Narendra Saikia v. The State of Assam and 6 Ors

ORDER Date : 01/09/2023

Heard Mr. R. Islam, learned senior counsel assisted by Mr. S.K. Das, learned counsel for the petitioner. Also heard Ms. M.D. Borah, learned counsel appears for the respondent Nos. 1, 5 and 7, Mr. B. Gogoi, learned counsel for respondent No.2 and Ms. J. Bora, learned counsel for respondent Nos. 4 and 6.

¶2This writ petition is filed by the petitioner who is working as an LDA-cum-Typist under the Office of Project Officer No.3 Shyampur Char Development Project, Kharupetia, Darrang. The petitioner was initially appointed on

10.01.1990. Subsequently, he was regularized by order dated 30.01.2004. The grievance of the petitioner is that he is rendered more than 31 years of service but he has never been considered for promotion to the next higher post, which is UDA-Cum-Accountant. Page No.# 3/6

¶3It is the submission of the learned counsel that the said post had fallen vacant upon the superannuation of the incumbent on 31.12.2019. In the office in which the petitioner is working there is a single post of UDA-Cum-Accountant and a single post of Junior Assistant Cum Typist. The post of UDA-Cum-Accountant has been now re-nomenclatured as Senior Assistant Cum Accountant. It is submitted that there are presently no Service Rules governing the service conditions of the employees of the department. The Draft Service Rules have been sent for approval, but have not been approved till date. Under such circumstances the petitioner has contended that where any department has no Service Rules, then the Assam Public Services (Direct Recruitment to Class III and Class IV Posts) Rules, 1997, can be relied upon to consider the claims of the petitioner. The petitioner submits that in spite of his requests made before the competent authority, his claim for being promoted to the next higher post has not been considered. Being aggrieved, he has filed the present writ petition praying for appropriate writ, direction or order.

¶4The respondent No.3, namely, the Commissioner and Secretary Department of Personnel (B) in their affidavit filed on 28.01.2022, has made an averment that the Assam Public Services (Direct Recruitment to Class III and Class IV Posts) Rules, 1997, which is referred to by the petitioner are meant for direct recruitment of candidates into the establishment where there are no service Rules. However, these rules do not prescribe any criteria for promotion.

¶5The Director, Char Areas Development, Assam, Dispur, Guwahati has also filed an affidavit on 04.01.2022 stating that because of the pandemic, no step could be taken towards the prayers made by the writ petitioner. It is, however, stated that a petitioner had already received financial benefit under the Assured Page No.# 4/6 Career Progression Scheme (ACPs) at the level of 10 years service and 20 years service.

¶6The Welfare of Minorities and Development Department, which is the parent department under which the petitioner was appointed and is presently employed, has also filed an affidavit on 25.08.2023. By the said affidavit, it is stated that a proposal has been sent and is placed before the Personnel Department for their views. And once the views are received, the steps will be taken for processing the claims of the petitioner subject to fulfilment of all other required criteria.

¶7Learned counsels for the parties have been heard. The pleadings have been carefully perused. In the affidavit, filed by the Welfare of Minorities and Development Department it is seen that a proposal has been put up before the Personnel (B) Department by the Joint Secretary of Welfare Minority Development Department to the effect that there are about 5 (five) vacant posts of UDA-Cum-Accountant under the Directorate of Char Areas Development Assam, Hengrabari Road, Guwahati and there is a requirement for filling up these posts. It is further stated in the proposal that since the department does not have Service Rules of its own, it intends to rely on and follow the Assam Directorate Establishment Ministerial Service Rules, 1973, till the draft service rules are approved by the competent authority. The proposal also indicates that the UDA-Cum-Accountant under the Directorate of Char Areas Development Authority draws the same grade pay as the UDA's of other Directorates. There is similarity of work between UDA-Cum-Accountant under the Directorate of Char Areas Development Assam and other UDA's under other Directorates. There is also no specific requirement of educational qualification for appointment of Page No.# 5/6 UDA-Cum-Accountant to the Directorate of Char Areas Development Assam. And accordingly the views have been sought for from the Personnel (B) Department, Government of Assam.

¶8Learned counsel appearing Welfare and Development of Minorities Department submits that the proposal has been sent for the views of the Personnel (B) Department on 21.08.2023 and their views are expected to be received back within a short date. Once the views are received, the steps will be taken for processing the claims of the petitioner and other similarly situated persons in as much as there is a requirement for filling up the vacant posts of UDA-Cum-Accountants under the Directorate of Char Areas Development, Assam.

¶9Mr. R. Islam, learned counsel for the petitioner submits that he is due to retire on 31.03.2024 and therefore he submits that his case should be considered expeditiously by the Department. It is further submitted that he is officiating as UDA-Cum-Accountant with effect from 01.01.2020 and is performing all works pertaining to the said post. In this context, he refers to Annexure 10 of the writ petition.

¶10Having heard the learned counsels for the parties, this court is of the view that since the department is not averse to the claims made by the petitioner that the posts of UDA-Cum-Accountant be filled up by promotion in view of the vacancies available and also in view of the requirement of filling up these posts as projected by the competent authority in their proposal forwarded to the personnel (B) Department, this court is of the view that the writ petition can be closed with a direction to the respondents to proceed with the steps for filling up the posts of UDA-Cum-Accountant by promotion from LDA-Cum-Typists. The Page No.# 6/6 Department will consider the claims of the petitioner along with other similarly situated person as expeditiously as possible.

¶11No dispute has been raised in the present proceedings by the Respondent Department that in the absence of the Service Rules of the Department, the proposal to rely on Assam Directorate Establishment Ministerial and Service Rules, 1973 is not permissible. Since, it is submitted by the learned counsel for the Minorities Development Department that the concurrence of the Personnel

(B) Department is likely to be received on an early date, the Department is directed to proceed for filling up of the posts as expeditiously as possible considering the cases of the petitioner and other similarly situated persons.

¶12Let the entire exercise be completed within a period of 90 (ninety) days from the date of receipt of certified copy of this order.

¶13Writ petition is accordingly stands disposed of.

¶14Interim order, if any, stands merged with the final order.

JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010113992021 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3917/2021o NARENDRAoSAIKIAo S/OoSRIoDINESWARoSAIKIA,oVILL-DARIAPARA,oP.O.-RANGAMATI,oP.S.- MANGALDOI,oDIST-DARRANGo(ASSAM) VERSUSo THEoSTATEoOFoASSAMoANDo6oORS.o REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARY,oWELFAREoOFo MINORITIESoANDoDEVELOPMENToDEPARTMENT,oDISPUR,oGUWAHATI- 781006 2:THEoCOMMISSIONERoANDoSECRETARY oFINANCEoDEPARTMENT oGOVERNMENToOFoASSAM oDISPUR oGUWAHATI-781006 3:THEoCOMMISSIONERoANDoSECRETARY oPERSONNELo(B)oDEPARTMENT oDISPUR oGOVERNMENToOFoASSAM oDISPUR oGUWAHATI-781006 4:THEoCOMMISSIONERoANDoSECRETARY oPANCHAYAToANDoRURALoDEVELOPMENToDEPARTMENT oDISPUR oGOVT.oOFoASSAM oGUWAHATI-781006 5:THEoDIRECTOR oCHARoAREASoDEVELOPMENT Page No.# 2/6 ASSAM HENGRABARI ROAD GUWAHATI-781006 6:THE DIRECTOR OF PANCHAYAT AND RURAL DEVELOPMENT PANJABARI ROAD JURIPAR GUWAHATI-781037 7:THE PROJECT OFFICER CHAR DEVELOPMENT PROJECT DARRANG MANGALDAI PIN-78412 Advocate for the Petitioner : MD R ISLAM Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA