Gauhati High Court
Kasrul Alam Mazumder vs The State Of Assam And 3 Ors on 6 August, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/6
GAHC010083192020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No : WP(C)/1535/2018
KASRUL ALAM MAZUMDER
S/O LATE ABDUL SAHID MAZUMDER
VILL AND PO PURBO-SUNAPUR
DIST./PS- HAILAKANDI
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY THE COMMISSIONER'S SECRETARY
TO THE GOVT. OF ASSAM
DEPTT. OF PUBLIC HEALTH ENGINEERING
DISPUR
GUWAHATI-6
2:THE CHIEF ENGINEER PHE (WATER)
ASSAM
HENGERABARI
GUWAHAT-36
3:THE EXECUTIVE ENGINEER
PHE
HAILAKANDI DIVISION
HAILAKANDI
788151
4:THE SECRETARY TO THE GOVT. OF ASSAM
FINANCE (SIU) DEPARTMENT
DISPUR
GUWAHATI-06
------------
Advocate for : MR. A Y CHOUDHURY
Advocate for : SC
Page No.# 2/6
FINANCE DEPTT. appearing for THE STATE OF ASSAM AND 3 ORS.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 06.08.2021 Heard Mr. T.A. Choudhury, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned standing counsel for the respondent nos.1, 2 and 3 and Mr. P. Nayak, learned standing counsel for the respondent no.4.
2. By filing this writ petition under Article 226 of the Constitution of India, the case projected by the petitioner is that he was working in the office of the respondent no.3 temporarily in the post of Khalasi since 29.07.1987. The service of the petitioner was regularized on 12.01.2004 w.e.f. 01.12.2003.
3. The petitioner claims that he was entrusted with typing work since 01.08.1987 and eventually vide office order dated 05.01.2005, the petitioner has been working as Computer Operator in the office of the respondent no.3 without any financial benefit. In the meanwhile, the department had moved a proposal for creation of post of Data Entry Operator in lieu of existing post of Tracer.
4. Referring to the documents annexed to the writ petition, the learned counsel for the petitioner has submitted that the petitioner has also undergone training programme for data entry and accordingly, the petitioner had the requisite qualification to be appointed as Data Entry Operator. The petitioner had submitted a representation dated 30.03.2016 before the Page No.# 3/6 respondent no.3 and accordingly, the respondent no.3 had written to the respondent no.2, thereby, recommending the name of the petitioner to be engaged as Data Entry Operator and that he has been attached to the computer operations since 01.01.2003 as per verbal instruction and from 05.01.2005 as per office order of the then Executive Engineer (PHE). The said recommendation as made vide letter dated 31.03.2016 was followed by another letter of recommendation dated 10.05.2016 by the respondent no.3 to the respondent no.2. As the post of "Tracer" was not converted to the post of "Data Entry Operator", it is submitted that the case of the petitioner for being appointed in the post of Data Entry Operator had not materialized and accordingly, once again the petitioner had submitted a representation dated 15.12.2017 to the Deputy Secretary to the Govt. of Assam, Public Health Engineering Department for being appointed as Data Entry Operator. In the said representation, it is projected that as per office memorandum dated 13.03.2012, the petitioner was required to be considered for filling up the post of Data Entry Operator.
5. The learned counsel for the petitioner has submitted that the present writ petition was tagged along with WP(C) No.2497/2020 and it is seen from the record of the said petition that in the meanwhile, the competent authority by Order No.PHED-83/2015/Pt.I/215 dated 25.02.2020, the nomenclature of the post of Tracer was changed to Data Entry Operator and the authorities had recommended the appointment of the writ petitioner therein on compassionate ground. It is submitted that the post of Data Entry Operator is a single post and therefore, the said post cannot be filled up on compassionate ground. Accordingly, it is submitted that all throughout, in view of the interim order dated 19.03.2018 in this writ petition, the respondent authorities could not fill up the post of Data Entry Operator in the office of the respondent no.3 Page No.# 4/6 despite the alleged recommendation made by the SLC. It is also submitted that the petitioner is in service since 29.07.1987 and his case requires to be sympathetically considered by the respondents to be appointed in the post of Data Entry Operator.
6. The learned standing counsel for the Public Health Engineering Department and the learned standing counsel for the Finance Department have both referred to the Office Order No.58 of 2004-2005 dated 05.01.2005 (Annexure-4) to project that the petitioner was holding the post of Khalasi and he was temporarily allowed to operate computer without any financial involvement. It is also submitted that as per service rules in force, the post of Khalasi is not the feeder post for being promoted to the post of Data Entry Operator. Accordingly, it is submitted that merely because the petitioner has been operating computer for a long period of time and had undergone training, it would not give him a right to be promoted to the post of Data Entry Operator from the post of Khalasi.
7. The submissions made by the learned departmental counsel are found to have force. Notwithstanding the letter by the respondent no.3 to respondent no.2, recommending the name of the petitioner to be appointed to the post of Data Entry Operator, the authorities do not have the right to single out a person for filling up the said post without considering the case of others, who may be similarly situated. From the submissions made by the learned standing counsel, it is made to appear that the post of Data Entry Operator is a promotional post. If that be so, then the DPC is required to be constituted for selecting persons found to be fit for promotion from amongst persons of the same grade to the next higher post. The DPC is expected to take note of various Page No.# 5/6 factors including age, qualification, seniority and the date of entry in service, etc. and to recommend the name of persons found eligible to be promoted to the next higher post. Therefore, a mere recommendation made by the respondent no.3 would not create an indefeasible right in favour of the petitioner to be considered for the post of Data Entry Operator.
8. It is further seen that the petitioner has not assailed the decision of the SLC in its meeting held on 03.11.2017, thereby recommending the name of the petitioner in WP(C) No.2497/2020 for compassionate appointment. In this regard, the learned counsel for the petitioner has submitted that this writ petition was filed prior in point of time and therefore, the petitioner had no knowledge of the decision of the SLC in recommending the name of the petitioner in WP(C) No.2497/2020 for compassionate appointment allegedly to the post of Data Entry Operator. Therefore, if aggrieved by the decision to appoint the petitioner in the post of Data Entry Operator, the petitioner may be well advised to choose his next course of action.
9. Be that as it may, in the present case in hand, the Court does not find any decision by the authorities to be vitiated by illegality or perversity and having relied on the learned standing counsel for the respondents in respect of their submission that the post of Khalasi is not the post for promotion to the post of Data Entry Operator, which is not converted by producing the service rules, the writ petition fails and the same is dismissed.
10. The Court is inclined to observe that dismissal of the writ petition shall not preclude the authorities to consider the case of the petitioner along with other similarly situated persons for promotion to the next higher post, if the petitioner is otherwise found entitled. This observation is not to be treated Page No.# 6/6 as if it is a direction from this Court.
11. Needless to state that the interim order passed on 19.03.2018 to keep the post of Data Entry Operator in the Hailakandi Public Health Engineering Division vacant stands vacated.
JUDGE Comparing Assistant