Judgment · High Court · 2009

Heard Mr. N. Choudhury, learned counsel for the petitioner and Sri A. K. Phukan, learned Advocate General, Assam, appearing for the respondents.

#2. The challenge in the present writ petition is against an order dated 22. 1.1986 by which the petitioner who was appointed as a Stenographer Grade-I in th e Principal Seat of the Gauhati High Court by an order dated 23.4.1983 had been demoted to his parent cadre of Stenographer Grade-II with immediate effect. All consequential benefits flowing from such interference has also been prayed for. It may be noticed at this stage that the order dated 22.1.1986 recites that the petitioner has been so demoted as he had failed to improve his performance to be at par with the requirements of a Grade-I Stenographer. The bare facts preceding the institution of the writ petition in questio

#3. n may be briefly noted at this stage. The petitioner was initially appointed, on probation, as a Grade-I Stenographer of the Kohima Bench of the High Court by order dated 4.4.83. Subsequently, by an order dated 23.4.83 he was appointed against a vacant post of Stenographer Grad e-I in the Principal Seat of the High Court at Guwahati. However, in the order dated 23.4.83 there is no mention of the fact that the said appointment of the petitioner was on probation. Both the aforesaid appointments were by way of prom otion from the cadre of Stenographer Grade-II. The petitioner continued to work as Grade-I Stenographer in the Principal Seat until by the impugned order dated 22.1.1986 he was demoted to his parent cadre of Stenographer Grade-II on the gro unds already noticed.

#4. Aggrieved by the aforesaid demotion order dated 22.1.86 the petitioner i nstituted a writ proceeding before this Court which was registered and numbered as Civil Rule No.154 of 1986. At the time of hearing of the said writ petition t he petitioner accepted an offer to sit in another fitness test and qualify himse lf for fresh appointment in the post of Stenographer Grade-I. In view of the afo resaid offer made and acceptance thereof the writ petition was closed by an orde r dated 11.8.87. However, by the said order liberty was granted to the petitione r to approach the Court again, if so advised.

#5. Thereafter, according to the petitioner, he appeared in a selection/fitn ess test held on 11.8.87 pursuant whereto by order dated 9.2.88 the petitioner w as, once again, appointed as a Stenographer Grade-I. The petitioner has stated a nd averred that he has continued to work in the said capacity for over two decad es and in the meantime had filed representations seeking benefit of the period o f service between his date of demotion i.e. 22.1.86 and his re-appointment i.e. 9.2.88. As the said representations have been dismissed and persons junior to th e petitioner (if the period of service excluded is to be counted) had been promo ted to higher posts the instant writ petition was filed in the year 2003. The wr it petition, it may be noticed, has been suitably amended so as to bring the ord ers of rejection of the petitioner’s representations on record.

#6. Sri N. Choudhury, learned counsel for the petitioner, in the course of h is argument has submitted that the demotion of the petitioner by the impugned or der dated 22.1.86 is ex facie contrary to law and in violation of the principles of natural justice inasmuch as the petitioner was granted no opportunity, whats oever, before the demotion order was recorded. Sri Choudhury further submitted t hat the petitioner having been found fit for re-appointment as Grade-I Stenograp her the alleged ground for his demotion as recorded in the order dated 22.1.86 m ust be acknowledged by the Court to be non-existent. In such circumstances, acco rding to Sri Choudhury, the petitioner would be entitled to have the period betw een 22.1.86 and 9.2.88 counted for the purpose of computation of his seniority a nd also for grant of all other service benefits.

#7. Controverting the submission advanced by Sri N. Choudhury, learned couns el for the petitioner, Sri A. K. Phukan, learned Advocate General, Assam who has appeared on behalf of the respondents, has placed before the Court the affidavi t dated 31.5.2005 filed by the Registrar General of the High Court along with th e objections dated 29.7.2008 filed in Misc. Case No.670/2008 (application for am endment of the writ petition). Sri Phukan has submitted that the petitioner was initially appointed on probation and the initial period of probation i.e. one ye ar had been suitably extended, from time to time, as mentioned in paragraph 7 of the affidavit dated 31.5.2005. Sri Phukan has further pointed out that the repr esentations filed by the petitioner had received consideration of the Hon’ble Ch ief Justice and keeping in view the fact that the petitioner had willingly accep ted the offer of fresh appointment in the year 1988 and also having regard to th e totality of facts of the case the said representations were considered fit and proper to be rejected.

#8. We have given our anxious consideration to the rival submissions advance d before us. Under Rule 14 of the Gauhati High Court Services (Appointment, Cond ition of Service and Conduct) Rules, 1967 all appointments in the High Court ser vice are required to be on probation for a period of one year which period can b e extended further under orders of the Hon’ble Chief Justice. There can be no do ubt, therefore, that even if the fact i.e. that the initial appointment was on p robation was not specifically mentioned in the order of appointment of the petit ioner dated 23.4.83, the said appointment of the petitioner in the post of Steno grapher Grade-I has to be understood to be on probation. In paragraph 7 of the a ffidavit filed by the Registrar General of the High Court it has been categorica lly stated that the probation of the petitioner was extended on several occasion s. In the said affidavit as well as in the objection filed in Misc. Case No.670/ 2008 clear and categorical statements have been made that the petitioner’s perfo rmance was not up to the mark which necessitated the impugned order dated 22.1.8 6.

#9. If the petitioner was on probation and the period thereof was extended b eyond the initial period of one year and further in the absence of any order con firming the petitioner in service as required under Rule 15 of the Service Rules , the Court will have to construe the order of demotion dated 22.1.86 as an orde r of not confirming the petitioner in service. If that be so, there can be no oc casion for the Court to understand the said order to be in any manner penal or a s a measure of punishment. The petitioner challenged his demotion order dated 22 .1.86 in Civil Rule No.154 of 1986. Subsequently, the petitioner withdrew the sa id writ petition and in spite of the leave granted to him to approach this Court , if he continued to feel aggrieved, the petitioner did not ventilate any grieva nce with regard to his service conditions until the year 2003 i.e. for over 15 y ears. In the meantime the petitioner voluntarily and willingly accepted the fres h order of appointment made by order dated 9.2.88 and continued to remain in ser vice. While it is correct that the petitioner had filed several representations which were dealt with by the highest authority in the High Court it is our consi dered view that filing of such representations cannot satisfactorily explain the long delay on the part of the petitioner in approaching this Court. That apart, we also deem it proper to put on record that the representations filed by the p etitioner are beyond the provisions of the Gauhati High Court Services (Appointm ent, Condition of Service and Conduct) Rules, 1967 inasmuch as the order dated 22.1.86 having been held by us not to be penal or by way of punishment, the prov isions of Rule 30 of the Service Rules, on which reliance has been placed by the learned counsel for the petitioner, will have no application.

#10. It is, therefore, our considered view that on the facts stated above the present writ petition is not a fit case for our interference in the exercise of the high prerogative and discretionary jurisdiction under Article 226 of the Co nstitution. We, therefore, take the view that it would be more appropriate for u s to decline the reliefs sought for in the writ petition and dismiss the same. I t is ordered accordingly. However, in the facts and circumstances of the case, w e leave the parties to bear their own costs.