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2022 Supreme(Gau) 5
IN THE GAUHATI HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, J.
Bipin Ch. Deka S/o Late Ashok Deka – Appellant
VERSUS
The State Of Assam And 5 Ors – Respondent
WP(C)/77/2013
Decided on : 04-01-2022
Advocate Appeared:
For the Petitioner: MR.A BHATTACHARYA
For the Respondent: MR.D CHOUDHURY
Point of law : Rule 4(3) of the Rules of 1960 inter alia provides that Governing Body concerned shall after due advertisement in atleast two newspapers make appointment of Office Assistant subject to the approval of Director of Public Instruction, Assam.
Headnote:
Assam College Employees (Provincialisation) Act, 2005 - Section 12 (1) - Assam College Employees (Provincialisation) Rules, 2010 - Rule 7(a) – Assam Aided College Employees Rules, 1960 - Rule 4(3) – All appointments either direct recruitment or by promotion shall be made by Director on the basis of recommendation of the Governing Body based on recommendation of the Selection Committee/Departmental Promotion Committee duly constituted - Petitioner was a Grade-IV employee in Lokanayak Omeo Kumar Das College (LOKDC) in Sonitpur district - By resolution of Governing Body of LOKDC, petitioner who is referred as senior most qualified Grade-IV employee of the college, was promoted to vacant post of LDA held, who in turn was promoted by same resolution as UDA in college.
Findings of the Court :
Accordingly, interfering with order in its present form where the power under Section 7(a) of the Rules of 2010 was exercised, we modify the same order to implicate that it was anorder approving the recommendation of the petitioner for promotion as LDA by resolution of the Governing Body - Accordingly, it is an agreed submission by senior counsel for the petitioner and counsel for Higher Education Department that promotion of petitioner by resolution of Governing Body which is understood to have approved by Director as per order as indicated above be construed to have effect - As agreed by counsel, we ordered accordingly - Promotion of petitioner in LOKDC be construed to have effect - Petitioner be provided with necessary consequential benefits of such promotion - Benefit be given within a period of three months from date of receipt of certified copy of order and respondent authorities may work out as to what benefit petitioner would be entitled.
Result : Writ petition stands allowed
JUDGMENT :
1. Heard Mr. T.J. Mahanta, learned senior counsel for the petitioner. Also heard Mr. K. Gogoi, learned standing counsel for the respondents No.1 and 3 being the authorities under the Higher Education Department of the Govt. of Assam, Mr. A. Chaliha, learned counsel for the respondent No.2 being the authorities under the Finance Department and Ms. P. Bora, learned counsel for the respondents No.4 and 5 being the authorities of the LOKDC.
2. The Office Note indicates that Mr. S. Deka and Ms. K. Mishra, learned counsel have entered appearance for the respondent No.6. But when the matter is taken up, none appears for the said respondent although the cause list indicates the name of the learned counsel.
3. The petitioner was a Grade-IV employee in the Lokanayak Omeo Kumar Das College (LOKDC) at Dhekiajuli in the Sonitpur district. By the resolution No.5 dated 07.06.1994 of the Governing Body of LOKDC, the petitioner who is referred as the senior most qualified Grade-IV employee of the college, was promoted to the vacant post of LDA held by Keshab Ch. Kalita, who in turn was promoted by the same resolution as UDA in the college. At the relevant point of time when the resolution of the Governing Body was passed on 07.06.1994, it is stated that Assam Aided College Employees Rules, 1960 (in short Rule of 1960) governed the promotion. Rule 4(3) of the Rules of 1960 inter alia provides that the Governing Body concerned shall after due advertisement in atleast two newspapers make appointment of Office Assistant subject to the approval of the Director of Public Instruction, Assam.
4. In the instant case, it being a case of promotion to a post of Office Assistant, it is accepted by the learned counsel for the parties that the promotion of the petitioner as per the resolution of the Governing Body of LOKDC would be governed by Rule 4(3) of the Rules of 1960. It being so, it is submitted that there is a requirement of the Director of Public Instruction now to be read as Director of Higher Education, Assam to approve the resolution by which the petitioner was promoted. The matter remained as such that although there was a resolution by the Governing Body promoting the petitioner as LDA, but it was not placed before the Director for its approval as required under the Rules. In the meantime, the Rules of 1960 was replaced by the Assam College Employees (Provincialisation) Rules, 2010 (in short Rule of 2010) which again was framed under Section 12 (1) of the Assam College Employees (Provincialisation) Act, 2005. Rule 7(a) of the Rule of 2010 provides that all appointments either direct recruitment or by promotion shall be made by the Director on the basis of recommendation of the Governing Body based on the recommendation of the Selection Committee/Departmental Promotion Committee duly constituted. In exercise of power under Section 7(a) of the Rules of 2010, the Director of Higher Education, Assam passed the order dated 26.06.2012 which reads as extracted:-
“ In exercise of power conferred under provision of Rule 7(a) of the “Assam College Employees (Provincialisation) Rules, 2010, Govt. O.M. No.B(2)H.155/2004/5, dated 24.06.2004 and on the basis of the recommendation of Departmental Promotion Committee and the Governing Body’s resolution No.5 dated 07.06.1994 adopted in the Governing Body of LOKD College, P.O. Dhekiajuli, District-Sonitpur, the Director of Higher Education, Assam is pleased to promote Sri Bipin Ch. Deka, Grade-IV to the post of Junior Assistant vice Sri Kukil Kr. Bharali, Senior Assistant accommodated against the post of UDA (Sr. Asstt) vice Sri K.C. Kalita (promoted) in the scale of Pay Band (PB-2) Rs.5200-20,200/- with Grade Pay of Rs.2200/- p.m. and other allowance as admissible with effect from the date of joining as Junior Assistant.”
5. A reading of the order dated 26.06.2012 gives an indication that the Director had exercised his power under Rule 7(a) of the Rules of 2010 to promote the petitioner to the post of J
