Petitioner, a retired employee, challenged the delay in granting promotion benefits and queried the finality of an order dismissing his plea based on seniority in a feeder cadre versus the intermediate cadre. This court dismissed the petition reiterating that the legal issue had attained finality in earlier proceedings.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010241142017
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5744/2017
1:DEBA PRASAD DUTTA
ADVOCATE, UKILBAZAR, TARAPUR P.O. and P.S. SILCHAR- 788003, DIST. CACHAR, ASSAM
VERSUS
1:THE UNION OF INDIA and 2 ORS.
WILL BE REP. BY THE SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING, SHASTRI BHAVAN, PARLIAMENT STREET NEW DELHI - 110001.
2:STATION DIRECRTOR ALL INDIA RADIO CHANDMARI GUWAHATI -781003 ASSAM
3:THE DIRECTOR GENERAL ALL INDIA RADIO AKASHVANI BHAVAN NEW DELHI - 110001
Advocate for the Petitioner : PETITIONER IN PERSON
Advocate for the Respondent :
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BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 04-10-2018
[A. K. Goswami, CJ (Acting)]
Heard Mr. Deba Prasad Dutta, the petitioner-in-person. Also heard Mr. S. C. Keyal, learned Assistant Solicitor General of India, appearing for the respondents.
“PRAYER
In the premises aforesaid, humble petitioner pays that having aggrieved and
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astounded by the irrational treatment over the petitioner against hard labour and expenditure for filing application to recover law and justice and it is prayed that direction may kindly be given to all India Radio, Guwahati (Respondent No. 2) to refrain from communication of false statement/wrong averment and without growing up disharmony and to settle/set aside on the basis of the circular of statutory instruction of D.o.P.T.’s amendment of Recruitment rule dt. 18.03.1988 and its order for compliance dt. 19.07.89 and 23.10.89 and order of Min. of I & B dt. 29.10.83 and decision of the Hon’ble Supreme Court of India and direction as given by D.o.P.T.’s letter dt. 21.09.2016 for appropriate action and clarification/interpretation if any may be referred to them as D.O.P.T. is the Nodal Deptt. Lays down recruitment rule to be carried by Ministry and Department, Min. of I & B’s letter dt. 2.11.2016 and Director General, All India Radio’s letter dt. 7.2.2017 and Min. of Law’s letter dt. 26.4.2017 to recover the service benefit w.e.f. 20.5.1992 when his Jr. most Sri J. Singh and Sri D.P. Acharje were promoted dt. 20.5.1992 and 12.2.1996 as the All India Radio Guwahati (Respondent No.2) violated and ignored the aforesaid D.O.P.T’s amendment of recruitment rule dated 18.3.1988 and it’s order for compliance dt. 19.7.89 and 23.10.89 and order of Min. of I & B dt. 29.10.1983 and decision of the Hon’ble Supreme Court of India and service of the Feeder grade is one of the condition of eligibility and criteria for the purpose of promotion and seniority to be counted from the Feeder grade i.e. LDC for the purpose of subsequent promotion from UDC to Head Clerk when both the Junior most and Senior most in the Feeder grade as LDC are in the same grade of UDC from 20.5.1992 onwards and pay to be fixed on that date along with interest of 12% pm.
and
further Basic pay of the Petitioner in the higher pay scale to be stepped up under FR 22 after he had got 2nd financial up gradation in the higher pay scale i.e. From UDC to Head Clerk etc. under ACP Scheme w.e.f. 7.12.2000 (instead of Petitioner’s entitlement w.e.f. 9.8.1999 which is admissible on the ground that uninterrupted/without any stop gap period of Ad-hoc service as LDC in the initial appointment is to be treated as regular service as per decision of the Hon’ble Supreme
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Court of India in case of Class II Engg. Officer Association Vs. State of Maharashtra decided in case of H.B. Sharma Vs. U.O.I and decision of the Hon’ble Supreme Court of India is binding over all Courts and Tribunal under Article 141 of the Constitution of India but All India Radio Guwahati (Respondent No.2) repudiated/denied the decision of the Hon’ble Supreme Court of India. Petitioner was also entitled that his basic pay in the higher Pay Scale would be stepped up under FR 22 w.e.f. 9.8.1999 when Petitioner’s Jr. most Sri J. Singh and D.P. Acharjee Head Clerk etc. drawn higher basic pay in the higher pay scale, when both Jr. most and Sr. most in the feeder grade (Petitioner) are in the same higher Pay Scale i.e. UDC to Head Clerk etc. and it is admissible as per Circular for stepping up of pay under FR-22, Government of India’s decision vide GIMF, OM No.F2(78)-EIII(A)166 dt. 4th February 1966 is held that when Both Jr. & Sr. Officer should belong to the same cadre & post in which they have been promoted or appointed should be identical and in the same cadre along with all arrear and 12% interest per annum as per decision of the Hon’ble Supreme Court of India and cost of the litigation as fixed by the Hon’ble Chief Justice of the Guwahati High Court and his companion Judges as Petitioner’s Junior most is getting more pension than him and this service benefit will enable Petitioner to bear up educational expenses for his son who is studying B.Tech Computer Science Engineering as he was selected under West Bengal Joint Entrance Examination and Petitioner earn his livelihood by this pension and maintain the family and further order as deem fit and proper and your petitioner as in du to bound shall ever pray.”
Today Mr. Deba Prasad Dutta, the petitioner in person submits that he may be allowed to withdraw the defective writ petition in order to file a proper one. In view of such submission made by the petitioner himself and after noting the presence of Mr. R.
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Mazumdar, the learned Amicus Curiae and Mr. S.K. Medhi, the learned C.G.C., this case is disposed of as withdrawn.
The petitioner is at liberty to file a proper petition, if so advised.”
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judgement, which is as under:
“4. The grievance of the writ petitioner as expressed in the pleadings as also in the court of oral arguments is that in terms of the communication dated 20.06.84 taking eligible Lower Division Clerks to exercise their option for being posted at the locations mentioned in the said communication in the event of their being selected for promotion to the cadre of Upper Division Clerk, the writ petitioner was not able to submit his option due to various personal difficulties. According to the writ petitioner, though he had not exercised his option at that point of time, as a result of which Respondent Nos. 8 and 9 were also in the same cadre of Upper Division Clerk, it is contended that by virtue of the Memorandum dated 19.7.89 (Annexure-A to the writ petition), particularly para 4 thereof, the case of the writ petitioner was required to be considered for promotion to the next higher cadre at the time when Respondent Nos. 8 and 9 were so considered and promoted. According to the learned counsel, the authorities have gone clearly wrong in not considering the case of the petitioner and in promoting Respondent Nos. 8 and 9 to the next higher cadre by ignoring and bypassing the case of the writ petitioner.
Paragraph 4 of the aforesaid office memorandum dated 19.7.89 is extracted hereinbelow:
‘4. In this connection attention is also invited to para 3.1.2 of the Department O.M. No. AB 04017/12/87-Est(R.R) dated 18.8.1988, in which Ministries/Department etc. had been requested to insert a note in the recruitment rule for various post to the effect that when Juniors who have completed the eligibility period are considered for promotion, their seniors would also be considered irrespective of whether they have completed the requisite service, provided they have completed the probation period. In order to ensure that seniors who might have joined later due to various reasons are not overlooked for promotion, necessary action for amendment of recruitment rule may please be taken urgently wherever this has not been done by now’.”
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Rules, as applicable, would go to show that the post of Lower Division Clerk, Upper Division Clerk, Head Clerk etc. constitute three different cadres in service and are accordingly governed by three separate Schedules contained in Chapter IV of the Recruitment Rules, Schedule 9 to 11 of Chapter IV indicates that there is a distinct channel of promotion from the cadre of Lower Division Clerk to Upper Division Clerk and from Upper Division Clerk to Head Clerk etc. Different conditions of eligibility for promotion to the higher cadres are prescribed in the Recruitment Rules. The petitioner by virtue of his earlier date of appointment as Lower Division Clerk was undoubtedly senior to Respondent Nos.8 and 9 in the said cadre. However, the promotion of Respondent Nos.8 and 9 to the next higher cadre of Upper Division Clerk made in the year 1984 and 1985 respectively and the promotion of writ petitioner to the said cadre of Upper Division Clerk in the year 1990 has the effect of conferring seniority to Respondent Nos.8 and 9 over the writ petitioner in the cadre of Upper Division Clerk. The Office Memorandum dated 19.7.89 (Annexure-A to the writ petition) pressed into service by the writ petitioner could not come to his assistance in claiming the reliefs sought for in the instant petition. Paragraph 4 of the aforesaid Office Memorandum has to be confined to cases of seniors in the same cadre who though senior do not have the requisite length of service for promotion. One such case where the aforesaid situation may arise is where a senior has been promoted subsequently with retrospective or notional effect from a particular date. A person so promoted with retrospective or notional effect may be senior to another person but he may not have the required length of service. It is to such a situation that paragraph 4 of the Office Memorandum dated 19.7.89 would be applicable. The petitioner claims that the benefit of the aforesaid paragraph 4 of the Memorandum in question should be applied to his case as he is senior to the Respondent Nos.8 and 9. The aforesaid claim of seniority is based on petitioner’s erstwhile seniority in the initial cadre of Lower Division Clerk. Such seniority in the cadre of Lower Division Clerk cannot be taken into account for the purpose of promotion to the cadre of Head Clerk etc. inasmuch as promotion to the said cadre of Head Clerk is to be made from the cadre of Upper Division Clerks.
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made from the cadre of Upper Division Clerk, the Circular dated 19.7.89 particularly paragraph 4 thereof would not apply to the case of the petitioner to enable to claim promotion to the cadre of Head Clerk etc. by virtue of his seniority in the initial cadre of Lower Division Clerk. The claim of the petitioner as made in the present writ petition is, therefore, not tenable.
“4. We do not find any force in the argument of the appellant. Admittedly the promotion of Respondent Nos.8 and 9 as Upper Division Clerks was prior to the appellant-petitioner. Consequently in the rank of Upper Division Clerk the petitionerappellant became junior to Respondent Nos.8 and 9 although he was senior in the cadre of Lower Division Clerks. The promotion to the next rank i.e. Head Clerk has to be made from the cadre of Upper Division Clerks. The instructions to which reference has been made by the appellant are of no assistance to him inasmuch as these instructions only lay down that a junior person who has completed eligibility period for promotion then his seniors be also considered irrespective whether they have completed the requisite service or not. Here no person junior to the petitioner was being considered. All senior persons i.e. Respondent Nos.8 and 9 had the requisite service in the feeder cadre i.e. Upper Division Clerks for promotion to the cadre of Head Clerks.
Consequently we do not find any merit in this appeal which is hereby dismissed.”
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WP(C) 1402/2009. The said writ petition was also dismissed with the following order: “None appears for the petitioner.
Mr. J. Huda, learned counsel representing the respondents submits that the writ petition is liable to be dismissed there being suppression of material fact. As per the written instructions furnished to her, the petitioner had earlier moved this Court with the same grievance by filing WP(C) 2424/2000. By order dated 08.01.2001, a direction was issued to dispose of the representation of the petitioner. The representation was rejected and, being aggrieved, the petitioner filed another writ petition, being WP(C) 1730/2001. The writ petition was dismissed by order dated 20.02.2001 as being devoid of merit. The matter was carried on appeal by filing WA No. 389/2001 and the writ appeal was also dismissed by order dated 5.2.2002.
Further, the petitioner’s case was once again considered on the basis of the representation made to the President of India and the decision was conveyed to the petitioner on 24.9.2004.
Writ petition is dismissed.”
“Heard Mr. D.P. Dutta, the petitioner appearing in person as well as Mrs.R. Bora, learned CGC.
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In view of the order passed on 15.5.2009 in WP(C) No.1402/2009, this writ petition is dismissed, being not maintainable in law. For a ready reference, the order dated 15.5.2009 passed in WP(C) No.1402/2009 is quoted below :-
‘None appears for the petitioner.
Ms. J. Huda, learned counsel representing the respondents, submits that the writ petition is liable to be dismissed there being suppression of material fact. As per the written instructions furnished to her, the petitioner had earlier moved this Court with the same grievance by filing WP(C) No.2424/2000. By order dated 8.1.2001, a direction was issued to dispose of the representation of the petitioner. The representation was rejected and being aggrieved, the petitioner filed another writ petition being WP(C) No.1730/2001. The writ petition was dismissed by order dated 20.9.2001 as being devoid of merit. The matter was carried on appeal by filing WA No.389/2001 and the writ appeal was also dismissed by order dated 5.2.2002.
Further, the petitioner’s case was once again considered on the basis of the representation made to the President of India and the decision was conveyed to the petitioner on 24.9.2004.
Writ petition is dismissed.”
“18. In view of the above circumstances and discussion made in the foregoing paragraphs enumerated from that various decisions of this Tribunal, CAT, Principal Bench, New Delhi as well as the High Court, we are of the view that this matter is not maintainable at all as the issue had already been decided by various courts and hence we are not inclined to go into the merit as not maintainable. O.A. stands dismissed. No order as to cost.”
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Administrative Tribunal, Guwahati Bench, against the order dated 12.02.2015. The Review Application came to be dismissed by holding that there was no error apparent on the face of the record and that the review applicant had again made the prayer which had already been considered and decided.
JUDGE CHIEF JUSTICE (ACTING)
Comparing Assistant
3 issues framed by the court
Whether the petitioner is entitled to promotion and pay fixation dating back to 1992 despite being senior in the feeder cadre but junior in the intermediate cadre.
Whether the Tribunal's dismissal on grounds of maintainability and finality should be revisited.
Whether previous orders dismissing similar grievances preclude the current petition.
Deba Prasad Dutta
Union of India
Station Director All India Radio Chandmari Guwahati
Director General All India Radio Akashvani Bhavan
Ajit Borthakur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
