High Court · 2012

Heard Mr. T.J. Mahanta, learned counsel for the petitioners as well as Mr. S. Ch akraborty, learned State Counsel. I have also heard Mr. G. Deka, led by Mr. P.K. Roy Choudhury, learned counsel for the respondent No.5. Both the writ petitions filed by the same petitioners and being inter-connected have been heard together and are being disposed of by this common judgement and order. In WP(C) No. 8446/2004 (herein after referred to as the first writ petiti on), the prayer made is to promote the petitioners to the post of Laboratory Tec hnician with effect from the date of promotion of the respondent No. 5 i.e. 15.6 .2004, WP(C) No. 4639/2010 (hereinafter referred to as second writ petition), th e prayer is to set aside and quash the Annexure-12 letter dated 7.1.2010 rejecti ng the claim of the petitioners for promotion at par with the respondent No.5. F urther prayer made in the writ petition is to promote the petitioner to the post of Lab. Technician from the date on which the respondent No.5 was so promoted w .e.f. 15.6.2004. It is on record that during the pendency of the first writ peti tion, all the petitioners have been promoted to the post of Lab. Technician by o rder dated 9.8.2005. Thus, the only issue required to be considered in this proc eeding is as to whether the petitioners are entitled to get antedating promotion at par with the respondent No.5, who was promoted on 15.6.2004. The petitioners joined the services of the Forensic Science Laboratory in variou s capacities, such as Mechanic, boiler Operator, Gas Operator (Electrician) and Armourer in the year 1978, 1979, 1986 and 1981 respectively. There being no prov ision for promotion in the service rules, namely, Assam Forensic Laboratory Serv ice Rules, 1985, the petitioners agitated their grievance with eventual filing o f a writ petition being WP(C) No. 6993/2003. The writ petition was disposed of b y judgement and order dated 7.6.2004 with the direction to look into the matter and to take immediate steps for necessary amendment of the service rules providi ng promotional avenues to the petitioners. The time limit fixed for carrying out the said exercise was 6(six) months. Even before the aforesaid judgement and order, the Govt. of Assam in the Home (A ) Department issued the notification dated 22.2.2000 (Annexure-1 to the second w rit petition), conveying the approval of redesignation of the posts being held b y the petitioners to that of Technical Assistants, entitling them to get promoti on to the post of Lab. Technician in the pay scale of Rs. 3010-6075/-. Although, a grievance has been raised by the petitioners that such redesignation of their posts as Technical Assistant ought to have been with upgradation of pay but Mr. T.J. Mahanta, learned counsel for the petitioners submits that even leaving asi de that aspect of the matter, the petitioners have been deprived of their promot ion to the post of Lab. Technician at par with the respondent No.5, who was admi ttedly junior to the petitioners in a lower cadre than that of the cadre of Tech nical Assistant. Be it stated here that at the time of promotion of the responde nt No.5 to the post of Lab. Technician, he was holding the post of Lab. Bearer, a grade-IV post, which is below the cadre of Technical Assistant. In view of the above, it is stand of the petitioners that the respondent No.5 wa s given double promotion and while doing so, the case of the petitioners was not considered. In this connection, Mr. Mahanta, learned Counsel for the petitioner s has drawn my attention to Annexure-10 communication dated 30.4.2008 made to th e Govt. in the Home (A) Department by the Director of Forensic Science Laborator y, in which it was categorically stated that by an inadvertent mistake, the case of the petitioners was not considered while considering the case of the respond ent No.5. By the said letter, suggestion was made for retrospective promotion of the petitioners at par with their junior i.e. the respondent No.5. Inspite of the aforesaid development, the case of the petitioners having been re jected by the impugned Annexure-12 letter dated 7.1.2010, the petitioners filed the second writ petition with the aforesaid prayers. In the first writ petition, the respondents have not filed any counter affidavit . However, in the second writ petition, they have filed a counter affidavit just ifying the promotion of the respondent No.5 ahead of the petitioners on the grou nd of their being direction of the Apex Court in case filed by the respondent No .5. The petitioners have annexed the copy of the order of the Apex Court passed on 16.4.2004. By the said order recording the stand of the respondents that ther e was a vacancy in the promotional cadre of Lab. Technician and that the case of the respondent No. 5 would be considered, the SLP(C) No. 3029/2003 registered a s Civil Appeal No. 24296/2004 was disposed of. Mr. Mahanta, learned counsel for the petitioners had drawn my attention to the o rder of promotion of the respondent No.5 (Annexure-5 of the second writ petition ) dated 15.6.2004, submits that the projection made before the Apex Court about the existence of a vacancy was a false one. By the said Annexure-5 order, the r espondent No.5 was promoted to the post of Lab. Technician against the resultant vacancy caused due to promotion of one Shri Durgeswar Dutta, lab. Technician, who was promoted to the post of Scientific Assistant. Thus, it was only on 15.6. 2004, a vacancy in the cadre of Lab. Technician was arisen due to the promotion of said Shri Dutta, Lab. Technician to the cadre of Scientific Assistant. In the counter affidavit filed by the respondents in the second writ petition, t hey have annexed the notification dated 17.5.2005, by which the aforesaid rules of 1985 was amended. Schedule-I to the said rules shows that the post of Lab. Be arer is a Grade-IV post which the respondent No.5 was holding before his promoti on to the cadre of Lab. Technician. While the post of Lab. Bearer carries the pa y scale of Rs. 2450-3670/-, the post of Technical Assistant being held by the pe titioners carries the pay scale of Rs. 2890-5725/-. From the above, what is seen is that the respondent No.5, infact, was entitled t o get promotion to the post of Technical Assistant but was promoted to a further higher grade of Lab. Technician. Although, it is the stand of the respondents that by the time the rules were ame nded and notified vide the notification dated 17.5.2005, the respondent No.5 sto od already promoted but the fact of the matter is that by Annexure-I order dated 22.2.2000 (Annexure-I to the second writ petition), the posts held by the petit ioners had been redesignated as Technical Assistant with the clear stipulation t hat they would also be entitled to get promotion to the post of Lab. Technician. Thus, irrespective of the notification dated 17.5.2005 and the direction of the Apex Court, the respondents were obliged to consider the case of the petitioner for promotion at par with the respondent No.5. However, their case was not cons idered which has been admitted by none other than the Director of Forensic Scien ce by his notification dated 30.4.2008 (Annexure-10) made to the Govt. in the Ho me (A) Department. Inspite of the aforesaid facts and circumstances, the Govt. in the Home(A) Depar tment informed the Director of Forensic Science Laboratory vide the impugned Ann exure-12 letter dated 7.1.2010 that the grievance of the petitioners could not b e redressed. However, the said communication does not assign any reason whatsoev er. In view of the above, the writ petition is disposed of directing the respondents to re-consider the case of the petitioners for promotion to the post of Lab. Te chnician at par with the promotion of the respondent No.5 applying the principle of next below rule under which if a senior person is superseded in the matter o f promotion, the case of the said senior person is required to be considered at par with the junior persons. The respondents shall no carry out the required exercise and pass appropriate or der consistently with the observations made above, as expeditiously as possible, but at any rate not later then 31.12.2012. There shall be no order as to costs.