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2022 DIGILAW 92 (GAU)

Soleman Ali v. State Of Assam

2022-02-01

KALYAN RAI SURANA

body2022
JUDGMENT : KALYAN RAI SURANA, J. Heard Mr. J.I. Borbhuiya, learned counsel for the petitioner. Also heard Ms. D. Borah, learned standing counsel for the Health Department, appearing for respondent no. 1 to 6 in both the writ petitions, Mr. A. Hasan, learned standing counsel for the Accountant General, appearing for respondent no. 8 in WP(C) 3136/2020 and Mr. A. Chaliha, learned standing counsel for Finance Department appearing for respondent no. 9 in W(C) 3136/2020. There is no representation from the APSC, respondent no.7 in WP(C) 3136/2020. 2. As both the writ petitions are interconnected and filed by the same petitioner, both the writ petitions are tagged together and have been taken up together for hearing at the admission stage. 3. The case of the petitioner is that he was appointed as a Lecturer in SJN Homeopathic Medical College and Hospital, Guwahati and on 3/4/2013, he was promoted to the post of Reader where he had joined on 4/4/2013. The petitioner projects that despite promotion granted to him, he was not given the pay benefit for the higher promotional post to which he had joined on 4/4/2013. It appears from the pleadings made in the writ petition that on being deprived of appointment, the petitioner had approached this Court on a previous occasion by filing the writ petition which was numbered as WP(C) 133/2010 and in the said writ petition, it was ordered that for the purpose of service, the seniority of the petitioner would be counted w.e.f. 10/5/2007 for notional purposes of seniority and pension and not for claiming salary. 4. Be that as it may, by virtue of an order dtd. 5/10/2016, the petitioner was transferred to Dr. JKS Homeopathic Medical College and Hospital, Jorhat in the post of Reader of Materia Medica. The petitioner had challenged the order of transfer by filing WP(C) 6383/2016 and the said writ petition was disposed of by order dtd. 26/10/2016 by permitting the petitioner to submit a copy of representation dtd. 14/10/2016 afresh along with the certified copy of the order to the Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare (B) Department on 31/10/2016. The said representation having been rejected by order dtd. 29/7/2017, the petitioner once again filed a writ petition which was registered as WP(C) 5177/2017. The said writ petition was dismissed by order dtd. 1/9/2017. of Assam, Health and Family Welfare (B) Department on 31/10/2016. The said representation having been rejected by order dtd. 29/7/2017, the petitioner once again filed a writ petition which was registered as WP(C) 5177/2017. The said writ petition was dismissed by order dtd. 1/9/2017. As the petitioner did not joined his service at the transferred place of posting, a show-cause notice dtd. 18/1/2018 was issued by the respondent authorities. Although the petitioner projects that a reply to the show-cause notice was filed on 16/2/2018 (Annexure-20), it appears to the Court that the show-cause notice was in fact a charge-sheet issued to the petitioner under Assam Services (Discipline and Appeal) Rules 1964 read with Article 311 of the Constitution of India. 5. Be that as it may, as per pleadings in WP (C) 3136/2020, the petitioner had submitted his reply to the said show-cause notice on 16/2/2018. The fate of the said disciplinary proceeding is not known as nothing in this regard had been stated in the affidavit-in-opposition filed on 2/12/2021. Nonetheless, on 25/1/2018, the petitioner was released from SJN Homeopathic Medical College and Hospital, Guwahati to enable him to join his transferred post. The Principal-in-charge of the said SJN Homeopathic Medical College and Hospital, Guwahati, by an order dtd. 1/11/2018, again allowed the petitioner to continue his service at Guwahati but thereafter, cancelled the said order vide another order dtd. 5/11/2018. On 11/12/2018, the petitioner appeared before the Principal of Dr. JKS Homeopathic Medical College and Hospital, Jorhat to join. However, as the petitioner had reported for joining after one year of the transfer order, the Principal of the said college had written to the Director of AYUSH, Assam for guidance. 6. It appears that the petitioner had also submitted a representation on 29/10/2018 to the Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare (B) Department, Assam for regularization of the gap period. Accordingly, in WP(C) 3136/2020, the petitioner has prayed for issuance of the direction on the respondent authorities to provide recommendation for promotion of the petitioner under Regulation 4 (d) of the APSC (Limitation of Function) Regulation 1951, issuance of pay slip pursuant to promotional order dtd. Accordingly, in WP(C) 3136/2020, the petitioner has prayed for issuance of the direction on the respondent authorities to provide recommendation for promotion of the petitioner under Regulation 4 (d) of the APSC (Limitation of Function) Regulation 1951, issuance of pay slip pursuant to promotional order dtd. 3/4/2013, a direction to release arrear salary allowance w.e.f. 3/4/2013, for post facto approval under Regulation 4 (d) of the APSC (Limitation of Function) Regulation 1951 as well as a direction to the respondent authorities to consider and dispose of the representation of the petitioner dtd. 29/10/2018. On the same background facts the petitioner had also filed WP(C) 2673/2020, challenging the order dtd. 12/12/2018 by which the petitioner was released to join his transferred place of posting setting aside and quashing of the show-cause notice dtd. 18/1/2018, a direction to the respondent authorities to allow the petitioner to join his transferred place of posting, and a direction to respondent authorities to release all the arrear salary and allowance of the petitioner. 7. The learned standing counsel for the Health and Family Welfare Department has submitted that despite order dtd. 5/10/2016, as the petitioner had never joined his transferred place of posting, despite being released, it would be appropriate if the decision for release of the salary of the petitioner and other claim made by the petitioner is decided by the respondent authorities in terms of one of the prayers made in WP(C) 3136/2020. 8. It is seen that as per the stand taken by the petitioner in the writ petition, notwithstanding that the petitioner was transferred vide notification dtd. 5/10/2016, it was only on 25/1/2018 that the petitioner was released from SJN Homeopathic Medical College and Hospital, Guwahati, to enable him to join the new place of posting. Although the petitioner did not join the transferred place of posting, the respondent authorities had issued a charge-sheet against the petitioner on 18/1/2018. However, the respondents have not brought on record any document by virtue of which the competent authorities had appointed an Enquiry Officer and the Presenting Officer so as to conduct the disciplinary enquiry against the petitioner. 9. It is not in dispute that the petitioner had superannuated on 18/10/2020. Although the respondents have filed their affidavit-in-opposition in WP(C) 3136/2020 dtd. However, the respondents have not brought on record any document by virtue of which the competent authorities had appointed an Enquiry Officer and the Presenting Officer so as to conduct the disciplinary enquiry against the petitioner. 9. It is not in dispute that the petitioner had superannuated on 18/10/2020. Although the respondents have filed their affidavit-in-opposition in WP(C) 3136/2020 dtd. 2/12/2021, which his after the date of superannuation of the petitioner, but nothing has been brought on record to show that while allowing the petitioner to superannuate, the Government had taken the recourse to Rule 21 of the Assam Services (Pension) Rules, 1969 of withholding of pension during the pendency of the departmental/ disciplinary proceeding. 10. It may be mentioned that no affidavit-in-opposition has been filed in WP(C) 2673/2020. There is also nothing on record to show that pursuant to order of transfer dtd. 5/10/2016, the competent authority of the respondent had taken any steps to ensure that the Principal of SJN Homeopathic Medical College and Hospital, Guwahati issued the release order to the petitioner. As per the case projected by the petitioner, the Principal-in-charge of SJN Homeopathic Medical College and Hospital, Guwahati permitted the petitioner to continue in the said college by order dtd. 1/11/2018, which was revoked only by order dtd. 5/11/2018. Thereafter, the petitioner had reported to the Dr. JKS Homeopathic Medical College and Hospital, Jorhat, but he was not allowed to join and instead the Principal of Dr. JKS Homeopathic Medical College and Hospital, Jorhat by letter dtd. 12/12/2018 wrote to the Director, AYUSH for advice. There is nothing on record to show that the respondent authorities took any further decision to allow the petitioner to join at the transferred place of posting despite letter dtd. 12/12/2018 by which Principal sought advice from the Director, AYUSH. 11. Under such circumstances, the petitioner has been able to make out prima-facie case of having not joined the transferred place of posting till he had superannuated on 18/10/2020 as neither any reply to letter dtd. 12/12/2018 was issued by the Director, AYUSH to reject the claim of the petitioner to join at the transferred place of posting nor there is anything on record to show that the departmental/ disciplinary proceeding against the petitioner was proceeded with by reserving right to continue with the departmental proceeding despite his superannuation on 18/10/2020. 12. 12/12/2018 was issued by the Director, AYUSH to reject the claim of the petitioner to join at the transferred place of posting nor there is anything on record to show that the departmental/ disciplinary proceeding against the petitioner was proceeded with by reserving right to continue with the departmental proceeding despite his superannuation on 18/10/2020. 12. Having seen a prima facie case in favour of the petitioner, the Court is of the considered opinion that the matter requires a decision of the appropriate Government for regularization of the gap period and to take an appropriate decision of providing appropriate pay to the petitioner in respect of his promotional post of Reader to which he was promoted by order dtd. 3/4/2013, where he had joined on 4/4/2013. In view of the above and in terms of the prayer made in WP (C) 3136/2020, the Court is inclined to direct the Principal Secretary to the Govt. of Assam, Family and Welfare (B) Department and/ or Head of the said Department to consider and decide the claim of the petitioner regarding (i) pay for the promotional post of reader w.e.f. 4/4/2013, the date of joining till he had superannuated on 18/10/2020 (ii) to consider the regularization of the gap period from 5/11/2018, the date when the Principal of SJN Homeopathic Medical College and Hospital, Guwahati had cancelled his previous order dtd. 1/11/2018 by which the petitioner was allowed to continue in the same college till his superannuation on 18/10/2020 or for any other period for which the respondents have contemplated to withhold the salary of the petitioner, (iii) to finalize the pension proposal of the petitioner as well as (iv) any other retiral dues that may be due to him. In this regard, the petitioner is permitted to submit a certified copy of this order together with a copy of both the writ petitions to the respondent no. 1, who upon receipt of the same shall dispose of the aforesaid claim of the petitioner within a period of 2(two) months from the date of receipt of certified copy along with a copy of the writ petition. The respondent no. 1 would be duty bound to inform the petitioner about result of the disposal of his claim within a reasonable time. The petitioner shall provide his e-mail address to the respondent no.1 while submitting certified copy of the order. 13. The respondent no. 1 would be duty bound to inform the petitioner about result of the disposal of his claim within a reasonable time. The petitioner shall provide his e-mail address to the respondent no.1 while submitting certified copy of the order. 13. It is clarified that as there is nothing on record to show that the respondent authorities had reserved their right to proceed with the departmental/ disciplinary proceeding even after superannuation of the petitioner, the departmental/ disciplinary proceeding which was initiated vide show-cause notice/ charge-sheet dtd. 18/1/2018 is deemed to have lapsed on the superannuation of petitioner on 18/10/2020. While disposing of the representation of the petitioner, the respondent no. 1 would take note of the said legal position. 14. Both writ petitions stand party allowed to the extent as indicated above. 15. There shall be no order as to cost.