Disposed

Sailendra Bujarbaruah v. the State of Assam and Ors.

Gauhati HC11 Dec 2018WP(C)/5872/2010

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a writ petition challenging a transfer order that allegedly deprived the petitioner of promotion to UDA. The court directed authorities to consider the petitioner's claim for promotion against regular vacancies, rejecting the transfer as an impermanent measure for filling posts.

What did the court decide?

The petitioner's claim for promotion to UDA is to be considered against regular vacancies along with other eligible candidates; transfer cannot be used to fill a vacancy.

Sailendra Bujarbaruah Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010007902010

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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) 5872/2010

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1:SAILENDRA BUJARBARUAH

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SON OF LATE PINAKESHWAR BUJARBARUAH RESIDENT OF VILLAGEDAHARA, P.O. and P.S. RANGIA DIST. KAMRUP, ASSAM.

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VERSUS

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1:THE STATE OF ASSAM AND ORS

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, PUBLIC HEALTH ENGINEERING DEPARTMENT, SACHIVALAYA, DISPUR, ASSAM.

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2:THE CHIEF ENGINEER PUBLIC HEALTH ENGINEERING DEPARTMENT HENGRABARI GUWAHATI-36 ASSAM.

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3:THE ADDITIONAL CHIEF ENGINEER PUBLIC HEALTH ENGINEERING OFFICE OF THE CHIEF ENGINEER PHE ASSAM HENGRABARI GUWAHATI-36 ASSAM.

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4:THE ADDITIONAL CHIEF ENGINEER PUBLIC HEALTH ENGINEERING LOWER ASSAM ZONE GUWAHATI-21 ASSAM.

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5:THE ADDITIONAL CHIEF ENGINEER PUBLIC HEALTH ENGINEER CUM ENGINEER PHE

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GUWAHATI CIRCLE GUWAHATI-21 ASSAM. 6:THE ADDITIONAL CHIEF ENGINEER PHE -CUM-DIRECTOR PUBLIC HEALTH ENGINEERING DEPARTMENT KOKRAJHAR ASSAM. 7:THE SUPERINTENDING ENGINEER PUBLIC HEALTH ENGINEERING DEPARTMENT NALBARI CIRCLE NALBARI ASSAM. 8:THE EXECUTIVE ENGINEER PUBLIC HEALTH ENGINEERING DEPARTMENT KOKRAJHAR DIVISION NO. II BASUGAON DIST. KOKRAJHARCHIRANG ASSAM. 9:THE EXECUTIVE ENGINEER PUBLIC HEALTH ENGINEERING DEPARTMENT BONGAIGAON DIVISION BONGAIGAON ASSAM.

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10:THE EXECUTIVE ENGINEER PUBLIC HEALTH ENGINEERING DEPARTMENT DEPARTMENT BELSOR DIVISION BELSOR ASSAM. 11:SMT. GAURI DAS UPER DIVISION ASSISTANT OFFICE OF THE SUPERINTENDING ENGINEER PUBLIC HEALTH ENGINEERING DEPARTMENT NALBARI CIRCLE NALBARI ASSAM

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Advocate for the Petitioner : MR.B D GOSWAMI

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Advocate for the Respondent : GA, ASSAM

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B E F O R E

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Hon’ble MR. JUSTICE N. KOTISWAR SINGH

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O R D E R

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Date : 11-12-2018

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Heard Ms. A. Swargowari, learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned Government Advocate for the PHE.

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In this petition, the petitioner has challenged the transfer order dated 13.03.2009 whereby the respondent No.11 was transferred to the Office of the Superintending Engineer, Nalbari Circle, Nalbari as an UDA. According to the petitioner, by this transfer order, the legitimate expectation of the petitioner, who was serving as a LDA to be promoted as an UDA has been adversely affected. The petitioner claims that the petitioner is the senior most LDA working in the Office of the Superintending Engineer, Nalbari Circle, Nalbari and he was expecting to be promoted to the said post of UDA to which the said respondent No.11 was transferred.

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The petitioner claims that the petitioner is otherwise eligible for promotion to the post of UDA. He has been serving more than 22 years in the said capacity in this regard. The petitioner and others have also submitted their representations to the authorities against the said transfer of the respondent No.11 as UDA in the Office of the Superintending Engineer, Nalbari Circle, Nalbari, as it obstructed the promotional avenue of the petitioner and other eligible candidates.

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The respondent No.7 has filed an affidavit in which it has been stated that the transfer of the respondent No.11 was in terms of the relevant office order. However, it is also stated that the claim of the petitioner can be considered as and when situation so permits. The right of consideration for promotion accrues once a person becomes eligible and comes within the zone of consideration, if vacancy exists though. Therefore, when a vacancy occurs, the normal rule for filling up the vacancy must be resorted to and such an accrued right cannot be nullified by a temporary measure like transfer. Now, more than 8 years has lapsed, since the filing of this petition and as such it may not be possible to ascertain the correct position

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obtaining in the Office of the Superintending Engineer, Nalbari Circle, Nalbari.

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In that view of the matter, the present petition is disposed of with a direction to the respondents to consider the claim of the petitioner for promotion to the post of UDA, against the regular vacancies of UDA by considering the case of the petitioner along with other eligible candidates as a regular vacancy cannot be filled up by way of temporary measure like transfer.

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This will be subject to any decision which may have been already taken by the authorities as regards the promotion to the post of UDA in the office of the Superintending Engineer, Nalbari Circle, Nalbari.

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This writ petition stands disposed of, accordingly.

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JUDGE

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Comparing Assistant

Sailendra Bujarbaruah v. the State of Assam and Ors.

Case brief

What is this about?

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Sailendra Bujarbaruah v. the State of Assam and Ors.

Case brief

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