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1999 DIGILAW 276 (GAU)

Abdul Mazid v. State of Assam

1999-08-17

A.K.PATNAIK

body1999
In this application under Article 226 of the Constitution of India petitioner has prayed for a certiorari quashing the judgment dated 1.12.1994 passed by the Assam Administrative Tribunal dismissing the Appeal No. 103 ATA of 1994 preferred by the petitioner against the orders dated 14.12.1993, 9.2.1994 and 28.6.1994 of the State Govt rejecting the representation of the petitioner relating e to the seniority in the gradation list of Upper Division Assistant. 2. The facts briefly are that the petitioner was recruited as a Lower Division Assistant in the Assam Secretariat by direct recruitment in the year 1972. One Shri Jagabandhu Sarma was also recruited in the year 1972 by direct recruitment as Lower Division Assistant in the Assam Secretariat. In the merit list of the candidates selected for the post of Lower Division Assistant, while Shri Jagabandhu Sarma was placed at serial No. 39, petitioner was placed at serial No. 46. On 13th and 14th December, 1976, petitioner and Shri Jagaband Jiu Sarma took departmental examination in group A and result of the said examination was published on 13th January, 1977 by the Department of Personnel and Administrative Reforms, Govt of Assam. In the said result, petitioner was placed above Jagabandhu Sarma in merit though both the petitioner and Sri Jagabandhu Sarma were given Grade-I. Thereafter on 15.3.1977 Selection Committee met. to consider promotion to the post of Upper Division Assistant from amongst Lower Division Assistant. The said Selection Committee did not recommend the petitioner for promotion to the post of Upper Division Assistant and he was considered unfit for promotion by the Selection Committee. Shri Jagabandhu Sarma, however,, was not considered at all by the Selection Committee which met in 1977 on the erroneous impression that he had not passed the Group A Departmental Examination, and was not, therefore, eligible for being considered for promotion to the post of Upper Division Assistant. Subsequently, when Shri Jagabandhu Sarma represented before the authorities, his case was examined and considered by the Selection Committee in its meeting held on 12.1. 1993 and on the basis of recommendation of the Selection Committee, seniority of Shri Jagabandhu Sarma in the cadre of Upper Division Assistant in Assam Secretariat was restored. Subsequently, when Shri Jagabandhu Sarma represented before the authorities, his case was examined and considered by the Selection Committee in its meeting held on 12.1. 1993 and on the basis of recommendation of the Selection Committee, seniority of Shri Jagabandhu Sarma in the cadre of Upper Division Assistant in Assam Secretariat was restored. Petitioner then submitted a representation dated 24.9.1993 before the Secretary to the Govt of Assam, Department of Personnel SA (E) Dispur stating therein that seniority of the petitioner also be restored as in the case of Shri Jagabandhu Sarma in the grade of Upper Division Assistant. But by a non-speaking order dated 14.12.1993 petitioner was informed that the Govt had regretted its inability to consider his prayer for restoration of seniority. Not satisfied with the said order dated 14.12.1993, petitioner again filed representations dated 20. 12. 1993 and 25. 1. 1994 for restoration of seniority as Upper Division Assistant but by order dated 9.2.1994 of the Govt of Assam, Secretariat Administration (Estt) Department, petitioner was informed that the Govt decision communicated to the petitioner by letter dated 24.12.1993 stands. In these circumstances, ATA of 1994 before the Administrative Tribunal and by order dated 4.4:1994, Tribunal held that the orders dated 14.12.1993 and 9.2.1994 of the Govt relating to restoration of seniority of the petitioner did not indicate reasons for rejection of the appeal of the petitioner and directed the Secretary SA (Estt) Department to dispose of the appeal of the petitioner with a speaking order. Thereafter, the Secretary SA (Estt) Department passed a speaking order dated 28.6.1994 rejecting the appeal petition of the petitioner. Being aggrieved, petitioner filed Appeal No. 103 ATA of 1994 before the Assam Administrative Tribunal but the said appeal of the petitioner was also dismissed by the Assam Administrative Tribunal by impugned judgment dated 1.12.1994. On these facts the petitioner has moved this Court under -Article 226 of the Constitution of India for appropriate relief. 3. Mr. Rajborbhuiy a, counsel for the petitioner submitted mat the results of the Group A Departmental Examination published on 13. 1.1977 would show that the petitioner was placed above Shri Jagabandhu Sarma in the merit list and while Shri Jagabandhu Sarma was given benefit of restoration of seniority in the grade of Upper Division Assistant, petitioner was not given the said benefit of restoration of seniority. 1.1977 would show that the petitioner was placed above Shri Jagabandhu Sarma in the merit list and while Shri Jagabandhu Sarma was given benefit of restoration of seniority in the grade of Upper Division Assistant, petitioner was not given the said benefit of restoration of seniority. He further contended that the main reason given by the Secretary SA (Estt) Department hi the speaking order dated 28.1.1994 for non-restoration of seniority of the petitioner is that the Selection Committee in its meeting held on 15.3.1977 did not recommend petitioner for promotion to the post of Upper Division Assistant, but the petitioner was not informed as to why & he was not recommended for such promotion to the post of Upper Division Assistant. He further submitted that no adverse entries in his ACR were communicated to him and, therefore, there was nothing in the service record of the petitioner on account of which he could be held to be unfit for promotion. 4.Promotion to the post of Upper Division Assistant is governed by Rules 7(1) and 12 of the Assam Secretariat Subordinate Service Rules, 1963. Rules 7 (1) and 12 of the Assam Secretariat Subordinate Rules, 1 963 are quoted below: “7. Upper Division Assistant-Appointment to the post of Upper Division Assistant shall be made:(1) By promotion from the select list prepared under Rule 12 from among the Lower Division Assistants of the Secretariat who (i) have rendered not less than 4 years of service on the first day of year in which selection is made; (ii) have successfully undergone the training mentioned in Rule 24 and have passed such examination as may be prescribed by the Appointing Authority. 12. The Appointing Authority shall refer to the Committee, the approximate number of vacancies likely to occur in each of the categories and furnish the Committee with the Character Rolls and personal file of all eligible candidates. The Committee shall examine the Character Rolls and personal files of the candidates take into consideration the seniority and merit of the candidates and prepare separate lists of names in order of preference for recruitment under Rules 7(1), 8 (2), 8 (3) and 9. These lists shall be forwarded by the Committee to the Appointing Authority. The Committee shall examine the Character Rolls and personal files of the candidates take into consideration the seniority and merit of the candidates and prepare separate lists of names in order of preference for recruitment under Rules 7(1), 8 (2), 8 (3) and 9. These lists shall be forwarded by the Committee to the Appointing Authority. The Appointing Authority shall consider the lists prepared by the Committee along with Character Rolls and personal files of the candidates and approve the list unless it considers any change necessary. If the Appointing Authority consider it necessary to make change in the list received from the Committee, he shall inform the Committee of the changes proposed and after taking into account the comments, if any, of the Committee may approve the list finally with such modification, if any, as may in its opinion be just and proper. The list so finally approved by the Appointing Authority shall form select lists for the purpose of appointments under the aforesaid Rules.” 5. Rule 7(1) provides that the promotion to the post of Upper Division Assistant shall be made by promotion from the list prepared under Rule 12 from among the Lower Division Assistants of the Secretariat who have rendered not less than 4 years of the service on the first day of the year in which selection is made; have successfully undergone the training mentioned in the Rule 24 and have passed such examination as may be prescribed by the Appointing Authority. Thus to be eligible for promotion to the post of Upper Division Assistant, Lower Division Assistant has of successfully undergo the training mentioned in Rule 24 and pass such examination prescribed by the Appointing Authority. In the instant case, both petitioner and Shri Jagabandhu Sarmanas passed Group A departmental / training course as required under Rule 24 of the Assam Secretarial Subordinate Service Rules, 1963 as would be clear from the order dated 131,1977, copy of which has been annexed to the writ petition as Annexure 2. Hence both the petitioner and Shri Jgabandhu Sarma were eligible to be considered for promotion to the post of Upper Division Assistant when the Selection Committee met in March, 1977 for considering promotion to the post of Upper Division Assistant. 6. Hence both the petitioner and Shri Jgabandhu Sarma were eligible to be considered for promotion to the post of Upper Division Assistant when the Selection Committee met in March, 1977 for considering promotion to the post of Upper Division Assistant. 6. But Rule 7(1) stipulated that the promotion was to be made froth the select list prepared under Rule 12 and Rule 12 provides that Selection Committee shall examine the Character Rolls and personal files of the candidates, taking into consideration seniority and merit of the candidates and prepare a separate list of names in order of preference for recruitment under Rule 7 (1). It is thus clear that for preparation of the select list, Selection Committee has to consider seniority and merit of the candidates. Merit of the candidates will have to be determined on the basis of Character Roils and personal files of the candidates. In the instant case, when the Selection Committee met on 15.3.1977, it did not recommend the petitioner for promotion to the posts of Upper Division Assistant and did not include him in the select list presumably because Selection Committee was of the view that the petitioner did not have the required merit for such selection after examining his Character Rolls and personal files. In case petitioner was aggrieved for not being named in the select list and for not being promoted to the post of Upper Division Assistant in the year 1977, petitioner ought to have taken steps before appropriate forum to challenge the selection made by the Selection Committee for promotion to the post of Upper Division Assistant or to challenge the action of the Selection Committee and Govt in riot recommending him or not promoting him to the post of Upper Division Assistant. Admittedly, petitioner had not challenged either the selection made in the year 1977 or his non-selection and non-promotion in the year 1977 to the post of Upper Division Assistant. In the year 1993-94 petitioner could not possibly raised grievance that he was not intimated reasons for his non-selection and non-promotion to the post of Upper Division Assistant by the State Govt. 7. Further, petitioner may have been found meritorious than Shri Jagbandhu Sarma in the Group A training examination held on 13th and 14th Dec. In the year 1993-94 petitioner could not possibly raised grievance that he was not intimated reasons for his non-selection and non-promotion to the post of Upper Division Assistant by the State Govt. 7. Further, petitioner may have been found meritorious than Shri Jagbandhu Sarma in the Group A training examination held on 13th and 14th Dec. 1976, but the merit of the candidates in the said Group A training examination was not to be taken into consideration for the purpose of considering merit of the candidates for promotion to the post of Upper Division Assistant from the post of Lower Division Assistant under Rule 12 of the Assam Secretariat Subordinate Service Rules, 1963. As has been held above, petitioner and Shri Jagbandhu Sarma were only required to pass the said examination for the purpose of consideration for promotion to the post of Upper Division Assistant as provided in Rule 7(1) of the aforesaid Rules. Once, however, both petitioner and Shri Jagbandhu Sarma became eligible for such promotion to the post of Upper Division Assistant, their respective merit was to be examined on the basis of Character Rolls and personal files as indicated in Rule 12 of the aforesaid Rules. The contention of Mr. Rajborbhuiya, therefore, that petitioner having been placed above Shri Jagbandhu Sarma in the merit list of the candidates who have passed Group A training examination held on 13th and 14th December 1976 should have also been given benefit of restoration of seniority in the cadre of Upper Division Assistant is misconceived. For the reasons stated above, I find no merit in this writ petition. Writ petition is, therefore, dismissed but considering the facts and circumstances of the case parties shall bear their own cost.