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Gauhati High Court · body

2014 DIGILAW 1060 (GAU)

MRINAL KANTI SARMA CHOUDHURY v. STATE OF ASSAM

2014-12-16

B.K.SHARMA

body2014
ORDER (CAV) 1. By means of this writ petition, the petitioner has prayed for setting aside and quashing of the judgment dated 30.09.2008 passed by the Assam Administrative Tribunal in Appeal Case No.57 ATA/2007 dismissing the appeal of the petitioner. The petitioner has also prayed for setting aside and quashing of the order dated 18.08.2007 rejecting the prayer of the petitioner referred to herein below. 2. According to the petitioner, he is entitled to receive salary in the scale of pay of the Deputy Director from 02.07.1985 or from 03.07.1993 or from 02.02.2007. To appreciate the prayer, the relevant facts are stated below. 3. The petitioner was first appointed as Statistical Assistant in the Social Welfare Department on 02.01.1979. He was promoted to the post of Research Assistant on 08.05.1985 in which year the United Nations introduced World Food Programme in Assam through Social Welfare Department. According to the petitioner, the scheme started working from 02.07.1985 and since then he was assigned with the duties of Assistant Project Manager. 4. In the month of December, 1992, a proposal was put up by the Director of Social Welfare Department before the Government for creation of the post of Assistant Project Manager in the Directorate. According to the petitioner, there was none qualified to hold the post except him. However, vide notification dated 13.07.1993, one Smti Junu Neog holding the post of Superintendent, PL Home, Bamunigaon, Boko was transferred and posted as Assistant Project Manager, World Food Programme. Being aggrieved by such posting of said Smt. Junu Neog, the petitioner preferred writ petition Being Civil Rule No.3048/1993. The writ petition was allowed vide judgment and order dated 08.01.1996 setting aside the appointment of Smti Junu Neog and remanded the matter back to the authority for a fresh decision with the following direction:- “It is submitted by Sri Roy that the Respondent No.7 does not possess these qualifications, but at the same the petitioner possesses those qualifications. I am really not inclined to decide this matter inasmuch as the respondent Nos. 1 to 6 did not care to produce the records. I am really not inclined to decide this matter inasmuch as the respondent Nos. 1 to 6 did not care to produce the records. Be that as it may, after hearing Sri Roy remit back this matter to the Respondents No.2 and 3 to find out the possession of qualifications by both the parties i.e. by the respondent No.7 and the petitioner as mentioned above and to scrutinize whether these are the prescribed qualifications for the post and if it is found that these are the prescribed qualifications for the post and if het respondent No.7 does not possess these qualifications, the appointment of respondent No.7 vide Annexure-VIII shall stand quashed and the authority shall also determine whether the petitioner possess these qualifications or not. This scrutiny shall be completed within a period of two (2) months from the date of receipt of the order and on such scrutiny the authority shall decide who is better qualified to hold the post as mentioned above and on such determination necessary weitage also shall be given to the better and deserving candidates. This disposes of the writ application. The petitioner may obtain the certified copy of the order and shall produce the same before the authority to do the needful in terms of the order.” 5. According to the petitioner, after such remand of the matter to the authority, a selection was conducted on 27.11.1996 and the petitioner was recommended for appointment as Assistant Project Manager. However, the same did not materialize and eventually the Assam Public Service Commission issued an advertisement for the post of Assistant Project Manager on 21.10.1998. The petitioner responded to the same and on being selected, he was appointed vide Annexure-8 notification dated 25.01.2001. After getting the appointment, the petitioner made the Annexure-10 representation on 19.07.2001 praying for the retrospective promotion from 1985 and salary in the time scale of pay of the post of Deputy Director. Thereafter, the petitioner filed the instant writ petition in 2009 and to be precise on 21.01.2009 with the aforesaid prayers. 6. I have heard Mr. A. Dasgupta, learned senior counsel, assisted by Ms. B. Das, and Mr. B. Das, learned counsel representing the petitioner. I have also heard Mr. B.K. Sarma, learned Standing Counsel, Social Welfare Department and so also Mrs. H.M. Phukan, learned State Counsel. 6. I have heard Mr. A. Dasgupta, learned senior counsel, assisted by Ms. B. Das, and Mr. B. Das, learned counsel representing the petitioner. I have also heard Mr. B.K. Sarma, learned Standing Counsel, Social Welfare Department and so also Mrs. H.M. Phukan, learned State Counsel. I have also perused the entire materials on record including the records received from the Assam Administrative Tribunal. 7. The petitioner apart from filing the aforesaid writ petition being Civil Rule No.3048/1993 also filed another writ petition being WP(C) No.4406/2007 claiming the aforesaid relief. The writ petition was disposed of providing adjudication of the subject matter by the Assam Administrative Tribunal. Thereafter, the petitioner approached the said Tribunal by filing Appeal Case No.5788/2007 and the same was dismissed vide judgment dated 30.09.2008. Prior to that, the Government in the Social Welfare Department also rejected the prayer of the petitioner vide Annexure-17 order dated 18.08.2007, which is quoted below:- “ORDER WHEREAS, Shri Sarma Choudhury, Research Assistant in the Directorate of Social Welfare Assam, after selection was posted as Asstt. Project Manager (APM) under the World Food Programme. The post of APM was created by keeping the post of Supdt. P.L Home in abeyance. Shri M.K. Sarma Choudhury abolished. Both the posts of the Asstt. Project Manager and the Supdt. P.L. Home were in the same scale of pay. WHEREAS, the World Food Programme was over and in that event the post of APM also stood abolished and the post of Supdt P.L Home which was kept in abeyance was subsequently revived from 7.10.2004 where Shri M.K. Sarma Choudhury was shifted. WHEREAS, Shri M.K. Sarma Choudhury submitted representation dated 19.02.2007 and dated 07.06.2004 claiming (1) for giving his appointment with retrospective effect from 13.07.1993 i.e. from the date of creation of the post of APM and finally w.e.f. 02.07.1985 and (2) for upgradation of the post of APM to the Deputy Director (Computer). WHEREAS, the above two claims of Shri Choudhury were carefully examined in the Deptt. And after careful examination it has been found that as far as his claims at (1) above is concerned Shri Choudhury was appointed and posted as APM in the year 2001 vide notification No.SWD 59/94/255, dtd.25.01.2001 and Shri Choudhury joined the post on 02.02.2001. WHEREAS, the above two claims of Shri Choudhury were carefully examined in the Deptt. And after careful examination it has been found that as far as his claims at (1) above is concerned Shri Choudhury was appointed and posted as APM in the year 2001 vide notification No.SWD 59/94/255, dtd.25.01.2001 and Shri Choudhury joined the post on 02.02.2001. The claims of Shri Choudhury to give retrospective effect to his appointment from the date of creation of the post i.e. 13.07.1993 and finally from 02.07.1985 founds quite absurd and unjustified as it amounts to claiming benefit financial or otherwise in exchange of no works rendered. AND WHEREAS the claims for upgradation of the post of APM to the rank of Deputy Director (Computer) bears no merit and justification as because as already mentioned above, soon after winding up of the NFP, the post of APM lost its total existence and became redundant. AND WHEREAS, the Director Social Welfare Assam himself presumably did not feel the necessity for the post of Deputy Director (Computer) and as such he did not submit a formal and concrete proposal for upgradation of the redundant post of APM to rank of Deputy Director (Computer). It is more pertinent to be added here that there is /was no need for the post of Deputy Director (Computer) in the Directorate as because the training of computer has already been imparted to all the functionaries at the requisite/all continuous basis. WHEREAS, the views of judicial department and Personnel (B) Department have been duly considered and after due consideration also in view of the matter of upgradation of post of APM which is already a redundant post to the post of Deputy Director (Computer) it is felt that the views of the above mentioned Departments are also absolutely beside the point. AND WHEREAS, in the premise of facts, figures and grounds adduced above, the representation containing the claims as aforesaid do not merit any consideration, hence rejected. NOW THEREFORE, the representation of Shri M.K. Sarma Choudhury dated 19.02.2001 and Dt. 07.02.2004 is disposed of accordingly. Let the above decision be communicated to all concerned.” 8. AND WHEREAS, in the premise of facts, figures and grounds adduced above, the representation containing the claims as aforesaid do not merit any consideration, hence rejected. NOW THEREFORE, the representation of Shri M.K. Sarma Choudhury dated 19.02.2001 and Dt. 07.02.2004 is disposed of accordingly. Let the above decision be communicated to all concerned.” 8. From the above narration of fact what has emerged is that although the appointment of Smti Junu Neog as Assistant Project Manager was set aside and quashed by judgment and order dated 08.01.1996 in Civil Rule No.3048/1993, but there was no direction to promote the petitioner to the post. The matter was remanded back to the authority for a scrutiny and decision as to who was better qualified to hold the post. Although it is the case of the petitioner that after such remand, the authority had recommended him for promotion on 27.11.1996, but such assertion on the part of the petitioner is of no consequence in view of the fact that the post was subsequently advertised on 21.10.1998 and the petitioner duly responded to the same without raising any objection. He also did not raise any objection till he was appointed as Assistant Project Manager on 25.01.2001. After accepting the promotion as Assistant Project Manager, he submitted the Annexure-10 representation dated 19.07.2001 and kept on waiting till filing of the writ petition being WP(C) No.4406/2007. 9. The whole basis of the claim of the petitioner to provide him time scale of pay meant for the post of Deputy Director is the Annexure-1 letter dated 19.05.1989 of the Government of India in the Ministry of Human Resource Development. By the said DO letter addressed to the Secretary to the Government of Assam in the Department of WPT&BC, it was observed that the post of Assistant Project Manager be manned by an official of Deputy Director Level. The same did not cloth the petitioner with any right to seek promotion to the post of Assistant Project Manager and that too in the pay scale of Deputy Director. After about 10 years of the said communication, the petitioner responded to the advertisement dated 21.10.1998 for the post of Assistant Project Manager in the time scale of pay of Rs.1635-3950/- (pre revised). He also accepted his appointment on being offered appointment vide notification dated 25.01.2001 in the time scale of pay of Rs.4120-9725/- (revised). After about 10 years of the said communication, the petitioner responded to the advertisement dated 21.10.1998 for the post of Assistant Project Manager in the time scale of pay of Rs.1635-3950/- (pre revised). He also accepted his appointment on being offered appointment vide notification dated 25.01.2001 in the time scale of pay of Rs.4120-9725/- (revised). After joining the post, he started agitating his purported grievance for retrospective promotion that too from 1985 and alternatively from 1993 when Smti Junu Neog was appointed. Further alternative prayer is to appoint him as Assistant Project Manager from 02.02.2007. Thus, the petitioner himself is not sure as to from which date he wants his promotion. The fact of the matter is that he duly responded to the APSC’s advertisement and thereafter he was appointed on 25.01.2001. Thus, without shouldering the duties and responsibilities in substantively in the post of Assistant Project Manager, he certainly cannot claim promotion from 1985 or 1993 and the benefits thereof. 10. The order of rejection by the departmental authority dated 18.08.2007 has been quoted above. The order has dealt with all the relevant aspects of the matter including the prayers made by him. As recorded in the said order, the claim for up gradation of the post of Assistant Project Manager to the rank of Deputy Director had no merit and justification as because after winding up of the NFP, the post of Assistant Project Manager itself was no longer in existence. The petitioner was accommodated against the post of Superintendent, PL Home, which is equivalent to the post of Assistant Project Manager in the same time scale of pay. As recorded in the said order, the Director of Social Welfare did not feel the necessity for the post of Deputy Director and accordingly no proposal was submitted for up gradation of the redundant post of Assistant Project Manager to the rank of Deputy Director. 11. All the above aspects of the matter have also been discussed by the Tribunal in its impugned judgment and order dated 30.09.2008. 11. All the above aspects of the matter have also been discussed by the Tribunal in its impugned judgment and order dated 30.09.2008. As recorded in the said judgment, the Government did not consider it necessary to create the post of Deputy Director, needless to say that creation or abolition of post is within the exclusive domain of the government and no direction can be issued to create post or abolition of post of Assistant Project Manager, the appointment was accommodated against the post of Superintendent, Permanent Liability Home, by reviving the post which was earlier kept in abeyance. 12. At the time of filing the writ petition, the petitioner was already 59 years of age. By now five years have gone by since then. According to Mr. Dasgupta, learned Senior Counsel for the petitioner, if the petitioner is provided with the scale of pay applicable to the post of Deputy Director, he will be benefited in his pension. The submission cannot be accepted inasmuch as the Government never felt it necessary to create the post of Deputy Director and then to upgrade the post of Assistant Project Manager to the said post. The petitioner duly responded to the APSC’s advertisement and also joined as Assistant Project Manager upon selection without raising any grievance. At the fag end of his service career, he could not have raised a grievance pertaining to 1985, 1993 and 2007. As discussed above, the grievance raised is also misplaced. 13. For all the aforesaid reason, I do not find any merit in the writ petition and accordingly, it is dismissed, leaving the parties to bear their own cost. 14. Registry shall transmit the case record to the Tribunal along with a copy of this judgment and order.