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2018 DIGILAW 112 (GAU)

DHIRENDRA BARUAH v. STATE OF ASSAM

2018-01-23

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT AND ORDER : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. T.N. Srinivasan, learned counsel for the petitioner, Mr. N. Sarma, learned Standing Counsel for the Secondary Education Department as well as Mr. D.K Sharma, learned counsel appearing for the respondent No. 4. Although notices have been served on the respondent Nos. 5 to 14, it is stated by Mr. T.N. Srinivasan, learned counsel for the petitioner that no relief has been sought for in this writ petition against the said respondents and further any order to be passed, shall not prejudicially affect the said respondents. 2. The petitioner was appointed as a Scientific Instructor on 01.12.1981 under the Elementary Education Department of the Government of Assam. Thereafter, he was appointed as a Planning Assistant, where he had joined on 13.12.1983 in the Directorate of Elementary Education, Assam. Subsequently, he was promoted to the post of Statistical Officer on 19.09.1988 in the Scale of Pay of Rs. 850-1775/- per month plus other allowances. The respondent No. 4 on the other hand was appointed as a Research Officer on 28.11.1990 upon being recommended by the Assam Public Service Commission (APSC) and her services were regularized by the notification No. A(I)E8/98/6 dated 27.10.1998 w.e.f. 30.09.1989 i.e. the date of recommendation by the APSC for the purpose of counting her seniority. 3. By an order dated 05.04.1999 of the Secretary to the Government of Assam, Education Department, the respondent No. 4 was promoted to the cadre of Assistant Director in the Directorate of Secondary Education, Assam under Regulation 4(d) of the APSC (Limitation and Function) Regulation, 1951 in the Scale of Pay of Rs. 6650-250-8100-325-8750-EB-325-11025- 400-12,625/- per month. The petitioner on being aggrieved by the said order of 05.04.1999, whereby the respondent No. 4 was promoted to the cadre of Assistant Director had preferred a writ petition before this Court being WP(C) No. 2546/1999. 6650-250-8100-325-8750-EB-325-11025- 400-12,625/- per month. The petitioner on being aggrieved by the said order of 05.04.1999, whereby the respondent No. 4 was promoted to the cadre of Assistant Director had preferred a writ petition before this Court being WP(C) No. 2546/1999. The said writ petition was disposed of by the order dated 22.01.2004, wherein, it was provided as under:- "Situated thus, this Court is of the opinion that the matter has to be referred to the respondent authority to examine the claim of the writ petition and if it is found that the private respondent was given promotion without considering the case of his seniors including the writ petitioner, the case of such senior officer including the writ petitioner shall be considered for the purpose of promotion with effect from the date when their junior was promoted." 4. It is stated that the said order dated 22.01.2004 had attained his finality and therefore, it is binding on the parties. From the order dated 22.01.2004, it is noticed that the respondent No. 4 was heard and therefore, it has to be construed that the said order is also binding on the respondent No. 4. The purport of the order dated 22.01.2004 is that the respondent authorities are required to examine the claim of the writ petitioner and if upon such examination, it is found that the respondent No. 4 was given promotion without considering the case of the writ petitioner, in such case, the case of the writ petitioner shall also be considered for promotion with effect from the date when the respondent No. 4 was promoted. In other words, the said order clearly postulated that if upon examination, the respondent authorities find that the case of the petitioner was not considered for promotion as Assistant Director when the respondent No. 4 was so considered, in such event, the case of the petitioner for promotion shall be considered with effect from the date when the respondent No. 4 was promoted. The communication dated 17.07.2004 from the Director of Elementary Education, Assam addressed to the Secretary to the Government of Assam in the Education Department appears to be a communication made pursuant to the said order dated 22.01.2004. The communication dated 17.07.2004 from the Director of Elementary Education, Assam addressed to the Secretary to the Government of Assam in the Education Department appears to be a communication made pursuant to the said order dated 22.01.2004. In the communication of 17.07.2004, it had been stated that the post of Assistant Director (Planning and Coordination) is to be filled up from the cadre of Statistical Officer/Information Officer/Research Officer/Planning Officer having five years of experience, but the Government while seeking the list of eligible candidates for promotion to the cadre of Assistant Director had sought for the list of eligible Research Officers and Assistant Research Officers only and had not sought for the list of eligible candidates from the cadre of Statistical Officer/Information Officer. 5. Accordingly, the communication of 17.07.2004 clearly indicates an admission by the respondent authorities as required by the order dated 22.01.2004 of this Court that the case of the writ petitioner was not considered for promotion to the cadre of Assistant Director when the respondent No. 4 was so considered. Accordingly, the implication of such non consideration would be that the respondents are now required to consider the case of the petitioner for such promotion with effect from the date when the respondent No. 4 was promoted i.e. with effect from 05.04.1999. 6. In the meantime, by a notification of 03.01.2011 of the Commissioner and Secretary to the Government of Assam, Education, Secondary Department, the petitioner was temporarily promoted to officiate as Assistant Director under Rule-11(g) of the Assam Education Service Rules, 1982 in the pay scale of Rs. 12,000-40000/- plus grade pay of Rs. 6100/-. As the said notification provides that the promotion had been made under Rule-11(g) of the Assam Education Service Rules, 1982 and Rule-11(g) being for the purpose of regular process for promotion to the cadre of Assistant Director, it is deemed that the said order of promotion is otherwise a regular promotion for all purpose. 7. Thereafter, by a notification dated 14.03.2013 of the Commissioner and Secretary to the Government of Assam, Secondary Education Department, the respondent No. 4 had been further promoted to the cadre of Deputy Director in the pay scale of Rs. 12000-40000/- (PB-4) with Grade Pay of Rs. 6300/-. 7. Thereafter, by a notification dated 14.03.2013 of the Commissioner and Secretary to the Government of Assam, Secondary Education Department, the respondent No. 4 had been further promoted to the cadre of Deputy Director in the pay scale of Rs. 12000-40000/- (PB-4) with Grade Pay of Rs. 6300/-. The notification of 14.03.2013 provides that the said order is a temporary promotion under Regulation 4(d) of the Assam Public Service Commission (Limitation and Function) Regulation, 1951 for a period of one year. It is stated by Mr. D.K. Sharma, learned counsel for the respondent No. 4 that subsequently, by the order dated 29.05.2013, the said promotion of the respondent No. 4 had been given a regular effect. The consequential minutes of the meeting of the Selection Board meeting held on 02.01.2013 for considering the promotion from the cadre of Additional Director to Deputy Director also indicates that the Selection Board on examining the ACR of the respondent No. 4 for the period of 01.01.2007 to 31.12.2007 and by up grading the general remark Average to Good, the respondent No. 4 was recommended for promotion. 8. In the aforesaid circumstance, by the writ petition WP(C) No. 430/2013, the gradation list in the cadre of Assistant Director was assailed whereas by the writ petition WP(C) No. 3038/2013, the subsequent promotion of the respondent No. 4 to the cadre of Deputy Director had been assailed. 9. Mr. T.N. Srinivasan, learned counsel for the petitioner contends that the requirement of the direction of this Court in its order dated 22.01.2004 in WP(C) No. 2456/1999 had not been complied with till date inasmuch as, even after arriving at a conclusion that the case of the petitioner was not considered in the year 1999 while promoting the respondent No. 4 to the cadre of Assistant Director, the petitioner had not been promoted to the cadre of Assistant Director from the date on which the respondent No. 4 was promoted. 10. Mr. D.K. Sharma, learned counsel for the respondent No. 4 opposes the claim of the petitioner by contending that in the feeder cadre for promotion to the cadre of Assistant Director the post of Statistical Officer is inferior to that of Research Officer and therefore, the petitioner is not similarly placed as that of the respondent No. 4 and therefore, the case of the petitioner was rightly not considered by the respondent authorities in the year 1999. A further contention of the learned counsel for the respondent No. 4 is that Schedule-II to the Assam Education Service Rules, 1982 provides for the qualification of a Masters Degree in Arts/Science/Commerce with three years of teaching experience or educational administration to be the required qualification for the cadre of Assistant Director. The learned counsel for the respondent No. 4 contends that the writ petitioner does not have the said qualification and therefore, he is not qualified to be promoted to the cadre of Assistant Director and from the said point of view also, the respondent authorities had rightly not considered the case of the petitioner in the year 1999. 11. In the view of the aforesaid contention of the rival parties, an issue for determination would be as to whether the petitioner was eligible for being considered for promotion to the cadre of Assistant Director in the year 1999 when the respondent No. 4 was so considered and promoted. 12. With regard to the first contention that the post of Research Officer is otherwise superior to that of Statistical Officer, the learned counsel for the respondent No. 4 refers to paragraphs-6 and 10 of the affidavit in opposition of the respondent No. 4, wherein it is stated that the post of Statistical Officer is a Class-II post in the scale of pay of Rs. 4300-11025/- and Grade Pay of Rs. 5100/- as against the post of Research Officer, which is a Class-I post having the scale of pay of Rs. 5725-11825 with Grade Pay of Rs. 5900/-. Accordingly, a stand had been taken that as the Research Officer has a higher grade pay, therefore, an incumbent in the post of Research Officer has to be construed to be senior to that of a Statistical Officer as per the ROP Rules of 2010. It is noticed that the scale of pay of Rs. 4300-11025/- with Grade Pay of Rs. 5100/- for the post of Statistical Officer as against the scale of pay of Rs. 5725- 11825/- with Grade Pay of Rs. 5900/- for the post of Research Officer is a provision of the ROP Rules of 2010. No material has been provided to indicate as to what was the position as regards the scale of pay in the year 1999 when the aforesaid consideration was given/required to be given by the authorities. 13. 5725- 11825/- with Grade Pay of Rs. 5900/- for the post of Research Officer is a provision of the ROP Rules of 2010. No material has been provided to indicate as to what was the position as regards the scale of pay in the year 1999 when the aforesaid consideration was given/required to be given by the authorities. 13. The aforesaid aspect of the matter shall not hold back this Court to arrive at a conclusion that in the year 1999, either the petitioner was junior to the respondent No. 4 or that the petitioner was not at all eligible for promotion to the cadre of Assistant Director inasmuch as, the promotion to the cadre of Assistant Director is Governed by Rule-11 of the Assam Education Service Rules, 1982. Rule-11(g) of the said Rule of 1982 clearly provides that recruitment by promotion to the post of Assistant Director/Planning and Coordination shall be filled up from the cadre of Statistical Officer/Information Officer/Research Officer/Planning Officer having five years experience. Although there may be or may not be a difference in the scale of pay between the post of Statistical Officer and Research Officer, but Rule-11(g) having clearly provided that the feeder cadre for promotion to the cadre of Assistant Director being Statistical Officer or Information Officer or Research Officer or Planning Officer, therefore, an incumbent in the feeder cadre post of Statistical Officer cannot be excluded from being considered for promotion to the cadre of Assistant Director. If there is a difference in the scale of pay, it is for the departmental authorities to work out the inter se rights of the respective incumbents in the post of Statistical Officer and Research Officer for their evaluation for the purpose of promotion to the cadre of Assistant Director, but the Rules having clearly provided that the feeder cadre would be Statistical Officer as well as Research Officer, a Statistical Officer cannot be left out of consideration. 14. Moreover, the aforesaid issue had already been decided by this Court in its order dated 22.01.2004 in WP(C) No. 2546/1999, wherein there is a categorical finding and requirement that the respondent authorities are required to consider the case of the petitioner for promotion to the cadre of Assistant Director with effect from the date when his junior was promoted. 14. Moreover, the aforesaid issue had already been decided by this Court in its order dated 22.01.2004 in WP(C) No. 2546/1999, wherein there is a categorical finding and requirement that the respondent authorities are required to consider the case of the petitioner for promotion to the cadre of Assistant Director with effect from the date when his junior was promoted. In the considered view of this Court, the said contention raised by the respondent No. 4 that due to the difference in the scale of pay, the respondent No. 4 is at a higher pedestal than that of the petitioner ought to have been raised in the earlier writ petition. The principle of constructive res-judicata clearly provides that all the issues raised in an earlier petition and also those issued which ought to have been raised in an earlier petition, which has been finally decided in a proceeding between the same parties, cannot be allowed to be raised in a subsequent petition. 15. With regard to the other contention of the respondent No. 4 that the writ petitioner does not have the required qualification for being eligible to be considered for promotion to the cadre of Assistant Director, reliance have been placed by Mr. D.K. Sharma, learned counsel for the respondent No. 4 upon the provision of Clause-7 of Schedule-II to the Assam Education Service Rules, 1982 as well as Rule-5(3) A of the said Rules. On a perusal of Schedule-II to the Rules of 1982, it is noticed that the Schedule-II pertains to Rule-8 and Rule-5(1) of the said Rules. Rule-5(1) of the Assam Education Service Rules 1982 pertains to the method of recruitment, amongst others. to the cadre of Assistant Director by way of direct recruitment and Rule-8 provides for the academic qualification of a candidate for direct recruitment, which also includes a direct recruitment to the cadre of Assistant Director. Accordingly, it is to be construed that the academic qualification provided in Clause-7 of Schedule-II is a prescribed qualification required for the purpose of direct recruitment to the cadre of Assistant Director. Accordingly, it is to be construed that the academic qualification provided in Clause-7 of Schedule-II is a prescribed qualification required for the purpose of direct recruitment to the cadre of Assistant Director. Further, although Rule-5(3)A provides that the cadre of Assistant Director shall be filled up by direct recruitment up to 75% with the qualification prescribed under Rule-8 and 25% by way of promotion, same by itself cannot lead to a conclusion that the educational qualification prescribed either in Rule-8 or in Clause-7 of Schedule-II also applicable for the purpose of promotion. Further, the procedure for promotion is provided in Rule-12 of the Assam Education Service Rules, 1982 and Rule-12 nowhere refers to any further educational qualification required for the purpose of promotion. 16. Considering the matter in its entirety and also considering the aspect that Rule-8 provides the academic qualification specifically for a candidate for direct recruitment and Clause-7 of Schedule-II provides for the educational qualification specifically with reference to Rule-8 and Rule-5(1) of the said Rules, this Court is of the view that the educational qualification provided therein are not applicable in case of promotion. In view of the above, both the contentions raised by the respondent No. 4 opposing the claim of the petitioner for being considered for promotion to the cadre of Assistant Director with effect from the date when his junior was promoted, cannot be accepted. 17. In any view of the matter, the writ petitioner had already been promoted to the cadre of Assistant Director by the notification dated 03.01.2011 and the said promotion has not been assailed in any proceeding. As the petitioner had already been promoted and such promotion is not under challenge, it would be inappropriate for this Court now to adjudicate as to whether the petitioner is qualified for being promoted to the cadre of Assistant Director or not. 18. Mr. D.K. Sharma, learned counsel for the respondent No. 4 states that the order of promotion dated 03.01.2011 was assailed by one Sri Kamalendu Choudhury, but the concerned writ petition has been dismissed. In the circumstance, the only issue for determination is as to whether such promotion should have been with effect from the date when the respondent No. 4 was promoted or it has to be construed from the date when the actual promotion was given effect. In the circumstance, the only issue for determination is as to whether such promotion should have been with effect from the date when the respondent No. 4 was promoted or it has to be construed from the date when the actual promotion was given effect. The said issue need not detain this Court any further in view of the fact that there has already been a direction of this Court in the order dated 22.01.2004 in WP(C) No. 2546/1999, which requires the respondent authorities to examine the claim of the petitioner and if it is found that the respondent No. 4 was given promotion without considering the case of the petitioner, in such event, the petitioner shall be considered for promotion with effect from the date when the junior was promoted. Therefore, the only requirement for the respondent authorities now is to consider whether in the year 1999, the respondent No. 4 was promoted after considering the case of the petitioner or it was given without considering the case of the petitioner. 19. In the event, upon examination, the respondent authorities arrives at a conclusion that such promotion to the respondent No. 4 in the year 1999 was made without considering the case of the petitioner, in such event, the promotion of the petitioner is required to be given with effect from such date. In arriving at such conclusion, the communication dated 17.07.2004 of the Director of Elementary Education, which clearly reveals that in the year 1999, the Government had called for the list of eligible candidates in the cadre/post of Research Officer and Assistant Research Officer only and no list was called from the cadre/post of Statistical Officer, shall also be taken into consideration. In view of such admitted position, the requirement of the order dated 22.01.2004 appears to be answered by itself. 20. Accordingly, the respondent authorities, more particularly the Commissioner and Secretary to the Government of Assam, Secondary Education Department is directed to conclude the process of examining as to whether the case of the petitioner was considered for promotion in the year 1999 when the respondent No. 4 was promoted and upon such conclusion, pass an effective order as regards the date from which the promotion of the petitioner to the cadre of Assistant Director is required to be given effect. Upon arriving at the said conclusion, if the consequence of the same goes in favour of the petitioner, the respondent authorities shall constitute a Review DPC/Selection process for promotion to the post of Deputy Director and take a fresh decision thereon by also considering the case of the petitioner. It is stated that in the meantime the petitioner had superannuated from service and therefore, even if the respondent authorities upon giving due consideration are of the view that the petitioner ought to have been promoted to the cadre of Deputy Director, in such event, a notional benefit be given to the petitioner i.e. all such financial benefits that would have otherwise accrued to the petitioner upon such promotion, including the appropriate benefits in assessing the amount of pension that the petitioner would be entitled to. 21. In terms of the above, both the writ petition stands disposed of.