Allowed

Bipin Ch. Deka v. the State of Assam and 5 Ors.

Gauhati HC4 Jan 2022WP(C)/77/2013

Case brief

AI extract

What is this about?

This judgment concerns a promotion dispute involving a Grade-IV college employee. The court construed a 2012 order approving a seniority-based promotion as retroactively validating a 1994 resolution that lacked necessary approval, awarding benefits from November 2006.

What did the court decide?

Petitioner is granted promotion from Grade-IV employee to Junior Assistant with effect from 14.11.2006 and entitled to consequential benefits.

Bipin Ch. Deka Vs the State of Assam and 5… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010128442013

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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)/77/2013

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BIPIN CH. DEKA

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S/O LATE ASHOK DEKA, R/O BALISHIHA, P.S. DHEKIAJULI, DISTSONITPUR, ASSAM, PIN-784110

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VERSUS

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THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION HIGHER DEPARTMENT, DISPUR, GHY-6

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2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GHY-6

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3:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GHY-19

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4:THE GOVERNING BODY REPRESENTED BY ITS SECRETARY CUM PRINCIPAL LOKANAYAK OMEO KUMAR DAS COLLEGE DHEKIAJULI-784110 DIST- SONITPUR ASSAM 5:THE PRINCIPAL LOKANAYAK OMEO KUMAR DAS COLLEGE DHEKIAJULI-784110 DIST- SONITPUR ASSAM

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6:KUKIL KUMAR BHARALI S/O SRI TANKESWAR BHARALI LOKANAYAK OMEO KUMAR DAS COLLEGE DHEKIAJULI-784110 DIST- SONITPUR ASSAMLOKANAYAK OMEO KUMAR DAS COLLEGE DHEKIAJULI-784110 DIST- SONITPUR ASSA

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Advocate for the Petitioner : MR.A BHATTACHARYA

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Advocate for the Respondent : MR.D CHOUDHURY

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BEFORE

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HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT

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Date : 04-01-2022

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Heard Mr. T.J. Mahanta, learned senior counsel for the petitioner. Also heard Mr. K. Gogoi, learned standing counsel for the respondents No.1 and 3 being the authorities under the Higher Education Department of the Govt. of Assam, Mr. A. Chaliha, learned counsel for the respondent No.2 being the authorities under the Finance Department and Ms. P. Bora, learned counsel for the respondents No.4 and 5 being the authorities of the LOKDC.

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The Office Note indicates that Mr. S. Deka and Ms. K. Mishra, learned counsel have entered appearance for the respondent No.6. But when the matter is taken up, none appears for the said respondent although the cause list indicates the name of the learned counsel.

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The petitioner was a Grade-IV employee in the Lokanayak Omeo Kumar Das College (LOKDC) at Dhekiajuli in the Sonitpur district. By the resolution No.5 dated 07.06.1994 of the Governing Body of LOKDC, the petitioner who is referred as the senior most qualified Grade-IV employee of the college, was promoted to the vacant post of LDA held by Keshab Ch. Kalita, who in turn was

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promoted by the same resolution as UDA in the college. At the relevant point of time when the resolution of the Governing Body was passed on 07.06.1994, it is stated that Assam Aided College Employees Rules, 1960 (in short Rule of 1960) governed the promotion. Rule 4(3) of the Rules of 1960 inter alia provides that the Governing Body concerned shall after due advertisement in atleast two newspapers make appointment of Office Assistant subject to the approval of the Director of Public Instruction, Assam.

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In the instant case, it being a case of promotion to a post of Office Assistant, it is accepted by the learned counsel for the parties that the promotion of the petitioner as per the resolution of the Governing Body of LOKDC would be governed by Rule 4(3) of the Rules of 1960. It being so, it is submitted that there is a requirement of the Director of Public Instruction now to be read as Director of Higher Education, Assam to approve the resolution by which the petitioner was promoted. The matter remained as such that although there was a resolution by the Governing Body promoting the petitioner as LDA, but it was not placed before the Director for its approval as required under the Rules. In the meantime, the Rules of 1960 was replaced by the Assam College Employees (Provincialisation) Rules, 2010 (in short Rule of 2010) which again was framed under Section 12 (1) of the Assam College Employees (Provincialisation) Act, 2005. Rule 7(a) of the Rule of 2010 provides that all appointments either direct recruitment or by promotion shall be made by the Director on the basis of recommendation of the Governing Body based on the recommendation of the Selection Committee/Departmental Promotion Committee duly constituted. In exercise of power under Section 7(a) of the Rules of 2010, the Director of Higher Education, Assam passed the order dated 26.06.2012 which reads as extracted:-

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“In exercise of power conferred under provision of Rule 7(a) of the “Assam College Employees (Provincialisation) Rules, 2010, Govt. O.M. No.B(2)H.155/2004/5, dated 24.06.2004 and on the basis of the recommendation of Departmental Promotion Committee and the Governing Body’s resolution No.5 dated 07.06.1994 adopted in the Governing Body of LOKD College, P.O. Dhekiajuli, District-Sonitpur, the Director of Higher Education, Assam is pleased to promote Sri Bipin Ch. Deka, Grade-IV to the post of Junior Assistant vice Sri Kukil Kr. Bharali, Senior Assistant accommodated against the post of UDA (Sr. Asstt) vice Sri K.C. Kalita (promoted) in the scale of Pay Band (PB-2) Rs.5200-20,200/- with Grade Pay of Rs.2200/- p.m. and other allowance as admissible with effect from the date of joining as Junior Assistant.”

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A reading of the order dated 26.06.2012 gives an indication that the Director had exercised his power under Rule 7(a) of the Rules of 2010 to promote the petitioner to the post of Junior Assistant of the College.

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In the aforesaid factual matrix, we arrive at a situation where there is a recommendation by the Governing Body of the LOKDC dated 07.06.1994 promoting the petitioner to the post of LDA which again under the Rules of 1960 requires approval of the Director, but the same was not placed before the Director for his approval. On the other hand, by the order dated 26.06.2012, the Director exercises his power under Rule 7(a) of the Rules of 2010 to now promote the petitioner to the post of Junior Assistant. Admittedly where there was a recommendation in favour of the petitioner by the Governing Body by its resolution of 07.06.1994, there was no occasion for the Director to now exercise his power under Rule 7(a) of the Rules of 2010 again promote the petitioner to the post of Junior Assistant. The jurisdiction that was vested in the Director was either to approve or disapprove the earlier recommendation of the Governing Body dated 07.06.1994 and merely because it was done belatedly after almost 18 years, it by itself cannot bestow a jurisdiction on the Director under Rule 7(a)

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of the Rules of 2010 to now again promote the petitioner to the post of Junior Assistant.

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From such point of view, the order dated 26.06.2012 appears to be an order without jurisdiction. But however the purport of the order is that the petitioner is to be promoted as Junior Assistant which was the post earlier nomenclatured as LDA. The satisfaction of the Director that the petitioner is to be promoted as Junior Assistant/LDA can be construed to be an act on the part of the Director to have approved the earlier recommendation of the Governing Body dated 07.06.1994, which act of approval was also a statutory requirement under the Rules of 1960. Accordingly, interfering with the order dated 26.06.2012 in its present form where the power under Section 7(a) of the Rules of 2010 was exercised, we modify the same order to implicate that it was an order approving the recommendation of the petitioner for promotion as LDA by the resolution of the Governing Body dated 07.06.1994.

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It is stated by Mr. K. Gogoi, learned counsel for the Higher Education Department that in the intervening situation, there is an order dated 14.11.2006 of the Under-Secretary to the Govt. of Assam in the Education (Higher) Department by which there is an indication that atleast as on 14.11.2006 there was a vacant post of LDA in the LOKDC Dhekiajuli. Accordingly, it is an agreed submission by Mr. T.J. Mahanta, learned senior counsel for the petitioner and Mr. K. Gogoi, learned counsel for the Higher Education Department that the promotion of the petitioner by the resolution of the Governing Body dated 07.06.1994 which is understood to have approved by the Director as per the order dated 26.06.2012 as indicated above be construed to have effect from 14.11.2006. As agreed by the learned counsel, we ordered accordingly. The promotion of the petitioner in LOKDC be construed to have effect from

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14.11.2006 and the petitioner be provided with the necessary consequential benefits of such promotion. The benefit be given within a period of three months from the date of receipt of the certified copy of the order and the respondent authorities may work out as to what benefit the petitioner would be entitled.

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The writ petition stands allowed as indicated above.

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JUDGE

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Comparing Assistant

Bipin Ch. Deka v. the State of Assam and 5 Ors.

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Bipin Ch. Deka v. the State of Assam and 5 Ors.

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