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2016 DIGILAW 731 (GAU)

Sushanta Suklabaidya v. State of Assam

2016-08-04

MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. Heard Mr. R. Sarma, learned counsel for the petitioner as well as Mr. M. Khataniar, learned counsel representing respondent Nos. 1 and 2. Mr. P. Nayak, learned counsel represents respondent No. 3. 2. The petitioner is presently serving as Officer In-charge, Cultural Centre in the Office of the Directorate of Cultural Affairs, Assam at Rabindra Bhavan. He claims to have been completed twenty-five years of service and stagnating in the said post without any promotion. As the post of Drama Producer is presently lying vacant in the Directorate of Cultural Affairs, Assam, claim for promotion is made. According to the petitioner he is the only eligible candidate and he has to his credit of acting in numerous Assamese Feature Films and also in TV Serials. Claim is also made that for the purpose of promotion to the post of Drama Producer, he fulfils all requisite conditions under the Assam Cultural Affairs (Recruitment & Promotion) Service Orders, 1991. 3. On 15.12.2015 this court had passed an order, having regard to clause 5 of the aforesaid Service Orders, 1991, requiring the State counsels to file additional affidavit as to whether the feeder post of Drama Producer, i.e., Staff Artist is equivalent to the post held by the petitioner, i.e., Officer In-charge, Cultural Centre. An affidavit was filed accordingly on 2.2.2016. 4. Insofar as promotion to the post of Drama Producer is concerned, sub-clause (5) of clause 5 of the aforesaid Service Orders, 1991 stipulates that the said post is to be filled up by promotion from the Staff Artist. The post of Drama Producer is a Gazetted Post, unlike the Staff Artist which is a Non-Gazetted Post. 1 he eligibility conditions are clearly spelt out in the aforesaid sub-clause (5) of clause 5 of the Service Orders, 1991. Under the proviso thereto, it is also stipulated that if suitable candidates are not available for promotion, the authority concerned can take recourse to direct recruitment from amongst persons having the required qualifications and experience. In this respect, it may be clarified that having regard to the age prescription for making direct recruitment in case suitable candidates are not available for promotion, the petitioner is not eligible, having crossed 55 years of age as on date. 5. In this respect, it may be clarified that having regard to the age prescription for making direct recruitment in case suitable candidates are not available for promotion, the petitioner is not eligible, having crossed 55 years of age as on date. 5. As regards the query made by this court on 15.12.2015, it would now be required to look at the affidavit filed by the respondent No. 2 on 2.2.2016. To bear in mind, the petitioner is the Officer In-charge, Cultural Centre and not holding the post of Staff Artist. In the said Affidavit dated 2.2.2016, mention is made to the Assam Cultural Affairs (Non-Gazetted) Service Orders, 2009. With regard to the said Service Orders, 2009, it is shown that the mode of appointment to the cadre of Staff Artist (Drama Artist-cum-Instructor) and that of the Officer In-charge, Cultural Centre are different. Also, under Schedule-I of the aforesaid Service Orders, 2009, the post equivalent to and included in the cadre of "Officer In-charge" is "Officer In-charge of all Cultural Centres". In so far as the post equivalent to and included in the cadre of "Staff Artist" is concerned, it is only "Staff Artist", who are also designated as Drama Artist-cum-Instructor. Statement is also made that there is difference in the basic pay between the Staff Artist and that of the Officer In-charge, Cultural Centre and as regards the duties and functions in both categories, it is stated that the Staff Artist are persons who conduct dramas and also conducts workshops on dramas as Instructors and, as such, designated as Drama Artist-cum-Instructor in the aforesaid Service Orders of 2009. Mention is also made that the function of an Officer In-charge, Cultural Centre is different from the Staff Artist. The above illustrations have been made from the aforesaid Service Orders, 2009 to say that the post of Officer In-charge, Cultural Centre is not equivalent to the post of Staff Artist. 6. In reply to the said affidavit dated 2.2,2016 filed by respondent No. 2, the petitioner has pleaded only to the extent that the post of Drama Producer is lying vacant in the Directorate and the Minister concerned had directed on 10.9.2009 to constitute the Selection Committee for filling up the said post on urgent basis. 6. In reply to the said affidavit dated 2.2,2016 filed by respondent No. 2, the petitioner has pleaded only to the extent that the post of Drama Producer is lying vacant in the Directorate and the Minister concerned had directed on 10.9.2009 to constitute the Selection Committee for filling up the said post on urgent basis. Also, by letter of the Minister dated 21.12.2009 and 6.1.2010, the Secretary in the Office of the Directorate was asked to issue notification towards filing up the post of Drama Producer in favour of the petitioner. 7. I have heard the learned counsels for the parties and have also perused the materials on record. Having regard to sub-clause (5) of clause 5 of the Assam Cultural Affairs (Recruitment and Promotion) Service Orders, 1991, the point for determination is whether the post of Officer In-charge, Cultural Centre is equivalent and/or at par with that of the feeder post of Staff Artist (Drama Producer-cum-Instructor). An answer to that point can only flow out from the provisions under the Assam Cultural Affairs (Non-Gazetted) Service Orders, 2009. As per clause 3 thereof, the various services in the Directorate is classified, which also includes the cadre of Officer In-charge, Cultural Centre and that of Drama Artist-cum-Instructors, both being non-Gazetted post. Under clause 5 thereof, the method of recruitment to the various cadres have been laid down. Whereas for making recruitment's to the cadre of Drama Artist-cum-Instructor, the Service Orders of 2009 do not visualise/contemplate appointment by promotion, however, in so far as recruitment to the cadre of Officer In-charge of Cultural Centre is concerned, the Service Order of 2009 lays down that 50% of the strength in the cadre of Officer In-charge is to be made by direct recruitment through the Assam Public Service Commission and the remaining 20% of its strength by promotion in accordance with clauses 11 lo 14 of the said Service Order. Posts which are equivalent to each other re also specified under Schedule-I of the said Service Order, a perusal of which do not support the contention of the petitioner that an Officer In-charge, Cultural Centre is equivalent to that of a Drama Artist. The pay-scale admissible in each cadre of the service is also provided under Schedule-II, a perusal of which apparently discloses that the time-scale-of-pay of an Officer In-charge is not at par that with the time-scale-of-pay of a Drama Artist. 8. The pay-scale admissible in each cadre of the service is also provided under Schedule-II, a perusal of which apparently discloses that the time-scale-of-pay of an Officer In-charge is not at par that with the time-scale-of-pay of a Drama Artist. 8. Having noticed that the method of recruitment, equivalency of post and that of the time-scale-of-pay in respect of both the cadres, i.e., Officer In-charge, Cultural Centre and the Drama Artist, this Court unhesitantly records that the post of Officer In-charge of Cultural Centre is not equivalent to the post of Staff Artist (Drama Artist-cum-Instructor). Having regard to the prescription under sub-clause (5) of clause 5 of the Assam Cultural Affairs (Recruitment and Promotion) Service Orders, 1991, which clearly lays down that the post of Drama Producer is to be filled up only from Staff Artist, I find no merit in this writ petition. The claim of the petitioner for promotion to the post of Drama Producer is misconceived. Accordingly, this writ petition being devoid of merits, stands dismissed. No costs.