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2015 DIGILAW 1257 (GAU)

Makabbir Ali Laskar v. State of Assam

2015-09-30

HRISHIKESH ROY

body2015
JUDGEMENT : Heard Mr. K. Paul, learned counsel for the petitioner. The respondent Nos.1—4 are represented by Mr. Y.S. Mannan, learned standing counsel for the PWD (Building) and Mr. U.K. Nair, learned counsel appears for the private respondent No.5. 2. This is a seniority dispute between the petitioner and the respondent No.5 in the cadre of LDA and by now the two litigants have superannuated from service. The petitioner and the respondent No.5 joined the Silchar Building Division of the PWD in May, 1973 but the petitioner’s joining date was 18.5.1973, whereas the respondent No.5 Smti Sunanda Paul (Dev) joined a day later i.e. on 19.5.1973. The respondent No.5 was promoted to the cadre of UDA on 26.8.1981 and although the petitioner claims to be senior to her in the feeder cadre by virtue of his joining date, he never challenged the promotion order of his purported junior, at the relevant time. 3. Eventually after six years, the petitioner himself was promoted to the cadre of UDA on 13.11.1987 and six years thereafter, he filed the WP(C) No.6825/2003 for pre-dating his promotion w.e.f. 26.8.1981, when the respondent No.5 was promoted. The averments in the Writ Petition were not controverted by the Department and accordingly the case was disposed of on 21.11.2006 (Annexure-G) by directing the respondents to antedate the petitioner’s promotion to the cadre of UDA w.e.f. the date of promotion of the private respondent and then re-fix his seniority accordingly, above the private respondent. 4. However in the W.A. No.91/2007, filed by the respondent No.5, the Division Bench on 2.8.2007 (Annexure-H), ordered for dismissal of the Writ Petition by observing that the petitioner should firstly approach the Assam Administrative Tribunal for resolution of the seniority dispute between with the private respondent. Thus the Division Bench order set at naught, the judgment rendered by the Single Judge in the WP(C) No.6825/2003. 5. Following the verdict of the Division Bench, the petitioner approached the Assam Administrative Tribunal through the Case No.25 ATA/2008 but said case was dismissed by the learned Tribunal on 23.6.2009 (Annexure-I) with the observation that the respondent No.5 was placed higher in merit position above the petitioner in the select list of LDA and therefore her promotion to the cadre of UDA prior to the junior LDA, should give no cause of action to the petitioner. 6. Assailing the legality of the impugned judgment, Mr. 6. Assailing the legality of the impugned judgment, Mr. K. Paul, the learned counsel submits that the learned Tribunal failed to consider the implication of the notings in the File No.MCC/E/PF/69 in the office of the Silchar Building Division of the PWD, which indicates that merit list is not prepared when LDAs are appointed. The counsel refers to the counter affidavit filed by the Departmental Authorities in the Case No.25 ATA/2008 before the learned Tribunal to argue that the averments in the said affidavit were not taken into account while rendering the impugned judgment. Moreover the decision of the Tribunal is projected to be based on the documents of another case which may have no bearing to the seniority dispute between the petitioner and the respondent No.5. 7. On the other hand, Mr. Y.S. Mannan, learned standing counsel for the PWD submits for the departmental authorities that, both the litigants have long retired from service and therefore this inter se seniority dispute should not be adjudicated on merit at this point of time since, no substantive relief can be given to the litigant. 8. On behalf of the respondent No.5, Mr. U.K. Nair, learned counsel submits that 15 days joining time is permitted by law for all incumbents and therefore the single day gap in the respective joining dates should have no bearing on the inter se seniority between the petitioner and the respondent No.5. He argues that when the respondent No.5 was promoted to the cadre of UDA on 26.8.1981, if aggrieved, the petitioner should have challenged the said promotion but he kept quiet at the relevant time. According to the respondent No.5, the basis for the Tribunal’s judgment is the higher merit placement of the respondent No.5 vis-à-vis the writ petitioner when they were appointed as LDA in May, 1973 and therefore the counsel argues that there is nothing wrong with the refusal of relief to the petitioner, by the learned Tribunal. 9. According to the respondent No.5, the basis for the Tribunal’s judgment is the higher merit placement of the respondent No.5 vis-à-vis the writ petitioner when they were appointed as LDA in May, 1973 and therefore the counsel argues that there is nothing wrong with the refusal of relief to the petitioner, by the learned Tribunal. 9. The relevant notings from the File No.MCC/E/PF/69 are extracted in Para-19 of the Writ Petition and when those notings are read, it is clear that only tentative and general opinion was given about non-preparation of the merit list during appointment of LDAs/UDAs and therefore such opinion which is not specific to the two litigants here, do not conclusively establish that the respondent No.5 was not placed in higher merit position than the petitioner when they were appointed as LDAs. In my perception, this file should not therefore influence the seniority dispute between the petitioner and the respondent No.5. 10. I have also perused the counter affidavit filed by the departmental authorities before the learned Tribunal and it is clear that the said affidavit does not throw any light on the seniority dispute in the case. 11. The learned Tribunal took into account the Assam Ministerial Establishment Service Rules, 1967 (hereinafter referred to as ‘the 1967 Rules‘), which under Rule 11 provided how the inter se seniority in the cadre of LDA is to be determined. When the incumbent joins service within the permitted period of 15 days, the seniority is to be decided not from the date of joining but in accordance with the respective position in the merit list. Here the joining date of the petitioner and the respondent No.5 in the post of LDA is separated by only one day and if the permissible 15 days joining period is applied for the two incumbents, their joining date can’t be the basis for determination of seniority. Hence the learned Tribunal after examining the concerned list noticed the higher merit position for the respondent No.5 above the writ petitioner. Thus she was considered to be senior and on that basis her prior promotion to the higher cadre of UDA on 26.8.1989 was found to be justified. 12. When the above reasoning given by the learned Tribunal is taken into account, the rejection of the petitioner’s claim for seniority by the learned Tribunal is found to be reasonable in the context of the 1967 Rules. 12. When the above reasoning given by the learned Tribunal is taken into account, the rejection of the petitioner’s claim for seniority by the learned Tribunal is found to be reasonable in the context of the 1967 Rules. Moreover as earlier recorded, the notings dated 17.9.1981 in the File No.MCC/E/PF/69 do not conclusively show that merit list is never prepared when LDAs were recruited. 13. That apart, this Court can’t also ignore the fact that until 2003, the writ petitioner failed to approach any legal forum for adjudication of his seniority claim (although respondent was promoted in 1981 itself) and in my considered opinion, the repeated representations filed by the petitioner since 1986 can hardly excuse the belated legal challenge made by the petitioner. 14. It appears that the petitioner has superannuated on 31.7.2007 and by now, eight years have gone by and thus no real relief through retrospective promotion can be granted to the petitioner. 15. Taking all the above factors into account and agreeing with the logic of the impugned judgment given by the learned Assam Administrative Tribunal, I see no scope to entertain this challenge and accordingly the case is dismissed. No cost.