High Court
Case Details
WP(C) 4901/2011 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Legal Reasoning
The petitioner is aggrieved by the Annexure-22 order dated 098/08/2011 b y which the draft seniority list was made final upon rejection of the objections filed against the draft seniority list. For a ready reference, the order dated 09/08/2011 is quoted below :- (cid:28)OFFICE OF THE GUWAHATI MUNICIPAL CORPORATION :: GUWAHATI No. GPR/7/2005/60 Dated : 9.8.2011
Decision
ORDER The draft seniority list of Senior Grade Officers was published inviting objecti ons, if any, vide order No. GPR/7/2005/21/91 dt. 23/2/2011 from the enlisted of ficers. Two such objections were received which were examined and after careful examination of records, documents and comments of Financial Advisor, Assistant L aw Advisor and proceeding of hearing the objections are rejected. Therefore, the draft seniority list is made final. Sd/- Commissioner, Guwahati Municipal Corporation, Guwahati. (cid:29) 2. Along with the said final gradation list, the names of the senior Grade Officers had been published and in the list, the name of the petitioner appeared at Sl. No. 9 below the private respondents except the respondent No. 9. Prior to that a draft gradation list was published on 2.5.2009, the petitioner was sho wn at Sl. No. 6, above the private respondents except Adowar Hussain, who was pl aced at Sl. No. 3. Further the draft gradation list dated 23.2.2011 was publish ed placing the petitioner at Sl. No. 9, below the private respondents except Shr i M. Daimari. Objections were called for to which the petitioner submitted his A nnexure-19 objection dated 4.3.2011. In the said objection, detailing the facts it was stated that he had enjoyed promotion with higher pay scale much before hi s juniors and accordingly he could not have been made junior to the private resp ondents. However, the manner and method in which the objection was dealt with ha s been noted above. The impugned order dated 9.8.2011 is cryptic and devoid of a ny reason. I have heard Mr. S. J. Sarma, learned counsel for the petitioner and so 3. also Mr. S. Bora, learned Standing Counsel, GMC. Referring to the earlier judgem ent of this Court dated 2.8.2001 passed in the writ petition being CR No. 4510/1 997, Mr. S.J. Sarma, learned counsel for the petitioner submits that after the said judgement, there was no escape from the conclusion that the petitioner is s enior than the private respondent. In paragraph 7and 8 it was observed thus :- (cid:28)7. I have considered the rival submissions. The uncontroverted materials on record are capable of sustaining the following conclusions on facts. The petitioners have at different points of time enjoyed higher scales o (a) f pay then the respondents 4 to 24; the aforesaid respondents have entered the s cales of pay enjoyed by the petitioners on subsequent dates. Specifically the petitioners came to this scale of pay of Rs. 675/- - 11 (b) 00/- in the post of U.D.A. in the year 1986 whereas the respondent Nos. 4 to 24 came to the said scale in the year 1988 in the post of Assistant Tax Superintend ent. (c) Respondent Nos. 4 to 24 were promoted to the rank of Deputy Assessment O fficer and other similar posts from the post of Assistant Tax Superintendent by the impugned order dated 28-8-97. The petitioner Nos. 1 and 2 were promoted to the post of Deputy Assessme (d) nt Officer and other similar posts from the post of U.D.A. by order dated 17-7-2 001 with retrospective effect from 28-8-97. It is therefore admitted fact that the post of UDA is a feeder post for 8. promotion to the post of Deputy Assessment Officer and other like posts. It is n ot the stand of the Corporation that promotion from the post of U.D.A. to the po st of Deputy Assessment Officer is governed by any principle other than seniorit y. It is settled law that in appropriate cases scale of pay of incumbents and da tes from which such scale is enjoyed could be a relevant factor for determinatio n of seniority. If seniority is the sole criteria for promotion, in the absence of any explanation as to why the petitioners who were in the pay scale of Rs. 67 5/- to 1100/- earlier then the respondent Nos. 4 to 24, were not promoted, the p romotions of the aforesaid respondents who came into the said scale of pay which later does not appear to be legally tenable. The actions of the authority in pr omoting the respondent No. 4 to 24 therefore suffers from the vice of overlookin g the case of the petitioners for such promotion. The instructions placed by Mr. Sarma, learned senior counsel appearing for the respondent Nos. 2 and 3 that th e promotion of the petitioners Nos. 3 to 6 are not presently due does not inspir e confidence of the Court for the reasons already indicated. (cid:29) 4. According to the petitioner, the date of joining the Corporation is insi gnificant having regard to the fact that the petitioner was initially appointed was regularised w.e.f. 1.1.1979 and he was also granted pay scale of LDA. Therea fter, he was promoted as UDA vide order dated 30.1.1986 and was provided with th e UDA pay scale of Rs. 675 - 1100/- w.e.f. 1.2.1986. On the other hand, the priv ate respondent Nos. 4 to 8 have been appointed temporarily in 1998 for collectin g tax vide Memo dated 2.5.1978 as Tax Collector in pay scale of Rs. 260/- - Rs. 425/-. Later on they were promoted as Assistant Tax Inspector in the scale of Rs . 525-920/-. Respondents No. 6 to 8 were promoted to that scale w.e.f. 1.2.1986 and respondents No. 4 and 53 promoted to the said rank w.e.f. 11.4.1988 and resp ondent No. 7 w.e.f. 26.1.1985. Referring to the service career of the private respondents, it is the ca 6. se of the petitioner that he having earned his promotion much ahead of the priva te respondents in the better time scale of pay, his seniority was rightly fixed in the draft gradation list published on 2.5.2009. Thereafter, when he was down graded in the draft gradation list on 23.2.2011, he submitted an elaborate repre sentation dated 4.3.2011 (Annexure-19). However, by a very cryptic order, the re spondent Corporation rejected the objection without assigning any reason. Therea fter, by order dated 12.8.2011, some of the private respondents were promoted to the post of Assistant Commissioner. Being aggrieved, the petitioner filed the w rit petition. 7. It is submitted by Mr. Sarma, learned counsel for the petitioner that th e petitioner is at the verge of retirement and will be retiring from service in August, 2014 on attaining the age of superannuation. 8. In view of the above, the writ petition is disposed of directing the res pondent Corporation to look into the grievance of the petitioner taking into acc ount the objection that was filed by him against the draft gradation list and di spose of the same by a speaking order and if need be a personal hearing may also be given to the petitioner. 9. The respondents shall carry out the exercise in terms of this judgement and the grievances raised in the writ petition, preferably within 15/11/2013. De pending upon the outcome of the said exercise, the petitioner shall be entitled to consideration for retrospective promotion at par with his juniors. 10. There shall be no order as to costs.