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2017 DIGILAW 32 (GAU)

Pranab Goswami v. State of Assam

2017-01-06

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Shri H. Das, learned counsel for the petitioner. Also heard Shri K. Gogoi, learned counsel appearing for the respondents. 2. The petitioner was initially appointed in a Grade-IV post of Dispensary Bearer in the Office of the Superintendent Junior Technical School, Goalpara, as per the appointment letter dated 29.09.1997 on compassionate ground. Thereafter, the petitioner was transferred to the Assam Engineering College, Guwahati in the same capacity as Grade-IV post and since then, he has been discharging his duties as a night chowkidar from 06.06.2011 onwards till date. 3. It is the case of the petitioner that as he has the requisite qualification and experience being considered for promotion to the Grade-III post, he had submitted a representation dated 10.07.2007 before the Director of Technical Education, Kahilipara, Guwahati, Assam inter-alia stating that he had been employed in the institution for the last 10 years. It was also stated that on the basis of the letter dated 09.08.2005 of the Director, the petitioner had applied for the post of Instructor as he has the required qualification of having passed Textile Technology Certificate Course as well as Higher Secondary (Arts). But no such promotion was given to the petitioner. It was also stated that the petitioner has learnt that a post of Knitting Embroidery (Textile Technology) has fallen vacant at GTS, Goalpara and he would like to apply for the same as the earlier representation dated 10.07.2007 was not taken into consideration. The petitioner had submitted another representation dated 05.10.2007 to the Director again claiming that as he has the required qualification of having passed Textile Technology Certificate Course as well as Higher Secondary (Arts), he may be considered for promotion to the vacant post of Knitting Embroidery (Textile Technology). 4. As nothing was done by the respondent authorities, the petitioner preferred writ petition before this Court being WP(C) No.6119/2007. In an affidavit filed by the Director of Technical Education, in the said writ petition, it had been stated that the case of the petitioner for promotion is required to be considered according to the seniority amongst all the employees in the technical institution under the Directorate. In an affidavit filed by the Director of Technical Education, in the said writ petition, it had been stated that the case of the petitioner for promotion is required to be considered according to the seniority amongst all the employees in the technical institution under the Directorate. Be that as it may, earlier writ petition being WP(C) No.6119/2007 was disposed of by the order dated 07.03.2011, wherein, it was provided that the respondent may deal with the matter in an appropriate manner in accordance with the law. After the said order dated 07.03.2011, the petitioner had submitted another representation dated 18.03.2011 before the Director of Technical Education, Assam. In the said representation also, the petitioner had mentioned that 2 posts of Junior Instructor (Riveting), Junior Instructor (Blacksmith) at Bongaigaon Polytechnic are lying vacant, and accordingly, the petitioner makes a prayer that he may be considered for such promotion. 5. It is submitted by the learned counsel for the petitioner that in spite of such representation being made and in spite of the earlier order of this Court that the case of the petitioner may be dealt with by the respondent authorities in an appropriate manner in accordance with the law, nothing has been done to promote the petitioner. The present petition is accordingly being filed for a direction that the respondent to consider the promotion of the petitioner in any of the vacant Grade-III post of Junior Instructor (Welding) in the Dibrugarh Polytechnique, J.T.S Sivasagar, respectively, or in any other Grade-III post under the Director of Technical Education Assam. 6. The promotion from the Grade-IV to Grade-III or as a matter of fact, the question of recruitment into various post of Grade-III in the Assam Technical Education Service, is governed by the Rule of Assam Technical Education Service (Junior) Rules 1984, the said Rule is a statuary Rule framed under the proviso to Article 309 of the Constitution of India. 7. 7. Rule 5 of the said 1984 Rules provide that recruitment to the service shall be made in the manner as indicated in Schedule I and Schedule II, by further providing that notwithstanding what is provided in Sub-Rule 1, if all the posts in the service cannot be filled up by direct recruitment, or suitable candidates are not available, the post shall be filled up by suitable personnel having requisite qualification from other Departments like P.W.D, Flood Control, irrigation, T & C.P Department as well as other Public Sector Board, on deputation for such period and such terms and conditions as may be determined by Govt. from time to time, with prior consultation with the Department or Board concerned, as the case may be subject to approval of APSC. The cases of promotion as per Schedule-I & II which will come under the purview of the A.P.S.C. shall be made in consultation with the Commission. Rule 3(3) provides that the number of posts in different cadre of the service on the date from commencement of the Rules are mentioned in Schedule-I and Schedule-II. 8. On a perusal of the Schedule-I and Schedule-II to the Rules, it can be seen that different types of Grade-III posts have been listed in the said schedule, where certain posts which are enlisted in Schedule -I and Schedule-II are to be filled up by the direct recruitment, while certain other posts are to be filled up by promotion, while some other posts by partial promotion or by partial direct recruitment. 9. In view of the aforesaid provision, a specific direction cannot be given that the petitioner be appointed against the named vacant posts, merely because the said posts are presently lying vacant. The aforesaid position has to be examined in respect of all the posts and whether the given post at hand is to be filled up by direct recruitment or by promotion or by partial promotion or by partial direct recruitment. 10. It may also be noticed that under Column 5 of the Schedule-I, it has been provided that the manner of filling up Grade-III posts for promotion by following the criteria of seniority-cum-merit. 10. It may also be noticed that under Column 5 of the Schedule-I, it has been provided that the manner of filling up Grade-III posts for promotion by following the criteria of seniority-cum-merit. In the instant case, it cannot be ascertained from either of the Schedule-I table or Schedule-II table, as to whether the vacant posts that have been referred by the petitioner are to be filled up by direct recruitment or the same is to be filled up by promotion or by partial promotion or by partial direct recruitment. The possibility that in the meantime certain other posts have been added cannot also be ruled out and the other posts which are not enumerated in Schedule I and Schedule II are also to be recruited in the same manner. In view of such position, it would be inappropriate for this Court to pass direction to the respondent authorities to consider the case of promotion of the petitioner against any such post without ascertaining as to whether available vacant posts are to be filled up by direct recruitment or promotion or partial by direct recruitment or by partial by promotion. 11. In such view of the matter, this Court proposes to dispose of the writ petition with a direction that the respondent Director of Technical Education would prepare a list of all such vacant posts in the cadre of Grade-III presently available in the various institution under the Directorate. After enlisting all the available posts in the various institutions under the Directorate, the Director of Technical Education would make a comparative assessment as to whether such posts are covered and include the post included in Schedule-I and Schedule-II to the Rule of 1984. In the event, such posts are included in the Rule 1984, the manner of recruitment to such posts as provided in Schedule-I and Schedule-II would be followed. 12. In the event, after enlisting all the posts, the Director find that certain posts are neither included nor mentioned in the Schedule-I and Schedule-II to the Rules 1984, the Director in exercise of the power under 28 of the 1984 Rules would take a decision as to whether such posts are to be filled up either by direct recruitment or promotion or by partial direct recruitment or by partial promotion. In the event of partial direct recruitment, the Director would evaluate a definite proportion as to what percentage by promotion or by direct recruitment. 13. Upon completing the aforesaid exercise, the Director would embark upon the exercise to find out the enlisted available vacant post in the Grade-III in various institution under the Directorate of Technical Education. After enlisting the vacant posts, the Director would proceed to fill up such posts as may be required depending upon whether the posts are to be filled up by direct recruitment or by promotion. After carrying out the aforesaid exercise, the Director would find out the posts that are to be filled up by promotion and after completing the exercise, identifying the post that are to be filled up by promotion, the Director would proceed to fill up such posts for promotion in the available Grade-IV employees under the Directorate. In doing such exercise, the Director would also consider the case of the petitioner as to whether the procedure under the rules the petitioner would be entitled for promotion. The aforesaid exercise shall be carried out by the directorate within a period of 6 months from the date of receipt of a copy of this order.