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2024 DIGILAW 1079 (GAU)

Dilip Chandra Kalita v. State of Assam

2024-08-08

DEVASHIS BARUAH

body2024
JUDGMENT : Devashis Baruah, J. Heard Mr. S Sahu, the learned counsel appearing on behalf of the petitioner. Also heard Mr. B Gogoi, the learned standing counsel, Finance and Taxation Department, Government of Assam and Mr. MP Sarma, the learned counsel appearing on behalf of the respondent No.5. 2. This Court vide a common judgment and order dated 08.08.2024 in Review Pet No.28/2023 and Review Pet No.128/2023 had reviewed the judgment and order dated 04.01.2023 passed in the instant writ petition. The effect of reviewing the judgment and order dated 04.01.2023 in the instant proceedings has led to restoration of the instant writ petition and recalling of the said judgment and order dated 04.01.2023. Though under Section 141 of the Code of Civil Procedure 1908, (for short, the Code), the provisions of the Code is not applicable to a proceedings under Article 226 of the Constitution, but in view of the well settled principles that the spirit of the said Code can be applied while taking into account a review proceedings, this Court on the basis of the mandate of Order XLVII, Rule 8 of the Code is to required rehear the instant writ petition or pass such other orders as may deem fit. 3. It has been submitted by the learned counsel appearing on behalf of the petitioner that if the instant writ petition is not taken up for disposal forthwith, it would result in perpetuation of an illegality whereby the respondent No.5, who was illegally appointed to the post of Junior Assistant would be reverted back to his position as Junior Assistant. 4. Mr. B Gogoi, the learned counsel appearing on behalf of the respondent department also submitted that in view of the judgment dated 04.01.2023, the respondent No.5 was reverted back to his original post as admittedly he had no qualification as per the amended Rule 6(6) of the Assam Ministerial District Establishment Rules, 1967 (for short, the Rules of 1967). Be that as it may, the respondent No.5 was junior to the petitioner. Under such circumstances, an early disposal of the writ petition is of utmost necessity. 5. It is under such circumstances, this Court, therefore, takes up the writ petition for hearing with the consent of all the parties. 6. The petitioner in the instant case was appointed to the post of Chowkidar/Grade-IV in the office of the Superintendent of Taxes Guwahati. Under such circumstances, an early disposal of the writ petition is of utmost necessity. 5. It is under such circumstances, this Court, therefore, takes up the writ petition for hearing with the consent of all the parties. 6. The petitioner in the instant case was appointed to the post of Chowkidar/Grade-IV in the office of the Superintendent of Taxes Guwahati. His appointment was regularized by an order dated 24.02.1995. 7. On the other hand, the respondent No.5 joined the respondent department only on 20.03.1998. However, both the petitioner as well as the respondent No.5 were confirmed in service on 03.11.2003. 8. At this stage, this Court finds it pertinent to take note of an affidavit filed in Review Petition No.28/2023 by the respondent No.3 through the Joint Commissioner of Taxes, Assam. Paragraph 6 of the said affidavit is reproduced hereinunder: “6. That in regards to the statements made in paragraph C of the review petition, the deponent begs to state that in respect of seniority of Sri Dilip Chandra Kalita over Sri Niladhar Deka, it appears from the office record that Sri Dilip Chandra Kalita has joined the department as Grade IV employee (Chowkidar) on 01/07/1994 while Sri Niladhar Deka joined the department on 20/03/1998. By that count Sri Dilip Chandra Kalita is senior to him by 3 (three) years 5 (five) months 19 (nineteen) days. Sri Niladhar Deka has pointed that Sri Dilip Chandra Kalita is not senior to him as both of them are confirmed to service on same day on 03/11/2003. Since the confirmation date is common to both of them, by joining the department earlier by Sri Dilip Chandra Kalita scored edge over Sri Niladhar Deka and bears the clear implication that Sri Dilip Chandra Kalita is senior to Sri Niladhar Deka. Hence it appears that the contention of Sri Dilip Chandra Kalita claiming seniority over Niladhar Deka is correct and supported by records. However, it is seen from the records that in considering the promotion from Grade-1V to Grade-III, the then appointing authority had given preference to Sri Niladhar Deka over Sri Dilip Chandra Kalita inspite of his (Dilip Chandra Kalita’s) seniority, Sri Niladhar Deka had approached the Hon’ble Gauhati High Court earlier also vide WP(C) 5831/2016 and Hon’‘ble Court had directed to consider his promotion to the post of LDA. Secondly Sri Dilip Chandra Kalita joined the department as chowkidar while Sri Niladhar Deka joined the department as peon. Under the extreme cautiousness and regards to an order of Hon'ble Court and nomenclature of the post, the then appointing authority preferred Sri Niladhar Deka over Sri Dilip Chandra Kalita and promoted Sri Niladhar Deka to Grade — III. However, it should be mentioned here that the AMDE Rules or in the Office Memorandum dated 06/04/1999, no differentiation has been made between Chowkidar or Peon in promoting them to Grade — III. Everything is stated and prescribed for all Grade — IV employees clubbing together.” 9. The above paragraph is quoted for the purpose of taking into account the admitted stand of the respondent department which are: (i). that the petitioner is senior to the respondent No.5 by 3(three) years, 5(five) months, 19(nineteen) days; (ii). Though the date of confirmation of both the petitioner and the respondent No.5 are on 03.11.2003, but as the petitioner had joined the department earlier, the petitioner is senior to the respondent No.5 and this aspect is supported by the records; (iii). The consideration of the respondent No.5 was made by ignoring the case of the petitioner, in view of an order being passed by this Court in WP(C) No.5831/2016, wherein this Court had directed to consider the case of the respondent No.5 for his promotion to the post of LDA; (iv).Though one consideration was taken that the respondent No.5 joined as a peon and the petitioner joined as a Chowkidar, but the Rules of 1967 or the Office Memorandum dated 06.04.1999 do not differentiate between a Chowkidar or Peon in promoting them to Grade- III. 10. In the backdrop of the above, therefore, the question arises in the instant proceedings as to whether the selection of the respondent No.5 to the post of Junior Assistant was in accordance with the provisions of law and any interference to the said promotion of the respondent No.5 is required in the facts and circumstances of the instant case. It is an admitted aspect of the matter that as regards the service conditions of the ministerial staff of the Finance and Taxation Department of the Government of Assam, there is no Statutory Rules. 11. Mr. It is an admitted aspect of the matter that as regards the service conditions of the ministerial staff of the Finance and Taxation Department of the Government of Assam, there is no Statutory Rules. 11. Mr. S Sahu, the learned counsel appearing on behalf of the petitioner drew the attention of this Court to the Assam Taxation Service Rules 1995, but he also submitted that the said Rules do not deal with the service conditions as regards the ministerial staff. This aspect of the matter seems also to be duly admitted by the respondent department inasmuch as from the Office Memorandum dated 06.04.1999, it is an admitted fact that there is no service rules for the establishment of Ministerial Staff under the Commissionerate. 12. It is also seen taking into account that there are no Service rules, the principles of the Act Rules of 1967 was directed to be generally followed wherever necessary by the Office Memorandum dated 06.04.1999. The said Office Memorandum further stipulated that the criteria to be followed is seniority-cum-merit and the qualifications are that an employee had passed HSLC or equivalent examination and had rendered at least seven years of continuous service on the first day of the year on which the selection is made. This criterion and qualification apparently seems to be on the basis of the un-amended Rule 6(6) of the Rules of 1967. However, Rule 6(6) of the Rules of 1967 was amended w.e.f. 15.10.2015. In terms with the amended Rule 6(6)(b) of the Rules of 1967, the criterion remains the same i.e. seniority-cum-merit, but the qualification was made that the employee had passed degree examination in any discipline from a recognized university or an examination declared equivalent thereto. The requirement of having at least seven years of continuous service in the District Establishment remains the same. 13. This Court had put a specific query upon Mr. B Gogoi, the learned standing counsel of the respondent department as to whether the pre- amended Rule 6(6) or the amended Rule 6(6) of the Rules of 1967 were followed for the purpose of considering the case of the petitioner and the respondent No.5 to the post of Junior Assistant. The learned standing counsel submitted that the qualifications and criteria so mentioned in the Office Memorandum dated 06.04.1999 was followed or in other words unamended Rule 6(6) of the Rules of 1967 was followed. The learned standing counsel submitted that the qualifications and criteria so mentioned in the Office Memorandum dated 06.04.1999 was followed or in other words unamended Rule 6(6) of the Rules of 1967 was followed. Taking into account the said stand, it is apparent that as regards the educational qualification, both the petitioner as well as the respondent No.5 were duly qualified. In addition to that, both the petitioner as well as the respondent No.5 had rendered seven years of continuous service on the first day of the year in which the selection is made. The question therefore arises as to whether the criteria which was seniority-cum-merit was duly applied. 14. It is well settled that while construing the criteria seniority-cum-merit, seniority is given a precedence and merit would only come into the picture when the seniority is equal. The admitted stand of the respondent department in paragraph 6 of the affidavit filed in Review Petition No.28/2023 which has been quoted hereinabove would show that the petitioner herein was senior to the respondent No.5 by 3(three) years, 5(five) months, 19(nineteen) days. Under such circumstances, the selection of the respondent No.5, thereby ignoring the case of the petitioner is clearly in violation of Articles 14 and 16 of the Constitution, apart from it being in violation to the standards adopted in terms of the Office Memorandum dated 06.04.1999. In that view of the matter, this Court sets aside the promotion of the respondent No.5 made vide memo No.4266 dated 01.02.2018. 15. The next question arises as to whether this Court should pass appropriate directions to promote the petitioner to the post of Junior Assistant, that too, with effect from the date of promotion of the respondent No.5 as sought for. This Court is of the opinion that such a direction if made would amount to infraction to the settled principles of service jurisprudence whereby it mandates that no employee has a right of promotion rather an employee has a fundamental right to be considered for promotion, if he/she is qualified. Under such circumstances, this Court is of the opinion that a direction to consider the case of both the petitioner and the respondent No.5, in accordance with the extant laws would be in the interest of justice. 16. Under such circumstances, this Court is of the opinion that a direction to consider the case of both the petitioner and the respondent No.5, in accordance with the extant laws would be in the interest of justice. 16. Accordingly, this Court, therefore, while setting aside the order of promotion of the respondent No.5 to the post of Junior Assistant made vide Memo No. 4266 dated 01.02.2018, directs the respondent authorities to conduct appropriate selection process to the vacant post which had come into existence, in view of the setting aside of the order of promotion of the respondent No.5 and the same be carried out as per the applicable Rules, Orders, etc., holding the field. The cases of both the petitioner and the respondent No.5 be duly considered in accordance with the applicable norms followed for promotion. 17. This Court for the sake of clarity, observes that this Court had not made any comment as to whether the un-amended Rule 6(6) or the amended Rule 6(6) of the Rules of 1967 shall apply. It is left to the best wisdom of the respondent department, who shall do so in the interest of good administration. 18. With the above, the writ petition stands disposed of.