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2017 DIGILAW 882 (GAU)

Binod Bihari Roy v. State of Assam

2017-07-11

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Heard Mr. I. Hussain, learned counsel for the petitioner and Mr. A. Chakraborty, learned Junior Government Advocate appearing for the State respondents. 2. The petitioner, who had passed his HSLC examination in the year 1988 was initially appointed as a Process Server as per order dated 28.05.1982 under the establishment of the Deputy Commissioner, Bongaigaon and was posted in the Srijangram Tehsil. Subsequently, by the order dated 13.09.1990, the petitioner was promoted as L.D Assistant cum Typist and was posted at Baitamari Tehsil, which is also under the establishment of the Deputy Commissioner, Bongaigaon. 3. In the present writ petition, the petitioner is aggrieved by a gradation list dated 07.05.2008, wherein in respect of the cadre of Junior Assistant, the petitioner was placed at serial No.26. It is the case of the petitioner that the petitioner was promoted as L.D Assistant cum Typist under the Assam Ministerial District Establishment Rules, 1967 and under the said rules, the qualifying service for being promoted to the cadre of Junior Assistant/LDA cum Typist is seven years. Therefore, in the view of the petitioner, the petitioner ought to have been promoted as Junior Assistant in the year 1989 itself. 4. In the gradation list of Junior Assistant, the date of appointment of the petitioner in the post of Junior Assistant was shown as 13.09.1990, which is in fact the date on which he was promoted as L.D Assistant cum Typist as per the Annexure-4 to the writ petition. The petitioner in paragraph-8 of the writ petition also seeks to make out a case that as per paragraph 20(3) of the Notification dated 04.12.1999, a member who is appointed by promotion in a given year, shall be senior to a member appointed by direct recruitment of that year. Accordingly, the petitioner is aggrieved that in the gradation list, the respondent No.6 Mobarak Ali was placed above the petitioner and as such, the same requires some reconsideration. 5. On a perusal of the writ petition, it is seen that the writ petitioner had not produced any material to indicate that the said respondent No.6 Mobarak Ali was appointed through direct recruitment to the post of Junior Assistant and neither the gradation list gives any such indication. 5. On a perusal of the writ petition, it is seen that the writ petitioner had not produced any material to indicate that the said respondent No.6 Mobarak Ali was appointed through direct recruitment to the post of Junior Assistant and neither the gradation list gives any such indication. In such view of the matter, it is difficult for this Court to accept the plea of the petitioner that the petitioner being a promotee to the cadre of Junior Assistant would be senior to the aforesaid Mobarak Ali, who is alleged to be appointed through direct recruitment. 6. Be that as it may, the respondent authorities have filed an affidavit in opposition through the Deputy Commissioner, Bongaigaon, wherein in paragraph-8, it had been stated that the petitioner was promoted to the post of Junior Assistant as per the provisions of the Assam Ministerial District Establishment Service Rules, 1967, whereas the said provisions referred in paragraph-8 is a provision of the Assam Drivers and Handyman Service Rules, 1999. A stand has been taken by the Deputy Commissioner that both the rules cannot be compared with each other and once the petitioner having been promoted as Junior Assistant under the Assam Ministerial District Establishment and Service Rules, 1967, his service condition shall be governed by the said rule and the petitioner cannot incorporate the provision of another rule to make a claim that he is senior to the respondent No.6. 7. No infirmity is noticed by this Court in the said contention of the respondent Deputy Commissioner and further the petitioner has also not filed any reply affidavit indicating that the said contention is incorrect. As regards the other contention of the petitioner that his date of promotion/appointment as Junior Assistant should be construed from the year 1989 as he had attained the minimum qualifying service of seven years in the said year, the same also cannot be accepted to be a basis to interfere with the gradation list of the year 2007. Accepting the said contention of the petitioner would amount to give a finding that the promotion of the petitioner as Junior Assistant ought to be construed to have been made in the year 1989 and not in the year 1990. Accepting the said contention of the petitioner would amount to give a finding that the promotion of the petitioner as Junior Assistant ought to be construed to have been made in the year 1989 and not in the year 1990. As the petitioner had not filed any representation or appeal against his promotion in the year 1990, such plea cannot now be accepted at a belated stage at a time when a gradation list of 2007 is being assailed. 8. In view of both the aforesaid views, this Court is of the view that this writ petition is devoid of any merit and the same is to be dismissed. But, however, the dismissal of this writ petition cannot be construed by the respondent authorities to deprive the petitioner of any further promotional benefit, if such benefit had been accrued to the petitioner in the meantime. In terms of the above, the writ petition stands closed.