High Court
Case Details
WP(C) 1767/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. S.P. Deka, learned counsel for the petitioner. Also heard Mr. K.N. Cho udhury, learned Sr. AAG, Assam and Mr. M.K. Choudhury, learned senior counsel as sisted by Mr. N. Baruah, learned counsel for respondent No.5. The petitioner is aggrieved by the Annexure-H notification dated 11.3.2013 issue d by the Government of Assam in the Labour and Employment Department. By the sai d order, the respondent No. 5 has been allowed to hold the current charge of the post of Superintendent Incharge (in the rank of SDM and HO) against the vacant post. By the said order, he has also been allowed to hold the current charge of the post of Administrative Medical Officer Incharge of ESI, Assam. Earlier, the respondent No. 5 had approached this Court by filing WP(C) No. 5599 /2011 when the charge of Medical Officer and ESI Diagnostic Centre was given to the petitioner in addition to her own duties vide order dated 30.10.2011. Before the said order dated 30.10.2011, the authority by order dated 3.2.2010 had allo wed the petitioner to hold the additional charge of the post of Medical Officer Incharge, ESI Diagnostic Centre. On that occasion, it was the case of the respon dent No. 5 as the writ petitioner that since he had been holding the charge of t he ESI Diagnostic Centre, the same very charge could not have been given to the present petitioner in addition to her normal duties. The writ petition was dispo sed of directing the Govt. to resolve the issue including the issue relating to seniority by passing a speaking order, expeditiously as possible. Being aggrieved by the said order, the respondent No. 5 had approached the Divis ion Bench by filing WA No. 145/2013. The writ appeal was disposed of by order da ted 21.6.2013 providing resolution of the dispute between the parties within two months from the date of the order. As regards the interim order, it was provide d that the interim arrangement that was directed to be made vide interim order d ated 7.6.2013 passed in WP(C) No. 1767/2013 would continue to operate. As per the interim order dated 7.6.2013, the post of Administrative Medical Offi cer (AMO) was to be manned by adhoc arrangement by appointing a person other tha n the petitioner and the respondent No.5. Referring to the said interim order and also the Division Bench Order dated 21. 6.2013, Mr. Deka, learned counsel for the petitioner submits that the authority could not have passed the impugned order dated 11.3.2013 allowing the respondent No.5 to hold the current charge of the post of AMO. On the other hand, both Mr. K.N. Choudhury, learned Sr. AAG and Mr. M.K. Choudhury, learned senior counsel for respondent No.5 submit that as per the aforesaid orders of the learned Singl e Judge and the Division bench, there is no bar in allowing the respondent No.5 to hold the current charge of the post of Superintendent Incharge. Mr. K.N. Chou dhury, learned Sr. AAG also submits that since departmental proceeding was imita ted against the petitioner with passing of the speaking order dated 12.9.2012 co nveying the warning to the petitioner with caution to be careful in future, the administration thought it prudent not to entrust her with the current charge of the post of Superintendent with further current charge of the post of AMO. On th e other hand, Mr. Deka, learned counsel for the petitioner submits that since th e departmental proceeding did not culminate into imposition of any penalty, mere issuance of an warning with caution to be careful in future, cannot put any bar towards allowing her to hold the current charge of the post of Superintendent a
Decision
nd AMO. I have considered the submissions made by the learned counsel for the parties an d have also considered the earlier orders of this Court. As per the aforesaid in terim order dated 7.6.2013, which is required to be followed in terms of the Div ision Bench Order dated 21.6.2013, the adhoc arrangement towards manning the pos t of AMO should be by a person other than the petitioner and respondent No.5. Th e submission made is that by the said order no restraint having been imposed tow ards manning the post of Superintendent, there is nothing wrong in the impugned order, so far as the same relates to the post of Superintendent. In this context , Mr. K.N. Choudhury, learned Sr. AAG submits that having regard to the fact tha t the seniority of the petitioner vis-à-vis the respondent No.5 is yet to be det ermined and in view of the aforesaid departmental proceeding, if the authority t hought it prudent to entrust the task of current duty charge of the post of Supe rintendent to the respondent No.5, there is nothing wrong in the same. In Ram Murti Singh Vs. District Inspector of Schools, Deoria and others reported in 1997 (Supp) 3 SCC 170, when the Apex Court was confronted with the issue of adhoc appointment by promotion in the vacancy in the post of Head of the Instit ution and denial of such adhoc appointment to the senior most teacher, held that in view of the allegation against the senior most teacher, the Government was w ithin its jurisdiction and competence to make the adhoc arrangement by a junior teacher. In view of the above, the writ petition is disposed of with the following direct ions :- (i) In terms of the earlier orders of this Court referred to above, the auth ority shall now determine the seniority of the petitioner vis-à-vis the responde nt No.5 without any further delay. (ii) r manning the posts. In the interregnum, it will be open for the respondents to man the post (iii) of Superintendent consistently with the observations made above, without however , manning the post of AMO till final decision in terms of (i) and (ii) above. There shall be no order as to costs. Upon determination of such seniority it will go for regular selection fo