The court ruled that despite the lack of formal regularization, practical circumstances warrant consideration for promotion based on long service and the failure of authorities to follow proper procedures.

JUDGMENT :

Kardak Ete, J.

Heard Heard Mr. MJ Baruah, learned counsel for the petitioner. Also heard Mr. N. Upadhyay, learned standing counsel, Irrigation Department, for respondent Nos.1, 2 & 3. None appeared for the respondent No.4, despite notice is effected.

2. By filing this petition, the petitioner has put to challenge the order dated 21.10.2020, issued by the Executive Engineer, Irrigation Department, Dhubri Division, Gauripur, Assam by which the respondent No.4, namely, Sri Dipak Kalita along with another person have been promoted to the post of Senior Assistant. The petitioner has also prayed for direction to the respondent authorities to consider the petitioner for promotion to the post of Senior Assistant.

3. Briefly put, the case of the petitioner is that she was appointed as a Muster Roll Worker on 17.11.1986 and thereafter her service was regularized on 06.10.2005, as Helper along with some other persons, as per the policy decision of the State, taken in the year 1983. The petitioner was promoted to the post of Lower Division Assistant (now re-designated as ‘Junior Assistant’) cum Typist w.e.f. 01.01.2008, a Grade-III post, after due process of selection along with two other persons.

4. The selection and appointment of the petitioner along with other similarly situated persons were put to challenge by some other Muster Roll Workers, who claimed to be senior in the Grade-IV, by way of writ petition before this Court in a batch of Writ Petition, leading case being WP(C) No.5492/2010. Those writ petitions were disposed of by a common order dated 13.09.2011, by allowing the writ petitions and setting aside the appointment orders of the respondents. However, the promotion of the petitioner and three others have not been interfered with, solely on the ground that their appointment were not challenged in the writ petitions. The learned Single Judge found that the appointment of the respondents in those writ petitions including the petitioner were found to be not in accordance with the Rules, namely, the Assam Ministerial District Establishment Service Rules, 1967.

5. The aforesaid order passed by the learned Single Judge, dated 13.09.2011, was taken to appeal by some of the Junior Assistants, being Writ Appeal No.301/2011, Writ Appeal No.327/2011, Writ Appeal No.330/2011, Writ Appeal No.331/2011 and Writ Appeal No.332/2011. The Division Bench by common order dated 13.06.2012, disposed of the Appeals with a direction that the State may either initiate a fresh selection process or take a decision on regularization in accordance with the rules. It was also provided that since the appellants have been continued for more than six years, pending decision by the State, they may be allowed to continue as ad-hoc arrangement. It is also noticed that the Division Bench has upheld the finding recorded by the learned Single Judge that the appellants having been regularized in the year 2005 did not have requisite length of service or eligibility for promotion to Grade-III, which could not be shown to be factually erroneous. It also recorded that it is not the case of the appellants that any relaxation was made in the eligibility requirement pointed out in the order of learned Single Judge and in absence of relaxation of the said requirement, the Rules had to be followed and the appellants could not be appointed in violation thereof as has been done.

6. Mr. MJ Baruah, learned counsel for the petitioner submits that since the promotion of the petitioner dated 01.08.2008 has not been interfered with by the learned Single Judge and the petitio