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2019 DIGILAW 935 (GAU)

Debabrata Das v. State of Assam

2019-08-26

UJJAL BHUYAN

body2019
ORDER : 1. Heard Mr. M.J. Qadir, learned counsel for the petitioner and Mr. D. Nath, learned Government Advocate, Assam for respondent Nos. 1 to 5. Also heard Mr. M. Nath, learned counsel for respondent No. 6. None has appeared for respondent No. 7, though served. 2. By filing this petition under article 226 of the Constitution of India, petitioner seeks quashing of orders dated 2.1.2017 and 25.10.2017 passed by the Commissioner, Barak Valley Division appointing respondent Nos. 7 and 6 respectively as Head Assistant and further seeks a direction to the respondents to promote the petitioner to the post of Head Assistant in the establishment of Deputy Commissioner, Cachar. 3. Case of the petitioner is that he was appointed as Lower Division Assistant-cum-Typist in the establishment of Deputy Commissioner, Cachar on 30.6.1986. Subsequently, he was promoted to the post of Senior Assistant on 26.4.2000 and posted in the Sub-Divisional Office at Lakhipur. According to the petitioner, both respondent Nos. 6 and 7 are junior to him in the gradation list of ministerial staff, they having joined the cadre of Senior Assistant after the petitioner. It is stated that considering the satisfactory performance of the petitioner, he was promoted to the rank of Supervisory Assistant on 19.12.2016. 4. Two posts of Head Assistant in the Lakhipur Civil Sub-Division and at Silchar Sadar fell vacant in the years 2002 and 2007 respectively. The vacancies arose due to superannuation of the incumbents. Thereafter, the two vacant posts of Head Assistant were advertised on 20.7.2015 by the office of the Deputy Commissioner, Cachar. As per the advertisement, only candidates having 10 years of experience as Senior Assistant including Supervisory Assistant in the establishment of Deputy Commissioner were eligible to apply. Petitioner responded to the said advertisement; so also respondent Nos. 6 and 7. To the astonishment of the petitioner, while he was not appointed, respondent Nos. 6 and 7 were appointed as Head Assistant. 5. Aggrieved with the above, present writ petition has been filed seeking the reliefs as indicated above. 6. This court by order dated 8.11.2017 had issued notice with the observation that “promotion of respondent Nos. 6 and 7 to the post of Head Assistant would be subject to outcome of the writ petition”. 7. Respondent Nos. 1 to 5 have filed a common affidavit. 6. This court by order dated 8.11.2017 had issued notice with the observation that “promotion of respondent Nos. 6 and 7 to the post of Head Assistant would be subject to outcome of the writ petition”. 7. Respondent Nos. 1 to 5 have filed a common affidavit. Stand taken in the affidavit is that a Selection Board was constituted for selecting candidates to the two posts of Head Assistant on 21.8.2015 comprising of the Deputy Commissioner as Chairman; Additional Deputy Commissioner-in-Charge, Personal Branch; Sub-Divisional Officer (Civil); Treasury Officer; and Finance and Accounts Officer in the Deputy Commissioner's office. Selection Board in its meeting held on 22.8.2015 assessed comparative merit of the candidates and thereafter made the recommendation. Based on such recommendation, appointment orders were issued to respondent Nos. 6 and 7 on 25.10.2017 and 2.1.2017, respectively. 8. Affidavits have been filed by respondent Nos. 6 and 7 justifying their appointments. 9. Petitioner has filed rejoinder affidavit to each of the above counter affidavits. 10. Submissions made by learned counsel for the parties have been considered. Also perused the record produced by Mr. Nath, learned Government Advocate, Assam. 11. Record discloses that on 19.5.2012, Deputy Commissioner, Cachar informed Commissioner of Barak Valley Division that two posts of Head Assistant were lying vacant since 17.7.2002 and 01.1.2007 respectively in the Sub-Divisional Office and in the Sadar Headquarter. Accordingly, approval of the Commissioner was sought for to fill up the vacancies. Record further discloses that there were communications between the office of the Deputy Commissioner and Commissioner which considerably delayed the matter. Ultimately proposal was submitted by the Deputy Commissioner on 13.10.2015. It was thereafter that approval was granted whereafter advertisement dated 20.7.2015 was issued by the Deputy Commissioner, Cachar. As per the advertisement, a candidate was required to render 10 years of continuous service as a Senior Assistant including Supervisory Assistant in the Deputy Commissioners' amalgamated establishment in the State of Assam with preference to candidates having valid experience of working in different branches of Deputy Commissioner's establishment. It was clarified that applications would have to be submitted through proper channel. A Selection Committee was constituted for selection of candidates. Selection Board comprised of Shri S. Viswanathan, Deputy Commissioner; Smt. M. Choudhury, Additional Deputy Commissioner, Cachar; Shri T.T. Dolagupu, Sub-Divisional Officer (Civil), Lakhipur; Shri S. Sharma Choudhury, Finance and Accounts Officer, Deputy Commissioner's office, Cachar; and Shri M.L. Dev, Treasury Officer, Cachar. A Selection Committee was constituted for selection of candidates. Selection Board comprised of Shri S. Viswanathan, Deputy Commissioner; Smt. M. Choudhury, Additional Deputy Commissioner, Cachar; Shri T.T. Dolagupu, Sub-Divisional Officer (Civil), Lakhipur; Shri S. Sharma Choudhury, Finance and Accounts Officer, Deputy Commissioner's office, Cachar; and Shri M.L. Dev, Treasury Officer, Cachar. 12. Selection Board in its meeting held on 22.8.2015 noted that 7 applications were received but applications of two candidates, namely, Shri Indrajit Kahar and Smt. Monica Dev Nath were not taken into consideration as they were found to be ineligible in the matter of qualifying service and procedure of application. Out of 5 remaining applications, 3 of them applied for the post of Head Assistant at Sadar, namely, Shri Niranjan Dhar (respondent No. 6), Shri Debabrat Das (petitioner) and Mohibul Barbhuiyan and two of the applicants, namely, Azad Kumar Laskar and Smt. Dipika Barman (respondent No. 7) had applied for the post of Head Assistant at Lakhipur Sub-Division. The minutes of the Selection Committee meeting held on 22.8.2015 discloses that Selection Committee had carefully gone through the provisions contained in Assam Ministerial District Establishment Service Rules, 1967 as well as the notification dated 15.11.1975. After threadbare discussion and based on comparative statement prepared, Committee recommended Shri Niranjan Dhar (respondent No. 6) for the post of Head Assistant at Sadar and Smt. Dipika Barman (respondent No. 7) as Head Assistant in the Lakhipur Sub-Division. It was further noted that the above two posts corresponded to roster points 1 and 2 in the cadre of Head Assistant and were unreserved. Following the same, the two appointment orders were issued. 13. Record discloses that Shri Niranjan Dhar (respondent No. 6) served as Supervisory Assistant/Senior Assistant since 1.7.2005. In so far Smt. Dipika Barman is concerned, her candidature was to the post of Head Assistant in the Sub-Divisional office at Lakhipur to which petitioner had not applied. Therefore, challenge to her appointment at the instance of the petitioner would not be sustainable. 14. The Assam Ministerial District Establishment Service Rules, 1967 (1967 Rules) governs recruitment and conditions of service of persons appointed to the Assam Ministerial District Establishment Service which includes Sadar Head Assistant and Sub-Divisional Head Assistant as per rule 3(1)(ii). Therefore, challenge to her appointment at the instance of the petitioner would not be sustainable. 14. The Assam Ministerial District Establishment Service Rules, 1967 (1967 Rules) governs recruitment and conditions of service of persons appointed to the Assam Ministerial District Establishment Service which includes Sadar Head Assistant and Sub-Divisional Head Assistant as per rule 3(1)(ii). As per rule 6(2), the post of Sadar Head Assistant/Sub-Divisional Head Assistant is to be filled up by way of selection from amongst Senior Assistants with at least two years of service as such to their credit including Supervisory Assistant in concerned Deputy Commissioner's establishment. As per the note appended to rule 6(2), vacancies in the post of Sadar Head Assistant and Sub-Divisional Head Assistant shall be advertised by Deputy Commissioner concerned inviting applications from suitable persons fulfilling requirement of the post. On receipt of applications, Selection Board consisting of Deputy Commissioner and Sub-Divisional Officer of the district concerned shall assess the comparative merit and ability of the candidates for the purpose of recommending names of suitable candidates to the Commissioner concerned. Thereafter, Deputy Commissioner shall forward recommendation of the Selection Board together with character rolls and other relevant papers consisting of the applications to the Commissioner concerned who shall make selection strictly on merit and make the appointment. 15. In Nawab Nurul Islam v. State of Assam, a Single Bench of this court had the occasion to examine rule 6 of the 1967 Rules and thereafter held that appointments to the post of Head Assistant is to be made on assessment of the comparative merit and eligibility of the eligible candidates with the clarification that unlike in the case of promotion, there is no element of “merit-cum-seniority” or “seniority-cum-merit” in the appointment of Head Assistant. Appointment to the post of Head Assistant is not by way of promotion. 16. As per notings in the note-sheet dated 29.11.2016, it was mentioned that Shri Niranjan Dhar was senior in service to Shri Debabrat Das but Shri Das was senior in the cadre of Senior Assistant. On the other hand, for the post of Head Assistant at Lakhipur, Smt. Dipika Barman had completed more than 10 years as Senior Assistant. Accordingly, both were recommended for appointment. 17. As already noticed above, appointment to the post of Head Assistant is by way of selection. On the other hand, for the post of Head Assistant at Lakhipur, Smt. Dipika Barman had completed more than 10 years as Senior Assistant. Accordingly, both were recommended for appointment. 17. As already noticed above, appointment to the post of Head Assistant is by way of selection. Here, seniority has got no role to play except to the extent that applicant has to be eligible for the post having fulfilled the requisite number of years in the qualifying grade. It is nobody's case that respondent Nos. 6 and 7 have not completed the qualifying service. Selection Board, as would be evident from the record, had carefully appreciated the comparative merit of the candidates and thereafter had recommended respondent Nos. 6 and 7 for appointment to the post of Head Assistant. There is no infirmity in such recommendation. In such circumstances, Court is not inclined to interfere with the appointment of respondent Nos. 6 and 7 as Head Assistant. 18. Accordingly, writ petition is dismissed.