Allowed

Dr. Aditya Bihar Kandali v. the State of Assam and 3 Ors.

Gauhati HC23 Oct 2019I.A.(Civil)/2329/2019

Case brief

AI extract

What is this about?

In IA 2329/2019, the Gauhati High Court allowed an application to modify a previous order in a promotion dispute. Relying on a 2004 Office Memorandum, the Court directed the state to place the petitioner in delayed grades and pay consequential benefits.

What did the court decide?

The order dated 14.02.2019 in WP(C) 4831/2015 was corrected; the petitioners entitled to placement in Lecturer (Senior Scale) and Assistant Professor backdated to 1994 and 1999 respectively with conse

Dr. Aditya Bihar Kandali Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010160162019

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

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Case No. : I.A.(Civil) 2329/2019

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1:DR. ADITYA BIHAR KANDALI

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S/O SRI GOPAL CH. KANDALI, R/O QTR. NO.56, JORHAT ENGINEERING COLLEGE, JORHAT P.O., P.S. AND DIST- JORHAT, 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 SECY., GOVT. OF ASSAM, HIGHER EDUCATION DEPT. (TECH), DISPUR, GHY-6, ASSAM

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2:THE DIRECTOR OF TECHNICAL EDUCATION ASSAM KAHILIPARA GUWAHATI-19

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3:THE PRINCIPAL JORHAT ENGINEERING COLLEGE JORHAT

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4:THE COMMISSIONER AND SECRETARY

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GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-

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Advocate for the Petitioner : MR. P J SAIKIA

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Advocate for the Respondent : SC, HIGHER EDU

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BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN

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O R D E R

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23.10.2019

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Heard Mr. P.J. Saikia, learned counsel for the petitioner as well as Mr. R. Mazumdar, learned Standing Counsel, Higher Education Department for the respondent nos.1 and 2.

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Applicant/writ petitioner seeks correction/modification in the order dated 14.02.2019 passed in the related writ petition i.e. WP(C) 4831/2015. The corrections/modifications sought for are explicitly mentioned in the prayer portion of the application. As such, this Court refrains from making repetition of the same.

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I have gone through the application and the contemporaneous records and find that the prayer so made requires to be granted. In view thereof, the order dated 14.02.2019 passed in WP(C) 4831/2015 stands corrected/modified. For ready reference and for better appreciation, the entire order dated 14.02.2019 is reproduced after making the necessary corrections. The same would now read as under:-

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“Heard Mr. P.J. Saikia, learned counsel for the petitioner as well as Mr. R. Mazumder, learned counsel representing respondent nos. 1 and 2. None appears to represent respondent nos. 3 and 4.

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The petitioner is presently serving as an Associate Professor in the Department of Electrical Engineering at Jorhat Engineering College, Jorhat. It is stated that he was appointed as Lecturer in the said Institution by order dated 22.04.1989 issued by the Education (CTM) Department, to which post he joined on 05.05.1989. Thereafter, he was given the benefit of Lecturer (Senior Scale) by order dated 13.01.2000, made effective from 06.05.1997. Subsequently, by order dated 19.08.2005 of the Education (CTM) Department, the petitioner was given the benefit of promotion to the post of Assistant Professor, to which post he joined on 20.05.2005.

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Having regard to the sequence and the date of promotion granted to him, as

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indicated above, the petitioner questions the same and submits that the promotions have been delayed and are not in tandem with the Office Memorandum dated 19.05.2004, issued by the Government of Assam, Education (CTM) Department, whereby the AICTE recommendations regarding recruitment of Lecturers/Career Advancement Scheme have been adopted in the Engineering Colleges in Assam.

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Placing reliance in the said Office Memorandum dated 19.05.2004, prayers made in the writ petition are for a direction to the respondents to grant promotion to the petitioner to Lecturer (Senior Scale) w.e.f. 06.05.1994 and to the Lecturer (Selection Grade) w.e.f. 06.05.1999 and to provide the pay and allowances attached to Lecturer (Senior Scale) and Lecturer (Selection Grade) from the date it was due to him in terms of the Office Memorandum dated 19.05.2004. An additional prayer is also made for three non-compounded increments in his salary w.e.f. 11.05.2010 i.e. the date when he had submitted the thesis for his PhD Degree. This additional prayer is not pressed by the petitioner having regard to the fact that the same has been received.

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In so far as the primary prayers are concerned, consideration thereof has to be decided by having regard to the provisions laid down in the Office Memorandum dated 19.05.2004. In so far as eligibility for placement in the Lecturer (Senior Scale) is concerned, it is provided that the same has to come through a selection procedure amongst candidates who have completed 6 (six) years of service after regular appointment, with relaxation of 1 (one) year and 2 (two) years respectively for those with M. Phil, ME/M. Tech and Ph.D. In so far as the petitioner is concerned and he having M. Tech qualification was eligible for placement as Lecturer (Senior Scale) after having completed 5 (five) years of service after regular appointment, which is 06.05.1994 being the date when he completed 5 (five) years from his date of joining as Lecturer in the Institution. As regards his eligibility for placement as Lecturer (Selection Grade) is concerned, it is stated that the Office Memorandum makes him eligible to move into the said grade of Lecturer (Selection Grade)/Assistant Professor on completion of minimum length of 5 (five) years of service as Lecturer (Senior Grade). In this connection, the petitioner submits that having regard to the said Office Memorandum dated 19.05.2004, he was entitled for placement as Lecturer (Selection Grade) or as an Assistant Professor w.e.f. 06.05.1999. However, as indicated above, he was given the benefit of Assistant Professorship by order of 19.08.2005, to which post he joined on 20.08.2005.

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Mr. R. Mazumder, learned counsel representing the Director of Technical Education submits that the writ petition suffers from inordinate delay, inasmuch as, Lecturer (Senior Scale) having been granted by order dated 13.01.2000 w.e.f. 06.05.1997 and thereafter being promoted as Assistant Professor by order dated 19.08.2005, even assuming that the same had been done by by-passing placement in the Lecturer (Selection Grade), the

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said two orders were never challenged at any earlier point of time, save and except by the present writ petition instituted in the year 2015. Mr. Mazumder also submits that placement as Lecturer (Senior Scale) and/or Lecturer (Selection Grade) or Assistant Professor are not automatic but the same has to come through a procedure of selection. It is submitted that the prayers made in the writ petition cannot be granted for the delay in approaching this Court and in terms of the Office Memorandum dated 19.05.2004 which do not automatically give the petitioner the benefit of being placed as Lecturer (Senior Scale) and/or Lecturer (Selection Grade) or Assistant Professor immediately after completing 5 (five) years without undergoing the selection procedure.

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I have heard the learned counsels for the parties and have perused the materials on record. In so far as the claim for being placed in Lecturer (Senior Scale) is concerned and having regard to the clear provisions under the Office Memorandum dated 19.05.2004, this Court is of the opinion that the petitioner was entitled to Lecturer (Senior Scale) after having completed 5 (five) years of service after his regular appointment as Lecturer in Jorhat Engineering College. In other words, the petitioner having been appointed as Lecturer on 22.04.1989 and having joined on 05.05.1989, the Office Memorandum gave him the benefit of being placed in Lecturer (Senior Scale) after completing 5 (five) years, that is, on and from 06.05.1994. The petitioner’s grievance that the same could not have been given w.e.f. 06.05.1997 through the order dated 13.01.2000 has merit. The same ought to have been granted to him on and from 06.05.1994.

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Having held as above, the petitioner was thereafter entitled to be placed as Assistant Professor, having regard to the provisions in the Office Memorandum dated 19.05.2004, and to all other consequential benefits. His placement as Assistant Professor ought to have been reckoned on and from 06.05.1999, having regard to the scheme of the said Office Memorandum.

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As regards the objection raised by Mr. Mazumder regarding the delay on the part of the petitioner in approaching this Court, I am of the opinion that such submission cannot be entertained to defeat the rights of the petitioner, which has been undeservingly denied by the State respondents. The petitioner is entitled to all such benefits as flowing out of the Office Memorandum dated 19.05.2004.

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Having reached the conclusion that the petitioner is entitled to the benefits under the Office Memorandum dated 19.05.2004, it is now for the State respondents to take necessary action and pass appropriate order towards placing him in the Lecturer (Senior Scale) and Lecturer (Selection Grade) or Assistant Professor, in strict terms of the Office Memorandum dated 19.05.2004, together with consequential benefits, which may be found admissible and payable to him. Let the required exercise be completed within a period of 8 (eight) weeks from today.

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Writ petition stands, accordingly, disposed of.”

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With the above corrections/modifications, the Interlocutory Application stands

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accordingly disposed of.

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JUDGE

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Comparing Assistant

Dr. Aditya Bihar Kandali v. the State of Assam and 3 Ors.

Case brief

What is this about?

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Dr. Aditya Bihar Kandali v. the State of Assam and 3 Ors.

Case brief

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