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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUMAN SHYAM, J.
Shyam Sundar Saha S/o Khagendra Ch. Saha – Appellant
Versus
The State Of Assam And Ors. – Respondents
WP(C) 2959 of 2023, WP(C) 6236 of 2022, WP(C) 6052 of 2022
Decided on : 24-05-2023
Assam Public Service (Direct Recruitment to Class-III and Class-IV Posts) Rules, 1997 - Rule 6(6) - Eligible for promotion - Seniority in gradation list - Initial appointment was illegal - Petitioner seeks to assail appointment of respondent no. 5 in post of (LDA) so as to wipe out his seniority in gradation list on ground that his initial appointment was illegal – Sole purpose of instituting these writ petitions is to denude respondent no. 5 of his seniority that too after lapse of nearly 29 years from date of his initial appointment - Para 21.
Finding of the Court:
Respondent no. 5 was admittedly appointed in post of LDA (Junior Assistant) prior to petitioner - Since date of appointment of petitioner as an LDA, he was aware about fact that respondent no. 5 was senior to him in cadre of LDA - However, at no point of time did petitioner raise any question either about his seniority or validity of initial appointment of respondent no. 5 - It was only when procedure for promotion of eligible Senior Assistants to post of Divisional Head Assistant in Silchar Water Resources Department was initiated, that these writ petitions have been filed - Sole purpose of instituting these writ petitions is to denude respondent no. 5 of his seniority that too after lapse of nearly 29 years from date of his initial appointment - Such an attempt on part of petitioner, in opinion of Court, lacks bona fide and, therefore, deserves to be deprecated.
Result: Petitions dismissed.
JUDGMENT :
1. Heard Mr. S. K. Goswami, learned counsel appearing for the writ petitioner in WP(C) 6236/2022 and WP(C) 6052/2022 as well as Mr. N. Barman, learned counsel for the writ petitioner in WP(C) 2959/2023. Also heard Mr. R.M. Das, learned Standing Counsel, Water Resource Department, Assam, appearing for the respondent nos. 1, 2 & 3 and Mr. P. Nayak, learned Standing Counsel, Finance Department, Assam, representing the respondent no. 4. Mr. D. Chakraborty, learned counsel has appeared on behalf of the respondent no. 5.
2. All these three writ petitions are inter-connected wherein the writ petitioner seeks to assail the appointment of the respondent no. 5 in the post of Lower Division Assistant (LDA) so as to wipe out his seniority in the gradation list on the ground that his initial appointment was illegal. If the writ petitioner, succeeds in these writ petitions then he would rank senior in the gradation list of Senior Assistant and, therefore, would be eligible for promotion to the next higher post of Divisional Head Assistant in the Department of Water Resources.
3. The facts of the cases necessary for disposal of all the three writ petitions may be briefly noticed herein below.
4. The respondent no. 5, viz. Sri Sukhendu Narayan Dhar Choudhury was initially appointed as a Work Charge (W.C.) Khalasi under the Silchar Flood Control Division at Silchar vide Office Order No. 215/1990-91. His engagement as a W.C. Khalasi was extended from time to time. On 24/09/1993, the Executive Engineer, Silchar F.C. Division had issued a notice inviting applications from persons having the requisite educational qualification and knowledge of type writing for filling up one vacant post of LDA (subsequently re-named as Junior Assistant) in the said division. It appears from the materials on record that apart from circulating the aforesaid notice, the authorities had also intimated the District Employment Exchange about the recruitment process. In response to the notice dated 24/09/1993, as many as 5 (five) applicants including the present respondent no. 5 had applied for the post of LDA. Accordingly, a Selection Board was constituted for holding written examination and type writing test. Out of the 5(five) applicants, only 3 (three) of them including the respondent no. 5 had participated in the written test and type writing test. On conclusion of the process, it turned out that the respondent no. 5 had scored the highest mark (40). Consequently, order of appointment dated 07/03/1994 was issued appointing the respondent no. 5 in the vacant post of LDA under the Executive Engineer, Silchar F.C. Division. After tendering continuous service in the post of LDA for nearly 7 (seven) years, the service of the respondent no. 5 was confirmed as an LDA w.e.f. 01/06/2001 by issuing notification No. 74/2001-02 dated 07/08/2001. Thereafter, vide order dated 01/03/2008, the respondent no. 5 was promoted to the post of Upper Division Assistant (UDA), (renamed as Senior Assistant) in which post he is continuing till date. The writ petitioner, on the other hand, was appointed as a Junior Assistant (LDA) on 19/02/2011 by means of direct recruitment process initiated by the Executive Engineer, Water Resource Division (erstwhile F.C.) Silchar. On 27/10/2017, the writ petitioner was promoted to the post of Senior Assistant (UDA) in the office of the Executive Engineer, W.R. Division, Silchar. Thereafter, a provisional gradation list of Senior Assistants in the Silchar W.R. Division was published on 14/02/2022, wherein, the name of the respondent no. 5 appeared at serial No. 1 whereas, the writ petitioner’s name appeared at serial no. 2.
5. Being dis-satisfied with the provisional gradation list, the writ petitioner had submitted a representation on 17/02/2022 before the departmental authorities. However, since no action was taken on such representation submitted by the petitioner, he had approached this Court assailing the provisional gradation list of Senior Ass
Rule 6(6) is reproduced Junior Assistants – (a) By direct recruitment on basis of a competitive examination as laid down in Schedule-I of rules to be conducted by Deputy Commissioner at beginning of ....
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