Gauhati High Court
Sarat Chandra Hazarika vs The State Of Assam And 2 Ors on 22 March, 2022
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/10
GAHC010206852019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6534/2019
SARAT CHANDRA HAZARIKA
S/O LT. MANENDRA HAZARIKA, R/O P.O. BEBEJIA, DIST. NAGAON,
ASSAM-782142
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
TRANSPORT DEPTT. DISPUR, GUWAHATI-6
2:THE DIRECTOR
INLAND WATER TRANSPORT
ASSAM
ULUBARI
GUWAHATI-7
3:SANJIV KUMAR DAS
JUNIOR ASSISTANT
C/O DEPUTY DIRECTOR (COM)
INLAND WATER TRANSPORT
ASSAM
ULUBARI GUWAHATI
ASSAM-78100
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
For the Petitioner : Mr. B. Prasad
Mr. D. Kalita. ... Advocates
For the respondent nos.1 & 2 : Ms. M.D. Borah. .... GA, Assam
For the respondent no.3 : Mr. A. Chamuah. .... Advocate.
Date of hearing : 10.03.2022
Date of judgment : 22.03.2022
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JUDGMENT AND ORDER
Heard Mr. B. Prasad, learned counsel appearing on behalf of the petitioner. Also heard Ms. M.D. Borah, learned counsel for the respondent nos.1 & 2 and Mr. A. Chamuah, learned counsel for the respondent no.3
2. The petitioner's case is that he was appointed as a Muster Roll Labour and he was allowed to officiate as Arkathi in the Scale of Pay of Rs.900-15-1005-20-1105-E-20-1225-30-1435 vide Office Order No. 16 dated 28.03.1995 w.e.f. from his date of joining. The petitioner's service was thereafter confirmed in the permanent post vide Order No.150 dated 15.05.2006 w.e.f. 01.05.2006. On the other hand, the respondent no.3 was appointed as a work-charged Khalashi vide Order No.5 dated 28.12.1992 w.e.f. 01.01.1993 in the scale of pay of Rs.1125-40-1595/-. The respondent no.3's service was thereafter regularized vide Order No.15 dated 30.06.2004 w.e.f. 17.06.2004. The regularization of the respondent no.3's service was made personal to the post and the post was to be automatically abolished, as soon as the respondent no.3 retired/was promoted or resigned from service.
3. The petitioner's counsel submits that the respondent no.3 was illegally promoted to the post of Junior Assistant (District Level) in the scale of pay of Rs.14000-49000/- with Grade Pay of Rs.5600/- + Allowances with immediate effect vide Order No.103 dated 14.08.2018. He submits that the respondent no.3 could not have been promoted Page No.# 3/10 from a Grade-IV post to Grade-III post in view of various judgments of this Court, namely, Dilip Talukdar and 21 Others vs. State of Assam and Others reported in 2017 (2) GLT 135. The petitioner's counsel thus prays that the promotion order of the respondent no.3 should also be set aside and the petitioner should be considered for promotion to the said post.
4. Ms. M.D. Borah, learned counsel for the respondent nos. 1 & 2 submits that as per the Seniority/Gradation List of Grade-IV incumbents dated 08.05.2018 (Annexure-D of the affidavit of the respondent no.3), who has passed degree examination under the Directorate of IWT, Assam the respondent no.3 was placed at Sl. No.2, while the petitioner was placed at Sl. No.29. She accordingly submits that the petitioner is junior to the respondent no.3. However the petitioner was initially appointed as Arakathi against a regularly sanctioned post and that the petitioner was thereafter confirmed in the permanent sanctioned post on 15.05.2016. The Government Advocate also submits that the respondent no.3, on the other hand, was initially appointed as a work-charged Khalashi on 28.12.1992 and his service was regularized against post which was created on 17.06.2004 and the post was made personal to the respondent no.3 vide Order No.15 dated 30.06.2004.
5. Mr. A. Chamuah, learned counsel for the respondent no.3 submits that the petitioner is junior to the respondent no.3 as per the Seniority List dated 08.05.2018. He thus submits that unless the petitioner makes a challenge to the Gradation List dated 08.05.2018, the Page No.# 4/10 petitioner cannot be allowed to make a challenge to the promotion order of the respondent no.3. He also submits that the petitioner was appointed as a Muster Roll Worker and as such the petitioner cannot have a better right than the respondent no.3. He accordingly prays that the writ petition should be dismissed.
6. It is an admitted fact that the respondent no.3 was appointed as a work-charged Khalasi on 28.12.1992 w.e.f. 01.01.1993. Thereafter the Government of Assam vide Notification No. TWT 51/94/909-A dated 17.06.2004 was pleased to regularize the services of 1052 numbers of work-charged employees working under the Directorate of Inland Water Transport, Assam by creating equal number of posts in different categories with the condition that the post created for regularization would be personal to the incumbent, which would be automatically abolished as soon as the incumbent retires/is promoted/dies or resigns. The term and condition no.4 of the Notification dated 17.06.2004 also stated the inter-se seniority would be fixed in due course. Subsequent to the above Notification dated 17.06.2004, the Office of the Directorate, Inland Water Transport, Assam issued Order No.15 dated 30.06.2004 in pursuance to the Government Notification No. TWT 51/94/909-A dated 17.06.2004, wherein the service of the respondent no.3 was regularized w.e.f. 17.06.2004. The name of respondent no.3 is reflected at Sl. No.85 in Order No.15. The Order No.15 dated 30.06.2004 states that the post created for regularization would be personal to the incumbent and would be automatically abolished as soon as any of the incumbents retires/promoted/dies or resigns. The order also stated that inter-se seniority would be fixed in due course.
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7. A perusal of the Order No.15, by which the respondent no.3's service has been regularized against the post personal to him w.e.f. 17.06.2004 clearly shows that the service of the respondent no.3 was an ex-cadre post. Also, the service of the respondent no.3 was never encadred into the regular cadre.
8. The petitioner, on the other hand, was initially posted as Muster Roll Labour (Arikathi) in the office of the Director of Inland Water Transport, Assam. However, he was allowed to officiate as Arkathi in the Scale of Pay of Rs.900-15-1005-20-1105-E-20-1225-30-1435 per month plus other allowances as admissible under the Rules in the Directorate, Inland Water Transport, Assam for a period of 4 (four) months w.e.f. the date of joining vide Order No.160 dated 28.03.1995. The petitioner continued serving on officiating basis as Arikathi till his service was confirmed in the permanent post of Arikathi w.e.f. 01.05.2006 vide Order No. 150 dated 15.05.2006 issued by the Director, IWT, Assam. The above facts clearly go to show that the petitioner has been officiating in a regular sanctioned post of Arikathi in terms of the Order No.160 dated 28.03.1995 and had been confirmed in the said post on 01.05.2006. Thus the petitioner has been working in a regular sanctioned post as a regular employee thereafter.
9. The question that has to be decided as to whether "Annexure-D of the affidavit of the respondent no.3" is a seniority list of Grade-IV incumbents under the Directorate of IWT. Though the respondent no.3 Page No.# 6/10 has taken a stand that the said Annexure-D is the seniority/gradation list of Grade-IV incumbents of the Directorate of IWT, wherein the petitioner is at Sl. No.29 and the respondent no.3 is at Sl. No.2, there is nothing to show that Annexure-D of the affidavit of respondent no.3 is a seniority list of Grade-IV incumbents of the Directorate of IWT. Annexure-D dated 08.05.2018 states that "it is a list of Grade-IV incumbents who have passed degree examination under the Directorate of IWT, Assam, prepared as per their date of joining". The words in Annexure-D nowhere states that it is a seniority/gradation list. Further it is not understood as to how regularized work-charged employees who have been regularized against the post made personal to them and who are accordingly holding ex-cadre post can be put in the same category/class of persons as the petitioner, who is an incumbent of a regular sanctioned post. In any event, the Apex Court in the case of Commissioner of Police, Bombay vs. Gordhandas Bhanji reported in AIR 1952 SC 16 has held that public orders, publicly made cannot be construed in light of explanations subsequently given by the officer making the order that he made or of what was in his mind. There being no forwarding letter stating that Annexure-D is a seniority list and Annexure-D itself having reflected that it is a list of Grade-IV incumbents to have passed degree examination under the Directorate of IWT, Assam and that the same has been prepared as per their date of joining their post, the same, in the opinion of this Court does not make it a inter se seniority list. However, assuming that Annexure-D is actually a seniority list, the seniority position of the respondent no.3 against the petitioner would of no avail, inasmuch as, a person holding a ex-cadre post cannot be promoted to a higher cadre post unless he is Page No.# 7/10 en-cadred into a cadre post. Further, the official records have been brought before me wherein it is seen that the petitioner has been appointed against a regular sanctioned post and has also been confirmed against the same, while the respondent no.3's regularisation has been made against the post personal to him.
10. In the case of Dilip Kumar (supra), it has been held that when regularization of a Grade-IV work-charged worker has been done against a personal post, the post held by those persons would be outside the cadre of a Grade-IV post, i.e. an ex-cadre post. The Court further held that "unless a person who is holding an ex-cadre post is en-cadred into a cadre post, which is a feeder cadre to a higher cadre post, the person holding the personal post cannot be promoted to a higher cadre post. In the above referred to cases, the petitioners therein had been reverted back to their original posts after being promoted. The challenge made by them in the above cases was unsuccessful due to the reasons stated above.
11. In a bunch of writ petitions the leading case being Kuladhar Talukdar and Others vs. State of Assam and Others, reported in 2021 0 SC (Gau) 94. The issue to be decided was as to whether Muster Roll/Work-charged employees who had been regularized against the post which were made personal to them could be promoted and whether their reversion to their regularized post was legally tenable. This Court, after going through various judgments, came to a finding that the said bunch of cases was covered by the judgment of the Coordinate Bench Page No.# 8/10 and the Division Bench in Dilip Talukdar (supra), wherein it was held that claim for promotion for a person holding an ex-cadre post was not legally tenable. The relevant paragraphs 18 and 19 in Kuladhar Talukdar (supra) is re-produced below :
"18. The present issue has already been decided by the Co-Ordinate Bench of this Court in WP(C) Nos. 2416/2014, 3116/2014 and 4254/2014. The petitioners, who were regularized Muster Roll/Work charge workers in the Water Resource Department, Govt. Of Assam filed WP(C) 2416/2014 (Sri Dilip Talukdarand 21 Others vs State of Assam and 5 Others) where they challenged their reversion to their original posts after being promoted. WP(C) 2416/2014 was disposed off by a Co- ordinate Bench of this Court on 16.03.2015, holding that when regularization of a Grade-IV Muster Roll/Work-charge worker has been done against a personal post, the post held by those persons would be outside the cadre of Grade-IV post, i.e., an ex-cadre post. Unless a person who is holding an ex-cadre post is en-cadred into a cadre post, which is a feeder cadre to a higher cadre post, the person holding the personal post cannot be promoted to a higher cadre post. This Court thereafter dismissed the writ petition filed by the petitioners.
WP(C) No. 3116/2014 was with regard to the claim of the petitioners therein for promotion from Grade-IV post to the post of Section Assistant, which is a Grade-III post. Here also, the petitioners who were in the Water Resource Department, Govt. of Assam had been regularized against posts which were made personal to them and which were to be abolished as soon as the incumbent relinquished the post in any manner. A Co-Ordinate Bench, after having discussed the manner of regularization of the petitioners therein and keeping in view the Office order dated 25.11.2013, issued by the Commissioner & Special Secretary to the Govt. of Assam, Water Resource Department held that the petitioners were not entitled to promotion to the post of Section Assistant and as such, had to be reverted back, as the post held by them were against Cadre post and as such, they could not be promoted to a regular post.
19. Being aggrieved, the writ petitioners in WP(C) No. 2416/2014 and WP(C) No. 3116/2014 thereafter filed appeals, vide W.A. No. 124/2015 & 111/2016 which is reported in 2017 2(GLT)135,"Dilip Talukdar & Others Page No.# 9/10 v. State of Assam & Others."
The Division Bench dismissed the appeals on the ground that a claim for promotion from a person holding an ex-cadre post was not legally tenable. The Division Bench held that promotion in the Department can be considered only from eligible employees in the feeder cadre post and the writ petitioners being outside the cadre, they could not have any enforceable rights for promotion, particularly when the regularization order itself stipulates that they are regularized in a post personal to them. The extract of the order passed by the Division Bench in the case of Dilip Talukdar and 21 Others, 2017(2) GLT 135,which is at paragraph 12 is re- produced below :
"12. We have seen the reasons recorded by the learned Judge for the impugned verdict and find that the posts against which the writ petitioners were regularized were never added to the notified cadre in the department. Yet no plea was advanced for en- cadrement of the posts held by the affected parties. The promotion in the department can be considered only from the eligible employees in the feeder cadre and the writ petitioner being outside of the cadre, cannot have any enforceable right to claim promotion, particularly when, the regularization order itself stipulates that they are regularized in posts personal to them. Such temporary creation of post cannot automatically add to the cadre strength of the department and claim for promotion from a person holding an ex- cadre post, is not legally tenable. Therefore we see no basis to take a different view in the matter than the one taken by the learned Single Judge, in dismissing the cases".
12. As the foregoing paragraphs show that the present case is a covered matter, wherein it has been held that persons who have been regularized against personal post cannot be promoted to cadre posts, as they are holding the ex-cadre post, the promotion of the respondent no.3 is also not legally tenable. Accordingly the promotion of the respondent no.3 to the post of Junior Assistant (District Level), vide the impugned Order No.103 dated 14.08/2018 issued by the respondent no.2 is Page No.# 10/10 hereby set aside. The State respondents are accordingly directed to consider the case of the petitioner for promotion to the post of Junior Assistant (District Level), along with all other eligible candidates, if the petitioner comes within the consideration zone.
13. The writ petition is accordingly disposed of.
JUDGE Comparing Assistant