suryavanshi (supra) has been emphasized to show that the document or report preceding the legislation can legitimately be taken into consideration while construing the provisions of the Act. There is no dispute with regard to this position of law. The aim and object of the statute and other documents or report preceding the legislation can definitely be taken into consideration in interpreting the provisions of the Act. But it does not mean that when the meaning of a statute is clear, the aforesaid documents can be looked into for the purpose of interpretation. In our opinion, there is no necessity for taking aid of the aforesaid materials for the purpose of interpretation of the Rules at hand. This view stand augmented by the observation of the hon'ble Supreme Court in para 4 in N. Suresh Nathan and Anr. v. Union of India and Ors. reported in 1992 Supp (1) SCC 548. The hon'ble Supreme Court observed: 'The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined.'. This observation of the hon'ble Supreme Court further clarify the position that when a Statute as it is admit of no ambiguity, question of looking into the past practice would not arise as this would upset the provisions of the Statute. The case at hand is somewhat akin to this situation. The Rules provides for two independent cadres without any provision for inchangeablity, and these two cadres are the feeder cadres to the post of Sub-Divisional Agricultural Officers. This alone rules out any scope for interpretation of the provisions of the service Rules with the aid of past practice. Though the JSMS only have been considered for promotion to the post of Sub-Divisional Agricultural Officer so far, such practice cannot be superimposed on the provisions of the Rules. The right vested on the incumbents to the cadre of AEOs under the Rules cannot be obliterated altogether. If the impugned interpretation is sustained, the AEOs will be left at lurch in perpetuity without any avenue for promotion. The argument that the Senior AEOs will be transferred to the cadre of JSMS batch by batch and then considered and promoted to the posts of Sub-Divisional Agricultural Officer cannot salvage the situation. It is because the AEOs do not have any vested right of transfer to the cadre of JSMS under the Rules. They may or may not be transferred by the State. We are, therefore, constrained to hold that the JSMS have failed in their bid to make out a case for themselves to the exclusion of the AEOs.
18. In the result, both the appeals are allowed. Consequent thereupon, Writ Petition (C) No. 1043 of 2003 filed by the JSMS is dismissed and the Writ Petition (C) No.2125 of 2003 filed by the AEOs is allowed in reversal of the impugned common judgment. It is directed that the upgraded 100 posts in the cadre of Sub-Divisional Agricultural Officers have to be filled up from the incumbents of both the cadres of JSMS and AEOs in accordance with the provisions of the Rules. For this purpose a ratio in the cadre of Sub-Divisional Agricultural Officer may be prescribed by the State. The incumbents to the cadre of JSMS who are holding the posts on transfer are also declared eligible for consideration for promotion on the basis of their rank, status and seniority as AEOs.