Dr. Mohan Saikia Vs the State of Assam and 5 Ors.

THE STATE OF ASSAM AND 5 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HEALTH and FAMILY WELFARE A DEPARTMENT, DISPUR, GUWAHATI-6.

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2:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM

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HEALTH AND FAMILY WELFAE DEPARTMENT DISPUR GUWAHATI -6. 3:THE DIRECTOR OF HEALTH SERVICES

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ASSAM HENGRABARI GUWAHATI -36.

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4:THE JOINT DIRECTOR OF HEALTH SERVICES

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GOLAGHAT P.O. and DIST. GOLAGHAT ASSAM PIN - 785621. 5:THE PRINCIPAL SECRETARY/COMMISSIONER and SECRETARY/ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM

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PERSONNEL DEPARTMENT DISPUR GUWAHATI-6.

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6:THE PRINCIPAL ACCOUNT GENERAL A and E ASSAM MAIDAMGAON BELTOLA GUWAHATI -29

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Advocate for the Petitioner : MR.A K AZAD, MS. B DEVI,MR. N SARKAR,MR BHUBAN SHARMA,MR.N HAQUE,DR.B AHMED,MRK UDDIN

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Advocate for the Respondent : SC, AG, ,SC, PERSONNEL DEPT.,SC, HEALTH

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BEFORE

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HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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ORDER

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Date : 04.06.2026

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Heard Mr. N. Sarkar, learned counsel, appearing for the petitioner.

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Also heard Mr. D. P. Bora, learned Standing Counsel, Health & Family Welfare Department and Mr. R. Boro, learned Standing Counsel, AG, Assam, appearing for the respondent no.6.

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2. The petitioner has instituted the present writ petition praying for

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his retrospective promotion to the cadre of Senior Medical & Health Officer w.e.f. 12.04.1994 and/or atleast w.e.f. 31.03.1997 and thereafter, Sub-Divisional Medical & Health Officer from 22.01.2007 or atleast w.e.f.12.11.2007, by applying the principle “Next Below Rule”. The petitioner for the said purpose has presented a challenge to a

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speaking order dated 21.05.2015 by which he was granted retrospective promotion to the said cadres from the year 2006 and 2014 respectively. The petitioner has further prayed for release of his pension and pensionary benefits accordingly.

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3. The facts in brief requisite for adjudication of the issues arising in the present writ petition is noticed as under;

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The petitioner was initially appointed as Medical & Health Officer-I under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951, vide a notification dated 10.12.1983. Thereafter, the petitioner on being selected by the APSC, he was regularly appointed as a Medical & Health Officer-I vide an order dated 10.07.1986 and continued in his service in such capacity. The petitioner in the meanwhile also pursued higher studies, on being granted permission for the same by the Departmental Authorities. It is projected in the writ petition that in the Gradation list of Medical & Health Officer-I, published in the year 1989, the name of the petitioner was not included, therein. Being aggrieved the petitioner had approached the respondent authorities by way of submission of representation. As the petitioner, thereafter, proceeded to pursue further higher studies, the said aspect of the matter was not pursued by him. Thereafter, on resuming his services,

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the petitioner was vide notification dated 14.09.1992, posted at Golaghat Civil Hospital. Thereafter, the petitioner was vide order dated 29.10.1998, transferred and posted as Medical & Health Officer – I to Bilotia PHC and accordingly, the petitioner carried out the said transfer order. The petitioner was, thereafter, again transferred and posted as Medical & Health Officer-I to Golaghat Civil Hospital vide an order dated 26.06.2000. The delay of the part of the petitioner in joining at Bilotia PHC as ordered vide notification dated 29.10.1998, was subsequently regularized by grant of leave on medical grounds to the petitioner vide a notification dated 19.06.2008. The petitioner by now having completed more than 25 (twenty five) years of service, his case not being considered for promotion to the next higher grade of Senior Medical & Health Officer, although such consideration being extended to persons junior to him and they being promoted to the said cadre, the petitioner approached the respondent authorities praying for his promotion to the next higher cadres. The petitioner contends to have approached the respondent authorities, however such approach of the petitioner had not resulted in his case being extended with a due consideration for such promotion. Thereafter, persons junior to the petitioner were promoted to the rank of Senior Medical & Health Officer in the year 2007, came to be further considered for promotion to the rank of Sub Divisional Medical & Health Officer and on their such

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selection were further granted promotion to the next higher cadre vide notification dated 24.05.2012. It is seen that the petitioner had, thereafter, approached the respondent authorities formally by way of submission of a representation dated 10.07.2012, praying for his promotion to the Next Higher Grade Cadres. The said representation was further followed by subsequent reminders issued in this connection to the respondent authorities. In pursuance to the representation submitted by the petitioner, the case of the petitioner for promotion to the rank of Senior Medical & Health Officer was considered and vide notification dated 06.05.2013, the petitioner was promoted to the rank of Senior Medical & Health Officer although with prospective effect. The petitioner assumed the charge of his promotional post. Thereafter, considering the prayers made by the petitioner in the matter, the respondent authorities proceeded to pass a speaking order dated 21.05.2015 and therein, granted retrospective promotion to the petitioner to the rank of Senior Medical & Health Officer w.e.f. the date of his promotion of his immediate junior, Dr. Hiteshwar Gogoi w.e.f. 06.02.2006 to 08.05.2013. Thereafter, the petitioner was further granted retrospective promotion to the Next Higher Grade of SubDivisional Medical & Health Officer w.e.f 26.08.2014 to 31.05.2015. The petitioner thereafter, retired from his services on reaching the age of superannuation w.e.f 31.05.2015.

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Being aggrieved by the non consideration of his case for promotion w.e.f 1994 to the cadre of Sub-Divisional Medical & Health Officer w.e.f. 2007, the petitioner has instituted the present writ petition.

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4. Mr. N. Sarkar, learned counsel, appearing for the petitioner, has fairly submitted that although the petitioner had made a prayer in the present writ petition for consideration of his case for promotion to the rank of Senior Medical & Health Officer w.e.f. 1994, and to the rank of Sub-Divisional Medical & Health Officer w.e.f 22.01.2007, no explanation has been brought on record toward justifying the delay in approaching this Court by way of instituting the present proceeding praying for the said relief. It is submitted that the petitioner has also not brought on record any representations that may have been submitted by him in the matter claiming the said relief. Accordingly, it is submitted that the petitioner may not be entitled to the said relief. Having made the said submission, Mr. Sarkar, submits that the order dated 21.05.2015 is erroneous, inasmuch as, there is a gap existing therein, with regard to the promotion of the petitioner from the rank of Senior Medical & Health Officer, and promotion effected in his case to the rank of Senior Divisional Medical & Health Officer. He submits that the speaking order as furnished to him by the learned counsel for the respondent authorities remedying the said defects existing in the

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speaking order dated 21.05.2015, has been perused by him and the

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same is found to have redressed the grievance of the petitioner to the said extent. However, Mr. Sarkar submits that although the petitioner had superannuated from his services on 31.05.2015, the pension and pensionary benefits of the petitioner have not been finalized till date and he is only being extended with a provisional pension along with provisional DCRG.

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5. Per contra Mr. D. P. Bora, learned Standing Counsel, Health & Family Welfare Department, by submitting that the petitioner having instituted the present writ petition only in the year 2016, cannot be permitted to pray for grant of relief to him by way of promotion with retrospective effect from the year 1994 and 2007 to the post of Senior Medical & Health Officer and Sub-Divisional Medical & Health Officer, respectively. It is submitted that the said prayer of the petitioner is held to be hit by the principle of delay and laches, inasmuch as, no explanation has been brought on record to justify the said delay in approaching this Court praying for the said relief.

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6. Mr. D. P. Bora, has submitted that the promotion of the petitioner to the rank of Senior Medical & Health Officer vide a speaking order dated 13.05.2026, has now been effected w.e.f. 06.02.2006 to 25.08.2014. He submits that the promotion of the

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petitioner, thereafter, having already been effected from 26.08.2014 to 31.05.2015, to the rank of Sub-Divisional Medical & Health Officer, the petitioner would now be entitled to receive his pension and pensionary benefits at a higher stage than what he would have so received considering his service status prior to 31.05.2015. Accordingly, Mr. D. P. Bora submits that the present writ petition in view of the speaking order dated 21.05.2015 read with the subsequent order dated 13.05.2026 be closed.

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7. I have heard the learned counsel for the parties and perused the materials available on record.

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8. The learned counsel for the petitioner having fairly submitted that the prayer for the retrospective promotion to the cadre of Senior Medical & Health Officer and Sub-Divisional Medical & Health Officer w.e.f 1994 and 2007, respectively to be not maintainable, in view of the delay occasioning in approaching this Court, and in absence of any reasons adduced for justifying the delay occasioning in approaching this Court praying for the said relief. Accordingly, the said prayer of the petitioner is not to be considered by this Court.

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9. The above being stated, this Court finds that the petitioner although was promoted to the rank of Senior Medical & Health Officer vide the notification dated 06.05.2013, such promotion was only with

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prospective effect. The petitioner having approached the respondent authorities, praying for redressal of his grievance with regard to nonconsideration of his case for promotion by maintaining parity with such promotion being effected in respect of his juniors, the respondent authorities had considered the said prayer and vide a speaking order dated 21.05.2015, granted promotion to the petitioner with retrospective effect to the cadres of Senior Medical & Health Officer and Sub-Divisional Medical & Health Officer. The operative portion of the speaking order dated 21.05.2015, being relevant is extracted, hereinbelow;

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“ORDER: After careful consideration of all aspects, the Governor of Assam is pleased to allow retrospective promotion in respect of Dr. Mohan Saikia to the rank of Sr. M&HO under "Next Below Rule" i.e. w. e. f. the date of promotion of his immediate junior, Dr. Hiteswar Gogol w.e.f. 6/2/2006 to 8/5/2013 against the vacant post of Sr. M&HO, South Salmara CHC, Dhubri Further the Governor of Assam is pleased to allow retrospective promotion in respect of Dr. Mohan Saikia to the rank of SDM&HO under "Next Below Rule" le. w. e. f. the date of promotion of his immediate junior, Dr. Hiteswar Gogoi, w. e. f. 26/8/2014 to 31/5/2015 against the vacant post of SDM&HO. Dhakuakhana BPHC, Lakhimpur.”

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10. A perusal of the said order would go to reveal that the petitioner has now been granted promotion with retrospective effect

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i.e., w.e.f., 06.02.2006 and his such promotion was granted till

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08.05.2013. The said promotion being now granted with retrospective effect, the petitioner accordingly is now held to be an incumbent in the cadre of Senior Medical & Health Officer w.e.f., 06.02.2006 and his pay and allowances in the said post would now be required to be fixed w.e.f., 06.02.2006. The speaking order does not provide as to the manner in which the services of the petitioner after 08.05.2013 is to be construed, the same in all probability was on account of the fact that the petitioner was already promoted to the post of Senior Medical & Health Officer w.e.f 08.05.2013 and he had in all probability drawn salaries against the said promotional post w.e.f 09.05.2013. Accordingly, in the speaking order his promotion was made effective w.e.f. 06.02.2006 till 08.05.2013. Further, perusal of the said speaking order also reveals that the petitioner was w.e.f. 26.08.2014, granted further retrospective promotion to the rank of Sub-Divisional Medical & Health Officer, the said promotion is found to have been so granted to the petitioner till 31.05.2015 i.e. the date on which he had retired from his services on attaining the age of superannuation.

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11. The ambiguity existing in the order dated 21.05.2015 to the extent that the same had only promoted the petitioner to the cadre of Senior Medical & Health Officer till 08.05.2013, has been further clarified by a subsequent speaking order dated 13.05.2026, passed by the respondent authorities. Vide the said speaking order dated

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13.05.2026, the retrospective promotion granted in respect of the petitioner to the rank of Senior Medical & Health Officer has now been deemed to be so construed to have been effected w.e.f. 06.02.2006 to 25.08.2014, instead of the earlier grant of promotion w.e.f. 06.02.2006 to 08.05.2013. It is further stipulated, therein, that the pension and pensionary benefits as well as the arrears of pay in respect of the petitioner would now be considered by reckoning the retrospective promotions granted to him.

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The respondents in the subsequent speaking order dated 13.05.2026 having held that the petitioner would be entitled to his salaries against the posts of Senior Medical & Health Officer and SubDivisional Medical & Health Officer, on account of the retrospective promotions granted to the petitioner, the petitioner is to be held to have discharged his duties against the said posts and accordingly, he would be entitiled to all consequential benefits of pay and allowances for the said period.

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On a perusal of the speaking order dated 13.05.2026, this Court is of the considered view that the retrospective promotion effected in respect of the petitioner to the cadre of Senior Medical & Health Officer and to the cadre of Sub-Divisional Medical & Health Officer has now been regularized. Accordingly, the petitioner is now required to be

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treated to be an incumbent in the cadre of Senior Medical & Health Officer as of 06.02.2006 and accordingly, it is directed that the pay and allowances of the petitioner as on 06.02.2006 be fixed. Thereafter, the arrears of pay receivable by the petitioner in the cadre of Senior Medical & Health Officer w.e.f. 06.02.2006 till 28.05.2014, be computed by granting to the petitioner his annual increments as well as the Revision of Pay coming into force, if any, during the said period. Thereafter, the pay of the petitioner be fixed in the cadre of Sub Divisional Medical & Health Officer as on 26.08.2014 and the pay of the petitioner be similarly computed till the date of his superannuation i.e. till 31.05.2015. The arrears of pay working out on account of the fixation of the pay of the petitioner in the manner directed, hereinabove be released to the petitioner within a period of 03 (three) months from the date of receipt of a certified copy of this order. The said exercise being carried out, the pay of the petitioner on 31.05.2015, being determined, the pension and pensionary benefits due to the petitioner, be now processed and a proposal in this connection be submitted to the Office of the Accountant General (A&E), Assam, within a period of 01 (one) months after release of the salaries of the petitioner.

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The Office of the Accountant General (A&E), Assam, on receipt of the proposal from the Department pertaining to the authorization of

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pension and pensionary benefits to the petitioner, shall further process the same and within a period of 02 (two) months from the date of receipt of such proposal, authorize to the petitioner his due pension and pensionary benefits. While authorizing to the petitioner his pension and pensionary benefits, the provisional pension and other pensionary benefits already drawn by the petitioner shall be also accounted for and the amounts already drawn in this connection by the petitioner, be deducted before releasing to the petitioner the arrears of his pension and pensionary benefits.

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12. With the above observations and directions, the present writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Dr. Mohan Saikia v. the State of Assam and 5 Ors.

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Dr. Mohan Saikia v. the State of Assam and 5 Ors.

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