Back
2021 Supreme(Gau) 603
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Achintya Malla Bujor Barua, J.
Md Rouchan Ali, S/o Lt. Safi Ali- Petitioner
Versus
The State of Assam Rep. by the Commissioner and Ors. – Respondents
WP(C)/5760 of 2014
Decided On : 06-12-2021
Advocate Appeared:
For the Petitioner: Mr. S K Talukdar
For the Respondent: Mr. P Hazarika
Point of law: If an illegality was committed at the time of making any promotion for not adhering to the required procedure under the Rules, mere continuing in a promoted post for seven years cannot be a reason to ignore the illegality that may have been committed.
Headnote:
Assam Directorate Establishment Ministerial Service Rules, 1973 - Rule 10(3) - Due regard to seniority - Criteria for promotion from a Grade-IV to Grade-III would be suitability with due regard to seniority - Respondents contend although petitioner is a matriculate, which he acquired while in service, but same cannot be taken into consideration as he did not obtain permission from authorities to undergo matriculation course - It cannot be a reason for authorities to ignore matriculation qualification of petitioner - If the petitioner had undergone matriculation course without permission, it may be a case for disciplinary action, but it cannot be understood that the qualification itself has to be discarded.
Finding of the court:
As the respondent has been discharging duties of the Kitchen Supervisor for almost seven years, in spite of setting aside the order, we provide that the respondent will continue in the post till the selection is made by the appropriate authority - Selection goes in favour of petitioner, a period of hardly one month or less would be left for him to have the benefit of the promoted post - If it happens, the respondent may bear the said period and for the purpose the respondent authorities may suitably accommodate respondent .
Result: Writ petition allowed
JUDGMENT :
Heard, Mr. SK Talukdar, learned counsel for the petitioner, Ms. D Borah, learned counsel for the respondents in the Health Department of the Government of Assam and Mr. P Hazarika, learned counsel for the respondent No.4.
2. Both the petitioner Md. Rouchan Ali the respondent No. 4 Sri Binay Barman were Grade-IV staffs in the LGB Chest Hospital at Birubari, Guwahati and is said to have been working as Ward Boy in the hospital. As per the gradation list of the Grade-IV staffs of the LGB Chest Hospital, the petitioner Md. Rouchan Ali is in the Serial No. 1 having joined the service on 01.03.1985 and respondent No. 4 Sri Binay Barman is at Serial No. 2 having joined the service on 03.12.1995.
3. There was a selection for promotion from amongst the Grade-IV staffs of the LGB Hospital to the post of Kitchen Supervisor, which is stated to be a Grade-III post. The respondents by the order impugned dated 13.08.2014 had appointed the respondent No. 4 Sri Binay Barman as the Kitchen Supervisor in the scale of pay of Rs.5200-20,200/-per month plus grade pay of Rs.1900/-per month. Being aggrieved, the present writ petition is instituted.
4. One of the grounds taken by the petitioner is that he being the senior most amongst the Grade-IV in the LGB Chest Hospital, under the convention as well as under the Rules, it is he who ought to have been promoted to the post of Kitchen Supervisor. We also take note of the provision of Assam Directorate Establishment Ministerial Service Rules, 1973, wherein under Rule 10(3), it is provided that the criteria for promotion from a Grade-IV to Grade-III would be suitability with due regard to seniority.
5. The respondents in the affidavit by the Director of Health Services, Assam in paragraph 9 takes the stand, which is extracted as below:-
“That with regard to the statements made in paragraph 8 of the writ petition, the deponent begs to state that the authority has the discretionary power to constitute physical verification Board in order to select suitable candidate for the post of Kitchen Supervisor a Grade III post to be filled up from the Grade IV on promotion. The post of Kitchen Supervisor entails supervisory work in the field of kitchen activities and related work and therefore requires a suitable person capable of managing the supervisory duty as Kitchen Supervisor. Therefore, a physical verification Board was constituted to select an eligible Grade IV employee for the post of Kitchen Supervisor.”
6. A reading of the stand taken in paragraph 9 of the affidavit in opposition of the Director makes it discernible that according to the authorities, the post of Kitchen Supervisor requires a suitable person capable of managing the supervisory duty as Kitchen Supervisor and therefore, a physical verification board was constituted to select an eligible Grade-IV employee for the post of Kitchen Supervisor.
7. When we asked for the records of the selection as to why the respondent No. 4 Sri Binay Barman was found to be more suitable than the petitioner Md. Rouchan Ali, a statement is made that the records are not available. In the absence of the records, we understand the only material before us is the paragraph 9 of the affidavit in opposition to arrive at a decision. Reading of paragraph 9 would show that the respondent No. 4 Sri Binay Barman was found to be more suitable for the post of Kitchen Supervisor than the petitioner Md. Rouchan Ali and therefore, he was promoted. But when we take the criteria for promotion provided in the Rules in force i.e suitability with due regard to seniority, we find that paragraph 9 does not indicate anything as to whether the requirement of ‘due regard to seniority’ was also taken into consideration. The only stand in paragraph 4 in the affidavit in opposition is that at the time of entry of service, the petitioner was not a matriculate, but on the other hand, he had cleared the matriculation qualification subsequently while in service. But in doing so, he did not get
