Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 583 (GAU)

ALI AMZAD CHOUDHURY v. STATE OF ASSAM

2014-06-02

A.K.GOSWAMI, A.M.SAPRE

body2014
JUDGMENT : - A.M. Sapre, J. Heard Mr. N. Dhar, learned counsel for the applicant/appellant and Mr. Y.S. Mannan, learned counsel appearing for the respondents. This is an intra-court appeal filed by the writ petitioner of WP(C) No.3899/2008 and 4537/2008 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 21.11.2013 passed by the Single Judge in abovementioned writ petition. Also heard on Misc. Case No.1574 of 2014. This is an application made by the applicant/ appellant for condonation of delay in filing the appeal u/s 5 of the Limitation Act. According to the applicant/appellant, the delay is of 11 days. We have gone through the cause stated in the application duly supported by an affidavit. In our opinion, it constitutes a bonafide and sufficient cause for the purpose of condoning the delay within the meaning of Section 5 of the Limitation Act. The condonation of delay advances cause of justice whereas converse defeats the cause of doing substantial justice. There is no deliberate delay on the part of the appellants in filing the appeal and, therefore, the delay in filing the appeal deservers to be condoned on the grounds stated in the application. Accordingly and in view of the aforesaid discussion, Misc. Case No. 1574 of 2014 is allowed. The delay in filing the appeal is hereby condoned. By impugned order, the learned Single Judge dismissed the appellant’s writ petition and declined to grant him the relief which he had claimed in the writ petition. So the short question which arises for consideration in this appeal is whether learned Single Judge was justified in dismissing the appellant’s writ petition? It is apposite to reproduce the impugned order in verbatim infra. “Heard Mr. HRA Choudhury, learned senior counsel appearing for the petitioner in the WP(C) No.3899/2008 and also heard Advocate Mr. T U Laskar appearing for the petitioner in the WP(C) No.4537/2008. The private respondent No.5 is represented by Advocate Mr. AB Choudhury and the official respondents are represented by Mr. YS Mannan, standing counsel, PWD (Building). Both the petitioners are serving as LDAs since 24.7.1987 in the office of the Superintending Engineer, PWD (Building) Circle, Silchar and they are hoping for promotion to the post of UDA. The private respondent No.5 is represented by Advocate Mr. AB Choudhury and the official respondents are represented by Mr. YS Mannan, standing counsel, PWD (Building). Both the petitioners are serving as LDAs since 24.7.1987 in the office of the Superintending Engineer, PWD (Building) Circle, Silchar and they are hoping for promotion to the post of UDA. They challenge the order dated 28.2.2008, whereby the private respondent Pintu Dutta was transferred to one of the available vacancies of UDA in the office, where the petitioners are serving. They contend that the vacancy should be filled by promotion instead of transfer. The private respondent has filed counter affidavit taking the stand that promotion is to be considered in accordance with the applicable Rules and the petitioners have no enforceable right to claim promotion merely because a vacancy is available in the establishment, where the petitioners are presently serving. The claim for preferential consideration as an OBC category candidate by one of the petitioner is denied by the State respondents. The departmental lawyer Mr. YS Mannan also submits that the private respondent was transferred in exigencies of service and this by itself does not obliterate any right of the serving LDAs to be considered for promotion. Accordingly he argues that the challenge to the transfer order is misconceived. Having considered the issues raised in the case and noting that promotion is to be considered in accordance with the applicable Rules, I find no merit to the challenge to the transfer of the private respondent to the post of UDA. Accordingly the cases are dismissed without any order on cost.” Here is a case where the appellant (writ petitioner) who is working as LDC in office of Superintendent Engineer PWD (Building) Circle Silchar complained by filing the writ petition out of which this appeal arises against the transfer/posting of respondent No.5 in his department. The fear of the appellant (writ petitioner) was that due to transfer of respondent No.5 in the department, his chances of promotion to the next higher grade had virtually gone. He therefore complained that the respondent no. 5 should not have been transferred to his department. This challenge was repelled by the learned Single judge and in our view rightly. In our opinion, the issues of promotion and transfer of respondent No. 5 are two different issues have nothing to do with each other. He therefore complained that the respondent no. 5 should not have been transferred to his department. This challenge was repelled by the learned Single judge and in our view rightly. In our opinion, the issues of promotion and transfer of respondent No. 5 are two different issues have nothing to do with each other. The case of the appellant for promotion to any other higher post has to be considered as per rules governing the cases of promotion as and when it falls due for its consideration whereas the issue of transfer of respondent No.5 to any department is an independent matter. Merely because, the respondent No.5 was transferred to the department where appellant is posted would not be a ground to challenge the transfer order of respondent No.5 because, a transfer of any employee does not affect other employee’s right to consider for promotion. In the light of foregoing discussion, though we dismiss the appeal and uphold the impugned order, we consider it proper to direct the respondent Nos. 1 to 4 to consider the case of the appellant (writ petitioner) for his promotion as per rules as and when it falls due strictly in accordance with rules and service record. It is with the observation, we find no merit in the appeal, which thus fails and is accordingly dismissed. No cost.