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Gauhati High Court · body

2008 DIGILAW 41 (GAU)

Brojendra Nath Talukdar v. State of Assam

2008-01-18

ANIMA HAZARIKA

body2008
JUDGMENT A. Hazarika, J. 1. The promotional order vide Notification dated 22.06.2006 and Notification dated 15.12.2004 issued by the Secretary to the Government of Assam, Education (S&E) Department and the Commissioner & Secretary to the Government of Assam, Education Department respectively in respect of the respondent No. 5 whereby and whereupon the respondent No. 5 has been promoted to the cadre of Joint Director in Education Service Class-I from the rank of Inspector of Schools, TDC, Tinsukia being shown senior in the Notification dated 15.12.2004 to the petitioner are under challenge in this writ petition being discriminatory and violative of the provisions of Rules of Assam Education Service Rules, 1982 (the 1982 Rules for short). 2. To understand the controversy raised in the writ petition relevant facts in brief, may be stated as under: The petitioner has joined as a Lecturer in Mathematics on 04.11.1977 in the State Institute of Science Education, Assam, Guwahati on being recommended by the Assam Public Service Commission (APSC for short) after due selection in which he secured first position in order of merit. Thereafter, he was promoted to the post of Reader in the said institute with effect from 05.09.1985. For a short period he was transferred and posted as District Adult Education Officer, North Cachar Hills, Haflong and he was again transferred to the post of Reader in the State Institute of Science Education, Assam and held the post till 22.12.1987. In the meantime, APSC issued an advertisement inviting applications for filling up the post of Assistant Inspector of Schools. The petitioner being eligible and qualified to hold the post had applied for the same along with other eligible persons. 3. In the said selection held by APSC, the name of the petitioner appeared at serial No. 2 in the list published by APSC in order of merit of the selected candidates, which was published vide Notification dated 09.01.1986 whereas the name of the respondent No. 5 appeared at serial No. 4 and accordingly he was appointed as Asstt. Inspector of Schools on 08.12.1987 and he joined in the post on 22.12.1987. While the petitioner was serving as Asstt. Inspector of Schools, an advertisement was issued by APSC on 17.06.91, in "The Assam Tribune" inviting applications for filling up the post of Deputy Director/Inspector of Schools/District Elementary Education Officer in the Education Department being advertisement No. 2/91 dated 11.06.91. 4. While the petitioner was serving as Asstt. Inspector of Schools, an advertisement was issued by APSC on 17.06.91, in "The Assam Tribune" inviting applications for filling up the post of Deputy Director/Inspector of Schools/District Elementary Education Officer in the Education Department being advertisement No. 2/91 dated 11.06.91. 4. The advertisement so published by APSC were attended to by the persons eligible to hold the post as mentioned in the advertisement. The petitioner alongwith others applied for the posts including the respondent No. 5 herein, who was also serving as Assistant Inspector of Schools. The APSC took the interview and recommended the names of persons in order of merit on 20.07.1992, wherein the name of the petitioner appeared at serial No. 6, but the name of the respondent No. 5 did not find place in the said list recommended by the APSC. The Education Department, Government of Assam acted on the said list in order of merit and the petitioner was appointed to the post of District Elementary Education Officer vide Notification dated 18.12.1992 and accordingly he joined at Morigaon, the place of his posting shown in the notification dated 23.12.1992. 5. The respondent No. 5, who did not qualify for the post as advertised by APSC for direct recruitment, was promoted to the post of Inspector of Schools in the year 1993 with retrospective effect from 18.12.1992, the date on which the petitioner was appointed as District Elementary Education Officer. The said action of the authority was objected by the employees under direct recruitment by filing representations. But the said objections were not attended to by the official respondents, meaning thereby the respondent No. 5 was allowed to hold the post of Inspector of Schools which would reveal from the pleadings made in the writ petition. 6. In the meantime, the official respondents published a draft gradation list vide Notification dated 22.07.97 wherein the name of the petitioner was shown at serial No. 26 and the name of respondent No. 5 at serial No. 23 being a promotee which was objected to by the petitioner by submitting a representation immediately i.e. 02.08.97 itself ventilating the grievance made thereto showing the brief history of service career of the petitioner and the respondent No. 5. But the objection did not yield any result. 7. But the objection did not yield any result. 7. Thereafter, the official respondents published a provisional gradation list vide Notification dated 18.05.2004 as provided under Rule 24 of 1982 Rules, wherein the name of the petitioner appeared at Serial No. 7 and the respondent No. 5 at serial No. 4 showing as promotee, the date of joining the cadre of Inspector of Schools/District Elementary Education Officer/Dy Director of Assam Education Service as 18.12.1992, whereas the petitioner was shown as direct recruits showing the date of joining in the cadre as 18.12.1992 and objections were called from the intending incumbents within 30 days before it was finally published and accordingly, the petitioner filed objections on 02.06.2004 against the aforesaid provisional gradation list dated 18.05.2004 requesting for correction of the provisional gradation fist which had not been attended to as required under the law determining the seniority of the petitioner and the respondent No. 5. 8. Thereafter, the final gradation list of all the incumbents of the direct recruit and promotees was published on 15.12.2004 wherein there was no change in the column of date of joining in the cadre in respect of the respondent No. 5 shown at serial No. 4 as promotee, whereas in case of the petitioner it was shown at serial No. 7 as direct recruit on 21.12.92 in the cadre. Coming to know about the aforesaid final gradation list dated 15.12.2004, the petitioner submitted objection mentioning the entire history of the service career of respondent No. 5 and himself but it did not evoke any response from the authority concerned. 9. Though the objections filed by the petitioner against the respondent No. 5 showing senior over him, have not been considered by the authority, a brief pleadings made in the writ petition is significant to determine the question raised by the petitioner. The service conditions of the petitioner and the respondent No. 5 is regulated under the 1982 Rules. Referring the provisional gradation list dated 05.01.2001 which is already in the record would show that the respondent No. 5 was promoted under Regulation 4(d) of the Assam Public Service Commission (Limitations of Functions) Regulation, 1951 giving retrospective promotion w.e.f. 18.12.1992 as Inspector of Schools, whereas, the petitioner was promoted on 18.12.1992 to the said post of Inspector of Schools on the recommendation of APSC showing him as direct recruit. Provisions of the said Rules would be referred in subsequent paragraphs. 10. The gradation list dated 15.12.2004 was under challenge whereby and whereupon the respondent No. 5 has been shown as senior to the writ petitioner being W.P.(C) No. 3069/06. The said writ petition was withdrawn with liberty to file afresh since during the pendency of the writ petition the respondent No. 5 has further been promoted to the post of Joint Director in Assam Education Service, Class-I alongwith two others vide notification dated 22.06.2006 which is now under challenge in this writ petition along with the gradation list dated 15.12.2004. 11. Heard Ms. B. Bhuyan, learned Counsel appearing for the petitioner. Also heard Mr. M.R. Pathak, learned Standing Counsel, Education Department for respondent Nos. 1, 2 and 3 and Mr. C. Baruah, learned Standing Counsel appearing for Assam Public Service Commission, respondent No. 4. None appeared for respondent No. 5, inspite of service of notice. 12. Opening the arguments, Ms. B. Bhuyan, learned Advocate appearing for the petitioner took the Court the documents annexed with the writ petition and has referred the provisions of 1982 Rules vis-a-vis the provisions of the Regulation 1951 and urged the following points viz.,- (a) The petitioner and the respondent No. 5 being entered as direct recruits on the recommendation of the APSC to act as Assistant Inspector of Schools and is thus guided by the 1982 Rules framed under Article 309 of the Constitution of India and having a statutory force can it be superseded by the provisions of Regulation 1951 thereby promoting the respondent No. 5 under Regulation 4(d) with retrospective effect though he was not qualified in the selection made by the APSC to the post of Inspector of Schools'? (b) Whether by taking recourse to the provisions of Regulation 4(d) of Regulation 1951, the official respondents are empowered to promote respondent No. 5 with retrospective effect from 18.12.1992, the date on which the petitioner was promoted to the post of DDEO and can be shown senior as provided under Rule 23(4) of the 1982 Rules though the respondent No. 5 joined in the post of Inspector of Schools at Sivasagar on 19.02.1993 vide his own communication dated 22.02.1993; (c) Whether on the said promotion dated 18.12.1992 the petitioner can be deprived of his seniority resulting in super session of promotion of the respondent No. 5 as Joint Director in Assam Education Service Class-I. 13. The respondent No. 5 did not appear and contest the claim of the petitioner though notice was duly served upon him. However, the official respondents have filed affidavit-in-opposition contending the following facts which is available on the record and has urged as follows: (a) The respondent No. 5 was promoted to the post of Inspector of Schools vide notification dated 18.12.1992 from the post of Assistant Inspector of Schools under Regulation 4(d) of Regulation 1951 and on the recommendation of APSC the service of the respondent No. 5 was regularized as Inspector of Schools vide Notification dated 29.10.2001 and being a promotee, he has been rightly shown as senior over the petitioner as provided under Rule 23(4) of the 1982 Rules (b) The respondent No. 5 has been promoted to the post of Joint Director in Assam Education Service Class-I on the recommendation of the APSC which is in consonance with 1982 Rules. (c) The objection filed by the writ petitioner has been attended to by the respondent authority and an order has been passed rejecting the objection filed by the petitioner as far back as on 16.11.04 and therefore, urged that the writ petition is devoid of any merit and the same is liable to be dismissed. 14. Though no affidavit-in-opposition has been filed by APSC, Mr. C. Baruah, learned standing counsel, APSC, has produced the original record of the case relating to the petitioner's selection made by the APSC to the post of Inspector of Schools. Mr. M.R. Pathak learned Standing Counsel, Education Department has also placed before this Court the relevant record. 14. Though no affidavit-in-opposition has been filed by APSC, Mr. C. Baruah, learned standing counsel, APSC, has produced the original record of the case relating to the petitioner's selection made by the APSC to the post of Inspector of Schools. Mr. M.R. Pathak learned Standing Counsel, Education Department has also placed before this Court the relevant record. On perusal of the same reveals that, the objection submitted by the writ petitioner though, has been disposed of, but the copy of the order passed thereon has not been communicated to the petitioner till date, thereby keeping him in dark about the disposed of the same. 15. Considered the submission made by the parties, referring to the service career of the petitioner and the respondent No. 5. Initial entry of writ petitioner and respondent No. 5 into the service as Asstt. Inspector of School is not in dispute. The petitioner was thereafter directly recruit to the post of District Elementary Education Officer on the basis of selection made by the APSC, whereas the respondent No. 5 could not qualify in the said selection. However, the respondent No. 5 was treated as a promote under the Assam Education Service Rules, 1982 which was framed in exercise of the powers conferred under the Proviso to Article 309 of the Constitution of India regulating the recruitment and conditions of service of persons appointed to the Assam Education Service. 16. The method of recruitment by way of direct recruit and promotion have been dealt with under Rule 5(1) of the 1982 Rules in case of direct recruit and Rule 5(2) in case of promotion. The manner and procedure for direct recruitment and promotion has been laid down in Rule 6 and 11 respectively of the 1982 Rules. Rule 12 of the Rules prescribed the general procedure of promotion. Rule 13 deals with the selection board. Rule 12 of the Rules required to be strictly followed in case of promotion to the higher cadre from the lower cadre and there is no other method prescribed for promotion except the method as prescribed under Rule 12. 17. Rule 12 of the Rules prescribed the general procedure of promotion. Rule 13 deals with the selection board. Rule 12 of the Rules required to be strictly followed in case of promotion to the higher cadre from the lower cadre and there is no other method prescribed for promotion except the method as prescribed under Rule 12. 17. Admittedly the respondent No. 5 was holding the post of Assistant Inspector of Schools and he was promoted to the post of Inspector of Schools under Regulation 4(d) of the Regulation 1951 with retrospective effect without adhering Rule 5(3)(b) which provides that 75% shall be filled up by the direct recruitment and rest of 25% shall be filled up by promotion. Therefore, it has to be judged as to whether 1982 Rules framed under Article 309 of the Constitution can be superseded by regulation 1951 which has been framed under Article 320(3) of the Constitution of India and whether the official respondents are empowered to deal with the matter of promotion taking recourse to Regulation 4(d) of Regulation 1951. 18. Before dealing with such question it may be appropriate to quote the provisions of Regulation 4 and 4(d) of Regulation 1951: Regulation 4 Promotion-It shall not be necessary to consult the Commission on the principles to be followed in making promotions or on the suitability of candidates for promotion in the following cases: (a)-------- (b)-------- (c)------- (d) Officiating promotion for a period which is not likely to last for more than one year: Provided that if the period of officiating promotion is extended beyond the term for which it was originally sanctioned, the period of promotion shall, for purposes of this regulation, be reckoned from the date when the promotion originally took effect and not from the date of the extension of the period. 19. Therefore a conjoint reading of 1982 Rules and Regulation 1951 would make it clear that the 1982 Rules i.e. the statutory Rules cannot be allowed to go bye while promoting the respondent No. 5, inasmuch as, the appointment, promotion etc. in case of petitioner and the respondent No. 5 are governed by 1982 Rules. The statutory Rules however, it is apparent, has not been adhered to in case of promoting respondent No. 5. in case of petitioner and the respondent No. 5 are governed by 1982 Rules. The statutory Rules however, it is apparent, has not been adhered to in case of promoting respondent No. 5. The promotional avenue under Regulation 1951 and the seniority made therein would have to be counted from the date of regularization as it is the normal procedure under service jurisprudence. The promotional post held by the respondent No. 5 has been shown w.e.f. 18.12.1992 but, in fact, he joined in the post on 19.02.1993. Therefore, the official respondents cannot be allowed to take recourse to the provisions of Regulation 4(d) of Regulation 1951 without adhering the statutory Rules, i.e. Rule 23(4) of the 1982 Rules in the matter of promotion and seniority as has been done in the instant case giving a go bye to the other provisions of statutory Rules. The Court, however, is not inclined to set aside the order of promotion of the respondent No. 5 after the belated stage of 14 years to unsettle the settled position. 20. Therefore, the last question remains to be answered as to whether the petitioner is entitled to get the benefit of seniority and promotion to the post of Joint Director in Assam Education Service, Class-I with retrospective effect from 22.06.06, when the respondent No. 5 was promoted to the said post by restoring his seniority in the cadre of Inspector of Schools/District Elementary Education Officer etc. over the respondent No. 5. Keeping in mind the entire situation of the facts pleaded and argued before this Court, this Court has no hesitation to hold that since the initial order of promotion of the respondent No. 5 is not in accordance with the statutory Rules, the petitioner is entitled to get the seniority over the respondent No. 5 and consequently thereupon, he is entitled to get the promotion to the post of Joint Director in Assam Education Service, Class-I with retrospective effect with all consequential benefits. 21. In the facts and circumstances of the case, the Court issued a writ of mandamus directing the official respondents to restore the seniority of the petitioner over the respondent No. 5 by modifying the gradation list dated 15.12.2004 and the petitioner be promoted to the post of Joint Director in Assam Education Service, Class-I with retrospective effect from 22.06.2006 with all consequential benefits in accordance with the Rules. There will be no difficulty in promoting the petitioner to the post of Joint Director since as stated at the Bar, there are two posts of Joint Director in Assam Education Service, Class-I are lying vacant at present. The entire endeavour shall be completed within a period of four months from the date of this judgment. In the result, the writ petition stands Showed as indicated above. The parties are left to bear their own cost. Petition allowed