High Court
Case Details
WP(C) 3932/2004 BEFORE HON’BLE MR. JUSTICE A .K. GOSWAMI Heard Dr. B Ahmed, learned counsel for the petitioner. Also heard Mr. PN Goswami , learned counsel appearing for the respondent Nos. 1, 2 and 3. None appears for the other respondents though service is complete. Although a number of prayers were made in the writ petition, Dr. Ahmed has submi tted, at the very outset, that only prayer (cid:28)E (cid:29) in the writ petition survives for consideration.
Decision
The writ petitioner superannuated from the service of the Assam Khadi & Village Industries Board (herein after referred to as the ’Board’) on 28.02.2006 while h olding the substantive post of Accounts Officer. However, he was also officiatin g at the time of his superannuation as Executive Officer of the Board. The writ petitioner had approached this Court earlier by filing Civil Rule No. 5 007/95 challenging promotion orders of 2 (two) Officers under the service of the Board, who, according to the petitioner, were Junior to him. The said writ peti tion was taken up with another writ petition numbered as CR No. 5006/95 and both the writ petitions came to be disposed by an order dated 05.12.2000. Paragraphs 5 and 7 of the said order are relevant and are extracted herein: (cid:28)5. Considering the respective submissions as re-capitulated above, I think it would suffice if the matter is remitted to the Board with the direction to r e-consider the placement of the writ petitioner and the private respondents in t he seniority list in accordance with their date of promotion to the feeder posts . After such re-determination, if it is found that the petitioner was senior to the private respondents Nos. 5 and 6 in the cadre of Development Officer/Distric t Officer/Publicity Officer, his promotion to the post of Additional Executive O fficer be considered with effect from the date when his next junior was promoted . Obviously, it will have to be done in accordance with the provisions of Regula tion 34(1) Clause (e) of the Assam Khadi & Village Industries Regulation, 1961. The exercise in this connection may be undertaken and completed within a period of three months from the date when the writ petitioner submits a copy of this ju dgement and a representation before the competent authority. Both the petitions are disposed of with a direction to the Board to dis 7. pose of the representation of the petitioners in accordance with the provisions of Regulation 34 (1) Clause (e) of the Assam Khadi and Village Industries Regula tion, 1961 and in the light of the observation made above within a period of thr ee months from the date when the writ petitioner submits a copy of this judgemen t along with the representation before the competent authority. (cid:29) Subsequently, the petitioner was promoted from the post of Senior Accountant to the post of Accounts Officer on the basis of recommendation made by the Departme ntal Promotion Committee by an order dated 22.11.1998. Thereafter, by an order d ated 25.01.2002, the seniority of the petitioner was restored to the original po sition and it was also provided that the promotion of the petitioner as Accounts Officer will be effective from 21.11.1995. Prayer (cid:28)E (cid:29) of the writ petition reads as under: (cid:28)In the premises aforesaid, it is humbly prayed that this Hon’ble Court may grac iously be pleased to admit this petition, call for the records and issue Rule, c alling upon the Respondents to show cause as to why............................. ................................................................................ .................................................... E. A Writ of Mandamus should not be issued directing the Respondent authori ties to provide the Petitioner monetary/material benefit of the notional promoti on given to him as per order dated 25-1-2002 [Annexure-6] for five years [i.e. w ith effect from 21-11-95 to 22-11-98] in fully implementing the earlier Judgemen t and Order of this Hon’ble court passed on 5-12-2004 [Annexure-4] in C.R. No. 5 006 of 1995. (cid:29) In the prayer portion, apparently, the word 5 (five) years has been wrongly type d and Dr. Ahmed submits that it should be read as 3 (three) years. So also the d ate of the judgment be read as 05.12.2000 instead of 05.12.2004. The grievance expressed is apparent from the prayer made in prayer (cid:28)E (cid:29) above. Ad ditionally, learned counsel for the petitioner, by drawing attention of the Cour t to the order dated 16.12.2002 (Annexure-VII of the writ petition) and Annexure -(ii) of Misc. Case No. 127/13 submits that as the petitioner admittedly continu ed to discharge his duties in the higher post of Executive Officer on officiatin g basis, direction should be given by this Court to the Board to grant the petit ioner pay and allowances of the post of Executive Officer. Mr. PN Goswami, learned counsel appearing for respondent Nos. 1, 2 and 3 submits that so far as the prayer (cid:28)E (cid:29) of the writ petition is concerned, in all probabi lity, grievance expressed may have been taken care of as a decision was taken to provide monetary benefits to the petitioner w.e.f. 21.11.1995 and in this conne ction, he draws the attention of the Court to paragraph 12 of the affidavit, whi ch was filed on 19.07.2005. So far as the prayer made for a direction to make payment of pay and allowances in the higher post of Executive Officer, the learned counsel submits that it is clearly not tenable in law. There is no such prayer in the writ petition and aft er 7 (seven) years of his retirement, by filing a Misc. Case in the year 2013, h e is praying for such a direction. It is also submitted by him that even at the time of filing of the writ petition, the petitioner was allowed to function as a gainst the vacant post of Executive Officer by virtue of an order dated 16.12.20 02 and yet the petitioner had not chosen to make any prayer for a direction to g rant pay and allowances for the said post. I have heard and considered the submissions of the learned counsel for the parti es and perused the materials on record. As far as prayer (cid:28)E (cid:29) of the writ petition is concerned, in view of the submissio n of Mr. Goswami, it appears that by now the petitioner may have been given the monetary benefit for the period commencing from 22.11.1995 to 22.11.1998. Dr. Ah med, however, pleads ignorance as to whether such benefit, in reality, had reach ed the petitioner. In view of the above, it is provided that in case the monetary benefit as indica ted in paragraph 12 of the affidavit has not yet been received by the petitioner , the respondent Nos. 1, 2 and 3 will ensure that such benefit in real terms rea ch the petitioner within a period of 3 (three) months from today. With regard to the claim made by Dr. Ahmed during the course of submission based on the Misc. Case filed, I am inclined to accept the submission of Mr. Goswami. The petitioner had not chosen to pray for a direction for pay and allowances of the post of Executive Officer though he was functioning in the said post from 1 6.12.2002, inspite of the fact that the writ petition came to be filed only in t he year 2004. Till he retired, he did not make any demand for pay and allowances of the post of the Executive Officer either. It is entirely a separate cause of action, which is no way connected with the reliefs sought for in the writ petit ion. In such circumstances, prayer made by Dr. Ahmed is only mentioned to be rejected . The writ petition stands disposed of in terms of the above.