Allowed

Arun Chandra Basumatary v. the State of Assam and 2 Ors.

Gauhati HC4 Jan 2022WP(C)/3765/2020

Case brief

AI extract

What is this about?

The Gauhati High Court directed the Government of Assam to promote the petitioner, an Accounts Assistant, to the post of Inspecting Auditor. The court held that since the intermediate post was abolished and no direct post exists, the new designation is the next higher grade, justifying promotion after continuous, unblemished service.

What did the court decide?

Respondents directed to promote the petitioner to the post of Inspecting Auditor and similarly situated persons within three months.

Arun Chandra Basumatary Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010132012020

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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)/3765/2020

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ARUN CHANDRA BASUMATARY

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S/O LATE DIPAR CHANDRA BASUMATARY, RESIDENT OF HOUSE NO. 8, FATASIL AMBARI, DATAL PARA, PO DHIREN PARA, GUWAHATI 781025

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VERSUS

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THE STATE OF ASSAM AND 2 ORS. REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, DEPARTMENT OF FISHERIES DISPUR, GUWAHATI 6

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2:THE SECRETARY DEPARTMENT OF FISHERIES GOVERNMENT OF ASSAM DISPUR GUWAHATI 6

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3:THE DIRECTOR DIRECTORATE OF FISHERIES MEEN BHAWAN GOPINATH NAGAR GUWAHATI 78101

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Advocate for the Petitioner : MR H K DAS

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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04-01-2022

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Heard Shri H.K. Das, learned counsel for the petitioner. Also heard Ms. S. Baruah, learned State Counsel representing the respondents. Considering the subject matter and as agreed to by the parties, the writ petition is taken up for disposal at the admission stage.

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The matter pertains to the promotion of the petitioner.

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It is the case of the petitioner that he had joined the Fishery Department as Accounts Assistant on 12.03.1987. At the time of joining the Department, the next promotional post was the post of Inspecting Accountant. It is the projected case of the petitioner that vide a communication dated 28.10.2005, the post of Inspecting Accountant was upgraded with a new nomenclature Inspecting Auditor. By the said notification, the post of Inspecting Accountant was abolished. The petitioner has cited the example of one Shri Birendra Dev Adhikary who was given the benefit of such upgradation. The petitioner is aggrieved by the fact that though he has been rendering his service since 1987 without any blemish, his case for promotion has not been considered and in this regard the petitioner had submitted representation. It appears that the Department had also constituted a Selection Committee in spite of which, the case of the petitioner remained to be considered.

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Shri Das, the learned counsel for the petitioner submits that the earlier post of Inspecting Accountant being abolished and replaced by a new post namely Inspecting Auditor, it is the new post of Inspecting Auditor which has to be treated to be the promotional post from the rank of Accounts Assistant as there is no other post in between the said two posts. That being the position, Shri Das, the learned counsel contends that there should not be any embargo in considering the case for promotion

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of the petitioner to the post of Inspecting Auditor.

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On the other hand, Ms. S. Baruah, learned State Counsel representing the respondents (Fishery Department) submits that there is no Service Rules governing the promotion of the employees of the Directorate.

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Referring to the averments made in paragraph 3 of the affidavit-in-opposition dated 30.09.2021, the learned State Counsel has submitted that a specific query was raised by the Government vide communication dated 16.11.2017 to the Directorate to submit the Service Rule for promotion. However, the Government was informed vide communication dated 15.12.2017 that there is no Service Rule for the Directorate. The learned State Counsel accordingly submits that in absence of any Service Rule, giving the benefit of promotion to the petitioner would be difficult.

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On a perusal of the averments made in the affidavit-in-opposition dated 30.09.2021 filed by the respondent no. 3, it appears that the principal reason of not giving the benefit of promotion to the petitioner is that in the perspective of the Directorate, giving promotion would amount to jumping 2 steps. For ready reference, the relevant averments made in paragraph 5 is extracted herein below:-

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“That, as regards to the statements made in paragraph 7 of the writ petition the answering deponent begs to state that the petitioner is holding the post of Account Assistant in the Directorate of Fisheries, Assam, Guwahati. He may be promoted to the post of Inspecting Accountant. But the post of Inspecting Accountant is abolished and upgraded that particular post to the “Inspecting Auditor, though there is feeder cadre but jumping of 2 steps through promotion is not legally possible.”

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The aforesaid objection put on affidavit prima facie appears to be an erroneous one inasmuch as the earlier post of Inspecting Accountant has been abolished which is an admitted fact. In fact the communication dated 28.10.2005 in clear terms states that the post of Inspecting Accountant would no longer exist from the date of filling up of the upgraded post.

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As indicated above, by the said communication dated 28.10.2005, the post of Inspecting Accountant was upgraded to the post of Inspecting Authority (nongazette). For ready reference, the relevant part of the communication dated 28.10.2005 is extracted herein below:-

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“The post of Inspecting Accountant will no longer be in existence from the date of filling up of the upgraded post.

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This issues with the concurrence of Finance EC(I) Department vide the U/O. No. FE(I) 182/05, dtd. 12/04/2005.”

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In view of such facts & circumstances, this Court is not in a position to accept the plea of the Directorate that giving promotion to the petitioner to the post of Inspecting Auditor would amount to jumping 2 steps. The records and materials placed before this Court would show that there is no post in between the post of Account Assistant and the new post of Inspecting Auditor which was created in the year 2005 and therefore, it would be natural to presume that the next promotional post from the post of Account Assistant would be Inspecting Auditor which the petitioner aspires to be. The records further shows that the petitioner has been rendering continuous service as Accounts Assistant from his date of appointment i.e. 12.03.1987 and there is nothing on record to show that there is any blemish in rendering the services by the petitioner. The records further reveal that the post of Inspecting Auditor is lying vacant since the year 2016.

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In view of the above, this Court is of the view that absence of Service Rules may not come into the way for considering the case of the petitioner for promotion to the rank of Inspecting Auditor which admittedly is the next higher Grade above the post of Account Assistant.

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This Court accordingly directs the respondents to undertake the exercise for promotion of the petitioner and similarly situated persons in the cadre of Account Assistant to the post of Inspecting Auditor subject to fulfillment of other criteria including Educational qualification. The said exercise as directed to be undertaken be

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completed within a period of 3(three) months from the date of receipt of certified copy of this order.

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The petitioner is accordingly at liberty to obtain certified copy of this order and furnish the same before the authorities for doing the needful in terms of the same. The writ petition is accordingly disposed of.

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JUDGE

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Comparing Assistant

Arun Chandra Basumatary v. the State of Assam and 2 Ors.

Case brief

What is this about?

What did the court decide?

Arun Chandra Basumatary v. the State of Assam and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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