JUDGMENT :

Sandeep Mehta, CJ

1. This instant writ appeal is preferred by the appellant herein seeking to assail the common judgment and order dated 22.04.2019 passed by the learned Single Bench disposing of WP(C) Nos.3798/2017 and 4039/2017.

2. The facts in nutshell are that the appellant herein was appointed as a LDA on honorary basis by the Governing Body of the Khagarijan College vide order dated 25.10.2001. Subsequently, an order dated 30.05.2012 was issued whereby, the appellant was appointed against the post of Laboratory Bearer which fell vacant in the college on account of retirement. Another post of LDA in the college fell vacant due to the demise of one Naren Saikia on 19.01.2015. At that stage, the appellant herein, submitted an application dated 18.02.2015 seeking promotion from Grade-IV to Grade-III. The Governing Body of the college drew a resolution dated 19.12.2015 recommending promotion of the petitioner from Grade-IV to Grade-III. The said recommendation was forwarded to the Director of Higher Education, Government of Assam, who passed a speaking order dated 27.02.2017 observing that the appellant incumbent had not completed 5 years of service in Grade-IV and thus, he was not eligible to be considered for promotion to Grade-III.

3. In the meantime, the respondent No.5 Sri Kaushik Kamal Saikia being the son of Naren Saikia, the deceased LDA, sought appointment on compassionate ground to the post which fell vacant on account of death of his father. Failing to achieve the desired result, Shri Kaushik Kamal Saikia filed a writ petition being WP(C) No.7713/2015, which was disposed of by the order dated 21.12.2015 directing the Inspector of Schools, Nagaon to place the case of Shri Kaushik Kamal Saikia (respondent No.5) before the District Level Committee (DLC) to be considered for appointment on compassionate basis. The DLC, processed the application andforwarded a letter dated 05.06.2017 to the college authorities along with a list of persons recommended to be appointed on compassionate ground. In such list, name of the respondent No.5 appeared at Sl.No.8 and he was recommended to be appointed against the post of LDA falling vacant on account of death of his father Shri Naren Saikia.

4. The appellant herein, filed the captioned writ petition No.3789/2017 raising a plea that the mother of the respondent No.5 Kaushik Kamal Saikia was working as an Assistant Teacher of the Swahid Chandan Singh High School, Nagaon, which is a provincialized school and therefore, the respondent No.5 was not eligible for compassionate appointment. It was also submitted that the writ petitioner (appellant herein), by virtue of his service tenure as a Laboratory Bearer was entitled for promotion to Grade-III under Rule 5(5) of the Assam College Employees (Provincialisation) Rules, 2010. The WP(C) No.3789/2017 filed by the appellant/petitioner came to be dismissed by the learned Single Bench by the order dated 22.04.2019. The WP(C) No.4039/2017 preferred by respondent No.5 Shri Kaushik Kamal Saikia was disposed of in view of the dismissal of the appellant’s writ petition being WP(C) No.3798/2017. The common order dated 22.04.2019 is assailed in this intra-Court writ appeal.

5. Learned Senior counsel Mr. Borbora representing the appellant, vehemently and fervently urged that the order passed by the learned Single Bench, suffers from misreading of facts and overlooking of pertinent averments made in the writ petition. He drew the Court’s attention to the subject matter of the writ petition being WP(C) No.3798/2017 as well as the paragraph 19 of the said writ petition filed by the appellant, wherein, specific challenge was made to the order dated 27.02.2017 by impugning the same. Referring to these assertions made in the writ petition, he contended that “the finding recorded by the learned Single Judge at internal page No.6 of the order that the speaking order dated 27.02.2017 rejecting the claim of the petitioner on the ground of ineligibility wa