Allowed

Ananta Ram Kalita and 2 Ors. v. the Guwahati Municipal Corporation and 3 Ors.

Gauhati HC5 Sept 2022WP(C)/554/2017

Case brief

AI extract

What is this about?

The Gauhati High Court set aside an order rejecting the petitioners' promotion claims for non-compliance with the principle of next below rule. The court directed the respondent corporation to consider the petitioners' cases retrospectively from the date juniors were promoted, issuing consequential benefits as the petitioners had retired.

What did the court decide?

Impugned order dated 03.01.2015 set aside; Respondent directed to consider petitioners for promotion from 24.05.2007 with consequential benefits within two months.

Ananta Ram Kalita and 2 Ors. Vs the Guwahati… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No. 1/9

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GAHC010121492017

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THE GAUHATI HIGH COURT

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

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WP(C)/554/2017

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Ananta Ram Kalita, S/o Late Tarini Charan Kalita, Santipur Hillside, Pragjyotish Path, House No.29, Bharalumukh, Guwahati-781009.

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Sri Pramod Choudhury S/o Late Bhabit Chandra Choudhury, Jayanagar, Bye Lane- 6, Khanapara, Guwahati - 781006.

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Sri Huidram Rupa Chandra Singh, S/o Late H. Maino Singh, Manipuri Basti, Bir Tikendrajit Bye Lane, Paltan Bazar, Guwahati – 781008.

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……………… Petitioners

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Versus -

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The Guwahati Municipal Corporation,

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Represented by The Commissioner, Panbazar, Guwahati -781001.

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The Commissioner,

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Guwahati Municipal Corporation, Panbazar, Guwahati - 781001.

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Sri Ananta Bora,

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Page No. 2/9

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Senior Tax Superintendent, Guwahati Municipal Corporation, Through Central Registry, Panbazar, Guwahati - 781001.

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Sri Gautam Das Gupta,

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Senior Enforcement Officer, Guwahati Municipal Corporation, Through Central Registry, Panbazar, Guwahati – 781001.

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……………….Respondents

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Advocates :

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Petitioners : Mr. S.K. Muktar, Advocate Respondent nos. 1 & 2 : Mr. S. Borah, Standing Counsel, Guwahati Municipal Corporation Respondent no. 3 : Mr. S. Dutta, Advocate.

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Date of Hearing and Judgment & Order : 05.09.2022

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER [Oral]

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Heard Mr. S.K. Muktar, learned counsel for the petitioners; Mr. S. Borah, learned Standing Counsel, Guwahati Municipal Corporation [GMC] for the respondent nos. 1 & 2; and Mr. S. Dutta, learned counsel for the respondent no. 3.

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The petitioners, 3 [three] in nos., have instituted the writ petition under Article 226 of the Constitution of India stating that they are espousing a common cause of action and by making assailment of an order dated 03.01.2015 passed by the respondent no. 2, whereby, the cases of the petitioner no. 1 and the petitioner no. 3 for promotion to the next grade on the principle of next below rule were rejected. The impugned order was in deference to a

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Page No. 3/9

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direction made by an order dated 29.10.2014 passed in a writ petition, W.P.[C] no. 6496/2013 wherein all the present three petitioners were the petitioners. The impugned order dated 03.01.2015 has not, however, made any mention about the case of the petitioner no. 2 for promotion though direction was made in the order dated 29.10.2014 passed in the writ petition, W.P.[C] no. 6496/2013 for consideration of the case of the petitioner no. 2 in similar manner.

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The three petitioners along with 17 others came to be appointed in the post of Lower Division Assistant [LDA] in the respondent Guwahati Municipal Corporation [‘the Corporation’, for short] by an order dated 19.01.1977. By an order dated 31.12.1984 passed by the respondent no. 2, 22 nos. of LDAs including the three petitioners, were promoted to the post of Upper Division Assistant [UDA]. By an order dated 17.02.1992, 40 nos. of UDAs were transferred/posted to different newly created/revived posts mentioned against their names in their own grade scale of pay and allowances with immediate effect. By the order dated 17.02.1992, the petitioner no. 1 was transferred and posted as Assistant Assessment Officer, West Zone whereas the petitioner no. 2 who was serving as UDA, Accounts Branch stood transferred and posted as Junior Accountant. The petitioner no. 3 who was also in the Licence Branch like the petitioner no. 1, was transferred and posted as Assistant Licence Officer, Central Zone. In the year 1997, all the three writ petitioners were promoted along with 24 other employees by an order dated 28.08.1997. The petitioner no. 1 and the petitioner no. 3 were promoted to the post of Assessment Officer in the Assessment Branch of West Zone and East Zone of the respondent Corporation respectively. The petitioner no. 2 was promoted from the post of UDA to the post of Head Assistant in the Personnel Branch of the respondent Corporation. At the time of such promotions by the order dated 28.08.1997 both the posts of Assessment Officers and Head Assistant carried the Pay Scale of Rs. 1,635–3,950/-. Both the posts of Assessment Officer and the Head Assistant carried the same Pay Scale of Rs. 4,1209,725/- with Grade Pay of Rs. 4,500/- in terms of the Assam Services [Revision of Pay] Rules, 2010.

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The respondent Corporation by a Notice dated 06.10.1982 published a seniority list of employees working in the post of LDA, LDA [Typist], etc. wherein the names of the three

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Page No. 4/9

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petitioners herein had figured at serial nos. 9, 12 and 13 respectively. There was also a notice therein to submit complaint within a period of one month if anybody was aggrieved. The respondent Corporation had published another similar seniority list of employees working in the post of UDA, etc. in the respondent Corporation on 13.03.1991 under the hand of the Joint Commissioner of the respondent Corporation and in the said list of UDAs of the respondent Corporation, the names of the three petitioners figured at serial nos. 11, 14 and 15 respectively.

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The respondent no. 2 by an order dated 24.05.2007 promoted 15 nos. of employees of the respondent Corporation who were working in similar posts like the three petitioners herein, to the next higher posts like Senior Assessment Officer, Senior Licence Officer, etc. which carried a pay scale of Rs. 4,300-11,025/-. According to the petitioners, the inter se seniority positions of at least 5 nos. of employees whose names figured in the order dated 24.05.2007, were below the three petitioners in the seniority list of LDAs/UDAs. Thereafter again on 05.07.2008, the respondent no. 2 passed an order of even date whereby 8 nos. of employees were promoted to the next higher post carrying the scale of pay of Rs. 4,30011,025/-. Amongst those 8 nos. of employees, one Sri Biswajit Mazumder was included who, according to the petitioners, was junior to the three petitioners in the seniority list of LDAs/UDAs. In the year 2011 also, the respondent no. 2 passed an order of promotion on 12.08.2011 whereby employees were promoted to the post of Assistant Commissioner and one Sri Trailokya Mahanta who was earlier junior to the petitioners, was further promoted to the post of Assistant Commissioner by the order dated 12.08.2011.

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On the basis of the promotion orders, dated 24.05.2007, dated 05.07.2008 and dated 12.08.2011 respectively, the petitioners have contended that by those orders, a number of employees who were working in the same grade as like the petitioners and whose positions were lower in the gradation lists of LDAs/UDAs published by the respondent Corporation, had been made to supersede the petitioners arbitrarily. The petitioners are further aggrieved by an order dated 16.08.2011 whereby one Sri Shyamal Bhattacharjee who was working in the post of Superintendent, was promoted to the post of Senior Assessment Officer with retrospective effect from 24.05.2007 by creating a supernumerary post of Senior Assessment

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Officer in the Scale of Pay of Rs. 4,300-11,025/-. The order dated 16.08.2011 has reflected that Sri Shyamal Bhattacharjee was promoted on the ground that he was superseded by his juniors, who were promoted by the order dated 24.05.2007. It is the further case of the petitioner that on 24.05.2007, the petitioners were also superseded by some of the promotees and in such view of the matter, the petitioners are also similarly situated like Sri Shyamal Bhattacharjee.

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It is also the case of the petitioners that like the petitioners, four other employees viz. [i] Sri Naren Bakshi, [ii] Sri Ananta Bora, [iii] Sri Sanjib Tanti and [iv] Sri Gauta Das Gupta were also superseded by the promotion orders referred above. Aggrieved by such action on the part of the respondent Corporation whereby juniors were promoted, Sri Naren Bakshi had preferred a writ petition, W.P.[C] no. 4958/2011. Other aggrieved employees viz. Sri Ananta Bora, Sri Sanjib Tanti and Sri Gautam Das Gupta had preferred another writ petition, W.P.[C] no. 5786/2012. While the writ petition, W.P.[C] no. 4958/2011 [Naren Bakshi vs. Gauhati Municipal Corporation and others] was disposed of by an order dated 13.05.2013, the other writ petition, W.P.[C] no. 5786/2012 [Ananta Bora and 2 others vs. the State of Assam and 4 others] was disposed of by an order dated 03.06.2014.

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While disposing of the two writ petitions, W.P.[C] no. 4958/2011 and W.P.[C] no. 5786/20 by the orders dated 13.05.2013 and dated 03.06.2014 respectively, this Court took note of the fact that as per the gradation lists of different grades like LDAs/UDAs, the petitioners therein were senior to the private respondents impleaded therein. The Court also considered the plea advanced on behalf of the respondent Corporation that the petitioners were not promoted as they were not graduates. It is pertinent to mention that the Court after taking into consideration the entire facts, had found that there was no reason to deprive the petitioners therein from being promoted on the ground that they were not graduates in presence of other promoted employees who were also not graduates and the respondents were obliged to consider the case of those petitioners for promotion to the next higher post by applying the principle of next below rule, if they had been superseded by their juniors within a stipulated time period.

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Page No. 6/9

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It transpires that subsequent to the disposal of the writ petition, W.P.[C] no. 4958/2011 by order dated 13.05.2013, the respondent no. 2 passed an order on 03.09.2013 [16.09.2013] whereby the petitioner therein viz. Sri Naren Bakshi was promoted to the rank of Senior Assessment Officer w.e.f. 04.05.2007 when his immediate juniors were promoted and it was observed therein that he would be entitled to the financial and all consequential benefits on his promotion to the rank of Senior Assessment Officer w.e.f. 24.05.2007.

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The three petitioners together had preferred a writ petition, W.P.[C] no. 6496/2013 aggrieved by the promotion orders referred above whereby their juniors were promoted and the said writ petition was disposed of by an order dated 29.10.2014 with a direction to consider the case of the petitioners for promotion to the next higher post in terms of the direction made in the order 13.05.2013 passed in the writ petition, W.P.[C] no. 4958/2011 [Naren Bakshi vs. Gauhati Municipal Corporation and others] and by the order dated 03.06.2014 passed in the writ petition, W.P.[C] no. 5786/2012 [Ananta Bora and 2 others vs. the State of Assam and 4 others].

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It was in consequence to the said order dated 29.10.2014, the impugned order dated 03.01.2015 came to be passed by the respondent no. 2. On perusal of the impugned order dated 03.01.2015, it is noticed that though mention of the orders dated 13.05.2013 and 03.06.2014 was made in the impugned order, there was no discussion as to whether the present three petitioners were similarly situated to the petitioners in the two writ petitions, W.P.[C] no. 4958/2011 and W.P.[C] no. 5786/2012. Mention is made of an order dated 10.01.2002 passed by this Court in Civil Rule no. 4803/1997 and also of an order dated 18.05.2014 passed in Writ Appeal no. 50/2002 which was preferred against the order dated 10.01.2002 passed in Civil Rule no. 4803/1997. In Civil Rule no. 4803/1997, the question that arose for determination was whether the private respondents therein could be treated differently by giving higher pay scale on the basis of their educational qualifications. The Court noticed that there was no gradation list published by the respondent Corporation at that point of time to post an employee as senior or higher than others. There was no service rules governing the matter of appointment and promotion of employees. It was found that there were no different grades of service and the pay scales were being provided on the basis

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Page No. 7/9

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of the posts considering the associated responsibilities. It was in such fact situation, the Court did not interfere with the decision of the respondent Corporation in giving higher pay scale to employees having higher educational qualifications. When the matter was carried in appeal in Writ Appeal no. 50/2002, the writ appellate Court did not interfere with the order passed in Civil Rule no. 4803/1997.

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The issue raised by the petitioners herein cannot be said to be similar with the issues that arose in Civil Rule no. 4803/1997. There were gradation lists of LDAs/UDAs specifying the inter se seniority positions of the employees. It is not in dispute that the petitioners were senior to some of the employees who were promoted by the promotion orders dated 24.05.2007, dated 05.07.2008 and dated 12.08.2011. It is also noticed that subsequent to the impugned order dated 03.01.2015, two petitioners in the writ petition, W.P.[C] no. 5786/2012 viz. Sri Ananta Bora and Sri Gautam Das Gupta were promoted to the next higher post by an order dated 04.09.2015 passed by the respondent no. 2. By the order dated 04.09.2015, the said two employees were promoted w.e.f. 24.05.2007 i.e. the date from which their juniors were promoted by creating two supernumerary posts of Senior Grade Officers from 24.05.2007 with the further observation that the said post would be abolished as soon as regular vacancies would become available. The main contention raised by the respondent Corporation in the writ petition, W.P.[C] no. 5786/2012 was that the petitioners therein being not graduates, could not be promoted.

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From the discussions above, it has clearly emerged that by the promotion orders dated 24.05.2007 and dated 05.07.2008, a number of employees who were juniors to the petitioners in the post of LDAs/UDAs as per the gradation lists mentioned above, were promoted to the next higher post by superseding the petitioners. When other similarly situated employees had approached this Court by writ petitions for consideration of their cases for promotion with retrospective effect and the writ petitions were disposed of with a direction to consider their cases on the basis of the next below rule, the respondent Corporation had promoted those employees with retrospective effect, as have been indicated above. It is noticed that the two petitioners in W.P.[C] no. 5786/2012 who have been impleaded in the instant writ petition as party-respondent no. 3 and party-respondent no. 4

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respectively are not graduates and were juniors to the petitioners. It is relevant to mention that the notices upon the respondent nos. 3 and 4 were duly served and a common affidavitin-opposition has been filed on behalf of the respondent nos. 1 to 4 in this writ petition on 02.11.2018.

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The next below rule, in service jurisprudence, is made applicable in a situation so as to ensure that if a junior employee is given promotion without considering his senior employee then the senior employee can claim the right to be considered for such promotion from the date on which the junior was so promoted. The writ petition, W.P.[C] no. 6496/2013 was disposed of by the order dated 29.10.2014, specifically with a direction to consider the cases of the petitioners for promotion to the next higher post in terms of the order dated 13.05.2013 passed in the writ petition, W.P.[C] no. 4958/2011 and the order dated 03.06.2014 passed in the writ petition, W.P[C] no. 5786/2012. Both the writ petitions, W.P.[C] no. 4958/2011 and W.P[C] no. 5786/2012 were disposed of to consider the cases of the petitioners therein applying the principle of next below rule. In view of the order dated 29.10.2014 passed in the writ petition, W.P.[C] no. 6496/2013, naturally the cases of the petitioners ought to have been considered in terms of the next below rule. It is trite to mention that whenever a superior Court in exercise of its power of judicial review gives a direction to an authority as to the manner in which the matter is to be given consideration, the authority has the obligation to consider and decide the matter in the light of such direction. In view of the direction contained in the order dated 29.10.2014 passed in the writ petition, W.P.[C] no. 6496/2013, the respondent no. 2 had the obligation to consider the cases of the petitioners for promotion also on the basis of the next below rule. But from a perusal of the impugned order dated 03.01.2015 it is not demonstrated that the respondent no. 2 had considered the case of the petitioners for promotion on the basis of the next below rule. By the order dated 04.09.2015, the respondent no. 2 in deference to the direction made by this Court in its order dated 03.06.2014 passed in the writ petition, W.P[C] no. 5786/2012, the respondent no. 2 had promoted the respondent no. 4 and the respondent no. 5 who were not graduates and juniors to the petitioners, to the post of Senior Grade Officer w.e.f. 24.05.2007, the date from which their juniors were promoted by creating two supernumerary posts. The impugned order was passed on a date [03.01.2015], which was anterior to

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04.09.2015. It, thus, goes to prima facie indicate that the petitioners have been treated with discrimination.

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In the light of the discussion and the reasons mentioned therein, the impugned order dated 03.01.2015 is found to be not sustainable in law. Consequently, the same is liable to set aside and it is accordingly set aside. As has already been directed by the order dated 29.10.2014 passed in the writ petition, W.P.[C] no. 6496/2013, the respondent no. 2 shall now consider the cases of the petitioners in terms of the order dated 13.05.2013 passed in the writ petition, W.P.[C] no. 4958/2011 and the order dated 03.06.2014 passed in the writ petition, W.P.[C] no. 5786/2012 and by taking into account the principle of next below rule for promotion of the petitioners i.e. from the date, 24.05.2007 when their juniors appeared to have been promoted and notwithstanding the fact that the petitioners are not graduates. If after such consideration the petitioners are found entitled for promotion to the next higher post, all consequential benefits shall be given to the petitioners notionally as all the petitioners have retired from service on reaching the age of superannuation in the meantime. The entire exercise shall be completed within a period of 2 [two] months from the date of submission of a certified copy of this order at the office of the respondent no. 2 by the petitioners.

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With the observations made and directions given above, the writ petition is allowed to the extent indicated above. There shall, however, be no order as to cost.

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JUDGE

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Comparing Assistant

Ananta Ram Kalita and 2 Ors. v. the Guwahati Municipal Corporation and 3 Ors.

Case brief

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Ananta Ram Kalita and 2 Ors. v. the Guwahati Municipal Corporation and 3 Ors.

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