Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 244 (GAU)

Nazimuddin Ahmed v. State of Assam

2017-02-23

SUMAN SHYAM

body2017
JUDGMENT AND ORDER : 1. Heard Mr. M. U. Mahmud, learned counsel for the petitioner. Also heard Mr. R. K. D. Choudhury, learned Government Advocate, Assam, appearing for respondent Nos.1, 2 and 3 as well as Mr. D. Das, learned senior counsel assisted by Mr. H. Nath, learned counsel, appearing on behalf of respondent No.5. 2. The order dated 29.11.2013 by means of which the respondent No.5 was temporarily promoted as Additional Secretary (Non-Technical and Non-Gazetted) in the Electrical Licensing Board, Assam, is under challenge in the present writ petition. 3. The brief factual matrix giving rise to the present writ petition made be noticed as follows : The petitioner was initially appointed as a Typist under the respondent No.3 vide order dated 31.12.1981 pursuant whereto he had joined in the said post. Thereafter, the petitioner was promoted to the post of Senior Assistant (formerly known as UDA) on 06.02.2012 under the same establishment. The next higher post in the establishment is that of the Additional Secretary. Although there is no service rule framed by the department, yet, as per the prevailing practice, the post of Additional Secretary (Non Technical) is usually filled up by appointing the senior most UDA. According to the petitioner, he was the senior most UDA working under the respondent No.3 and there was a vacancy available in the post of Additional Secretary. As such, taking note of his seniority the respondents ought to have promoted him to the post of Additional Secretary but instead of doing so, the respondent No.3 had issued the impugned order dated 29.11.2013 promoting the respondent No.5 in an illegal and arbitrary manner. 4. Resisting the claim of the writ petitioner, the respondent No.5 has filed a counter affidavit stating that prior to being promoted to the post of Additional Secretary (Non-Technical) by the impugned order dated 29.11.2013 the substantive post held by the said respondent in the department was that of Accountant. According to the respondent No.5, the post of Accountant and UDA both form the feeder cadre for filling up the post of Additional Secretary as both the posts, although belonging to different wings, carry the same pay scale under the establishment. According to the respondent No.5, the post of Accountant and UDA both form the feeder cadre for filling up the post of Additional Secretary as both the posts, although belonging to different wings, carry the same pay scale under the establishment. Since the respondent No.5 was senior to the writ petitioner in terms of overall length of service, hence, in the absence of any service rule fixing the criteria for promotion, the selection committee had rightly promoted the respondent No.5 considering his seniority. 5. Mr. Mahmud, learned counsel for the petitioner, submits that his client has retired from service with effect from 31.12.2014 on attaining the age of superannuation and therefore, the only relief that can be now given to the petitioner is in terms of pecuniary benefit that might have accrued to him under the rules. In terms of the interim order dated 16.12.2013 passed by this Court, the order of promotion of the respondent No.5 stood suspended and the petitioner was allowed to officiate in the post of Additional Secretary until his retirement. As such, submits Mr. Mahmud, the retirement dues of the petitioner ought to have been calculated as per the pay scale applicable to the post of Additional Secretary which has not been done in the present case. Mr Mahmud, therefore, prays for a direction from this court to that effect. 6. Opposing the submission of Mr. Mahmud, Mr. D. Das, learned senior counsel, submits that the minutes of the selection committee adopted in its meeting dated 29.10.2013 recommending the respondent No.5 for promotion is not under challenge. The selection committee has taken note of the experience and seniority of the respondent No.5 while recommending his name for promotion to the post of Additional Secretary. There is nothing on record to show that the consideration was in any manner perverse. As such, submits Mr. Das, the writ petition itself is not maintainable and is liable to be dismissed with cost. 7. The rival contentions of the parties have received due consideration of this Court. From the records it appears that the petitioner has not challenged the decision of the selection committee to recommend the name of the respondent No.5 for promotion to the post of Additional Secretary. There is also no prayer made by the petitioner seeking notional promotion to the post of Additional Secretary with retrospective effect. From the records it appears that the petitioner has not challenged the decision of the selection committee to recommend the name of the respondent No.5 for promotion to the post of Additional Secretary. There is also no prayer made by the petitioner seeking notional promotion to the post of Additional Secretary with retrospective effect. Moreover, the petitioner has also retired from service during the pendency of the writ petition. Under the circumstances, this court is of the opinion that there is no live issue surviving in this proceeding in so far as the challenge made to the notification 29-11-2013. Mr Mahmud has also fairly submitted that he is not pressing the challenge made in the writ petition. Therefore, the question regarding validity of the order dated 29-11-2013 need not detain this court. 8. Coming to the next prayer made by Mr. Mahmud seeking the pensionary benefit in the pay scale of Additional Secretary for his client, what must be noted here-in that on the strength of the interim order dated 16-12-2013 passed by this court in the present proceeding, the petitioner was allowed to officiated in the post of Additional Secretary with effect from 20.12.2013 till his retirement. However, the petitioner was never regularly promoted to the post of Additional Secretary any time during his service tenure. The substantive post held by the petitioner on the date of his retirement was that of Senior Assistant (UDA). 9. It is trite that a retired government employee would be entitled to draw pension as per the provisions of the admissible rules. Mr. Mahmud could not draw the attention of this court to any provision of the Rules which would permit his client to avail the pension payable to officiating post held by him on the date of his retirement. Rather, a reading of Rule 31 of the Assam Service (Pension) Rules 1969 goes to show that the pension can be paid only against a substantive post permanently held by a Government servant. 10. Mr. Mahmud had relied upon a decision of this Court in the case of Pradip Kumar Modak vs. Union of India & others, reported in 2016(2) GLT 1086 in support of his argument that the petitioner is entitled to pension as per the pay scale applicable to the post of Additional Secretary. 10. Mr. Mahmud had relied upon a decision of this Court in the case of Pradip Kumar Modak vs. Union of India & others, reported in 2016(2) GLT 1086 in support of his argument that the petitioner is entitled to pension as per the pay scale applicable to the post of Additional Secretary. But from a meticulous examination of the said judgment, this court is of the view that the said decision is not an authority in support of the contention made by Mr. Mahmud. In the case Pradip Kumar Modak (supra) this court had merely held that an employee officiating in a higher post shall be entitled to the salary attached to that post during the officiating period. The said decision does not deal with the claim of pension of such employee to the officiating post. It is not the case of the petitioner that he has not been paid the salary attached to the post of Additional Secretary for the period during which he had been officiating in that post. 11. For the reasons stated here-in-above, it is held that there is no merit in this writ petition and the same is accordingly dismissed. No order as to cost.