Petitioner challenged his sub-promotion of a junior officer in the Assam Education Service. The bench held the department acted legally by sealing the petitioner's promotion pending a criminal case and dismissed the writ.
Petitioner's writ petition was dismissed as devoid of merit.
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GAHC010000232021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/139/2021
PHATIK DOLEY
S/O LATE JAMUNA DOLEY, R/O VILL. SABOTI KALYANPUR, P.O. SABOTI, P.S. NORTH LAKHIMPUR, DIST. LAKHIMPUR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, EDUCATION (SECONDARY) DEPTT., DISPUR, GUWAHATI 6
2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI 19
3:NRIPEN DAS DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GHY 1
Advocate for the Petitioner : MR. M K NEOG Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HON’BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
10-02-2021
Heard Mr. M. K. Neog, learned counsel for the petitioner and Mr. SMT Chistie, learned Standing counsel, Secondary Education Department for the respondent Nos. 1 and 2.
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Matter pertains to promotion of Sri Nripen Das respondent No.3, a Junior Officer to the post of Joint Director under the Assam Education Service disregarding the seniority and better claim of the petitioner.
By communication dated 12.04.2020 the Commissioner and Secretary to the Government of Assam in the Secondary Education Department appointed the petitioner, belonging to Schedule Tribe (Plain) community as District Elementary Education Officer(DEEO) of Lakhimpur District against an existing vacancy, on being selected by the APSC and since then, he is serving in the said post.
Petitioner stated that he is going to retire from service in the month of August-2022 on attaining the age of superannuation at 60 years.
It is further contended by the petitioner that the State Government in the Secondary Education Department by Notification dated 13.03.2018 published the Final Gradation List of the officers in the cadre of IS/DEEO/Deputy Director under Assam Education Service. Before it, the said Department published the provisional Gradation list on 16.12.2017. In said Final Gradation List, the petitioner’s seniority position is at Srl. No.8, whereas that of the respondent No.3 is at Srl. No.17, who belongs to Schedule Caste community.
By Notification dated 25.09.2020, the State Government in the Secondary Education Department promoted three officers from the said Final Gradation List dated 13.03.2018, namely, Dipak Kr. Sarma, Prabin Ch. Sarma and Sri Nripen Das, respondent No.3 to the post of Joint Directors of Elementary Education, Assam and posted them in the office of the Director of Elementary Education, Assam, Director of Higher Education, Assam and Director of Secondary Education, Assam respectively. Said Dipak Kr. Sarma and Prabin Ch. Sarma belongs to General category whereas said Dipak Kr. Sarma, is senior to the petitioner and Prabin Ch. Sarma is just next to him in the Gradation List dated 13.03.2018. However, the respondent No.3 Nripen Ch. Das, who belongs to the Schedule Caste community, is in the 9th position below the petitioner.
Hence, this writ petition by the petitioner challenging the promotion of said respondent No.3, disregarding his seniority.
Pursuant to the order dated 18.01.2021, Mr. Chistie, learned Standing counsel,
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Secondary Education Department have placed the relevant record bearing File No. ASE 648/2019 of the State Government in the Secondary Education Department wherein by Notification No.ASE 648/2019/32 dated 25.09.2020 said Dipak Kr. Sarma, Prabin Ch. Sarma and Sri Nripen Das have been promoted to the post of Joint Directors under the Assam Education Service.
It is seen that for the purpose of selecting the suitable candidates for promotion to the rank of Joint Directors under the Assam Education Service, a meeting was held on 15.09.2020, where it was found that out of the total cadre strength of Joint Directors under the Assam Education Service, 8 (eight) posts were lying vacant. As per the provision of Rule 12 (2) of the Assam Education Service Rules, 1982 following the ration of 1:4, the authorities decided to consider 32 Nos. of candidates against those 8 vacancies following their seniority position in the said Gradation List dated 13.03.2018. As per the provisions of Roster Register maintained for said Joint Directors as per Schedule II of the Assam Scheduled (Reservation in Vacancies & Posts) Act, 1978, amended in 2012, the authorities found that Roster point No.4 belongs to un-reserved category, Roster Point No. 5 belongs to ST(P) category, Roster Point Nos. 6 and 7 belongs to un-reserved category, Roster Point No.8 belongs to SC category, whereas Roster Point Nos. 9, 10 and 11 belong to un-reserved category. Accordingly, the authorities found that out of those 8 posts of Joint Directors to be filled up by promotion, 6 posts are for the un-reserved category, 1 for SC category and 1 for ST(P) category, whereas there was no post for ST(H) category.
After due deliberation of the matter, the Selection Board in its meeting held on 15.09.2020 found said Dipak Kr. Sarma, Prabin Ch. Sarma and Nripen Das, (respondent No.3) suitable for promotion on the basis of their merit-cum-seniority and accordingly recommended their names for promotion to the cadre of Joint Directors under the Assam Education Service.
In the said meeting dated 15.09.2020, the Committee also found that the petitioner is fit for promotion and accordingly, recommended his name for promotion to the post of Joint Director. But because of pendency of criminal case against the petitioner, the said Committee decided to keep its decision regarding his promotion to the post of Joint Director under AES in a sealed cover till finalization/exoneration of the Departmental/Criminal proceeding pending
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against him, observing that in the event of his complete exoneration in the pending Departmental/Criminal proceeding, the petitioner will be given his promotion to the post of Joint Director, AES without affecting his seniority and pay benefits from the date of his immediate junior gets promoted to the said post of Joint Directors in the AES.
On being enquired Mr. Neog, learned counsel for the petitioner submitted that a criminal proceeding being Special Case No.05/2011 is pending against the petitioner before the Special Court, Assam.
In view of the above and on perusal of the relevant record placed by Mr. Chistie, no such illegality is found to have been committed by the respondents in the Secondary Education Department in issuing the impugned Notification No.ASE.648/2019/32 dated 25.09.2020 promoting said Prabin Chandra Sarma and Sri Nripen Das, respondent No.3 herein to the post of Joint Director under the Assam Education Service. Since the concerned Committee has already considered the case of the petitioner for his promotion and kept its decision in sealed cover, subject to his exoneration in the Criminal case/Departmental Proceeding pending against him, therefore, the Court is of the opinion that the order dated 25.09.2020, noted above, does not call for any interference.
Accordingly, this writ petition being devoid of any merit stands dismissed.
The record placed by Mr. SMT Chistie, learned Standing counsel, Secondary Education Department be returned obtaining necessary acknowledgment from him.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the promotion of an officer without affecting the senior petitioner's pending criminal case warrants judicial interference.
Whether the departmental decision to seal the petitioner's promotion file pending exoneration vitiated merit.
Whether maintaining the petitioner in his current seniority position while granting promotion to juniors is legal.
2 provisions across 2 enactments
PHATIK DOLEY
THE STATE OF ASSAM
NRIPEN DAS
MANASH RANJAN PATHAK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
