High Court
Case Details
WP(C) 2878/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Decision
All the writ petitions pertaining to the same issue i.e. promotion to the post o f Supervisory Assistant (SA) upon fixation of seniority of the incumbents have b een heard together and are being disposed of by this common judgment and order. 2. The petitioner involved in WP(C) No. 2681/2005 (the first writ petition) and WP(C) No. 2878/2009 (the second writ petition) seeks promotion to the post of UDA with retrospective effect ahead of the petitioner and the private respond ent (respondent No. 3) involved in WP(C) No. 7464/2005 (the third writ petition) with consequential fixation of seniority above them and promotion to the post o f SA. 3. While the petitioner involved in the first and the second writ petitions was initially appointed as Laboratory Assistant in the year 1982, the petitione r involved in the third writ petition and the respondent No. 3 therein were appo inted as LDA on 13.11.1985 and 1.4.1985 respectively. According to the petitione r, who was appointed as Laboratory Assistant, the post of Laboratory Assistant a nd LDA both are in the common cadre and accordingly on the basis of the seniorit y above the other two LDAs, he ought to have been promoted to the post of UDA mu ch ahead of them. Be it stated here that the petitioner and the private responde nts involved in the third writ petition i.e. WP(C) No. 7464/2005 had been promot ed to the post of UDA with effect from 1.10.1993. Initially, the private respond ent namely Smt. Narmada Deka was promoted with effect from 1.10.1993 and the pet itioner was promoted with effect from 1.11.1996. However, pursuant to the judgme nt and order dated 9.10.2002 passed by the Assam Administrative Tribunal in appe al No. 49 ATA/2001, she was also promoted to the post of UDA from the same date i.e. 1.10.1993. She was also given seniority above said Smt. Deka. 4. When the matter rested thus, the petitioner involved in the first and th e second writ petitions namely Sri Madhab Ch. Kaibarta filed the first writ peti tion being WP(C) No. 2681/2005 claiming retrospective promotion to the post of U DA ahead of both the incumbents involved in the third writ petition i.e. Smt. De ka and Smt. Hazarika with consequential fixation of seniority above them and pro motion to the post of SA. 5. In the second writ petition i.e. WP(C) No. 2878/2009, the petitioner has called in question the Annexure-17 communication dated 11.12.2007 made to the D irector of the Department by the Government in the Higher Education (Tech) Depar tment. By the said communication, it was conveyed that there was no need for any separate service rules for the Ministerial Staff of the Directorate of Historic al and Antiquarian Studies with which department, this proceeding is concerned, in view of the available of common service rules for heads of department namely the Assam Directorate Establishment (Ministerial) Service Rules, 1973. 6. In the third writ petition filed by Smt. Hazarika, who was provided with the retrospective promotion at par with the private respondent namely Smt. Deka and also the seniority over her, the challenge is the judgment and order dated 20.8.2005 passed by the Assam Administrative Tribunal, Guwahati in appeal No. 53 ATA/2003. By the said judgment and order, the Tribunal while allowing the appea l filed by Smt. Deka has set aside the gradation list that was prepared pursuant to the aforementioned earlier order of the Tribunal along with all consequentia l action including officiating promotion of Smt. Hazarika i.e. the writ petition er in the third writ petition to the post of SA. However, Smt. Hazarika is still holding the post of SA on the strength of the interim order passed by this Cour t in the third writ petition i.e. WP(C) No. 7464/2005. 7. I have heard both Mr. R.C. Saikia and Mr. P.K. Goswami, learned counsel appearing for the petitioner involved in the first two writ petitions namely Mad hab Ch. Kaibarta. I have also heard Mr. D.P. Chaliha, learned Sr. Counsel assist ed by Mr. U.D. Chaliha, learned counsel for the petitioner in the third writ pet ition and so also Mr. B. Chakraborty, learned counsel representing the responden t No. 3 Smt. Deka. Mr. U.K. Goswami, learned Standing Counsel, Education Departm ent has made his submission in reference to the affidavit-in-opposition filed by the Government. I have also heard Mr. G. Sarma, learned State Counsel. I have a lso considered the materials available on record. My findings and conclusions ar e as follows: 8. Admittedly, the petitioner Sri Madhab Ch. Kaibarta involved in the first two writ petitions was not in the cadre of LDA. As has been disclosed in the co unter affidavit filed by the respondents that the post of Laboratory Assistant a nd LDA-cum-Typist were created vide Government notification dated 5.2.1982 in th e scale of pay of Rs. 240-380/- and 275-475/- respectively. However, the pay sca le of both the posts was made the same vide ROP rules, 1998. Referring to the du ties, responsibilities and status involved in both the posts, the affidavit furt her states that while a Laboratory Assistant is to assist in experimenting vario us processes of laboratory method and techniques and an LDA is to assist the nor mal functioning of the official works, which includes general official works, pr eparation of bills, drafting of official letters and typing etc. It is the speci fic case of the respondents that the post of Laboratory Assistant is not in the cadre of LDA and thus the incumbents holding the post of Laboratory Assistant ca nnot aspire for promotion to the post of UDA. 9. As regards the promotion of the petitioner involved in the first and the second writ petition in 2004, it has been stated that he was promoted on the ba sis of the draft rules that was prepared in the year 2000, which, however, is ye t to be approved by the Government. He was also promoted subject to the de-reser vation of the post. On the other hand, the clear stand of the Government in the matter is that the draft rule of 2000 has not been approved as yet. As stated in the affidavit, the promotion of the petitioner to the post of UDA in 2004 is co nditional. In absence of anything to show that the post of Laboratory Assistant is 10. in the cadre of LDA and that both the posts are interchangeable and further that a common gradation list is maintained for both the posts as a composite cadre, merely because the pay scale of the post of Laboratory Assistant is at par with the pay scale of the post of LDA, it cannot be said that both the posts are in t he same cadre. Even if the pay scale are same for both the posts, there are host s of other consideration for treating the two posts with different nomenclature to be in the single cadre, such as educational qualification, duties and respons ibilities involved etc. This being the position, a Laboratory Assistant cannot b e said to be in the cadre of LDA entitling the petitioner to get promotion at pa r with the parties involved in the third writ petition being WP(C) No. 7464/2005 . Accordingly, the prayer of the petitioner for his retrospective promotion with consequential seniority and future promotion above the said two incumbents name ly Smt. Deka and Smt. Hazarika cannot be granted. However, the respondents are d irected not to disturb the promotion of the petitioner namely Madhab Ch. Kaibart a, which was given to him in 2004. When the writ petition was filed he was aged about 48 years and by now must be around 56 years of age. It is on this count, l earned counsel representing him submitted that his promotion may not be disturbe d as his retirement from service is fast approaching. It is ordered accordingly. 11. This now leads us to the third writ petition being WP(C) No. 7464/2005. On perusal of the impugned judgment and order, it is seen that the impugned dire ctions are primarily on the basis of the findings recorded that the gradation li st was finalized without affording any opportunity of being heard to the parties involved. However, the fact of the matter is that the gradation list was publis hed pursuant to the earlier judgment of the Tribunal referred to above. However, Mr. B. Chakraborty, learned counsel representing the respondent No. 3 in WP(C) No. 7464/2005 submits that when the gradation list was prepared, the earlier dir ection of the Tribunal was not properly considered. 12. Upon finalization of the gradation list, the petitioner Smt. Hazarika ha s also been promoted to the post of SA and presently she is holding the said pos t. Learned Tribunal while interfered with the impugned gradation list has also s et aside all consequential action taken there under including promotion of Smt. Hazarika as SA, I am of the considered opinion that ends of justice would be met if the consequential action of promotion of Smt. Hazarika to the post of SA is maintained with the direction to treat the impugned gradation list as provisiona l gradation list entitling the incumbents interested to file objection against t he same. In other words, the impugned gradation list shall be treated as provisi onal gradation list and the private respondent namely Smt. Deka and others, if s o advised, will be entitled to raise objection against fixation of seniority bas ed on facts and in accordance with law. In the event of raising any such objecti on within the time limit that may be fixed by the departmental authority, the sa id authority shall thereafter finalize the gradation list. Depending upon the ou tcome of the same, future course of action in respect of the promotion to the po st of SA shall be undertaken. Till this exercise is carried out, the petitioner namely Smt. Hazarika involved in WP(C) No. 7464/2005 shall be allowed to continu e in her promotional post of SA. 13. Let the required exercise in terms of this judgment and order be carried out as expeditiously as possible, preferably within three months. 14. All the writ petitions are answered in the above manner.