Gauhati High Court
Dhiren Sarma vs The State Of Assam And 7 Ors on 25 July, 2018
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) 4386/2014
Sri Dhiren Sarma,
S/o Sri Jogneswar Sarma,
R/o Durgasorobar (Kamakhya gate), in front of Durgasorobar Vidyapith,
P.O. Bharalumukh, Guwahati-9.
District-Kamrup (M), Assam.
- Petitioner
-Versus-
1. The State of Assam,
Represented by the Commissioner and Secretary to the Government of
Assam,
Irrigation Department,
Dispur, Guwahati-781006, Assam.
2. Under Secretary (E) to the Government of Assam,
Irrigation Department,
Dispur, Guwahati-781006, Assam.
3. The Chief Engineer (Irrigation), Assam,
Chandmari, Guwahati-3.
4. The Superintending Engineer,
Guwahati Project Circle (Irrigation) cum Chairman of the Selection Board,
Guwahaty-8, Assam.
5. Member Secretary,
Selection Board cum Executive Engineer,
Guwahati West Division (Irrigation), Assam.
Guwahati-8.
6. Member, Selection Board cum Executive Engineer,
Guwahati Mechanical Division (Irrigation),
Guwahati-3.
7. Member, Selection Board cum Executive Engineer,
Guwahati Division (Irrigation),
Guwahati-7.
8. Sri Anil Pathak,
S/o Sri Madan Pathak,
At present working at Office of the Superintending Engineer,
Guwahati Project Circle (Irrigation),
Guwahati-8, District-Kamrup, Assam.
- Respondents
For the petitioner : Mr. S. K. Talukdar. Advocate
For respondent Nos. 1 to 7 : Dr. B. Ahmed,
SC, Irrigation Department
For respondent No. 8 : Mr. K. Sarma, Advocate,
Date of hearing and order : 25.07.2017
W P(C) 4386/ 2014
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BEFORE
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
JUDGEMENT AND ORDER
(ORAL)
Heard Mr. S. K. Talukdar, learned counsel for the writ petitioner. Also heard Dr. B. Ahmed, learned Standing counsel, Irrigation Department, appearing for respondent Nos. 1 to 7 as well as Mr. K. Sarma, learned counsel appearing for respondent No. 8.
2. The petitioner joined as a Grade-IV Muster Roll worker on 26.03.1993 in the Irrigation Department under Guwahati West Division. In the year 2007, four posts of Junior Assistant had become available to be filled up by way of promotion in the office of the Superintending Engineer, Guwahati Project Circle (Irrigation). The petitioner and respondent No. 8 were, amongst others, eligible for promotion. For the purpose of promotion to the post of Junior Assistant, an interview cum written examination and type- writing test, comprising of total 100 marks, was held on 28.07.2007 wherein the petitioner and the respondent No. 8 along with others had participated. While the petitioner secured the 1st position by obtaining 65 marks, the respondent No. 8 secured 2nd position by obtaining 56.5 marks. One Basanta Mazumdar, who belongs to MOBC category, secured 3rd position and one Gautam Sarkar, who is a SC candidate, secured 7th position. It appears that out of the aforesaid four posts, a post was reserved for SC candidate, because pursuant to the aforesaid select list, appointment orders were issued not only to the 1st, 2nd and 3rd rank holders, namely, Dhiren Sarmah (i.e., the present petitioner), Sri Anil Chandra Pathak (i.e., respondent No. 8 herein) and Basanta Mazumdar, respectively, but also to Gautam Sarkar, who was placed at 7th position in the select list.
3. It is not disputed by the learned counsel for the parties that due to the Panchayat Elections held in the year 2007, the Model Code of Conduct came into force with effect from 27.11.2007 and it continued till the result of the elections were declared on 30.01.2008. The letter dated 05.07.2013 (Annexure-11 of the writ petition), issued by the Superintending Engineer, Guwahati Project Circle (Irrigation), addressed to the Chief Engineer, Irrigation, Assam, demonstrates that all the appointees had joined their service as Junior Assistant after fifteen days of the receipt of appointment letter due to some genuine reasons. A perusal of the said letter indicates that Gautam Sarkar and Basanta Mazumdar joined their posts on 02.02.2008, while the petitioner and the respondent No. 8 joined 04.02.2008 and 01.02.2008, respectively. It is indicated in the said letter that in terms of Rule-II(i), the inter-se seniority of the aforesaid appointees would be on the W P(C) 4386/ 2014 3 basis of their dates of joining. No reference was made to any particular Rule while referring to Rule-II(i) in the said letter. It is also indicated in the said letter that though the petitioner was, in fact, senior-most as per the merit list, his seniority could not be retained.
4. Subsequently, the petitioner submitted a representation for promotion to the post of Senior Assistant claiming seniority according to the merit list, whereupon the Chief Engineer, Irrigation Department, issued a letter dated 24.10.2013 (Annexure-12 of the writ petition), to the Secretary to the Government of Assam, Irrigation Department, seeking views/suggestions on the matter. In the said letter, it was explicitly stated that the appointees appointed vide order dated 26.11.2007 could not join within fifteen days due to Model Code of Conduct being in force. It was also noted in the said letter that the Superintending Engineer (Irrigation) had prepared a Seniority List vis-à-vis the aforesaid appointees as per their date of joining as follows:
(1) Sri Anil Chandra Pathak (2) Sri Gautam Sarkar (3) Sri Basanta Kumar Mazumdar (4) Sri Dhiren Sarma.
5. In response to the said letter dated 24.10.2013, the Under Secretary to the Government of Assam, Irrigation Department (E), addressed a letter dated 10.12.2013 to the Chief Engineer, Irrigation Department, to re-fix the seniority amongst the Junior Assistants on the basis of merit-cum-seniority read with the provision of Rule-II of the Assam Ministerial District Establishment Service Rules, 1967. It appears that in the letter dated 05.07.2013 (Annexure-11 of the writ petition) the Assam Ministerial District Establishment Service Rules, 1967, which will hereinafter be called "the Rules", was sought to be referred to.
6. From a perusal of the minutes of the meeting of the Selection Board dated 23.07.2014 (Annexure-15 of the writ petition), it is seen that by placing reliance on II(i) of the Rules, it was decided that the respondent No. 8 is the senior-most amongst the four incumbents as he was the first to join the post on 01.02.2008.
7. The writ petition is filed by the petitioner praying for a writ of mandamus directing the respondents to consider his promotion to the post of Senior Assistant on the basis of seniority as per the merit list. Though no order of promotion was issued in favour of respondent No. 8, a prayer for an interim order was also made in the writ petition to stay the joining of the respondent No. 8 as Senior Assistant.
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8. On 03.09.2014, an interim order was passed in the writ proceeding providing that status quo, as on that day at 12.15 P.M., would be maintained with regard to the joining of respondent No. 8. While passing of the said interim order, the Court took note of the provisions of Rule-11 of the Rules.
9. The respondent No. 8 filed a Misc. Application for vacating the interim order dated 03.09.2014 and the said application was registered as Misc. Case No. 3591/2014. The Misc. Case was dismissed by an order dated 27.05.2015. As against that, a writ appeal was filed by the respondent No. 8, being WA 221/2015, which also came to be dismissed.
10. It is to be noted that in the aforesaid letters dated 05.07.2013, 24.10.2013 as well as in the minutes dated 23.07.2014, the Rule referred to is recorded as "Rule-II". Apparently, what was sought to be relied upon was "Rule-11" of the Rules, which reads as under:
"11. (i) - In the Lower Division Cadre, the seniority shall be according to the date of appointment, if the persons join the appointments within 15 days of the receipt of the order of appointment.
Provided that in case of a person is prevented from joining within the said period 15 days by circumstances of a public nature or for reasons beyond his control, the appointing authority may extend it for further period of 15 days. If the period is not so extended, his seniority shall be determined in accordance with the date of joining.
When however more than one person are appointed on the same date their inter-se seniority shall be determined according to their position in the merit list prepared by the Deputy Commissioner as mentioned in Note below clause (a) of sub-rule (6) of rule 6.
Provided further that in the case of assistants in the office of the Deputy Commissioner, United Khasi-Jaintia Hills, their inter-se seniority shall be in the order of preference as arranged by the appointing authority in consultation with the Director of Employment and Craftsman Training, Assam. Inter-se seniority among Lower Division Assistants appointed under clause (a) and (b) of sub-rule 6 on the same date shall be according to the following order:
(a) Assistants appointed under clause (a) sub-rule (6) of rule 6.
(b) Assistants appointed under clause (b) of sub-rule (6) of rule 6.
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(ii) In the Upper Division (including Sub-Divisional Nazir) Cadre, the seniority shall be according to the position in the Select List from which the promotion to posts of Upper Division Assistant is made.
(iii) In the Supervisory Assistant Cadre, the seniority shall be according to the position in the Select List from which promotion to the posts of Supervisory Assistants is made.
(iv) In the Head Assistant Cadre, the seniority shall be according to the date of promotion to the post of Head Assistant.
(v) In the Revenue Sheristadar Cadre, the seniority shall be according to the date of appointment.
(vi) If confirmation of a member of the service in a cadre is delayed on account of his failure to qualify for such confirmation, he shall lose his position in order of seniority in that cadre vis-à-vis such of his juniors as may be confirmed earlier than him. His original position in that particular cadre shall, however, be restored on his confirmation subsequently."
11. Rule 2 (4) of the Rules defines "District Establishment" to mean and include all non-gazetted ministerial staff in the offices of the Deputy Commissioner, Sub-Divisional Officers, Sub-Deputy Collectors and Block Development Officers of the District. Evidently, the office of the Superintending Engineer is not a District Establishment under the Rules. Therefore, this Court is of the opinion that the reliance placed on Rule-11 of the Rules in determining the seniority of the petitioner and respondent No. 8, they not being the ministerial staff of a District Establishment, is entirely misplaced.
12. Neither the learned Standing counsel, Irrigation Department, nor the learned counsel for petitioner and respondent No. 8 has placed before the Court any other Rule governing the service conditions of the petitioner and the respondent No. 8. The petitioner having secured the 1st position in the selection test, obviously, as a general rule, has to be considered to be senior to the respondent No. 8. In fact, in the letter dated 05.07.2013, it was recorded that, otherwise, the petitioner is the senior-most as per the merit list.
13. However, by placing reliance on the Rules, which has no application to the petitioner and the respondent No. 8, respondent No. 8 is sought to be held to be senior to the petitioner on the ground that the merit position of the petitioner will not count and that the date of joining of the incumbents will determine the seniority as both the W P(C) 4386/ 2014 6 petitioner and the respondent No. 8 had joined their posts after fifteen days of issuance of the appointment order.
14. Having regard to the above discussions, I am of the considered opinion that the petitioner having secured the 1st position in the selection test, he has to be considered as senior to the respondent No. 8.
15. The State respondents may undertake an exercise for giving promotion to the post of Junior Assistant consistent with the observations and findings recorded in the judgement.
16. The writ petition stands allowed and disposed of. No cost.
17. The interim order passed earlier stands vacated.
JUDGE RK W P(C) 4386/ 2014 7 W P(C) 4386/ 2014