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2018 DIGILAW 802 (GAU)

BANI KANTA TALUKDAR v. STATE OF ASSAM

2018-05-15

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT AND ORDER : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. S.K. Das, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned standing counsel for the Higher and Technical Education Department of the Govt. of Assam. 2. The petitioner was appointed as a Lecturer in the Electrical Engineering Branch of the Jorhat Engineering College on 31.07.1989. In the year, 1997, he was transferred to the Assam Engineering College (in short AEC). He has been serving in the AEC since then and also taking PG classes as and when the same was introduced in the year 2003. 3. By a notification TEC31/2002/Pt-II/51 dated 19.08.2005, the petitioner was promoted as an Assistant Professor along with others. But at that relevant point of time, the petitioner could not avail the promotion as there was a serious family problem inasmuch as, upon being promoted, he was posted in Jorhat. Accordingly, the petitioner had to fore go his promotion at that point of time. Subsequently, the post of Lecturer was renamed as that of Assistant Professor. It is also the stand of the petitioner that he is presently guiding two Ph.d students and one M.tech. student and is also looking after the Central Computing Centre (CCC) of the AEC. Further the petitioner also has two AICTE projects of the value of Rs. 24 lacs and Rs. 50 lacs respectively, where he is the Co-Principal Investigator. By stating the said reason, the petitioner seeks to justify as to why he had foregone the promotion. Subsequently, by a notification dated 16.03.2017, the petitioner was again promoted as Associate Professor and his place of posting was shown as Jorhat Engineering College. It is stated that this time also the petitioner had foregone his promotion. 4. In this writ petition, a Clause being Clause-8 of the notification dated 16.03.2017 has been assailed. Clause-8 is as follows:- "Officers concerned. It is stated that this time also the petitioner had foregone his promotion. 4. In this writ petition, a Clause being Clause-8 of the notification dated 16.03.2017 has been assailed. Clause-8 is as follows:- "Officers concerned. They are directed to take over their new assignment within 15 (fifteen) days with effect from the date of issue of this notification failing with their promotion will be treated as cancelled and the position of the incumbent will go down to the last of the gradation list and their claims for any promotion including Career Advancement Scheme shall not be considered if they don't joint the next higher post even after getting the promotion" The purport of Clause-8 of the notification dated 16.03.2017 would be that in the event a incumbent refused to accept the promotion, such promotion shall be treated to be cancelled and the position of the incumbent concerned will go down to the last of the gradation list and their claim for any further promotion including Career Advancement Scheme shall not be considered. 5. Mr. S.K. Das, learned counsel for the petitioner states that the provision of the said clause is firstly arbitrary and secondly the right of the petitioner to get the benefit under the Career Advancement Scheme (CAS) cannot be curtailed. 6. As regards the provision of the aforesaid Clause-8 that the incumbent refusing the promotion cannot claim any benefit under the CAS, we are of the considered view that the condition imposed can be justified. The CAS is a scheme adopted by the respondent authorities, which is also provided under the AICTE regulation, in order to give benefit of promotion to such incumbent, who was either not promoted or could never be given the benefit of a promotion during his service career. Therefore, the first and foremost requirement of getting the benefit under CAS would be that the incumbent in question should not be promoted. 7. In the instant case, it is noticed that the writ petitioner was in fact promoted in the year 2005 and was again promoted in the year 2017. But on both occasions, he had foregone the promotion by preferring to remain in his earlier post. The incumbent who was promoted, but refused to accept the benefit of promotion, cannot be equated and placed in the same situation as that of an incumbent who was never promoted. But on both occasions, he had foregone the promotion by preferring to remain in his earlier post. The incumbent who was promoted, but refused to accept the benefit of promotion, cannot be equated and placed in the same situation as that of an incumbent who was never promoted. In such view of the matter, this Court does not find any infirmity in the condition imposed in Clause-8 of the notification dated 16.03.2017 that the petitioner cannot even be considered for the benefit under the CAS. 8. But as regards the other provision of Clause-8 of the notification dated 16.03.2017 that the claim of the petitioner for further promotion shall not be considered if they had not joined pursuant to the earlier promotion, we have some reservation on the said provision. An absolute embargo on the eligibility of the petitioner for any further promotion merely because he had foregone the promotion given to him would be arbitrary and unreasonable. At the best what the authorities can provide is that the petitioner would now be placed somewhere below in the gradation list. Upon doing so, in the event any further occasion comes for considering the petitioner for any promotion, the same cannot be deprived as provided in Clause-8 of the notification dated 16.03.2017. To that extent, even if the petitioner is placed below in the gradation list for having refused the promotion, but in the event, when his turn for further promotion comes by placing him in that position of the gradation list, the authority shall have to give a due consideration and cannot deprive him from being considered by taking recourse to Clause-8 of the notification. 9. Mr. S.K. Das, learned counsel for the petitioner also raises a contention that in respect of the promotion given, a roster is maintained by the authorities indicating the vacancies to which the promotions are to be made. According to Mr. S.K. Das, learned counsel, one post in the cadre of Associate Professor in the Electrical Engineering Department of the AEC had fallen vacant when the incumbent holding the said post was earlier transferred and posted in the Instrumentation Engineering Department of the AEC. According to Mr. S.K. Das, learned counsel, one post in the cadre of Associate Professor in the Electrical Engineering Department of the AEC had fallen vacant when the incumbent holding the said post was earlier transferred and posted in the Instrumentation Engineering Department of the AEC. It is stated that had the said vacancy which had occurred in the year 2011 been taken into consideration, the petitioner as per the roster ought to have been promoted and posted against the said post and had the petitioner been posted and promoted to the said vacant post in the Assam Engineering College, he would not have refused the promotion. 10. To that extent, liberty is granted to the petitioner to file an application before the Director of Higher & Technical Education, Assam who shall give an opportunity of hearing to the petitioner and allow him to produce any relevant material to substantiate the contention that had the roster been followed in the required manner, the petitioner would have been promoted against the said vacant post in the Electrical Engineering Department of the Assam Engineering College. After examining the claim of the petitioner, if the Principal Secretary to the Govt. of Assam in the Higher & Technical Education Department finds that the claim of the petitioner is correct and the petitioner under the roster system ought to have been promoted and posted against the vacant post in the Assam Engineering College, the notification dated 16.03.2017 be suitably modified and the petitioner be given an opportunity to accept the promotion by posting him in the said vacant post of AEC. 11. The requirement of considering the representation shall not be considered to be a direction from this Court to promote and post the petitioner in the post in Assam Engineering College and the Principal Secretary to the Govt. of Assam shall arrive at his own decision on the merit of the case depending on the records available. 12. The aforesaid exercise shall be done by the Principal Secretary within a period of three moths from the date of submission of the representation.