Gauhati High Court
Bishnu Ram Deka & 3 Ors vs The State Of Assam And Ors on 1 June, 2017
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.2834/2011
1. BISHNU RAM DEKA
S/O- LT. MONBHAL DEKA,
JUNIOR ASSTT.,
OFFICE OF THE LABOUR INSPECTOR,
KALIABOR, DIST.- NAGAON,
ASSAM.
2. JAGAT CHANDRA BORAH
S/O- LT. NIRMAL CHANDRA BORAH,
JUNIOR ASSTT.,
OFFICE OF THE LABOUR COMMISSIONER,
KALIABOR, DIST.- NAGAON, ASSAM
3. BIREN BORAH
JUNIOR ASSTT.,
OFFICE OF THE LABOUR OFFICER,
MORIGAON, DIST.- MORIGAON, ASSAM.
4. MAHAMAYA BHATTACHARJEE
JUNIOR ASSTT.,
OFFICE OF THE ASSTT. LABOUR COMMISSIONER,
SILCHAR, DIST.- CACHAR, ASSAM.
......PETITIONERS.
VERSUS
1. THE STATE OF ASSAM
REP. BY THE PRINCIPAL SECY.
TO THE GOVT. OF ASSAM,
LABOUR & EMPLOYMENT DEPTT.,
DISPUR, GHY- 6
2. THE DY. SECY. TO THE GOVT. OF ASSAM
LABOUR & EMPLOYMENT DEPTT.,
DISPUR, GHY- 6
3. THE LABOUR COMMISSIONER, ASSAM
OFFICE OF THE LABOUR COMMISSIONER,
GOPINATH NAGAR, GHY- 16
4. RITA BAISHYA
JUNIOR ASSTT.,
OFFICE OF THE ASSTT. LABOUR COMMISSIONER,
ULUBARI, GHY- 7
5. RANJIT BORO
JUNIOR ASSTT.,
OFFICE OF THE LABOUR INSPECTOR,
BARPETA, BHAWANIPUR, PIN- 781352
6. PRAFULLA BURAGOHAIN
JUNIOR ASSTT.,
OFFICE OF THE LABOUR INSPECTOR,
NAZIRA, SIVASAGAR, ASSAM, PIN- 785685
WP(c) No.2834/2011
Page 1 of 8
2
7. P.K. MALAKAR
JR. ASSISTANT,
OFFICE OF THE LABOUR INSPECTOR,
KARIMGANJ,PIN- 788710
8. S.K. BRAHMA
JR. ASSISTANT,
OFFICE OF THE LABOUR OFFICER,
KOKRAJHAR, PIN- 783370
9. DHANESWAR MEDHI
JR. ASSISTANT,
OFFICE OF THE ASSISTANT LABOUR COMMISSIONER,
ULUBARI, GHY- 7
10. BISWAJIT BARUA
JR. ASSISTANT,
OFFICE OF THE LABOUR INSPECTOR,
PIN- 786125
11. B.C. PATAR
LABOUR INSPECTOR, BHABANIPUR,
O/O THE LABOUR INSPECTOR,
BHABANIPUR, P.O. BHABANIPUR,
DIST- BARPETA, ASSAM, PIN-781301
12. BIKRAM SAHU
LABOUR INSPECTOR, BOKAKHAT,
O/O THE LABOUR INSPECTOR,
BOKAKHAT, P.O. BOKAKHAT, DIST- GOLAGHAT,
ASSAM, PIN-785617
13. V. CHINZAH
LABOUR INSPECTOR, HAWRAGHAT,
O/O THE LABOUR INSPECTOR,
HAWRAGHAT, P.O. HAWRAGHAT,
DIST- KARBI ANGLONG, ASSAM,
PIN-782481
14. H. SARANIA
LABOUR INSPECTOR, RANGIA,
O/O THE LABOUR INSPECTOR, RANGIA,
P.O. RANGIA, DIST- KAMRUP, ASSAM,
PIN- 781354
15. PRANITA DAS
LABOUR INSPECTOR, NAGAON,
O/O THE ASSTT. LABOUR INSPECTOR,
NAGAON, P.O. NAGAON, DIST- NAGAON,
ASSAM, PIN-782001
16. RUDRA HAZARIKA
LABOUR INSPECTOR, NAZIRA,
O/O THE LABOUR INSPECTOR,
NAZIRA, P.O. NAZIRA, DIST- SIBSAGAR,
ASSAM, PIN-785685
WP(c) No.2834/2011
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17. DULU HAZARIKA
LABOUR INSPECTOR, TEZPUR,
O/O THE ASSTT. LABOUR INSPECTOR,
TEZPUR, P.O. TEZPUR, DIST- SONITPUR,
ASSAM, PIN-784001
18. RUPAK BHOWMIK
LABOUR INSPECTOR, CHAAYGAON,
O/O THE LABOUR INSPECTOR,
CHAAYGAON, P.O. CHHAYGAON,
DIST- KAMRUP, ASSAM, PIN-781124
19. SIKHA CHOUDHURY
LABOUR INSPECTOR, NORTH LAKHIPUR,
O/O THE LABOUR INSPECTOR,
NORTH LAKHIPUR, P.O. NORTH LAKHIMPUR,
DIST- NORTH LAKHIPUR, ASSAM, PIN-787001
...RESPONDENTS.
For the petitioner : Mr. N. Barua
Mr. A Deka
Mr. A Barkataki
.... Advocates
For the respondent Nos1 - 3 : Ms. M. Bhattacharjee. ...Addl. Sr. GA.
Date of hearing & judgment : 01.06.2017
BEFORE
THE HON'BLE MR JUSTICE HRISHIKESH ROY
JUDGMENT AND ORDER (ORAL)
Heard Mr. N Barua, the learned Counsel appearing for the 4 petitioners. Ms. M Bhattacharjee the learned Addl. Sr. Govt. Advocate appears for the respondent Nos.1 - 3. However the private respondent Nos. 4 - 19, remained unrepresented.
2. At the very outset, Mr. N Barua, the learned Counsel submits that since the 4th petitioner Mahamaya Bhattacharjee has already been promoted, he is pressing this case only for the remaining three petitioners. .
3. The petitioners are ministerial staff of subordinate offices, under the WP(c) No.2834/2011 Page 3 of 8 4 Labour Commissioner, Assam and they are aggrieved by non-consideration of their promotion to the cadre of Labour Inspector, while promotion was considered for their junior ministerial colleagues, in the Labour & Employment Department.
4.1 The appointment and promotion for the petitioners is governed under the Assam Labour Service Rules 1970 (hereinafter referred to as "the Service Rules"). The Rule 6 covers recruitment and for the posts of Labour Inspector, only direct recruitment was permissible under sub-Rule (6) of Rule 6 as it was originally enacted. But with the amendment of Rule 6(6) by the notification of 31.7.1979, 25% of the posts of Labour Inspector could be filled up by promotion. The quota for promotion for the ministerial staff was then enhanced to 35%, under the last amendment of the Rule 6(6), notified on 26.7.2007.
4.2 Two separate groups in the feeder service were to be considered for promotion to the 35% quota of Labour Inspector, under the sub-Rule as amended in the year 2007. The sub-Clause (a) & (b) of Rule 6(6) being relevant, are extracted hereinbelow :-
"..........................
(a) Thirty five per cent of the post to be filled up at a time in the cadre shall be made by promotion in accordance with rule 7 at the ratio of 50:50 from amongst the cadre of Ministerial Government servant of the Labour Commissioner's establishment and other Ministerial sub-ordinate staff of the sub-ordinate offices under the Labour Commissioner, Assam on separate gradation list who have rendered at least 10 (ten) years of service and who have not crossed 45 (forty five) years of age on the first day of January of the year in which the promotion is considered.
"(b) sixty five per cent of the post to be filled up by direct recruitment shall be made in accordance with Rule 8 ................................"
4.3 Since promotion to the 35% quota is to be made from the two sources in the ratio of 50:50, those in the ministerial cadre serving in the Labour Commissioner's office, were entitled to promotion to 17½% of the vacancies whereas the ministerial staff working in the subordinate offices in different locations of Assam, were entitled to the balance 17½% quota vacancies.
WP(c) No.2834/2011 Page 4 of 8 54.4 Only those who have rendered at least 10 years of service and who have not crossed 45 years of age on the 1st day of January in the year the promotion is considered, were considered eligible but relaxation of the requirement is envisaged, at the discretion of the Governor, under Rule 20 of the Service Rules.
4.5 The promotion is to be processed through a DPC under Rule 7 and the case records reflects that the DPC met on 8.4.2011. The minutes of the DPC reflects that year-wise vacancies were separately considered and only those coming within the zone of consideration, were under consideration against the available vacancies of that year. In the process, all the vacancies from the year 2002 to the year 2011, were considered by the DPC, which met on 8.4.2011.
5. The petitioners herein are ministerial staff working in subordinate offices all over Assam and they had completed the qualifying service of 10 years but had crossed the upper age cap of 45 years. Therefore, the age bar for the petitioners and 2 others were relaxed on 21.1.2009 (Annexure-2), through invocation of the power, under Rule 20 of the Service Rules.
6. But notwithstanding the age relaxation and their eligibility, the DPC never considered the petitioners for promotion and instead, promotion recommendations were made for even those, who were junior to the petitioners. In fact, the promoted juniors too had crossed the upper age cap of 45 years, but without even relaxation of their age bar, the DPC which met on 8.4.2011, recommended the ineligible juniors for promotion. Four ministerial staff were thus promoted on 27.8.2011 and similarly, 20 other ministerial staff were promoted on 31.12.2011, to the post of Labour Inspector. Those who are junior to the petitioners amongst the promotees, have been arrayed here as the respondent Nos.4 - 19.
7.1 Mr. N Barua, the learned Counsel submits that the petitioners are eligible for promotion as they fulfil the experience requirement and their upper age bar has been relaxed through the notification dated 21.1.2009. The Counsel accordingly contends that the DPC which met on 8.4.2011 proceeded erroneously WP(c) No.2834/2011 Page 5 of 8 6 and did injustice, in not considering the petitioners for promotion.
7.2 Questioning the logic of the process of identifying the year-wise vacancies for promotion, the petitioners argue that the Service Rules do not provide for separate consideration for each years vacancy and therefore, the petitioners submit that when the exercise was undertaken after many years gap, all the available vacancies should have been accounted together for considering promotion to all the eligible ministerial staff.
8.1 On the other hand, Ms M Bhattacharjee, the learned Addl. Govt. Advocate refers to the counter affidavit filed on 20.7.2011 and submits that the DPC while considering the promotion on 8.4.2011 had taken into account the year-wise vacancies and this was done on account of the direction issued by the Court on 27.2.2004, in the WP(C) No.1291/2004 (Bipul Das and others vs. State of Assam and others).
8.2 The Government Advocate further submits that everyone coming within the zone of consideration were considered and none in the department was superseded by the promotion given to the private respondents.
9. To justify the process to separately consider each year's vacancies and to recommend candidate for that year's vacancy, the Government lawyer produced the Court's direction in Bipul Das (supra). But a cursory reference to the Court's order of 27.2.2004 in the WP(C) NO.1291/2004 reflects that the directions were issued in another context. That case was for appointment of Joint Director/General Manager, under the Assam Industries Service (Recruitment and Promotion to the Post) Rules 1997 (hereinafter referred to as "the 1997 Rules"), and those Rules postulate year-wise promotion. But in the present case, we are not concerned with promotion to the post of Joint Director/General Manager under the 1997 Rules and therefore the application of the ratio and the 1997 Rules for the 8.4.2011 deliberation by the DPC, for justifying year-wise promotion to the post of Labour Inspector under the Service Rules, is indeed puzzling.
WP(c) No.2834/2011 Page 6 of 8 710. Unlike the 1997 Rules applicable to another department, the Service Rules does not postulate a year-wise promotion exercise for every year's vacancies and therefore, for the process followed by the DPC on 8.4.2011, the cited judgment in Bipul Das (supra), cannot in my view, be of any support to the authorities.
11. Another aspect about the respective promotion order(s) passed on 27.8.2011 and 31.12.2011, requires attention of the Court. In the first promotion order of 27.8.2011, four persons (including the petitioner No.4 Mahamaya Bhattacharjee), were recommended for promotion under Rule 6(6) of the Service Rules but conspicuously the promotion does not refer to any DPC proceeding. Similarly reference to the DPC is also missing in the second promotion order of 31.12.2011, whereby 20 ministerial Staff were promoted to the post of Labour Inspector. In fact both promotion orders do not refer to the DPC dated 8.4.2011 or any other DPC. The want of reference to the DPC may not however reflect the correct position as it can be seen from the minutes of the DPC that the promoted persons were in fact recommended by the DPC, which met on 8.4.2011.
12. The DPC minutes reflects that the petitioners were not considered notwithstanding the relaxation of the upper age bar granted to the petitioners, on 21.1.2009.
13. From the gradation list as on 1.1.2011 (Page-21), the seniority position of the petitioners and the promoted persons can be culled out and it can be seen that the petitioners are at position No.51, 29 a& 27 respectively, in the gradation list. But the seniors were ignored and many who were juniors such as V. Chinzah at Sl. No.67 (respondent No.13), Ranjit Boro at Sl. No.33 (respondent No.5) and Prafulla Buragohain at Sl. No.35 (respondent No.6), were promoted to the cadre of Labour Inspector.
14. From the above circumstances as discussed, it becomes clear that deserving ministerial staff like the three petitioners were never brought within WP(c) No.2834/2011 Page 7 of 8 8 the zone of consideration or were considered by the DPC which met on 8.4.2011. This has certainly infringed their rights under Article 14 & 16 of the Constitution. The petitioners have a Constitutionally guaranteed right of being considered for promotion as was held in Delhi Jal Board vs. Mahinder Singh reported in (2000) 7 SCC 210 and non-consideration of their promotion by the DPC has certainly impacted their right of fair consideration.
15. While ignoring the petitioners, the authorities have considered their juniors for promotion and such action has definitely caused injustice and prejudice for the petitioners. Therefore, in view of the ratio in R.K. Sethi vs. Oil & Natural Gas Commission reported in (1997)10 SCC 616, the petitioners are declared to be entitled to be considered for promotion from a retrospective date, when their juniors superseded them.
16. Following the above discussion, the Court considers it appropriate to issue direction for considering the promotion of the three petitioners, in accordance with the norms specified in Rule 6(6) of the Service Rules. Since the petitioners have been superseded, the DPC should consider retrospective promotion from the date, when the juniors were promoted. The necessary exercise for convening the DPC/Review DPC and allowing retrospective promotion to the petitioners is ordered to be completed within 3 months of receipt of this order. It is directed accordingly. A copy of this order be furnished to Ms. M Bhattacharjee, the learned Addl. Govt. Advocate for necessary communication.
17. With the above direction, relief is granted to the petitioners in the manner indicated. No cost.
JUDGE Datta WP(c) No.2834/2011 Page 8 of 8