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Gauhati High Court · body

2010 DIGILAW 23 (GAU)

Md. Saifor Uddin Ahmed v. State of Assam and Ors.

2010-01-18

P.K.MUSAHARY

body2010
1. Heard Dr. B. Ahmed, learned counsel for the petitioner and Mr. P.K. Saikia, learned Addl. Senior Government Advocate, Assam appearing for the State respondents. Also heard Mr. S. Khound, learned counsel appearing for the private respondent Nos.4, 5 and 6. There is no representation for the private respondent No. 7. 2. The claim of the petitioner is that he has been working as work-charged employee for a pretty long time under the establishment of Executive Engineer, PWD, Kokrajhar Road Division and subsequently he was placed temporarily as office Peon against the sanctioned post of newly created Kachugaon PWD Road Sub-Division under Kokrajhar Road Division vide office order No.216 dated 12.7.1984. His appointment as office Peon was confirmed and in the meantime he passed the HSLC Examination in the year 1987 and he become qualified for holding the post of Grade-III post including L.D. Assistant. He made a prayer vide his application dated 24.5.1999 for up gradation of the post from Office Peon to L.D. Assistant. There were other contenders for the post of L.D. Assistant and Daftry. The Executive Engineer PWD vide his letter dated 9.9.1999 forwarded the petitioner's case to the Chief Engineer PWD (Road) Assam for up-gradation of the post held by him to the post of L.D. Assistant. In the meanwhile the post of Daftry fell vacant w.e.f. 1.4.2000 under the PWD (Road) Division. A list of Peons was prepared for promotion to the post of Daftry (Annexure 9 to the writ petition). In the said list the petitioner's name appeared at Serial No.5 while the private respondents name appeared at SI. No.7. The candidates at SI. Nos. 1 and 2 had already retired. The persons at SI. Nos.3 and 4 have foregone the promotion and by that way the petitioner's turn came for promotion to the post of Daftry. He claims that as he is at SI. No.5, he is senior to the private respondent and as such he is entitled to get the promotion to the post of Daftry but the respondent authorities have deprived him of the said promotion by promoting private respondent No.7 as L.D. Assistant. 3. Dr. He claims that as he is at SI. No.5, he is senior to the private respondent and as such he is entitled to get the promotion to the post of Daftry but the respondent authorities have deprived him of the said promotion by promoting private respondent No.7 as L.D. Assistant. 3. Dr. Ahmed, learned counsel for the petitioner submits that the State Government under the provision of rule 6(a&b) of the Assam Ministerial District Establishment Service Rules., 1967 for promotion to Grade TV employees to Grade III framed a scheme which was circulated vide ABP-11/72/117, dated Shillong 26th September, 1973 providing quota/reservation of 10% of the vacancies in the cadre of L.D. Assistant in the amalgamated establishment of the Deputy Commissioner's office. Dr. Ahmed submits that the aforesaid quota of 10% has been increased to 15% and the petitioner is entitled to get the benefit under the said scheme. He further submits that the petitioner is to be appointed/promoted directly under the aforesaid provision without resorting in regular recruitment process inasmuch as there are sufficient vacancies to accommodate the petitioner. 4. Mr. Khound, learned counsel appearing for the respondent Nos.4, 5 and 6 submits that the petitioner made application for appointment/promotion to the post of Daftry as could be seen from his application dated 21.1.2003 (Annexure-III) to the affidavit-in-opposition filed by the aforesaid respondent. The petitioner made a claim for the post of Daftry in his petition and, therefore, he can not now make any claim for appointment to the post of L.D. Assistant. Moreover, it is also submitted that the post of L.D. Assistant is higher then the post of Daftry and as such he can not make any grievance against the appointment/promotion of the private respondent to the post of L.D. Assistant. 5. There is no dispute about the provision of 10% reservation for filling up the post of L.D. Assistant from the cadre of Grade IV employees. There is also no dispute on the fact that the post of L.D. Assistant held by the private respondent is a sanctioned posts. It appears from the materials placed by the petitioner that there are some more posts of L.D. Assistant in the Kokrajhar PWD (Road) Division which are yet to be filled up. 6. I have carefully perused the impugned appointment order dated 11.6.2004, insofar as it relates to private respondent. It appears from the materials placed by the petitioner that there are some more posts of L.D. Assistant in the Kokrajhar PWD (Road) Division which are yet to be filled up. 6. I have carefully perused the impugned appointment order dated 11.6.2004, insofar as it relates to private respondent. There is no indication that any advertisement was made by the authority concerned for filling up the post of L.D. Assistant. It does not transpire from the impugned order that any selection was ever made by the respondent authorities. Nothing has been mentioned in the impugned order whether the cases of similarly situated persons including the present petitioner have been considered when appointing the private respondent. In my considered view the appointment made in favour of the private respondent No.7 has been made in a pick and choose manner without resorting to any established procedure in regard to appointment. Such appointment can not be allowed to sustain and accordingly I have no hesitation to set aside the impugned appointment order dated 6.4.2004 passed in respect of the private respondent No.7 Sri Manoj Ghosh and accordingly the same stands set aside. 7. This would not mean that the present petitioner should be appointed against the post held by the private respondent No.7. At best the petitioner has been able to establish his right of being considered for appointment/promotion to the aforesaid post of L.D. Assistant. The respondents authorities are directed to fill up the existing post of L.D. Assistant in strict compliance of the aforesaid rules, namely, Assam Ministerial District Establishment Service Rules, 1967 and the policy framed therein and also taking into account the reservation for ST and SC and Grade IV employees. This should be done within a period of 3(three) months from the date of furnishing certified copy of this order by the petitioner to the concerned respondents/authorities. 8. However, in the facts and circumstances of the case and in the interest of justice it is provided that till the regular promotion/appointment is made the private respondent No. 7 shall be allowed to continue in his service as L.D. Assistant. Be it made clear that the authorities concerned shall not allow the private respondent No.7 beyond 3(three) months from today.