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2015 DIGILAW 1481 (GAU)

Bishnu Deo Roy v. State of Assam

2015-12-01

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. S.C. Biswas, learned counsel for the petitioner and Mr. P.N. Goswami, learned Standing Counsel, Excise Department. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks the following reliefs: (1) To declare that ministerial staff in the office of the Joint Commissioner of Excise, Assam, are part of ministerial staff under the Head of the Department, i.e., Commissioner of Excise, Assam; (2) To direct the respondents to prepare a common cadre-wise gradation list of all the ministerial staff under the establishment of Commissioner of Excise, Assam; (3) To direct the respondents to provide consequential service benefits to the ministerial staff serving in the office of the Joint Commissioner of Excise, Assam, following preparation of common gradation list; (4) To direct the respondents to promote the petitioner to the post of Superintendent effective from the date on which his juniors were promoted. 3. Case of the petitioner is that he studied up to B.Com Part-I having proficiency in typing. Following a due selection process, he was appointed as LDA-cum-Typist by order, dated 01.02.1978 issued by the Chemical Examiner of Excise, Assam. Petitioner continued as LDA-cum-Typist thereafter. In the course of his service, an order, dated 30.07.1988, was passed by the Commissioner of Excise, Assam, whereby service of the petitioner was placed at the disposal of the Deputy Commissioner of Excise, Assam. By the said order, services of one Shri Rohini Kanta Rajbangshi, LDA-cum-Typist in the office of the Deputy Commissioner of Excise, Assam, was placed temporarily at the disposal of Chemical Examiner (Excise), Assam. 4. Thereafter, it appears that the service of the petitioner was utilised in the office of the Joint Commissioner of Excise, Assam, who was attached to the office of the Commissioner of Excise, Assam. This was done vide order, dated 19.02.1995. By the said order, service of one Shri Khagendra Nath Bhuyan, LDA in the office of the Commissioner of Excise, Assam, was placed at the disposal of the Joint Commissioner of Excise, Assam. 5. Thereafter, vide order, dated 06.03.1997, issued by the Commissioner of Excise, Assam, service of the petitioner was placed in the office of Commissioner of Excise, Assam. However, by a subsequent order, dated 25.06.1997, attachment of the petitioner in the office of the Commissioner of Excise was withdrawn by the Commissioner of Excise. 6. 5. Thereafter, vide order, dated 06.03.1997, issued by the Commissioner of Excise, Assam, service of the petitioner was placed in the office of Commissioner of Excise, Assam. However, by a subsequent order, dated 25.06.1997, attachment of the petitioner in the office of the Commissioner of Excise was withdrawn by the Commissioner of Excise. 6. By order, dated 30.03.2005, issued by the Joint Commissioner of Excise, Assam, petitioner was granted third stagnation increment with effect from 01.02.2005. 7. Thereafter, by order, dated 25.03.2008, issued by the Commissioner of Excise, Assam, petitioner and one Smt. Babita Lahan were promoted to the post of UDA against the existing vacancies in the office of the Joint Commissioner of Excise. 8. Petitioner submitted representation before the Commissioner of Excise, Assam, with the grievance that during his entire service career, he had the benefit of only one promotion and that persons junior to him had received prior promotion enabling them to receive promotion to still higher post. 9. In the meanwhile, vide notice, dated 13.08.2007, issued by Secretary to the Govt. of Assam, Excise Department, one Smt. Suchitra Brahma (respondent No.5) was promoted to the post of Superintendent in exercise of powers conferred under Rule 8 of the Assam Directorate Establishment (Ministerial) Service Rules, 1973. 10. According to the petitioner, said Smt. Suchitra Brahma served as an UDA in the office of the Commissioner of Excise and was junior to the petitioner in so far length of service is concerned. 11. Petitioner and others had submitted a representation, dated 23.09.2009, addressed to the Secretary to the Government of Assam, Excise Department, requesting that staff in the office of the Joint Commissioner of Excise, Assam, should be allowed equivalent pay-scale as drawn by the staff in the office of the Commissioner of Excise, Assam, holding equivalent post. Though view of Commissioner of Excise, Assam, was sought for by the Government vide letter, dated 29.04.2010 and by subsequent letters, no response was forthcoming. 12. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above. 13. Mr. S.C. Biswas, learned counsel for the petitioner, at the outset submits that during the pendency of the present proceeding, petitioner retired from service on attaining the age of superannuation on 31.01.2014. 12. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above. 13. Mr. S.C. Biswas, learned counsel for the petitioner, at the outset submits that during the pendency of the present proceeding, petitioner retired from service on attaining the age of superannuation on 31.01.2014. During his entire service career spanning almost 36 years, petitioner had got only one promotion from LDA to UDA, that too after 30 years of entry into the service. He submits that ministerial staff serving in the establishment of Commissioner of Excise, Assam, have received regular promotion whereas those serving under the Joint Commissioner of Excise and under the Chemical Examiner (Excise) are stagnating. He submits that establishments of Chemical Examiner (Excise) and Joint Commissioner of Excise, though may be different wings, nevertheless are under the control of the Commissioner of Excise and part of the common establishment. This would be evident from the way service of the petitioner was utilized, sometimes in the office of the Chemical Engineer (Excise), sometimes in the office of the Joint Commissioner of Excise and sometimes in the office of the Commissioner of Excise. This only goes to show that the posts in the three wings are inter-changeable. Petitioner's promotion from LDA to UDA along with Smt. Babita Lahon was ordered by the Commissioner of Excise vide order, dated 25.03.2008. Referring to the distribution of works amongst the Assistants in the office of the Commissioner of Excise (marked as Annexure 2(B) to the writ petition), Mr. Biswas submits that petitioner belonged to the overall establishment of the Commissioner of Excise and at that particular point of time his services were utilised in the Foreign Liquour Branch. He has also brought to the notice of the Court a notification, dated 13.06.2011, issued by the Commissioner and Secretary to the Govt. of Assam, Excise Department, whereby Smt. Babita Lahan who was promoted with the petitioner to the post of UDA on 25.03.2008 was subsequently promoted to the post of Inspector of Excise. Therefore, there cannot be any good and justifiable reason to exclude the petitioner and other ministerial staff belonging to the office of the Chemical Examiner (Excise) or Joint Commissioner of Excise as part of the establishment of the Commissioner of Excise so that such ministerial staff are not subjected to service stagnation, he submits. 14. On the other hand, Mr. Therefore, there cannot be any good and justifiable reason to exclude the petitioner and other ministerial staff belonging to the office of the Chemical Examiner (Excise) or Joint Commissioner of Excise as part of the establishment of the Commissioner of Excise so that such ministerial staff are not subjected to service stagnation, he submits. 14. On the other hand, Mr. P.N. Goswami, learned Standing Counsel, Excise Department, has referred to the averments made in the counter affidavit filed separately by respondent No.1 and respondent No.2. Stand taken in the two affidavits are, however, identical. Referring to the averments made in the two affidavits, Mr. Goswami submits that office of the Joint Commissioner of Excise, Assam, and that of the Chemical Examiner (Excise), Assam, have not yet been notified by the Government of Assam as Head of the Excise Department. Commissioner of Excise is the Head of Department. So staff of the above offices are treated as district establishments and not as offices under the Head of the Excise Department. Offices of the Commissioner of Excise and Chemical Examiner (Excise) are separate establishments with independent Drawal and Disbursing Officer. However, it is admitted that as the controlling officer of the Excise Department, Commissioner of Excise has the authority to place the staff of the Excise Department in any office under his control keeping in mind the administrative requirement. He submits that Assam Directorate Establishment (Ministerial) Service Rules, 1973, is applicable to the ministerial staff of the Head of the Department and, therefore, by extension, it is applicable to the ministerial staff in the office of the Commissioner of Excise, Assam. Since Joint Commissioner of Excise or for that matter Chemical Examiner (Excise) are separate establishments, the above Rules would not be applicable to the ministerial staff of the said offices. Consequently, gradation list of the staff in the offices of the Chemical Examiner (Excise) and Joint Commissioner of Excise are separate. Promotion is made on the basis of separate gradation lists. He also submits that status of the ministerial staff in the office of the Joint Commissioner of Excise and Chemical Examiner (Excise) are different from the status of the ministerial staff serving in the office of the Head of the Excise Department, i.e., Commissioner of Excise as pay-scales are different. Promotion is made on the basis of separate gradation lists. He also submits that status of the ministerial staff in the office of the Joint Commissioner of Excise and Chemical Examiner (Excise) are different from the status of the ministerial staff serving in the office of the Head of the Excise Department, i.e., Commissioner of Excise as pay-scales are different. He further submits on the basis of telephonic instructions that three separate gradation lists are maintained, one in the office of the Chemical Examiner (Excise), one in the office of the Joint Commissioner of Excise and one in the office of the Commissioner of Excise. He submits that entry level qualification for LDA is different in the two establishments of Chemical Examiner (Excise) and Joint Commissioner of Excise. Therefore, it may not be possible to have a combined common gradation list of ministerial staff of the three establishments as prayed for by the petitioner. 15. Submissions made by learned counsel for the parties have received the due consideration of the Court. 16. Basic facts as noticed above are not in dispute. 17. It is also seen that in his entire service career spanning 36 years, petitioner had received only one promotion, i.e., from LDA to UDA. Going by the stand taken by the respondents, it is certain that similarly placed LDA/UDA like that of the petitioner in the establishment of Chemical Examiner (Excise) would meet a similar fate of service stagnation. 18. An employee facing service stagnation for long periods is not an ideal situation both from the point of view of the employee as well as from the point of view of the employer. It leads to frustration and gradual lack of commitment on the part of the employee because of no career advancement. In so far employer is concerned, it may lead to lesser productivity and consequently may affect administrative efficiency. It is with the view to redress such grievance that the employer, most notably the Central Government, has framed schemes like Assured Career Progression (ACP) Scheme and Modified Assured Career Progression (MACP) Scheme to ensure minimum career advancement or to provide financial incentive in lieu thereof. 19. In Council of Scientific and Industrial Research v. K.G.S. Bhat, reported in (1989) 4 SCC 635 , the Apex Court while considering the grievance of service stagnation observed that an organisation does not hire hands but engages/employs a whole man. 19. In Council of Scientific and Industrial Research v. K.G.S. Bhat, reported in (1989) 4 SCC 635 , the Apex Court while considering the grievance of service stagnation observed that an organisation does not hire hands but engages/employs a whole man. A person is not recruited just for a job but for a whole career. Every management/organization therefore must provide realistic opportunity of promotion to its employees. In FCI v. Purushottam Das Bhansal, reported in (2008) 5 SCC 100 , the Supreme Court observed that when employees are denied opportunity of promotion for long years, superior Court will have the jurisdiction to issue necessary direction. If there is no channel of promotion, jurisdiction to issue direction to make a scheme providing for such promotion cannot be denied to a superior Court of the country. Following the above decisions, the Supreme Court in the case of Union of India v. Hemraj Singh Chouhan, reported in (2010) 4 SCC 290 , has held that right to be considered for promotion is virtually a fundamental right under Article 16 of the Constitution. 20. In the light of the above pronouncements of the Apex Court, this Court in 2014 (5) GLT 39 (Tridip Namasudra v. State of Assam), has held that it is the constitutional obligation of the employer to periodically review career advancement of its employees and thereby try to eradicate service stagnation. 21. From the documents placed on record, while it is true that initial appointment of the petitioner as LDA-cum-Typist was made by the Chemical Examiner (Excise), but subsequently it is seen that service of the petitioner was placed at the disposal of the Deputy Commissioner of Excise and thereafter at the disposal of Joint Commissioner of Excise by various orders passed by the Commissioner of Excise, Assam. At one point of time, service of the petitioner was also placed at the disposal of the Commissioner of Excise, Assam. Thus, it is evident that the ministerial staff working either in the office of the Chemical Examiner (Excise) or Joint Commissioner of Excise or Commissioner of Excise, Assam, are inter-changeable and such inter-change of placement are carried out by the Commissioner of Excise as the Head of the establishment. Petitioner's promotion from LDA to UDA was also granted by the Commissioner of Excise vide order, dated 25.03.2008. Petitioner's promotion from LDA to UDA was also granted by the Commissioner of Excise vide order, dated 25.03.2008. A perusal of the said order would indicate that petitioner was treated as LDA in the office of the Joint Commissioner of Excise, Assam, and was accordingly promoted. 22. The Assam Directorate Establishment (Ministerial) Service Rules, 1973 (1973 Rules), has been enacted in exercise of powers conferred by the proviso to Article 309 of the Constitution. As per Rule 1(2), 1973 Rules are applicable to the ministerial staff of the offices of Heads of Departments as mentioned in column (1) of Schedule I with provision for amendment by the Government from time to time. As per Rule 2(a)(iii), 'Head of the Department' has been defined as indicated under column (1) of Schedule I in respect of Senior Assistant (UDA) and Junior Assistant (LDA). As per Rule 2(c), 'District Offices' have been defined to mean and include different district offices of district officers and other offices declared as such under the controlling authority of the officer as indicated under column (1) of Schedule I. As per Rule 2(g), 'Service' has been defined to mean ministerial service in the respective office where the member serves. Rule 3 deals with service and provides that there shall be a combined cadre of administrative officers for the offices mentioned in column (1) of Schedule I. The service shall comprise of the following categories of posts:- (a) Registrar; (b) Superintendent; (c) Senior Assistant (UDA) (d) Junior Assistant (LDA) (e) Typists - Selection Grade Modes of promotion from various cadres are provided in Rules 7 to 11. As per Rule 8, appointment to the post of Superintendent shall be made by the appointing authority by promotion on the basis of seniority-cum-merit from amongst Senior Assistants (UDA) of the service who have rendered not less than seven years of service as Senior Assistant (UDA) on the first day of the year in which selection for promotion is made. Column (1) of Schedule I mentions Heads of Departments. Serial No.36 mentions Commissioner of Excise as the Head of the Department in respect of Excise Department. 23. There is another set of Rules called the Assam Ministerial District Establishment Service Rules, 1967 (1967 Rules), which has also been framed in exercise of powers conferred by the proviso to Article 309. Column (1) of Schedule I mentions Heads of Departments. Serial No.36 mentions Commissioner of Excise as the Head of the Department in respect of Excise Department. 23. There is another set of Rules called the Assam Ministerial District Establishment Service Rules, 1967 (1967 Rules), which has also been framed in exercise of powers conferred by the proviso to Article 309. It has been framed to regulate recruitment and conditions of service of persons appointed to the Assam Ministerial District Establishment Service, which comprises of the following categories of posts:- (i) Revenue Sheristadar; (ii) Sadar Head Assistant, Sub-Divisional Head Assistant; (iii) Supervisory Assistant; (iv) Senior Assistant, Sadar Nazir and Sub-Divisional Nazir; (v) Junior Assistant. 'District Establishment' has been defined under Rule 2(4) to mean and include all non-gazetted ministerial staff in the offices of the Deputy Commissioner, Sub-Divisional Officers and Sub-Deputy Collectors of the district. As per Note to Sub-Rule (4), offices of the Deputy Commissioner and Sub-Divisional officers shall include branches like Supply, Textile, Election, Revenue, Excise, Development and other general branches. 24. From a comparative analysis of the 1973 Rules and the 1967 Rules, it is seen that under the 1967 Rules, District Establishment has been specifically defined to mean and include non-gazetted ministerial staff in various offices under the Deputy Commissioner, Sub-Divisional Officers and Sub-Deputy Collectors of a district, which may include branches like Supply, Textile, Election, Revenue, Excise, etc. On the other hand, District Offices under the 1973 Rules means and includes different district offices of the District Officers and other offices declared to be so by the controlling authority as per column (1) of Schedule I. 25. Neither in the affidavits filed by respondent Nos.1 and 2 are there any averments to show declaration of the offices of Chemical Examiner (Excise) and Joint Commissioner of Excise as District Offices nor any documents have been placed before the Court to that effect. Mere assertion by the Commissioner of Excise that offices of Chemical Examiner (Excise) and Joint Commissioner of Excise are separate establishments and are treated as District Establishments not within the purview of Head of Department, i.e., Commissioner of Excise would of no legal consequence. On the contrary, documents placed on record by the petitioner would go to show that Commissioner of Excise has got over all control over the ministerial staff in any of the three establishments. On the contrary, documents placed on record by the petitioner would go to show that Commissioner of Excise has got over all control over the ministerial staff in any of the three establishments. Column (1) of Schedule I clearly mentions Commissioner of Excise to be the Head of the Department in so far Excise Department is concerned. Promotion of the petitioner from LDA to UDA was made by the Commissioner of Excise vide order, dated 25.03.2008. In the cadre of UDA, both petitioner and other promotee Smt. Babita Lahan, who is admittedly not from the establishment of Chemical Examiner (Excise), were paid same pay-scale, i.e., Rs.3850-90-4480-120-4600-EB-120-5200-175-6600-250-7350 PM. 26. Therefore, to accept the contention advanced on behalf of the respondents that establishments of Chemical Examiner (Excise) and Joint Commissioner of Excise do not form part of the Head of Department, i.e., Commissioner of Excise being the district establishment would not only be wholly unreasonable but would also amount to accepting a view which runs counter to the view of the Supreme Court relating to career advancement of employees. The view advanced on behalf of the respondents, if accepted, would result in complete service stagnation of the ministerial staff serving in the office of the Chemical Engineer (Excise) and Joint Commissioner of Excise. 27. It is trite that when two views are possible, the view which advances the cause of justice should be preferred. 28. In the light of the above discussion and taking an overall view of the matter, Court is of the view that there is sufficient merit in the writ petition and, therefore, following consequential directions should now be issued:- (1) Ministerial staff serving in the offices of Chemical Examiner (Excise) and Joint Commissioner of Excise are required to be treated as part of the ministerial staff of the establishment of Commissioner of Excise, which is the Head of Department; (2) Consequently, common gradation list of the ministerial staff, cadre wise, would have to be prepared; (3) Consequent upon preparation of such gradation list, case of the petitioner for further promotion beyond UDA (Senior Assistant) shall be considered at par with his junior and if he is found eligible for such promotion, notional promotion shall be given which will entitle him to pension relatable to the higher post and consequential financial benefits. (4) The above exercise shall be carried out within a period of six months from the date of receipt of a certified copy of this order. 29. Writ petition is allowed but without any order as to costs.