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2015 DIGILAW 1052 (GAU)

Satyaban Talukdar v. State of Assam

2015-08-18

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. S. K. Borkataki, learned counsel for the petitioner and Ms. R. Gogoi, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to promote him to the post of Upper Divisional Assistant (UDA). 3. Case of the petitioner is that in the year 1980, he was appointed as Extra Writer in the Office of Sub-Registrar, Kamrup at Guwahati. After working as such for more than six years, petitioner was appointed as Copyist and posted in the Office of the Sub-Deputy Collector, Rangia. Since then, petitioner is working as Copyist, presently in the Office of respondent No. 5 i.e. Circle Officer, Rangia Revenue Circle, Rangia. 4. Claiming equal pay with the Typist, petitioner along with a large number of persons serving as Copyist in different establishments of the State had approached this Court by filing Civil Rule No. 444/1987. After due consideration, this Court disposed of the said writ petition vide judgment and order dated 12.04.1988 by directing that the Copyists should be provided the time scale of pay as given to the Typists. 5. While the grievance of the petitioner regarding pay scale commensurate to the status of his service was met at the intervention of this Court, he continued to remain stagnated in the same post though long years had passed in the meanwhile. During this period, service of the petitioner was utilized in different establishments, sometimes as In-charge Lower Division Assistant (LDA) but no promotion was given to him. According to the petitioner, at the time of filing of the writ petition he had rendered about 23 years of service in the same post of Copyist without any promotion. 6. With the above grievance, present writ petition has been filed. 7. Additional Deputy Commissioner, Kamrup, Guwahati has filed a counter affidavit. Stand taken in the affidavit is that petitioner is serving as Copyist only and not as LDA. Though representation was submitted by the petitioner seeking his promotion to the post of UDA, the same could not be entertained as there was no provision for promotion of Copyist to the post of UDA. Stand taken in the affidavit is that petitioner is serving as Copyist only and not as LDA. Though representation was submitted by the petitioner seeking his promotion to the post of UDA, the same could not be entertained as there was no provision for promotion of Copyist to the post of UDA. It is further stated that some LDAs have been promoted to the post of UDA as per Rule 5 of the Assam Ministerial District Establishment Service Rules, 1967 but promotion from Copyist to UDA is not permissible under the said Rules. Cadres of Copyist and UDA (now re-designated as Senior Assistant) are different. 8. Petitioner has filed rejoinder affidavit as well as an additional affidavit. Petitioner has placed on record various orders issued to him from time to time asking him to discharge duties of LDA in the Office of respondent No. 5. It is stated that the provisions of Assam Ministerial District Establishment Service Rules, 1967 would not be applicable to the service of the petitioner as the cadre of Copyist is not covered by the said Rules. The judgment and order dated 12.04.1988 in Civil Rule No. 444/2007 has also been placed on record. 9. Mr. Borkataki, learned counsel for the petitioner submits that petitioner has suffered for long due to stagnation in his service career. He has been asked by the authorities to discharge duties of LDA (Junior Assistant) from time to time without providing him the benefit of promotion to the said post. In this way 29 long years have gone by in the post of Copyist without any consideration of the petitioner's case for promotion. Referring to the judgment of this Court dated 12.04.1988 he submits that the spirit of the said judgment should be followed and due justice should be given to the Copyists by providing adequate promotional avenues. He submits that this case is pending in this Court for 6 years and during this period of 6 years, no steps have been taken for promotion of the petitioner. Mr. Borkataki, further refers to the provisions of Assam District Copyist Establishment Service Rules, 1991 and contends that the said Rule is still at the draft stage though more than 20 years have gone by. He submits that the respondents have acted on the said Rules and have made promotions on the basis thereof. Mr. Borkataki, further refers to the provisions of Assam District Copyist Establishment Service Rules, 1991 and contends that the said Rule is still at the draft stage though more than 20 years have gone by. He submits that the respondents have acted on the said Rules and have made promotions on the basis thereof. Petitioner's case can be considered at least under the said draft Rules. 10. On the other hand, Ms. Gogoi, learned Govt. Advocate submits that since petitioner is serving as Copyist with occasional additional charge of LDA, his claim for promotion to UDA is not tenable. However, the Government is not insensitive to the plight of the petitioner or other Copyists and will abide by such direction as this Court may pass in the facts and circumstances of the case. 11. Submissions made by learned counsel for the parties have received the due consideration of the Court. 12. It is not disputed that petitioner is serving as Copyist in the establishment of respondent No. 5. This is his substantive engagement. 13. It is also not disputed that during his long service career as Copyist, he has been allowed to hold additional charge of LDA. But the fact remains that there has been no substantive promotion of the petitioner to the post of LDA. 14. It is a settled proposition of law that in the absence of statutory service rules governing the service conditions of a group of employees, the draft service rules can be acted upon. 15. Mr. Borkataki, learned counsel for the petitioner has contended that the draft Assam District Copyist Establishment Service Rules, 1991 has been acted upon by the State in affecting promotion of Copyist. This has not been denied or disputed by the respondents. 16. As per Rule 2 (4) of the 1991 Rules, "District Establishment" has been defined to mean and includes all Copyist in the Offices of the Deputy Commissioner, Sub-Divisional Officers, Sub-Deputy Collectors and Block Development Officers of the District. The service i.e. Assam District Copyist Establishment Service comprises of two cadres of posts i.e. Copyist-cum-LDA and Copyist. Both the cadres have been conferred the status of Class-III non-gazetted ministerial service. Rule 6 provides for promotion from Copyist to Copyist-cum-LDA. Eligibility criteria is that one must be a matriculate or equivalent examination pass and having rendered minimum 5 years of continuous service in the District Establishment as a Copyist. 17. Both the cadres have been conferred the status of Class-III non-gazetted ministerial service. Rule 6 provides for promotion from Copyist to Copyist-cum-LDA. Eligibility criteria is that one must be a matriculate or equivalent examination pass and having rendered minimum 5 years of continuous service in the District Establishment as a Copyist. 17. As already noticed above, petitioner had fulfilled the eligibility criteria for promotion at least from Copyist to Copyist-cum-LDA long back but has not received any consideration for such promotion. 18. In Council of Scientific & Industrial Research v. KGS Bhatt, (1989) 4 SCC 635 , the Hon'ble Supreme Court observed that an organization does not hire a hand but engages or employees a whole man. A person is recruited not just for a job but for a whole career. Therefore, every management/organization should provide realistic opportunity to its employees for promotion. 19. Proceeding further, the Hon'ble Supreme Court in the subsequent decision in FCI v. Parashotam Das Bansal, (2008) 5 SCC 100 has held that when employees are denied opportunity of promotion for long years on the ground that they fell within a category of employees excluded from promotional prospect, the superior Court will have the jurisdiction to issue necessary direction. If there is no channel of promotion, the jurisdiction to issue direction to make a scheme providing for promotion cannot be denied to a superior Court of the country. 20. In Union of India v. Hemraj Singh Chauhan & Ors., (2010) 4 SCC 290 , the Apex Court has held that the right to be considered for promotion has virtually been elevated to the status of a fundamental right under Article 16 of the Constitution. 21. Viewed in the above context, denial of any promotional avenue of the petitioner since his entry into service as Copyist in the late 1980's is clearly unreasonable and wholly unjustified. In such circumstances, Court is of the view that the respondents should immediately take up the case of the petitioner for promotion to the post of Copyist-cum-LDA under the 1991 Rules, if necessary by antedating such promotion from a date when petitioner become eligible for promotion and subject to availability of vacancy in the higher cadre of Copyist-cum-LDA. In such circumstances, Court is of the view that the respondents should immediately take up the case of the petitioner for promotion to the post of Copyist-cum-LDA under the 1991 Rules, if necessary by antedating such promotion from a date when petitioner become eligible for promotion and subject to availability of vacancy in the higher cadre of Copyist-cum-LDA. Once this exercise is complete, petitioner would come within the ambit of the 1967 Rules in the lower rank of LDA and then would be entitled to a consideration for further promotion to the higher cadre of UDA, subject of course to fulfilment of the eligibility criteria. 22. Ordered accordingly. 23. Let the whole exercise as directed above be carried out within a period of 4 (four) months from the date of receipt of a certified copy of this order. 24. Writ petition is accordingly allowed. 25. However, there shall be no order as to cost.