High Court
Case Details
WP(C) 2131/2009 BEFORE THE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH Judgment and Order (Oral) (Ansari, J)
Legal Reasoning
Aggrieved by the order, dated 21-05-2009, passed, in the Original Applic ation (in short, ’OA’) No. 19 of 2008, by the learned Central Administration Tri bunal (in short, ’Tribunal’) Guwahati Bench, dismissing the OA, the petitioner, who had filed the OA, has come to this Court with the present application, made under Article 226 of the Constitution of India, seeking issuance of appropriate direction(s). 2. The petitioner was appointed, on 23-01-1978, as an Extra Departmental Le tter Box Peon, in the cadre of Extra Departmental Assistant, and continued to wo rk in the said capacity. By order, dated 14-10-1993, the petitioner, being the senior most Extra Departmental Assistant, was allowed to work, on ad hoc basis, as Group-D employee. On 19-09-2005, a Departmental Promotion Committee (hereinaf ter referred to as ’DPC’) was convened for considering the cases of GDS, namely, Gram Dak Sevak for promotion to Group-D and by order, dated 22-09-2005, one Kha gen Ch. Keot, who was placed at Sl. No. 45, in the seniority list of Extra Depar tmental Assistant, was promoted to Group-D on regular basis. The petitioner atta ined 50 years of age on 01-04-2007. Despite repeated representations made by the petitioner for consideration of his case towards absorption and regularization in Group-D, his representations yielded no favourable result, though he had been allowed to work, on ad hoc basis, as Group-D employee, since the year 1993. Wit h these grievances, the petitioner filed the OA, in the learned Tribunal, seekin g appropriate directions. 3. , wherein their case being, in brief, thus: (i) The petitioner was provisionally appointed, on 23-01-1978, as Extra Departme ntal Letter Box Peon and, later on, his service was regularized in the post of G ramin Dak Sevak Peon. The petitioner was allowed to work, in Group-D, on tempora ry basis, by order, 14-10-2003, and his functioning, as an officiating Group-D e mployee, was extended from time to time until 31-01-2008. (ii) Appointment to Group-D, on regular basis, is made on the basis of the re commendations of the DPC, which is constituted for the purpose of considering p romotion to Group-D, the promotion being made from amongst Extra Departmental As sistants on the basis of the seniority subject to satisfactory service and, in t erms of the seniority list, the petitioner is at Sl. No. 73 and, out of the said The respondents herein resisted the OA by filing their written statement list, persons up to Sl. No. 45 have been appointed in Group-D and as the petit ioner has crossed 50 years of age on 01-04-2007, he has not remained eligible to be regularized in Group-D post since after 01-04-2007.
Legal Reasoning
Having observed that the petitioner has suppressed the fact that he had 4. attained the age of 50 years on 01-04-2007 and that he was no longer eligible fo r being considered for appointment to the post of Group-D, the petitioner was, a ccording to the learned Tribunal, not entitled to any relief. On the conclusion , so reached, the learned Tribunal dismissed the OA. 5. We have heard Mr. S Sarma, learned counsel, for the petitioner, and Ms. D Sinha, learned Central Government Counsel, appearing on behalf of the responde nts. While considering the present writ petition, it needs to be noted that t 6. he learned Tribunal has correctly pointed out that promotion from the cadre of E xtra Departmental Assistant to Group-D, on regular basis, can be made in terms o f the relevant recruitment rules, on the basis of seniority subject to satisfact ory service and an Extra Departmental Assistant, who has attained the age of 50 years, will no longer be eligible for promotion to Group-D and that the crucial date for determination of the age of 50 years will be 1st of July of the year in which the recruitment is made. 7. What appears to have escaped the attention of learned Tribunal is that K hagen Ch. Keot, whose name appeared at Sl. No. 45 of the list of Extra Departmen tal Assistants, was promoted to the post of Group-D, on 22-09-2005, on the basis of the recommendations made by DPC. Consequently, in terms of the relevant rul es, a DPC ought to have been held in the month of January, 2006, or, at the late st, on 1st July, 2006. 8. What also appears to have escaped the attention of the learned Tribunal is that on 01-07-2006, the petitioner had not attained the age of 50 years inasm uch as he attained the age of 50 years on 01-04-2007. A DPC ought to have, ther efore, been convened in the year 2006, preferably in the month of January and, i f not, then, on 1st July, 2006 and vacancies, if any, ought to have been filled up on the basis of recommendations, which would have been made by the DPC. 9. Coupled with the above, what also needs to be pointed out, but appears t o have escaped the attention of the learned Tribunal, is that in the year 2006, those, who fell within the zone of consideration for promotion to Group-D, were Hahiram Nath, Sunil Ch. Mandal, Sarat Ch. Bora, Rajeswar Talukdar, Abani Kumar S arma and Manmil Das (i.e., the petitioner herein), whose seniority positions, in the list of Extra Departmental Assistant are 55, 58, 61, 62, 65 and 73 respecti vely; whereas the rest of the Extra Departmental Assistants had already attained , before the commencement of the year 2006, the age of 50 years and, hence, the ir cases could not have been considered unless they could be shown to belong to SC or ST for whom, the age limit, for promotion to the post of Group-D from the post of Extra Departmental Assistant, is 55 years. 10. Though it is true, as has been noted by the learned Tribunal, that the p etitioner had attained the age of 50 years on 01-04-2007, the fact of the matter remains that in the year 2006, he had not attained the age of 50 years and his case ought to have, therefore, been considered by a duly constituted DPC and, de pending upon what the DPC’s recommendations were, appropriate decision ought to have been taken by the respondents/authorities concerned. This was, however, not done.
Decision
Situated thus, it is clear that the impugned order, dated 21-05-2009, pa 11. ssed by the learned Tribunal, does not take into account the relevant factors, w hich ought to have been taken into account. The dismissal of the OA was, therefo re, wholly incorrect and cannot be sustained. In the result and for the reasons discussed above, this writ petition pa 12. rtly succeeds. The impugned order, dated 21-05-2009, passed by the learned Tribu nal is hereby set aside and the respondents/authorities concerned are hereby dir ected to convene a DPC within a period of three months from today to consider th e cases of Hahiram Nath, Sunil Ch. Mandal, Sarat Ch. Bora, Rajeswar Talukdar, Ab ani Kumar Sarma and also of the petitioner, namely, Manmil Das, for promotion to the post of Group-D from the post of Extra Departmental Assistant and subject t o availability of vacancy, seniority and satisfactory service, the DPC shall mak e its recommendation as on 01-07-2006 and the respondents shall, then, in terms of the relevant rules, pass appropriate order(s). 13. nd disposed of. 14. 9. No order as to costs. Furnish a copy of this order to the learned Central Government counsel. With the above observations and directions, this writ petition shall sta