Allowed

Akheruzzaman v. the State of Assam and 3 Ors.

Gauhati HC5 Feb 2018WP(C)/224/2015

Case brief

AI extract

What is this about?

The Gauhati High Court held that since the petitioner's criminal case ended in acquittal and departmental enquiry was dropped, there is no impediment to his promotion. Relying on the 'Next Below Rule', the court directed the respondent authorities to consider the petitioner's promotion to Grade III post within two months.

What did the court decide?

Direction to Chief Engineer, Irrigation Department to consider promotion of petitioner to Grade III post within two months of receipt of certified copy of order.

Akheruzzaman Vs the State of Assam and 3 Ors. — Pension and Retirement Benefits | Gauhati HC (2018)

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Page No.# 1/4

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GAHC010007282015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 224/2015

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1:AKHERUZZAMAN

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S/O LT. AJGOR ALI R/O VILL- MALIR CHAR P.O. SUKCHAR P.S. SUKCHAR DIST. DHUBRI, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM AND 3 ORS

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, IRRIGATION DEPARTMENT, DISPUR, GUWAHATI- 781006.

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2:CHIEF ENGINEER IRRIGATION DEPARTMENT ASSAM

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GUWAHATI- 781003.

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3:SUPERINTENDING ENGINEER SOUTH GOALPARA CIRCLE IRRIGATION GOALPARA ASSAM.

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4:EXECUTIVE ENGINEER

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MANKACHAR DIVISION IRRIGATION HAT-SINGIMARI P.O. HATSINGIMARI DIST. DHUBRI ASSAM PIN - 783135

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Advocate for the Petitioner : MR.M AHMED

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Advocate for the Respondent : DR.B AHMED

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Page No.# 2/4

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BEFORE

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HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 05-02-2018

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Heard Mr. M. Ahmed, learned counsel for the petitioner and Dr. B. Ahmed, counsel for the Irrigation Department.

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The petitioner, by way of this writ petition, has made a prayer to direct the respondents to promote the petitioner to Grade III cadre, on the ground that his juniors have been promoted earlier, while he was having a criminal case and the departmental enquiry against him was dropped. However, the criminal case ended in acquittal of the petitioner and the departmental enquiry was also dropped.Petitioners counsel thus submits that in view of above, the respondents had taken a decision to promote the petitioner to a Grade III post. However, till date, the petitioner has not been promoted.

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Dr. B. Ahmed, counsel for the Irrigation Department submits that he has received necessary instructions that the authorities are likely to promote the petitioner as there is no criminal proceeding pending against the petitioner as he was acquitted and the departmental enquiry that was going on against the petitioner was closed, as the petitioner had refunded the misappropriated amount.

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I have heard the learned counsels for the parties.

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This court vide order dated 26.05.2017 had stated as follows:--

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“The petitioner claims to be the senior-most Chowkidar in the establishment of the Mankachar Irrigation Division, Hatsingimari. He is aggrieved by non-consideration of his promotion to a Grade-III post, despite being the senior-most in the feeder cadre.

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Dr. B Ahmed, the learned Standing Counsel for the Irrigation Department has received necessary instruction which suggests that the authorities are likely to consider the promotion of the petitioner. To apprise the Court on recent developments, the respondents may file a counter affidavit in the next 3 weeks.”

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Today, Dr. B. Ahmed, learned counsel has not brought any instruction with regard to the above order dated 26.05.2017. No counter affidavit has been filed also.

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In the court records, there is a letter No. MPI/Estt.-23/1044 (A) dated 16.09.2015 issued by the Executive Engineer, Mankachar Division (Irrigation) Hatsingimari which states that the petitioner is the most senior Grade IV staff, having the requisite qualification for

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Page No.# 3/4

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promotion from Grade IV to Grade III post. His promotion was not considered earlier in view of the fact that a criminal proceeding and a Disciplinary enquiry was initiated against him for misappropriation of money. The criminal case i.e., GR Case No. 244/2003 arising out of South Salamara P.S. Case No. 261/2003 ended in the acquittal of the petitioner vide judgment and order dated 11.11.2011 passed by the learned JMFC, Dhubri. The appeal filed against the judgment of acquittal before the Sessions Judge, Dhubri was dismissed. Also the Disciplinary enquiry initiated against the petitioner was closed as the amount allegedly misappropriated by the petitioner was refunded. In view of the fact that the petitioner’s juniors were promoted without considering the petitioner’s case, due to the above reasons and as the petitioner has been cleared of the charges, the petitioner shall have to be considered for promotion on the date his juniors were promoted.

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The facts stated above clearly show that there is no obstacle for considering the petitioner for promotion from Grade IV to Grade III. It is also not in dispute that the petitioner was not considered for promotion during the time his juniors were promoted to a Grade III post.

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In the case of R. K. Sethi and another vs OIL and Natural Gas Commissioner and others reported in AIR 1997 10 SCC 616 , the Apex Court has held that “next below Rule” ensures that if a junior employee is given promotion without considering his senior, the senior employee can claim the right to be considered for promotion from the date his juniors had been promoted.

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In the present case as the criminal case has ended in acquittal and as the Departmental enquiry against him was dropped, there is no impediment in considering the promotion of the petitioner to the Grade III cadre, as his juniors were promoted earlier.

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In view of the “next below Rule” the Chief Engineer, Irrigation Department is directed to consider promotion of the petitioner from Grade IV to Grade III post and take a decision thereon, within a period of 2 (two) months from the date of receipt of a certified copy of this order. Thereafter, depending upon the decision of the Chief Engineer, the same shall be forwarded to the Executive Engineer, who shall thereafter initiate the process for promotion of the petitioner from the present Grade IV to Grade III cadre.

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Page No.# 4/4

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Writ petition is disposed of.

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JUDGE

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Comparing Assistant

Akheruzzaman v. the State of Assam and 3 Ors.

Case brief

What is this about?

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Akheruzzaman v. the State of Assam and 3 Ors.

Case brief

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