Tafika Manowara Rahman Vs the State of Assam and 7 Ors.

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GAHC010293072019

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2026:GAU-AS:333

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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)/8939/2019

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TAFIKA MANOWARA RAHMAN

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W/O MAINUL HAQUE, R/O MANGALDOI WARD NO 2, BACKSIDE OF MANGALDOI STADIUM, DIST. DARRANG, PIN-784125, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 7 ORS. REP .BY THE SECRETARY TO THE GOVT. OF ASSAM, DEPTT. OF IRRIGATION, GUWAHATI-3

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2:THE CHIEF ENGINEER IRRIGATION DEPTT. GUWAHATI-3

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3:THE SUPERINTENDING ENGINEER IRRIGATION MANGALDAI CIRCLE MANGALDOI

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4:THE EXECUTIVE ENGINEER MANGALDOI DIVISION (IRRIGATION) MANGALDOI

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5:EXECUTIVE ENGINEER DHANSIRI PROJECT DIVISION(IRRIGATION) UDALGURI

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6:UMESH CHANDRA DEKA O/O THE EXECUTIVE ENGINEER MANGALDOI DIVISION (IRRIGATION) MANGALDOI DIST. DARRANG PIN-784125

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7:PRADIP CHANDRA DEY O/O THE EXECUTIVE ENGINEER MANGALDOI DIVISION (IRRIGATION) MANGALDOI DIST. DARRANG PIN-784125

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8:LAKSHYA HIRA DEKA

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OFFICE OF THE ASSISTANT ENGINEER SIPAJHAR SUB-DIVISION DISTRICT- DARRANG ASSAM PIN- 784145

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Advocate for the Petitioner : MS. P. KALITA, MR. R GOSWAMI,MS. U BHATTACHARYYA,MS. R DEVI

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Advocate for the Respondent : SC, IRRIGATION, MR. S M BARUAH (R-7),MR. D GOSWAMI (R7)

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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JUDGMENT & ORDER (CAV)

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Date : 06-01-2026

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Heard Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr. N.

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Upadhyay, learned standing counsel, Irrigation Department, Assam appearing for the

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respondent Nos. 1 to 5 and Mr. S.M. Baruah, learned counsel representing respondent No. 7.

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The petitioner by way of instituting the present writ petition has prayed for a direction upon the respondent authorities to promote her to the post of Senior Assistant

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with retrospective effect, i.e. w.e.f. the date of the promotion of respondent Nos. 6 & 7 with consequential benefits.

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The petitioner, herein, was initially appointed on ad-hoc basis as Lower Division

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Assistant (LDA) in the establishment of the Executive Engineer, Dhansiri Project Division (Irrigation), Udalguri (respondent No. 5) against a leave vacancy. The application of the petitioner for appointment on compassionate ground, in pursuance to the death of her father, who was working as a Head Assistant in the establishment of the respondent No. 5, was approved by the Government in the Irrigation Department and the same was communicated to the respondent No. 5 vide communication dated 02-04-1996. Accordingly, the respondent No. 5 vide order dated 13-05-1996 proceed to appoint the petitioner on compassionate ground against the post of LDA with prospective effect. The appointment of the petitioner on compassionate ground against the vacant post available in the establishment of the respondent No. 5 was put to challenge by one Bibekananda Das before this Court by way of instituting writ petition being C.R. No. 2251/1996. This Court while issuing notice in the matter stayed the effect and operation of the order dated 13-05-1996. Accordingly, the respondent No. 5 vide order dated 30-05-1996 proceeded to cancel the appointment effected in respect of the petitioner vide order dated 13-05-1996. Subsequently, the writ petition being C.R. No. 2251/1996 being dismissed, the respondent No. 5 proceeded vide order dated 02-04-1998 to appoint the petitioner as LDA against the vacant post available in his establishment with prospective effect. The petitioner accordingly joined her services. The services rendered by the petitioner w.e.f. the year 1995 in pursuance to the order dated 23-05-1995 not being reckoned for the purpose of fixation of her seniority in the establishment of respondent No. 5, the petitioner had approached this Court by way of instituting writ petition being W.P.(C) No. 1933/2001. A

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Coordinate Bench of this Court vide order dated 02-11-2006 disposed of the said writ petition by directing the respondent authorities to consider the representation submitted in the matter by the petitioner, herein, within the time-frame prescribed.

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As the matter was pending consideration of the grievance raised by the petitioner in her representation in terms of the direction passed by the Coordinate Bench of this Court vide order dated 02-12-2006, the petitioner made a request before the competent authority for her transfer to the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, i.e. the respondent No. 4 against an available vacancy. The application of the petitioner was considered and the Chief Engineer, Irrigation, Assam vide order dated 19-08-2005 proceeded to transfer the petitioner to the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, on her own request. The said transfer order was subject to the condition that the petitioner would not claim any transfer TA/DA for the purpose and her seniority would be counted in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, w.e.f. the date of her joining therein. The directions as passed by the Coordinate Bench of this Court vide order dated 02-12-2006 in W.P.(C) No. 1933/2001 was considered by the respondent No. 4 and vide order dated 21-12-2006, the petitioner’s services were regularized for all purpose including seniority w.e.f. 23-05-1995, the petitioner contends that the said order was not brought to her knowledge. The petitioner having joined the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai in terms of the order dated 21-12-2006, her seniority in the cadre of LDA was placed below that of the existing incumbents therein, more particularly, the respondent Nos. 6 & 7. It is

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to be noted that the petitioner had joined as Junior Assistant in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai on 23-08-2005. Basing on the seniority position obtaining in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, the respondent No. 6 was promoted to the post of Senior Assistant vide order dated 25-06-2010, while the respondent No. 7 was so promoted w.e.f. 13-10-2010. The petitioner on her turn came to be promoted to the post of Senior Assistant vide order dated 09-08-2012. Thereafter, the respondent No. 6 was further promoted to the post of Head Assistant in the year 2015. The respondent No. 6 came to be placed under suspension, vide order dated 21-09-2019 in contemplation of drawl of the departmental proceeding and accordingly the petitioner was directed to take charge of the post of Head Assistant till the proceedings against the respondent No. 6 was brought to its logical conclusion. The petitioner while functioning as the Head Assistant on In-Charge basis, had come across the order dated 21-12-2006. The petitioner’s services now having been regularized w.e.f. the year 1995, she took up the matter for her retrospective promotion to the post of Upper Division Assistant (UDA) by reckoning her to be senior to the respondent Nos. 6 & 7.

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The said representation having not being considered by the respondent authorities, the petitioner has instituted the present proceeding with the prayers as noticed hereinabove.

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Mr. R. Goswami, learned counsel for the petitioner submits that the order dated 2112-2006 passed by the respondent No. 4 in pursuance to the directions as passed by the Coordinate Bench of this Court vide order dated 02-12-2006 in W.P.(C) No. 1933/2001

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was not brought to the notice of the petitioner at any point of time. It was only on taking over the charge of the Head Assistant, the petitioner came across the said order dated 21-12-2006 from the records. He submits that the services of the petitioner having now been regularized w.e.f. 23-05-1995, she would rank senior to the respondent Nos. 6 & 7 and other incumbents in the cadre of Junior Assistant functioning in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, i.e. the respondent No. 4 on the date she had joined the said establishment, i.e. on 23-08-2005. Mr. Goswami submits that the seniority position of the petitioner was mandated to be re-casted in the establishment of the respondent No. 4 in terms of the direction as contained in the order dated 21-12-2006 and thereafter, the case of the petitioner was required to be considered for promotion to the cadre of Senior Assistant as well as Head Assistant w.e.f. the date her juniors including the respondent Nos. 6 & 7 came to be so promoted to the cadres higher than the cadre of Junior Assistant. Mr. Goswami submits that the order dated 2112-2006 having come to the notice of the petitioner only in the year 2018, she having approached the respondent authority by way of submitting representations immediately thereafter, the petitioner cannot be held to be guilty of delay and laches in raising her claim for promotion to the next higher grades of the service. In the above premises, Mr. Goswami submits that this Court would be pleased to direct the respondent authorities to re-fix the seniority of the petitioner w.e.f. 23-05-1995 in the cadre of Junior Assistant and thereafter to consider her case for promotion to the rank of Senior Assistant as well as Head Assistant w.e.f. the date her juniors were so considered for promotion to the said cadres and thereafter to issue appropriate order(s) promoting the petitioner to the cadres

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of Senior Assistant as well as Head Assistant with retrospective effect along with all consequential benefits of seniority, pay etc.

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Per contra, Mr. N. Upadhyay, learned standing counsel, Irrigation Department, Assam appearing for the State respondents has submitted that the order dated 21-122006 was passed basing on the representation submitted by the petitioner for reckoning her service w.e.f. 23-05-1995 to be construed as regular for all intent and purpose in the establishment of the respondent No. 5, herein, i.e. the Executive Engineer, Dhansiri Project Division (Irrigation), Udalguri. He submits that even if it is construed that the seniority of the petitioner in the cadre of Junior Assistant (earlier LDA) is reckoned from 23-05-1995, the same would be so reckonable only in the establishment of the Executive Engineer, Dhansiri Project Division (Irrigation), Udalguri (respondent No. 5) and not in the establishment of respondent No. 4, i.e. the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, inasmuch as, the petitioner was transferred to the establishment of the respondent No. 4 basing on her own request vide order dated 19-08-2005 issued by the Chief Engineer, Irrigation, Assam and the said order has not been modified and/ or withdrawn till date. Mr. Upadhyay further submits that the establishment of the respondent Nos. 4 and the respondent No. 5 are separate establishments and there is no common seniority list prepared for the said two establishments. The seniority list is prepared separately for the said establishments in terms of the provisions of the Assam Ministerial District Establishment Service Rules, 1967 (in short “the Rules of 1967”). Accordingly, he submits that the prayer of the petitioner for grant of retrospective effect for consideration of her case for promotion to the post of UDA as well as Head Assistant

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with retrospective effect would not mandate acceptance by this Court.

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Mr. S.N. Baruah, learned counsel appearing for the respondent No. 7 has adopted the arguments advanced by Mr. Upadhyay, learned standing counsel, Irrigation Department, Assam. Mr. Baruah further submits that on the date the petitioner had joined the establishment of the respondent No. 4, the respondent No. 7 as well as the respondent No. 6 were already working therein as LDA after being regularly recruited to the posts held by them. He submits that the gradation list as published in the matter by the respondent authorities after joining of the petitioner, therein, places the petitioner below the respondent No. 6 & 7 and he submits that the same is basing on their respective dates of joining, against the post of Junior Assistant in the establishment of the respondent No. 4. He submits that while the respondent Nos. 6 & 7 had joined the establishment of the respondent No. 4 against the post of Junior Assistant on 04-03-2005, the petitioner had joined as Junior Assistant in the establishment of the respondent No. 4 only w.e.f. 23-08-2005 in pursuance to her transfer being effected to the said establishment on her own request vide order dated 19-08-2005 issued by the Chief Engineer, Irrigation Department, Assam. Accordingly, he submits that the establishment of the respondent No. 4 being a distinct establishment, the petitioner having joined the said establishment on her own request, she would not be entitled to carry along with her seniority prior to 23-05-2005 in the post of Junior Assistant in the establishment of the respondent No. 5, herein. In the above premises, the learned counsel for the respondent No. 7 prays that the claim made by the petitioner would not mandate an acceptance from this Court.

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

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The rival contention of the parties as well as the materials brought on record raises an issue as to whether the petitioner would be entitled to reckon the services rendered by her in the establishment of the Executive Engineer, Dhansiri Project Division (Irrigation), Udalguri, i.e. the respondent No. 5, prior to 23-08-2005 for the purpose of fixation of her seniority in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, i.e. the respondent No. 4. It is not disputed by the learned counsel for the parties that both the establishments of the respondent No. 4 and the respondent No. 5 are distinct and separate establishments and there is no common gradation list maintained of the incumbents working in the said two establishments. In terms of the provisions of the Rules of 1967 each district establishments is a separate and distinct establishment and the gradation lists are so prepared only of the incumbents working in each of such establishment.

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In the case on hand, the petitioner was initially engaged w.e.f. 23-05-1995 on adhoc basis as a LDA. Thereafter, the Government had approved her claim for appointment on compassionate ground and while approving such appointment, it was noted that the petitioner, herein, was continuing in the establishment of the respondent No. 5, on ad-hoc basis. The petitioner was appointed on compassionate ground, in terms of the approval granted by the Government, vide order dated 13-05-1996 issued by the respondent No. 5. The said order of appointment although was cancelled, in pursuance to the direction passed by this Court in a proceeding instituted assailing the order dated 13-05-1996,

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however, on closure of the said proceeding, the petitioner was again appointed by the respondent No. 5 against the post of LDA (now Junior Assistant) vide order dated 02-041998. The petitioner had prayed before the respondent authorities for considering her to be an appointee against a post of Junior Assistant w.e.f. 23-05-1995 and for fixation of her seniority in the cadre of Junior Assistant by reckoning her service w.e.f. 23-05-1995, the said prayer not being considered, the petitioner has instituted a writ petition being W.P.(C) No. 1933/2001 before this Court and a Coordinate Bench vide order dated 02-122006 had disposed of the same by directing the respondent authorities to dispose of the representation submitted by the petitioner in the matter. While the matter was pending, the Chief Engineer, Irrigation, Assam vide order dated 19-05-2005 proceeded to transfer the petitioner to the establishment of the respondent No. 4 basing on her own request. The order of transfer dated 19-08-2005, being relevant to the issue arising in the present proceeding, is extracted here-in-below:

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“OFFICE ORDER

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Dated Guwahati-19th Aug, 05

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No. CSI (E) 241/2003/38-A:- At her own request Mrs Tafika Manowara Rahman, L.D.A Office of the superintending Engineer, Mongoldoi Circle (Irrigation) Mongoldoi is hereby transferred and posted to the office of the Executive Engineer, Mongoldoi, Division (Irrigation) Mongoldoi against the vacancy created vide Govt. no. CSI 3M/29/64/1 Dt. 25.11.64 and retained permanently vide Govt. No. FC (E) 20/69/4 Dt. 30.10.70 subject to the condition that she cannot claim any transfer T.A/D.A for the purpose and her post seniority will be counted from the date of her joining in the Mongoldoi Division (Irrigation).

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The order is purely temporary and may be withdrawn at any time without assigning any reason.

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Sd/-H.K HAZARIKA

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Chief Engineer

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Irrigation, Assam, Guwahati-3

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MEMO No. CSI (E) 241/2003/38-A Dated Guwahati, the 19th Aug 05”

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A perusal of the said order would reveal that the petitioner was transferred to the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai basing on own request with the stipulation that the seniority in the establishment of the respondent No. 5 would be reckoned from the date of her joining therein. It is after the joining of the petitioner in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai that the order dated 02-12-2006 passed by this Court in W.P.(C) No. 1933/2001 was considered and on such consideration the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, i.e. the respondent No. 4 proceeded to regularize the services of the petitioner along with reckoning her seniority w.e.f. 23-051995. The order dated 23-05-1995 being relevant is extracted here-in-below:

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“OFFICE ORDER NO. 105, dated Mangaldai, the 21-12-2006

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In pursuance of Hon'ble High Court Guwahati C.C.No. WP(C) 1933/2001, dt. 1512-2006 the Services in favour of Mrs. Takifa Manowara Rahman, Junior Asstt. of now Mangaldai Division (Irrign) Mangaldai is hereby regularised for all purposes including seniority with effect from 23.05.95.

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The pay and allowances for the entire period was kept out of service will be disposed of. The pay and allowances will be debitable under the Head of Account "2702" Ν.Ρ.

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Sd/-

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Executive Engineer

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Mangaldai Division (Irrign)

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Mangaldai”

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MEMO NO. EG/2/PT-II/2006/2566-69, dated Mangaldai, the 21-12-2006”

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It is on the basis of the order dated 21-12-2006 that the petitioner has now projected that her services having been regularized w.e.f. 23-05-1995 and she being permitted to reckon her seniority in the cadre of Junior Assistant w.e.f. the said date, she is to be deemed to be senior to the respondent Nos. 6 & 7 in the cadre of Junior Assistant in the establishment of the respondent No. 4. It is the further projection of the petitioner that basing on her such seniority which is reckonable from 23-05-1995, the petitioner is required to be promoted to the cadre of Senior Assistant w.e.f. the date the respondent Nos. 6 & 7 were so promoted.

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While the said claim of the petitioner on the face of it appears to be attractive, however, a closer examination of the matter would reveal that the said claim of the petitioner is not sustainable. The grievance of the petitioner before the respondent authorities was for reckoning her services w.e.f. the date of her initial appointment in the department, i.e. w.e.f. 23-05-1995 and it is this grievance that was directed to be considered by this Court vide order dated 02-12-2006 passed in W.P.(C) No. 1933/2001. Even if it is construed that the order dated 21-12-2006 regularizes the services of the petitioner w.e.f. 23-05-1995 and her seniority in the cadre of LDA is reckonable from 2305-1995, given the facts and circumstances involved in the present proceeding, the petitioner cannot claim to be senior to the respondent Nos. 6 & 7, herein, inasmuch as, the petitioner was vide order dated 19-08-2005 transferred on her own request to the establishment of the respondent No. 4 with the further stipulation that she would be entitled to reckon her seniority in the establishment of the respondent No. 4 only w.e.f. the date of her joining, therein. The petitioner had joined the establishment of

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respondent No. 4 in the post of Junior Assistant w.e.f. 23-08-2005. The petitioner having joined the establishment of respondent No. 4 on her own request, she would be entitled to be bottom seniority in the cadre of Junior Assistant in the establishment of the respondent No. 4. The order dated 19-08-2005 having not been modified and/ or withdrawn by the competent authority, the regularization of the services of the petitioner w.e.f. 23-05-1995 would be of no consequence, insofar as the claim of the petitioner in grant of seniority above the respondent Nos. 6 & 7, herein, is concerned. The petitioner having continued in her services in the establishment of the respondent No. 5 till 22-082005, the effect of the order dated 21-12-2006 would be that her services now in the establishment of the respondent No. 5 would be reckonable not from 02-04-1998 but from 23-08-2005, however the petitioner having been transferred to a distinct and separate establishment vide order dated 19-08-2005, on her own request, the petitioner in the establishment of the respondent No. 5 can claim her seniority w.e.f. the date of her joining therein, i.e. w.e.f. 23-08-2005 and not w.e.f. 23-05-1995.

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In view of the above conclusions drawn by this Court, this Court is of the considered view that the seniority of the petitioner in the cadre of Junior Assistant in the establishment of the respondent No. 4 cannot be reckoned from a date prior to 23-082005 and accordingly, she cannot under any circumstances be construed to be senior to the respondent Nos. 6 & 7. Accordingly, the claim of the petitioner for being promoted to the cadre of Senior Assistant and to the Head Assistant w.e.f. the date the respondent Nos. 6 & 7 were so promoted, would not mandate an acceptance by this Court.

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In view of the above discussion, the present writ petition is held to be devoid of

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any merit and accordingly the same stands dismissed. However, there would be no order

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as to cost.

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JUDGE

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Comparing Assistant

Tafika Manowara Rahman v. the State of Assam and 7 Ors.

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Tafika Manowara Rahman v. the State of Assam and 7 Ors.

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