Gauhati High Court
Kiran Khaklary vs The State Of Assam And Ors on 8 August, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) No.2165 of 2012
Sri Kiran Khaklary
Son of Santosh Khaklary
Resident of Village Larugaon
PO Silikhaguri
District-Chirang, Assam
.......Petitioner
-Versus-
1.The State of Assam, Represented by its
Commissioner and Secretary , Department of Industries,
Dispur, Guwahati
2. Bodoland Territorial Council
Represented by its Principal Secretary
Kokrajhar
3. Member Secretary
Central Selection Board
Bodoland Territorial Council
Kokrajhar
4. The Council Head of the Departments,
Department of Industries & Commerce,
Bodoland Territorial Council
5. The Additional Director,
Industries & Commerce Centre, BTC
Kokrajhar
6. The General Manager,
District Industries & Commerce Centre
Chirang, Kajalgaon, Dist Chirang
7. Sri Biswanath Wary
Page 1 of 18
Son of Sudesh Kr. Wary
Resident of Village Runikhata
Basugaon
District-Chirang, Assam
8. Smti Mina Barman
D/o Lt. Nondeswar BarmanSon of Sudesh Kr. Wary
Resident of Village Bhatuabari
PO- Chaitanguri
PS Bijni
District-Chirang
....... Respondents
Writ Petition (C) No.3450 of 2012 Sri Baburam Basumatary Son of Ongar Basumatary Resident of Village Bhadulipara PO Borobazar District-Chirang, BTAD, Assam .......Petitioner
-Versus-
1.The State of Assam, Represented by its Commissioner and Secretary , Department of Industries, Dispur, Guwahati
2. Bodoland Territorial Council Represented by its Principal Secretary Kokrajhar
3. Member Secretary Central Selection Board Bodoland Territorial Council Kokrajhar
4. The Additional Director and Council Head of the Departments, Department of Industries & Commerce, BTC Kokrajar WP (C) No. 2165 and 3450 of 2012 Page 2 of 18
6. The General Manager, District Industries & Commerce Centre Chirang, Kajalgaon, Dist Chirang
7. Sri Biswanath Wary Son of Sudesh Kr. Wary Resident of Village Runikhata Basugaon District-Chirang, Assam
8. Smti Mina Barman D/o Lt. Nondeswar BarmanSon of Sudesh Kr. Wary Resident of Village Bhatuabari PO- Chaitanguri PS Bijni District-Chirang ....... Respondents BEFORE THE HON'BLE MR. JUSTICE NELSON SAILO For the Petitioner : Mr. R Sharma, Advocate.
For the Respondents : Ms. B Bhuyan, Advocate
Mr. A Chakraborthy, Advocate
Mr. M Sarania, Advocate
Mr. J Payeng
Date of Hearing :08.08.2017
Date of Judgment :08.08.2017
WP (C) No. 2165 and 3450 of 2012 Page 3 of 18
JUDGMENT AND ORDER( ORAL)
Heard Mr. R Sharma, the learned counsel for the petitioner and Ms. B Bhuyan, the learned Standing Counsel, BTC appearing for the respondent Nos. 2 to 6. The respondent No. 1 is represented by Mr. A Chakraborthy, the learned Government Advocate while the respondent No. 7 is represented by the learned counsel Mr. M Sarania and the respondent No.8 is represented by the learned counsel Mr. J Payeng.
2. Along with the instant writ petition, WP (C) No. 3450 of 2012 is also being taken up since the issues involved are the same. However, it may be noticed that the respondent No.7 in the instant case has been arrayed as respondent No.6 in the other case and he is represented by Mr. M Sarania. Similarly, the respondent No. 8 in the instant case has been arrayed as respondent No.7 in the other case and Mr. J Payeng, the learned counsel represents the respondent No.7. For gravity and convenience, the private respondents Mr. Biswanath Wary and the WP (C) No. 2165 and 3450 of 2012 Page 4 of 18 respondent No.8 Ms. Mina Barman shall be referred to as respondent Nos. 7 and 8 hereinafter.
3. The case of the writ petitioners is that the respondent BTC published an Advertisement dated 5.3.2008 inviting applications from the interested candidates for the post of Junior Assistant/Lower Division Assistant (LDA) (Grade-III) (Annexure-B) amongst the other posts. The number of vacancies was not indicated in the Advertisement but the Advertisement was issued for filling up the vacant posts and the last date for receipt of the application was fixed as 31st March, 2008. It may be noticed that besides the educational qualifications, the Advertisement provided that candidates having the knowledge in computer would be given a preference.
4. The writ petitioners as well as the private respondent Nos. 7 and 8 responded to the Advertisement for the post Junior Assistant/ Lower Division Assistant and pursuant to which they were selected for the district of Chirang and vide communication dated 16.2.20111 (Annexure-C), the approval of the selected candidate was given for appointment to the post in question. Consequently, vide order dated 28.2.2011, the petitioners as well as the private respondents were appointed. However, the WP (C) No. 2165 and 3450 of 2012 Page 5 of 18 appointment was reflected to be an engagement on temporary basis and in the fixed pay @ Rs.5200/- per month. Pursuant to the appointment order, the petitioners and the private respondents joined their posts.
5. The respondent BTC formulated the guidelines for determination of inter-se seniority and regularization of service of the appointees to the vacant posts with the Staff Inspection Unit and the same was issued to all concerned by the Principal Secretary of the BTC vide communication dated 5.9.2011 (Annexure-F). The said guidelines provides that the inter-se seniority of fixed pay employees who were appointed without selection process of the Central Selection Board (CSB) shall be fixed on the basis of the date of joining of the appointees and in case of a similar date of joining, the higher academic qualification of the respective candidates amongst other shall be the criteria. The third criteria for fixing inter-se seniority of the appointees was that the appointees who were appointed through the selection process of the CSB would be assigned their inter-se seniority on the basis of the merit list prepared by CSB. Fourthly, in respect of the appointees with or without the process of selection test conducted by the CSB, seniority would be determined on the basis of the date of joining the Department.
WP (C) No. 2165 and 3450 of 2012 Page 6 of 18
6. Consequent upon the joining of the petitioners as well as the private respondents, the Under Secretary, BTC on 2.11.2011 (Annexure-G) submitted the select list of Grade-III , Grade-IV and Driver as prepared by CSB for determination of seniority of fixed pay employees on regularization of their services under the Department concerned. As per the select list, name of the petitioner in WP (C) No. 2165 of 2012 appeared at Serial No. 15 whereas the name of the petitioner in WP (C) No.3450 of 2012 appeared at Serial No.17. The names of the respondent Nos. 7 and 8 have been placed at serial No.25 and 16 respectively.
7. Pursuant to the furnishing of the select list, the Additional Director/Council Head of Department of the Industries and Commerce Department submitted the gradation list of fixed pay employees in the Grade-III and Grade-IV post as per guidelines that was circulated by the BTC of the Joint Secretary of Industries and Commerce Department, BTC on 22.2.2011(Annexure-H)
8. Against the establishment of the General Manager, DICC, Chirang under which the petitioners as well as the private respondents have been appointed, the gradation list for the post of Junior Assistant was fixed by placing the respondent No.7 at serial No.1 and the WP (C) No. 2165 and 3450 of 2012 Page 7 of 18 respondent No.8 at serial No.2. The name of the petitioner in WP (C) No. 2165 of 2012 was placed at serial No.4 while the other writ petitioner was placed at serial No.3. In the said gradation list, besides the date of joining, the qualification of the respective Junior Assistant has been reflected although the petitioner in WP (C) No. 2165 of 2012 possessed the qualification of HSSLC along with computer knowledge to the level of PGDCA, same has not been reflected in the gradation list. Similarly, in case of the petitioner in WP (C) No.3450 of 2012, although he possessed computer knowledge, same has not been reflected. In the case of the private respondent No. 7, although he was shown to have only possessed the HSLC as per the select list, the qualification of Bachelors of Arts and Diploma in computer was reflected in the gradation list. However, in respect of the respondent No.8 although according to the writ petitioner, the date of her joining the post on appointment was 3.3.2011 but the same has been reflected as 28.2.2011. Therefore, according to the petitioner, the gradation list having not been prepared as per guidelines issued by the BTC themselves as well as not indicating the correct particulars in terms of the respective application when they responded to the Advertisement, the same is not sustainable and therefore they have challenged the gradation list .
WP (C) No. 2165 and 3450 of 2012 Page 8 of 18
9. After the gradation list was published, the respondent authorities vide order dated 31.12.2011 (Annexure-M) appointed the respondent Nos. 7 and 8 in the regular scale of pay @ Rs.5200/- as basic pay and with a Grade Pay of Rs. 2200/- per month along with permissible allowances. Petitioners being highly aggrieved by the action of the official respondents have filed the instant writ petition.
10. Appearing for the writ petitioner, Mr. R Sharma, the learned counsel submits that the petitioners responded to the Advertisement dated 5.3.2008 in which it was clearly provided that the application for the post of Junior Assistant/ Lower Division Assistant was invited against the vacant post lying under the Council Head of Department 's Office. The petitioners having fulfilled all the criteria provided in the Advertisement, applied for the post in question and were accordingly selected. However, to their surprise, the petitioners were only engaged as Junior Assistant/ Lower Division Assistant on a fixed pay which was not contemplated by the Advertisement. Further, the guidelines stipulated vide communication dated 5.9.2011 whereby the merit list of the CSB was to be counted for drawing of seniority while fixing gradation list has not been done. The qualification of the petitioners on computer has also not been reflected in the gradation list while the same was reflected in respect of respondent WP (C) No. 2165 and 3450 of 2012 Page 9 of 18 No.7 although there was no indication about any qualification of computers in the select list. He submits that by acting upon the gradation list, the official respondents have regularized the services of the private respondents. Therefore, the regularization based on wrong fixation of gradation list cannot be sustained. He also submits that since the Advertisement itself did not indicate about engagement on fixed pay while the regular selection was held, the petitioners are entitled to regular scale of pay from the date of their initial appointment. In this connection, he relies upon the decision rendered by the Apex Court in the case of Arjun Singh & Ors. -vs- State of Himachal Pradesh reported in (2015)15 SCC
713. He submits that in the case of Arjun Singh (supra), the Apex Court has held that since the requirement was for filling up of the vacant post on regular basis, the authority concerned could not have issued the Advertisement for filling up the post @ 50% in the regular pay scale. Therefore, a direction was given to the respondents therein to provide the appointees regular appointment from the date of their initial appointment by taking initial two year as on probation. He therefore submits that although the Advertisement in the instant case did not lay down such criteria but nevertheless vacancy position has been indicated for regular post and in that view of the matter, the respondents are liable to be WP (C) No. 2165 and 3450 of 2012 Page 10 of 18 directed to provide the petitioners with regular pay scale from the date of their initial appointment.
11. Against the writ petition, BTC has filed their affidavit-in-opposition whereby they have stated that the petitioners are in fact due to their selection and appointment have joined their respective post and after joining such post they cannot at this stage raise the grievance as regards their status in the matter of monthly salary or regularization. It has also been contended that the regularization of the respondent Nos. 7 and 8 was as per the gradation list and their seniority position. Since they are senior to both the petitioners, they have been regularized and therefore the petitioners cannot have any grievance against the respondents concerned. Ms. B Bhuyan, the learned Standing Counsel further submits that the private respondents in fact joined their respective post earlier to the writ petitioners and therefore they were placed above the petitioners in the gradation list.
12. Appearing for the respondent No.7, Mr. M Sarania submits that although the petitioner has been shown to have the educational qualification of HSLC only in the merit list but nevertheless the respondent No.7 was pursuing his bachelor degree in Arts and he has successfully WP (C) No. 2165 and 3450 of 2012 Page 11 of 18 completed the course before the written examination were held and similarly he has also completed the diploma in computer education before holding of the Viva- Voce test and therefore respondent No.7 informed the authorities concerned about the qualification that he acquired in the meantime and thus the same has been reflected in the gradation list. He therefore submits that there is nothing wrong with the gradation list which was prepared by the respondent authorities by considering all the aspects including the higher educational qualification and training undertaken by the private respondents. Mr. M Sarania further submits that the date of joining of the respondent No.7 is not being pressed since the respondent No. 7 possess higher qualification which earned him rank and position in the gradation list and furthermore his regularization in the regular pay scale. He therefore pointed out the discrepancies by the writ petitioner in the gradation list having been clearly explained, their grievance on that count is without any substance. He also submits that the petitioners are also bound to be considered as and when they fulfill the conditions of service as per the Advertisement as well as by the relevant service rules. Mr. M Sarania thus submits that the petitioners have failed to make out any case against the respondents and therefore the writ petition should be dismissed.
WP (C) No. 2165 and 3450 of 2012 Page 12 of 18
13. Mr. J Payeng appearing for the respondent No.8 supporting the argument of Mr. M Sarania as well as the argument of Ms. B Bhuyan submits that in fact as per the merit list, his position is over the writ petitioner in the WP (C) No. 3450 of 2012 and therefore the petitioner therein cannot have any grievance against the respondent No.8. He also submits that so far as having knowledge and experience of computer is concerned, same is not stipulated in the Advertisement. The Advertisement only provided that persons having knowledge in computer will be given a preference. The respondent authorities upon considering the relevant materials through CSB has newly recommended the respondent No.8 by placing him above the petitioner in WP (C) No. 3450 of 2012 and therefore he submits that there is nothing wrong in the gradation list as well as in the order by which the respondent No.8 has been regularized in the regular scale of pay.
14. I have considered the submissions advanced by the rival parties as well as perused the materials available on record. Although the respondent BTC filed its affidavit-in-opposition in respect of WP (C) No.2165 of 2012 but no affidavit has been filed in respect of WP (C) No.3450 of 2012. Ms. B Bhuyan otherwise submits that instruction and parawise comments in fact was received from the BTC authorities but WP (C) No. 2165 and 3450 of 2012 Page 13 of 18 however due to the change of the counsel appearing for them, the same could not have been filed. She therefore submits that if so required, the affidavit-in-opposition can be filed within a short date. However, considering the fact that the issue relates to the same subject and the same selection process, the requirement of having an affidavit-in- opposition in the second writ petition as well may not detained this Court from disposing of the writ petition.
15. As per the Advertisement, the stipulation was that the application for the post of Junior Assistant/ Lower Division Assistant should have the minimum qualification of Higher Secondary Pass certificate so far as it relates to the post in the office of the Director. Furthermore, the last date of receipt of the application on 31.03.2008, the knowledge of computer by the candidates concerned to earn them only a preference. The petitioners and the private respondents alongwith all the eligible candidates were accordingly considered by the CSB which came up with the merit list wherein the petitioner was placed at serial No.15. The petitioner in WP (C) No. 2165 of 2012 was placed at serial No. 15 while the second writ petitioner was placed at serial No. 17. The private respondent No. 7 has been placed at serial No.25 and the private respondent No. 8 has been placed at serial No.16. The said merit list assumes importance when it WP (C) No. 2165 and 3450 of 2012 Page 14 of 18 comes to the fixing of inter-se seniority amongst the appointed candidates. As noticed earlier, the respondent BTC has issued guidelines on 5.9.2011 whereby it has been provided that in respect of fixed pay employees who were appointed with due selection process by the CSB, the inter-se seniority is to be determined on the basis of the merit list prepared by the CSB. Going by the said guidelines and after perusal of the gradation list that was published by the respondent BTC, the criteria to be adopted admittedly has not been followed although the learned counsel Mr. M Sarania has tried to impress this Court that the respondent No.7 having higher qualification of Bachelor of Arts as well as Diploma in computer course during the selection process , same cannot be a ground to give advantage to the respondent No. 7 when the guidelines dated 5.9.2011 otherwise do not provide. The basic yardstick as has been provided is that the merit list prepared by the CSB during the selection process would be the guiding factor for determining the inter-se seniority since the process of the regularization of the private respondent was on the basis of the gradation list, the regularization of their service vide office order dated 31.12.2011 cannot be sustained. On to the question as regards the engagement of the petitioners as well as the private respondents on a fixed pay, this Court is not inclined to enter into this aspect. As pointed out by the learned counsel for the BTC Ms. B Bhuyan WP (C) No. 2165 and 3450 of 2012 Page 15 of 18 submits that the petitioner since their appointment joined their respective post along with the private respondents and on joining such post as per stipulation therein, it would not be permissible for them to question the same and moreover considering the fact that regularization of the respondent Nos. 7 and 8 was done in the same year, i.e. 31.12.2011, I am of the considered opinion that it would be within the control of the BTC authority to determine as to whether appointment should be in a fixed pay or in regular scale. However, as regards the gradation list as observed earlier, the same cannot be sustained and likewise the order of regularization of post on 31.12.2011 which is the offshoot of the gradation list prepared, cannot also be sustained. However, considering the fact that respondent Nos. 7 and 8 have been holding the post in the said scale since they were regularized, without interfering with the same, the same will be treated as an adhoc regularization pending fresh reconsideration and preparation of the gradation list as may be provided herein after.
16. The respondent Nos. 2, 4 and 5 shall prepare fresh gradation list in so far as the post Junior Assistant/ Grade-III under the General Manager, DICC , Chirang district is concerned, such gradation list shall be prepared by strictly following the relevant guidelines as stipulated in the communication dated 5.9.2011 (Annexure-F) and such process shall be WP (C) No. 2165 and 3450 of 2012 Page 16 of 18 undertaken within a period of 2(two) months from the date of receipt of a certified copy of this order. Upon preparation of the gradation list, respondent authority shall consider the case of the petitioner for their regularization in the regular pay scale as has been accorded to the respondent Nos.7 and 8 and such exercise shall also be completed within a period of one month from the date of finalization of the gradation list. As observed earlier, the regularization of the respondent Nos. 7 and 8 shall be on adhoc basis only and upon recommendation of the authority concerned for regularization of the petitioner, the seniority position of the petitioners will have to be taken into consideration and if there are no sufficient vacancies for regularization, the adhoc regularization of the private respondents will have to be accordingly compromised. Upon completion of the entire exercise as directed, if it is found that the petitioners are to be regularized in the post of Lower Division Assistant over the private respondents, their regularization will take effect from 31.12.2011 i.e. the date on which the respondent Nos. 7 and 8 were regularized. However, it is made clear that such retrospective regularization will not invite arrear salaries and will never meant for the purpose of maintaining seniority in the post.
WP (C) No. 2165 and 3450 of 2012 Page 17 of 18
17. With the above observations and directions, the writ petition stands disposed of. No costs.
JUDGE Nivedita WP (C) No. 2165 and 3450 of 2012 Page 18 of 18