Allowed

MD Rouchan Ali v. the State of Assam and 3 Ors.

Gauhati HC6 Dec 2021WP(C)/5760/2014

Case brief

AI extract

What is this about?

Petitioner, a senior ward boy, challenged the promotion of a junior colleague to Kitchen Supervisor. The Court held that the department ignored seniority mandated by rules and relied on unavailable records, declaring the promotion illegal.

What did the court decide?

Promotion of respondent No. 4 set aside and matter remanded for fresh selection; respondent No. 4 allowed to continue in post for one month pending final selection.

MD Rouchan Ali Vs the State of Assam and 3… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010017662014

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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)/5760/2014

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MD ROUCHAN ALI

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S/O LT. SAFI ALI, R/O SIMELIBARI, KHAIRAPARA, P.O. MANDAKATA, DISTKAMRUP RURAL

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, HEALTH and F.W. DEPTT., DISPUR, GHY-6

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2:THE DIRECTOR OF HEALTH SERVICES ASSAM HENGRABARI GHY-36

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3:THE SUPERINTENDENT LGB CHEST HOSPITAL BIRUBARI GHY-16

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4:BINAY BARMAN WARD BOY C/O THE SUPERINTENDENT LGB CHEST HOSPITAL BIRUBARI GHY-1

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Advocate for the Petitioner : MR.S K TALUKDAR

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Advocate for the Respondent : MR. P HAZARIKA

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER (ORAL)

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Date : 06-12-2021

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Heard Mr. SK Talukdar, learned counsel for the petitioner, Ms. D Borah, learned counsel for the respondents in the Health Department of the Government of Assam and Mr. P Hazarika, learned counsel for the respondent No.4.

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Both the petitioner Md. Rouchan Ali the respondent No. 4 Sri Binay Barman were Grade-IV staffs in the LGB Chest Hospital at Birubari, Guwahati and is said to have been working as Ward Boy in the hospital. As per the gradation list of the Grade-IV staffs of the LGB Chest Hospital, the petitioner Md. Rouchan Ali is in the Serial No. 1 having joined the service on 01.03.1985 and respondent No. 4 Sri Binay Barman is at Serial No. 2 having joined the service on 03.12.1995.

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There was a selection for promotion from amongst the Grade-IV staffs of the LGB Hospital to the post of Kitchen Supervisor, which is stated to be a Grade-III post. The respondents by the order impugned dated 13.08.2014 had appointed the respondent No. 4 Sri Binay Barman as the Kitchen Supervisor in the scale of pay of Rs.5200-20,200/- per month plus grade pay of Rs.1900/- per month. Being aggrieved, the present writ petition is instituted.

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One of the grounds taken by the petitioner is that he being the senior most amongst the Grade-IV in the LGB Chest Hospital, under the convention as well as under the Rules, it is he who ought to have been promoted to the post of Kitchen Supervisor. We also take note of the provision of Assam Directorate Establishment Ministerial Service Rules, 1973, wherein under Rule 10(3), it is

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provided that the criteria for promotion from a Grade-IV to Grade-III would be suitability with due regard to seniority.

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The respondents in the affidavit by the Director of Health Services, Assam in paragraph 9 takes the stand, which is extracted as below:-

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“That with regard to the statements made in paragraph 8 of the writ petition, the deponent begs to state that the authority has the discretionary power to constitute physical verification Board in order to select suitable candidate for the post of Kitchen Supervisor a Grade III post to be filled up from the Grade IV on promotion. The post of Kitchen Supervisor entails supervisory work in the field of kitchen activities and related work and therefore requires a suitable person capable of managing the supervisory duty as Kitchen Supervisor. Therefore, a physical verification Board was constituted to select an eligible Grade IV employee for the post of Kitchen Supervisor.”

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A reading of the stand taken in paragraph 9 of the affidavit in opposition of the Director makes it discernible that according to the authorities, the post of Kitchen Supervisor requires a suitable person capable of managing the supervisory duty as Kitchen Supervisor and therefore, a physical verification board was constituted to select an eligible Grade-IV employee for the post of Kitchen Supervisor.

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When we asked for the records of the selection as to why the respondent No. 4 Sri Binay Barman was found to be more suitable than the petitioner Md. Rouchan Ali, a statement is made that the records are not available. In the absence of the records, we understand the only material before us is the paragraph 9 of the affidavit in opposition to arrive at a decision. Reading of paragraph 9 would show that the respondent No. 4 Sri Binay Barman was found to be more suitable for the post of Kitchen Supervisor than the petitioner Md. Rouchan Ali and therefore, he was promoted. But when we take the criteria for promotion provided in the Rules in force i.e suitability with due regard to seniority, we find that paragraph 9 does not indicate anything as to whether the

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requirement of ‘due regard to seniority’ was also taken into consideration. The only stand in paragraph 4 in the affidavit in opposition is that at the time of entry of service, the petitioner was not a matriculate, but on the other hand, he had cleared the matriculation qualification subsequently while in service. But in doing so, he did not get the mandatory permission from the authority concerned for undertaking the matriculation course.

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It is the stand of the respondents that although the petitioner is a matriculate, which he acquired while in service, but the same cannot be taken into consideration as he did not obtain permission from the authorities to undergo the matriculation course. In our view it cannot be a reason for the authorities to ignore the matriculation qualification of the petitioner. If the petitioner had undergone matriculation course without permission, it may be a case for disciplinary action, but it cannot be understood that the qualification itself has to be discarded.

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Mr. P Hazarika, learned counsel for the respondent No. 4 on the other hand takes the stand that the respondent No. 4 is undertaking the duty of a Kitchen Supervisor for the last 07 years and therefore, he should not be disturbed at this stage. But if an illegality was committed at the time of making any promotion for not adhering to the required procedure under the Rules, mere continuing in a promoted post for seven years cannot be a reason to ignore the illegality that may have been committed. We have also been told that the Md. Rouchan Ali would retire from service on 01.02.2022 i.e. as of now he has a little over one and half months of service tenure.

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In view of the illegality noticed, we set aside the promotion of the respondent No. 4 Sri Binay Barman made by the order dated 09.10.2014 and require the departmental promotion authority to give a de-novo consideration to

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the claim of the petitioner as well as the respondent No. 4 for promotion as Kitchen Supervisor.

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As the petitioner would retire from service on 01.02.2021, we require the departmental authorities to do the needful within a period of fifteen days from today and Ms. D Borah, learned standing counsel takes note of the same and undertakes to inform the authorities regarding the requirement of conducting a fresh process for the promotion.

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As the respondent No. 4 has been discharging the duties of the Kitchen Supervisor for almost seven years, in spite of setting aside the order, we provide that the respondent No. 4 will continue in the post till the selection is made by the appropriate authority. In the event, the selection goes in favour of the petitioner, a period of hardly one month or less would be left for him to have the benefit of the promoted post. If it happens, the respondent No. 4 may bear the said period and for the purpose the respondent authorities may suitably accommodate the respondent No. 4.

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The writ petition is allowed as indicated above.

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JUDGE

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Comparing Assistant

MD Rouchan Ali v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

MD Rouchan Ali v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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