Gauhati High Court
Suresh Kamal Deka vs The State Of Assam And 3 Ors on 30 April, 2019
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/3
GAHC010192162017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 157/2017
1:SURESH KAMAL DEKA
S/O LT. KESHAB CHANDRA DEKA VILL- NAGAON, P.O. PUTHIMARI P.S.
RANGIA, DIST. KAMRUP R, ASSAM.
VERSUS
1:THE STATE OF ASSAM and 3 ORS.
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PERSONNEL B DEPARTMENT, DISPUR, GUWAHATI -06.
2:THE DIRECTOR OF FISHERIES
ASSAM, GUWAHATI -16.
3:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL B DEPARTMENT
ASSAM, DISPUR, GUWAHATI-06.
4:THE MARKETING OFFICER
FISHERIES, ASSAM, GUWAHATI -16
Advocate for the Petitioner : MR.K U AHMED
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 30-04-2019 Mr. KU Ahmed, learned counsel represents the petitioner.
Mr. D Nath, learned Additional Senior Government Advocate, represents the respondents.
In this petition, the petitioner has sought for a direction to the respondent authorities to Page No.# 2/3 promote the petitioner from Grade-IV post to the higher post of Lower Division Assistant. The petitioner was initially appointed on 10-12-1992 as a Casual Worker in the office of the respondent No. 2, Director of Fisheries, Assam, wherein he was continuously serving, before he was regularly appointed against a permanent vacancy in Grade-IV, vide order, dated 22- 09-1998.
The educational qualification of the petitioner is HSLC passed and as such, at the relevant time, he was eligible for promotion to the higher post of Lower Division Assistant (Grade-III), in the year 2005, as per Rule 10(3) of the Assam Directorate Establishment (Ministerial) Service Rule, 1973 (in short, '1973 Rules'). However, the case of the petitioner was ignored by not considering his case for promotion. In the meantime, a notification came to be in existence on 27-09-2016, by which the aforesaid Rule 10 of the 1973 Rules was amended by prescribing graduation as the minimum qualification for promotion to the higher post of Lower Division Assistant.
The claim of the petitioner is that there were sufficient vacancies available, which accrued before the notification came into effect, which will be governed by the 1973 Rules applicable at that time, wherein the qualification for promotion to the post of Lower Division Assistant was a non-graduate.
It has been submitted by the learned counsel for the petitioner that even if graduation is now the requisite qualification, since the petitioner is claiming promotion against the vacancies, which arose before the notification came into effect, his case can be considered. Learned counsel for the respondents fairly admits that if the petitioner is eligible, his case can be considered against the vacancies existing prior to coming into force of the aforesaid amendment, in accordance with law.
The learned counsel for the State, however, submits based on the affidavit filed by the respondent No. 2 on 16-05-2017, that vacancy was not available for promotion to the post of Lower Division Assistant (Grade-III) till 2015.
The said assertion of the State, however, has been controverted by the petitioner contending that there were as many as four vacancies available at the relevant point of time. In view of above, the respondent authorities are directed to examine the existence of vacancies prior to the said notification, dated 27-09-2016 and in the event vacancies are available, the case of the petitioner be considered for promoting him to the next higher post Page No.# 3/3 of Lower Division Assistant (Grade-III) as per the Rules existing prior to the said notification. The aforesaid exercise shall be undertaken within a period of two months from the date of receipt of a certified copy of this order.
With the above direction, this writ petition stands disposed of.
JUDGE Comparing Assistant