Gauhati High Court
Rabin Deka @ Rabin Chandra Deka vs The State Of Assam & 2 Ors on 4 August, 2016
WP(C) 4325/2014
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
04.08.2016
Heard Mr. R. Sarma, learned counsel for the petitioner as well as Mr.
M. Khataniar, learned counsel representing respondent nos. 1 and 2. Mr. P.
Nayak, learned counsel represents respondent no. 3.
2. The petitioner is presently serving as Officer-Incharge, Cultural Centre in the Office of the Directorate of Cultural Affairs, Assam at Rabindra Bhavan. He claims to have been completed twenty-five years of service and stagnating in the said post without any promotion. As the post of Drama Producer is presently lying vacant in the Directorate of Cultural Affairs, Assam, claim for promotion is made. According to the petitioner he is the only eligible candidate and he has to his credit of acting in numerous Assamese Feature Films and also in TV Serials. Claim is also made that for the purpose of promotion to the post of Drama Producer, he fulfils all requisite conditions under the Assam Cultural Affairs (Recruitment & Promotion) Service Orders, 1991.
3. On 15.12.2015 this Court had passed an order, having regard to Clause-5 of the aforesaid Service Orders, 1991, requiring the State Counsels to file additional affidavit as to whether the feeder post of Drama Producer i.e. Staff Artist is equivalent to the post held by the petitioner i.e. Officer Incharge, Cultural Centre. An affidavit was filed accordingly on 02.02.2016.
4. In so far as promotion to the post of Drama Producer is concerned, sub-clause(5) of Clause 5 of the aforesaid Service Orders, 1991 stipulates that the said post is to be filled up by promotion from the Staff Artist. The post of Drama Producer is a Gazetted Post, unlike the Staff Artist which is a Non- Gazetted Post. The eligibility conditions are clearly spelt out in the aforesaid sub-clause(5) of Clause-5 of the Service Orders, 1991. Under the proviso thereto, it is also stipulated that if suitable candidates are not available for promotion, the authority concerned can take recourse to direct recruitment from amongst persons having the required qualifications and experience. In this respect, it may be clarified that having regard to the age prescription for making direct recruitment in case suitable candidates are not available for promotion, the petitioner is not eligible, having crossed 55 years of age as on date.
5. As regards the query made by this Court on 15.12.2015, it would now be required to look at the affidavit filed by the respondent no. 2 on 02.02.2016. To bear in mind, the petitioner is the Officer Incharge, Cultural Centre and not holding the post of Staff Artist. In the said Affidavit dated 02.02.2016, mention is made to the Assam Cultural Affairs (Non-Gazetted) Service Orders, 2009. With regard to the said Service Orders, 2009, it is shown that the mode of appointment to the cadre of Staff Artist (Drama Artist-cum-Instructor) and that of the Officer-Incharge, Cultural Centre are different. Also, under Schedule-I of the aforesaid Service Orders, 2009, the post equivalent to and included in the cadre of "Officer-Incharge" is "Officer Incharge of all Cultural Centres". In so far as the post equivalent to and included in the cadre of "Staff Artist" is concerned, it is only "Staff Artist", who are also designated as Drama Artist-cum-Instructor. Statement is also made that there is difference in the basic pay between the Staff Artist and that of the Officer Incharge, Cultural Centre and as regards the duties and functions in both categories, it is stated that the Staff Artist are persons who conduct dramas and also conducts workshops on dramas as Instructors and, as such, designated as Drama Artist-cum-Instructor in the aforesaid Service Orders of 2009. Mention is also made that the function of an Officer Incharge, Cultural Centre is different from the Staff Artist. The above illustrations have been made from the aforesaid Service Orders, 2009 to say that the post of Officer Incharge, Cultural Centre is not equivalent to the post of Staff Artist.
6. In reply to the said affidavit dated 02.02.2016 filed by respondent no. 2, the petitioner has pleaded only to the extent that the post of Drama Producer is lying vacant in the Directorate and the Minister concerned had directed on 10.09.2009 to constitute the Selection Committee for filling up the said post on urgent basis. Also, by letter of the Minister dated 21.12.2009 and 06.01.2010, the Secretary in the Office of the Directorate was asked to issue notification towards filing up the post of Drama Producer in favour of the petitioner.
7. I have heard the learned counsels for the parties and have also perused the materials on record. Having regard to sub-clause(5) of Clause 5 of the Assam Cultural Affairs (Recruitment and Promotion) Service Orders 1991, the point for determination is whether the post of Officer Incharge, Cultural Centre is equivalent and/or at par with that of the feeder post of Staff Artist (Drama Producer-cum-Instructor). An answer to that point can only flow out from the provisions under the Assam Cultural Affairs (Non-Gazetted) Service Orders, 2009. As per Clause 3 thereof, the various service in the Directorate is classified, which also includes the cadre of Officer-Incharge, Cultural Centre and that of Drama Artist-cum-Instructors, both being non- gazetted post. Under Clause 5 thereof, the method of recruitment to the various cadres have been laid down. Whereas for making recruitments to the cadre of Drama Artist-cum-Instructor, the Service Orders of 2009 do not visualise/contemplate appointment by promotion, however, in so far as recruitment to the cadre of Officer-Incharge of Cultural Centre is concerned, the Service Order of 2009 lays down that 80% of the strength in the cadre of Officer Incharge is to be made by direct recruitment through the Assam Public Service Commission and the remaining 20% of its strength by promotion in accordance with Clause 11 to 14 of the said Service Order. Posts which are equivalent to each other are also specified under Schedule-I of the said Service Order, a perusal of which do not support the contention of the petitioner that an Officer Incharge, Cultural Centre is equivalent to that of a Drama Artist. The pay-scale admissible in each cadre of the service is also provided under Schedule-II, a perusal of which apparently discloses that the time-scale-of-pay of an Officer Incharge is not at par that with the time-scale- of-pay of a Drama Artist.
8. Having noticed that the method of recruitment, equivalency of post and that of the time-scale-of-pay in respect of both the cadres i.e. Officer Incharge, Cultural Centre and the Drama Artist, this Court unhesitantly records that the post of Officer Incharge of Cultural Centre is not equivalent to the post of Staff Artist (Drama Artist-cum-Instructor). Having regard to the prescription under sub-clause (5) of Clause-5 of the Assam Cultural affairs (Recruitment & Promotion) Service Orders, 1991, which clearly lays down that the post of Drama Producer is to be filled up only from Staff Artist, I find no merit in this writ petition. The claim of the petitioner for promotion to the post of Drama Producer is mis-conceived.
Accordingly, this writ petition, being devoid of merits, stands dismissed. No costs.
JUDGE sds