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2015 DIGILAW 1431 (GAU)

Jatindra Nath Borchetia v. State of Assam

2015-11-18

MANOJIT BHUYAN, T.VAIPHEI

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JUDGMENT : Manojit Bhuyan, J. Heard Mr. DK Mishra, the learned Sr. Counsel assisted by Mr. P. Prasad, the learned counsel representing the appellant, Mr. P. Mahanta, the learned counsel representing the respondent No.4 and Ms B. Goyal, the learned Govt. Advocate representing the State respondents. 2. The appellant as a writ petitioner had challenged the Notification dated 20.8.2009 by which the Respondent No.4, Sri Pradip Hazarika was promoted to the rank of Deputy Director of Sports and Youth Welfare, Assam on consideration that his name was placed in the first position in the Gradation List of Assistant Directors. Challenge was also made to the provisional Gradation List in respect of the post of Deputy Director whereby the name of the Respondent No.4 was shown at Sl. No.1. 3. The pin-pointed challenge is that the promotion of the Respondent No.4 was done primarily on the basis of he being placed at Sl. No.1 in the Gradation List, which according to Mr. Mishra marks a departure from the provisions under the Assam Sports and Youth Welfare (Recruitment and Promotion) Service Order, 2001. The recruitment by promotion, insofar as the promotion made from the cadre of Assistant Director to the post of Deputy Director is concerned, the same is regulated by sub-rule (3) of Rule 11 of the said Rules. For better appreciation, sub-rule (3) of Rule 11 is reproduced hereunder: “3. A member of the Cadre of Assistant Director in the Assam Sports and Youth Welfare Service who has rendered continuous satisfactory service in his cadre at least for five years shall be eligible for promotion to the post of Deputy Director. In the event of non-availability of Asstt. Director a suitable member of the cadre of the District Sports Officer rendering not less than eight years of satisfactory continuous service, shall be eligible for promotion to the cadre of Deputy Director. Due regard shall be given to merit and seniority.” 4. The Recruitment Rules governing the promotion being clear and having regard to the fact that the promotion rendered to the respondent No.4 was done primarily on the basis of seniority and not on the basis of merit and seniority, the writ petition was instituted by the present appellant. 5. According to Mr. Mishra the said writ petition, registered and numbered as WP(C) No. 2641 of 2011, was heard and dismissed on 17.9.2012. 5. According to Mr. Mishra the said writ petition, registered and numbered as WP(C) No. 2641 of 2011, was heard and dismissed on 17.9.2012. Subsequently, a review application came to be preferred by the appellant herein on the ground that while rendering the judgment and order in WP(C) No. 2641 of 2011, the matter with regard to the Rules regulating the promotion under the aforesaid Rules had not been considered. However, the said Review Application was also dismissed by order dated 2.4.2013. 6. Mr. Mishra, the learned Sr. Counsel, during the hearing of this case, fairly submits that the issue with regard to the promotion order dated 20.8.2009 may not be gone into as on this date it would not be appropriate to unsettle a settled position. However, Mr. Mishra submits that he had also been promoted to the post of Deputy Director subsequently in the year 2010 and the issue with regard to the seniority between the appellant and the Respondent No.4 is yet to be determined. As such, it is contended that the respondent authorities may take appropriate steps for fixing their inter-se-seniority in strict accordance with the Rules. The said submission of Mr. Mishra is taken on board. 7. Having regard to the limited prayer made by Mr. Mishra and not objected to by the counsels representing the respondents, this writ appeal stands disposed of with a direction to the respondent authorities, particularly the Respondent Nos. 1,2 and 3 to determine the inter-se-seniority between the appellant and the Respondent No.4 in strict accordance with Rule 21 of the Assam Sports and Youth Welfare(Recruitment and Promotion) Service Orders, 2001. 8. In view of the above, and without further going into the merit of the decision rendered by the learned Single Judge, this writ petition stands disposed of accordingly.