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IN THE HIGH COURT OF GAUHATI
KALYAN RAI SURANA, J.
Soleman Ali — Appellant
Versus
State Of Assam — Respondent
W.P(C) No. 3136 & 2673 of 2020
Decided on : 01-02-2022.
Appointment - Promotion - Assam Services (Discipline and Appeal) Rules 1964, Article 311 of the Constitution of India, APSC (Limitation of Function) Regulation 1951 - The court directed the appropriate Government to consider and decide the petitioner's claim regarding pay for the promotional post, regularization of the gap period, pension proposal, and retiral dues within two months.
Fact of the Case:
The petitioner was appointed as a Lecturer and later promoted to the post of Reader. Despite the promotion, he was not given the pay benefit for the higher promotional post. He was transferred to a new place of posting, but did not join and was issued a charge-sheet. The petitioner superannuated, and the court found that the departmental/disciplinary proceeding initiated against him was deemed to have lapsed.
Finding of the Court:
The court found a prima facie case in favor of the petitioner and directed the appropriate Government to consider and decide the petitioner's claim regarding pay, regularization of the gap period, pension proposal, and retiral dues within two months.
Issues: The issues involved the petitioner's promotion, transfer, non-joining of the new place of posting, issuance of a charge-sheet, and the departmental/disciplinary proceeding.
Ratio Decidendi: The departmental/disciplinary proceeding initiated against the petitioner was deemed to have lapsed upon his superannuation. The court directed the appropriate Government to consider and decide the petitioner's claim regarding pay, regularization of the gap period, pension proposal, and retiral dues within two months.
Final Decision: Both writ petitions were allowed to the extent indicated, and there was no order as to cost.
JUDGMENT :
KALYAN RAI SURANA, J.
Heard Mr. J.I. Borbhuiya, learned counsel for the petitioner. Also heard Ms. D. Borah, learned standing counsel for the Health Department, appearing for respondent no. 1 to 6 in both the writ petitions, Mr. A. Hasan, learned standing counsel for the Accountant General, appearing for respondent no. 8 in WP(C) 3136/2020 and Mr. A. Chaliha, learned standing counsel for Finance Department appearing for respondent no. 9 in W(C) 3136/2020. There is no representation from the APSC, respondent no.7 in WP(C) 3136/2020.
2. As both the writ petitions are interconnected and filed by the same petitioner, both the writ petitions are tagged together and have been taken up together for hearing at the admission stage.
3. The case of the petitioner is that he was appointed as a Lecturer in SJN Homeopathic Medical College and Hospital, Guwahati and on 3/4/2013, he was promoted to the post of Reader where he had joined on 4/4/2013. The petitioner projects that despite promotion granted to him, he was not given the pay benefit for the higher promotional post to which he had joined on 4/4/2013. It appears from the pleadings made in the writ petition that on being deprived of appointment, the petitioner had approached this Court on a previous occasion by filing the writ petition which was numbered as WP(C) 133/2010 and in the said writ petition, it was ordered that for the purpose of service, the seniority of the petitioner would be counted w.e.f. 10/5/2007 for notional purposes of seniority and pension and not for claiming salary.
4. Be that as it may, by virtue of an order dtd. 5/10/2016, the petitioner was transferred to Dr. JKS Homeopathic Medical College and Hospital, Jorhat in the post of Reader of Materia Medica. The petitioner had challenged the order of transfer by filing WP(C) 6383/2016 and the said writ petition was disposed of by order dtd. 26/10/2016 by permitting the petitioner to submit a copy of representation dtd. 14/10/2016 afresh along with the certified copy of the order to the Commissioner and Secretary to the Govt. of Assam, Health and Family Welfare (B) Department on 31/10/2016. The said representation having been rejected by order dtd. 29/7/2017, the petitioner once again filed a writ petition which was registered as WP(C) 5177/2017. The said writ petition was dismissed by order dtd. 1/9/2017. As the petitioner did not joined his service at the transferred place of posting, a show-cause notice dtd. 18/1/2018 was issued by the respondent authorities. Although the petitioner projects that a reply to the show-cause notice was filed on 16/2/2018 (Annexure-20), it appears to the Court that the show-cause notice was in fact a charge-sheet issued to the petitioner under Assam Services (Discipline and Appeal) Rules 1964 read with Article 311 of the Constitution of India.
5. Be that as it may, as per pleadings in WP (C) 3136/2020, the petitioner had submitted his reply to the said show-cause notice on 16/2/2018. The fate of the said disciplinary proceeding is not known as nothing in this regard had been stated in the affidavit-in-opposition filed on 2/12/2021. Nonetheless, on 25/1/2018, the petitioner was released from SJN Homeopathic Medical College and Hospital, Guwahati to enable him to join his transferred post. The Principal-in-charge of the said SJN Homeopathic Medical College and Hospital, Guwahati, by an order dtd. 1/11/2018, again allowed the petitioner to continue his service at Guwahati but thereafter, cancelled the said order vide another order dtd. 5/11/2018. On 11/12/2018, the petitioner appeared before the Principal of Dr. JKS Homeopathic Medical College and Hospital, Jorhat to join. However, as the petitioner had reported for joining after one year of the transfer order, the Principal of the said college had written to the Director of AYUSH, Assam for guidance.
6. It appears that the petitioner had also submitted a representation on 29/10/2018 to the Commissioner and Secretary to the Govt. of
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