High Court · 2012

In assailment is the order dated 10.01.2011 of the learned District & Sessions J udge, Tinsukia promoting the Respondent No.4 to the post of Sheristadar in the o ffice of the District & Sessions Judge, Tinsukia in the pay scale of Rs.8000 - R s.35000/- plus Grade Pay of Rs.4,200/- per month with other allowance. We have heard Mr. K. Bhattacharjee, learned counsel for the petitioners and Mr. S.K. Medhi, learned Standing Counsel, Gauhati High Court, Guwahati. We have hear d as well Mr. P.S. Deka, learned Addl. Senior Govt. Advocate, Assam for Responde nt No.1. In spite of service of notice, the Respondent No.4 has not arranged for his repr esentation in the instant proceeding. It is submitted at the Bar that the petiti oner No.1 has since expired and thus is not in the fray. Be that as it may, the pleaded case of the petitioners is that at the time of t he institution of the writ petition on 09.02.2011, the petitioner No.1 (since de ad) was serving as UDA in the office of the learned District & Sessions Judge, T insukia. The petitioner Nos.2 & 3 at the relevant time also held the post of UD A in the substantive capacity in the said office. As per the gradation list of t he Ministerial staff of the establishment of the District & Sessions Judge, Tins ukia as on 01.04.2010, the petitioners and the Respondent No.4 were inter se pla ced as hereunder: (1) (2) (3) (4) Smti Padmini Mahanta(Petitioner No.1) Sri Khagendra Nath Patar(Petitioner No.2) Sri Sariful Hussain(Petitioner No.3) Sri Prabhakar Gogoi(Respondent No.4) The gradation list reflected, inter alia that Smti Padmini Mahanta and Sri Sarif ul Hussain (Petitioner Nos.1 & 3) belong to the general category, whereas, Sri K hagendra Nath Patar, Petitioner No.2 and Sri Prabhakar Gogoi, Respondent No.4 we re from the O.B.C. & M.O.B.C category respectively. The inter se seniority, as above, was for the post of Upper Division Assistant (hereinafter for short refer red to as the UDA). On 01.03.2010, the post of Head Assistant in the establishment of District & Ses sions Judge, Tinsukia fell vacant on the retirement of the previous incumbent Sr i Prabin Kr. Baruah and subsequent thereto, vacancy in the post of Sheristadar o ccurred w.e.f. 31.07.2010 due to superannuation of the erstwhile incumbent. According to the petitioners, both these posts are promotional posts under the A ssam District & Sessions Judges, Establishment (Ministerial) Service Rules, 1987 (for short hereinafter referred to as the Rules). As, though, the criteria for such promotion was seniority-cum-merit, the concerned authority initiated a pro cess for selection on the basis of written examination therefor to fill up the p ost of Head Assistant, the petitioner No.1 questioning the validity of the exerc ise contemplated, approached this Court with WP(C) No.3050/2010 which was dispos ed of on 31.08.2010 sustaining her impugnment. The process of selection was int erfered with and the authority concerned was directed to undertake a fresh proce ss on the basis of service records of the eligible incumbents in accordance with the interpretation of Rule 6(2) of the Rules as made therein. By the said deci sion the post of Head Assistant in the establishment of the District & Sessions Judge, Tinsukia was held to be required to be filled by promotion on the norm of seniority-cum-merit. According to the petitioners, in compliance of the above d ecision, the selection was held under the Chairmanship of the District & Session s Judge, Tinsukia and the Selection Committee recommended the Petitioner No.1 to be appointed temporarily in the post of Head Assistant in the office of the lea rned District & Sessions Judge, Tinsukia. However, in the order dated 10.01.201 1 to the above effect, it transpired that the Respondent No.4 who at the relevan t time was working as Bench Assistant on deputation in the office of Addl. Distr ict & Sessions Judge (F.T.C.), No.1, Tinsukia had been promoted and appointed as Sheristadar in the office of the District & Sessions Judge, Tinsukia. By the s aid order the petitioner No.2 and the Petitioner No.3 were made to officiate as Supervisory Assistant-cum-Sheristadar in the Court of the Civil Judge, Tinsukia and Sheristadar in the Court of the Munsiff, Tinsukia respectively. Being aggri eved by the promotion of the Respondent No.4 to the post of Sheristadar in the o ffice of the District & Sessions Judge, Tinsukia, by the order dated 10.01.2011 the petitioners seek redress by invoking the extra ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. The Respondent Nos.2 & 3 in their affidavit, in substance have pleaded that as n one of the members of the staff in the establishment of the District & Sessions Judge, Tinsukia was at the relevant point of time eligible in terms of the Rules , to be considered for promotion to the post of Sheristadar in the office of the District & Sessions Judge, Tinsukia a clarification was sought for from the Reg istry of this Court, more particularly in view of the judgment and order dated 3 1.08.2010 rendered in WP(C) No.3050/2010. According to the respondents, the fol lowing clarification was provided by the Registry vide letter No. HC.VII-109/201 0/7672/A dated 31.07.2010- (cid:28)I am directed to inform you to ask the employee who has been asked to officiate as Head Assistant to officiate as Sheristadar and allow any other person suitab le for the post of Head Assistant to officiate as Head Assistant in your establi shment pending selection of regular Sheristadar and Head Assistant on following the procedure prescribed. You are further informed to proceed with the on going process for selection of H ead Assistant and Sheristadar of your Establishment (cid:29). On the receipt of this clarification, according to the respondents, an urgent me eting of the Selection Committee headed by the learned District & Sessions Judge , Tinsukia was convened and the senior most substantive U.D. Assistants namely- Sri Prema Kanta Gogoi (since retired), Smti Padmini Mahanta, Shri Khagendra Nath Pator (Petitioner No.2), Sri Prabhakar Gogoi (Respondent No.4), Sri Bikash Bura gohain and Sri Phatick Chandra Neog were considered for appointment as officiati ng Head Assistant. The Selection Committee having proposed the name of the Peti tioner No.1 to act as the officiating Head Assistant and she having accorded her willingness to do so, her name was forwarded to finalize the said arrangement. The Selection Committee in its meeting held on 22.12.2010 and 23.12.2010 having noticed that none of the employees in the establishment of the District & Sessi ons Judge, Tinsukia had the requisite qualifications as prescribed by Rule 6(2) of the Rules for promotion to the post of Sheristadar in the office of the Distr ict & Sessions Judge, Tinsukia, deliberated upon the Annual Confidential Reports for the years 2007-2008, and 2009 and the service records of the following inc umbents- (1) (2) (3) (4) (5) (6) Smti Padmini Mahanta, Petitioner No.1)(since deceased). Sri Khagendra Nath Patar(Petitioner No.2) Sri Sariful Hussain(Petitioner No.3) Sri Prabhakar Gogoi(Respondent No.4) Sri Bikash Buragohain (Respondent No.6) Sri Phatick Ch. Neog According to the Selection Committee, the Annual Confidential Reports of the Res pondent No.3 disclosed his gradings to be (cid:28)Average (cid:29) for two consecutive years, i .e. 2008 and 2009 compared to (cid:28)Good (cid:29) awarded to the other candidates. In view of his poor grading the Selection Committee, therefore, did not recommend the Resp ondent No.3 for the post of Sheristadar. It however, having further noticed tha t the assessment of the other candidates as per the detailed entries in the ACRs demonstrated that they were at par on all counts decided to lay emphasis on the ir educational qualifications having regard to the post in contemplation i.e. Sh eristadar in the office of the District & Sessions Judge, Tinsukia. Reference w as thus made to the letter dated 21.08.2010 of the Judicial Department, Govt. of Assam, which recommended the academic qualification to be at least (cid:28)Graduate (cid:29) f or the post of Sheristadar. Having regard thereto and taking note of the fact th at out of the candidates, only the Respondent No.4 was a graduate in the Science stream and Sri Phatick Chandra Neog, a post graduate, the Selection Committee r ecommended the former being relatively senior to Sri Phatick Chandra Neog for th e post of Sheristadar. In the process it was noticed that the petitioner No.1 a nd the Petitioners No.2 & 3 only matriculates and Sri Bikash Buragohain had pass ed the Higher Secondary School Leaving Certificate. The impugned order was thus passed on the basis of the consequential recommendations. Mr. Bhattacharjee has emphatically argued that as none of the candidates admitte dly was eligible in terms of Rule 6(2) for promotion to the post of Sheristadar in the office of the District & Sessions Judge, Tinsukia the recommendation in f avour of the Respondent NO.4 is ab initio null and void and therefore the order dated 10.01.2011 to that effect is liable to be set aside. According to him, the emphasis on the academic qualification as laid by the Sele ction Committee was wholly irrelevant as thereby the prescribed norm of seniorit y-cum-merit was given a conscious go bye. In any view of the matter, according t o Mr. Bhattacharjee, the Respondent No.4 could not have been favoured with a pro motion to the post of Sheristadar, thus skipping over the intermediate post of H ead Assistant. Mr. Medhi, in reply has submitted that the petition with the lapse in time has b een rendered infructuous, inasmuch as, the petitioner No.1 has expired and the P etitioner No.2 has since been transferred to the office of the District & Sessio ns Judge Sivsagar and the Petitioner No.3 has been adjudged to be unsuitable on the basis of his performance. As the seniority of the employees of the establis hment of the District & Sessions Judge, Tinsukia is maintained district wise, th e Petitioner No.2, as on date, is out of reckoning vis-à-vis the post of Sherist adar, Tinsukia. Without prejudice to this, the learned Standing Counsel has furt her urged with reference to the original records that the recommendations on the basis of which the decision had been taken as reflected by the order dated 10.0 1.2011 being in the exigencies of the office and in tune with clarification prov ided by this Court, no interference therewith at this distant point of time is w arranted. We have considered the pleadings of the parties and the documents in support the reof. We have perused the original records to the proceedings culminating in th e order dated 10.01.2011. There is no manner of doubt as is obviously revealed by the affidavit filed by the respondents, that at the relevant point of time th ere was no candidate eligible in terms of Rule 6(2) of the Rules for being consi dered for promotion to the post of Sheristadar in the office of the District & S essions Judge, Tinsukia. That the post of Head Assistant as well as of Sheristad ar in the said office both were lying vacant w.e.f. 31.07.2010 and 01.03.2010 re spectively is evident from the records. That these two posts besides being in th e higher echelon of service in the establishment, were in the exigencies of serv ice required to be filled up on urgent basis is understandable. It must have bee n in this backdrop that the learned District & Sessions Judge, Tinsukia sought f or necessary clarification from the Registry of this Court at the Principal Seat in response whereof, the same as quoted hereinabove had been furnished. A plain reading of the extract, as above, reveals that the Registry on an assess ment of the prevailing facts and circumstances had in essence advised the learne d District & Sessions Judge to fill up the posts of Sheristadar and Head Assista nt involved on officiating basis pending selection for regular appointment there to. The exercise as detailed in the affidavit of the respondents is amply borne out by the records and more particularly the proceedings of the Selection Commi ttee held on 23.12.2010 and 24.12.2010. The promotions/ postings as are disclos ed by the order dated 10.01.2011 are fully in conformity therewith. The conside rations on the basis of which the said recommendations had been made are also em bodied in these resolutions. Be that as it may, we are constrained to hold that the promotion of Respondent N o.4 as Sheristadar in the office of the learned District & Sessions Judge, Tinsu kia on regular basis cannot be accepted to be in accordance with the prescriptio ns of Rule 6(2) of the Rules. As admittedly, none of the candidates concerned i ncluding the Respondent No.4 at the relevant point of time was eligible and or q ualified in terms of the above provisions of the Rules to be considered for prom otion to the post of Sheristadar, the detailed exercise set out in the resolutio n dated 23.12.2010 and 24.12.2010 notwithstanding, recommendation for regular pr omotion in favour of Respondent No.4 could not have been made. Realizing this p ossibility, we can safely presume that the Registry of this Court had advised th e learned District & Sessions Judge, Tinsukia to make officiating arrangement to keep the posts of Sheristadar and Head Assistant of the office of the learned D istrict & Sessions Judge, Tinsukia functional till regular promotions thereto we re made. Prima facie, the process undertaken by the Selection Committee to selec t the candidates from a zone 6(six) U.D. Assistant in the establishment of learn ed District & Sessions Judge, Tinsukia cannot be faulted with. This demonstrate s an objective approach of the Selection Committee in selecting the most suitabl e candidates for the posts involved. However, to reiterate, in view of the enjo inment of Rule 6(2), recommendation for promotion of the Respondent No.4 to the post of Sheristadar in the office of the District & Sessions Judge, Tinsukia on regular basis in our view could not have been made. The impugned order dated 10. 01.2011 to that effect thus cannot be sustained. The above, notwithstanding having regard to the background in which the exercise was undertaken by the Selection Committee for filling up the posts of Sheristad ar and Head Assistant in the office of the learned District & Sessions Judge, Ti nsukia, we are not inclined to interfere with the arrangement continuing, as on date. We however, make it clear that the promotion/appointment of Respondent No .4 to the post of Sheristadar in the office of the learned District & Sessions J udge, Tinsukia would be construed to be temporary and on officiating basis. As the appointments and postings of the petitioners are not in challenge before us, we refrain from making any observation with regard thereto. The learned District & Sessions Judge, Tinsukia would now undertake a fresh proc ess strictly in accordance with the Rules to fill up the post of Sheristadar in the aforementioned establishment for making regular appointment/promotion theret o. Having regard to the importance of the post and the stability of the tenure of the incumbents thereof, to ensure the quality of performance, we are of the v iew that the process as ordered should be expedited to the extent possible. We part with the observation that the learned District & Sessions Judge, Tinsukia w ould initiate a process at the earliest and endeavour to complete the same withi n a period of 6(six) months herefrom. The petition is allowed to the extent ind icated hereinabove. No costs