Jagannath Bhagawati vs The State Of Assam And 7 Ors
2021 Latest Caselaw 1335 Gua

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GAHC010055832021




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

                            Case No. : WA/107/2021

         JAGANNATH BHAGAWATI
         S/O- LATE N.C. BHAGAWATI, ASSISTANT TOURIST INFORMATION
         OFFICER, PERMANENT RESIDENT OF VILL. AND P.O. JAGI, P.S. JAGIROAD,
         DIST.- MORIGAON, ASSAM, PIN- 782411.



         VERSUS

         THE STATE OF ASSAM AND 7 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         TOURISM DEPARTMENT, DISPUR, GUWAHATI-06.

         2:THE DIRECTOR
         TOURISM DEPARTMENT
         ASSAM
          PANBAZAR
          GUWAHATI-01.

         3:HIRAN KUMAR SAIKIA
          S/O- SRI GIRI KANTA SAIKIA
          R/O- VILL.- TELAHI BHAKAT GAON DHARAMTUL
          MORIGAON
         ASSAM
          PIN- 782412.

         4:PRANJAL BORA
          S/O- SRI KHITI KANTA BORA
          R/O- AMBIKAGIRI NAGAR
          H/NO. 25
          R.G.B. ROAD
          GUWAHATI- 781024.

         5:SMTI. NAYANMONI PAMEGAM
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             C/O- MRS. PADMAWATI PAMEGAM
             R/O- VILL.- BORGANYA NO. 2
             MAJULI
             PIN- 785104.

            6:GAUTAM GOGOI
             S/O- LATE TIRTHA NATH GOGOI
             R/O- TIRUAL GAON
             NAKACHARI
             JORHAT- 785635.

            7:SMTI. ANANYA BARTHAKUR
             S/O- BIMAL BARTHAKUR
             R/O- MILAN NAGAR
            TITABAR
             JORHAT
             PIN- 785630.

            8:MADHAB DAS
             S/O- LATE C.M. DAS
             R/O- VILL.- PACHANIA
             BONGAIGAON
             PIN- 783382

Advocate for the Petitioner   : MR. R P KAKOTI SR. ADV.

Advocate for the Respondent : GA, ASSAM




                                  BEFORE
                       HONOURABLE THE CHIEF JUSTICE
                HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                          ORDER

Date : 07-04-2021

(Sudhanshu Dhulia, CJ) Heard Mr. R. P. Kakoti, learned senior counsel for the appellant and Mr. T. C. Chutia, learned Additional senior Government Advocate, Assam, representing the State respondents.

2. This writ appeal has been filed by the appellant against the order dated 04.02.2021 passed by the learned Single Judge in WP(C) 8130/2017.

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3. The appellant before this court was working as a Casual Employee in the Tourism Department, Assam, and was subsequently appointed as a Receptionist in the year 1991. However, since the posts of Receptionist were ex-cadre posts having no promotional avenue, the writ appellants along with three others, filed a writ petition [WP(C) 7131/2005] before this court praying that the posts of Receptionist should be en-cadred giving them promotional avenue to the post of Assistant Tourist Information Officer. The writ petition was disposed of by a learned Single Judge on 11.03.2014 with the following directions:

"9. Proceeding on the above basis, since the Receptionists by virtue of long service may have gathered the skill to discharge the duties in the tourism deptt., those amongst them, who possess the educational qualification for the post of ATIOs, may be considered for recruitment to the post of ATIOs. But such appointment cannot be claimed as a matter of right but is subject to recruitment process and competition on merit with other applicants, including those from the open market. Therefore, when the State undertakes a recruitment exercise for the post of ATIOs, the serving Receptionists possessing educational qualification may offer their candidature and the State may consider them on merit by granting them age relaxation, having regard to their long service in the department. It is ordered accordingly

10. In so far as the Receptionists being designated as Jr. Assistants, since reservation is expressed by the learned counsel for few of the petitioners, the State should designate only the willing Receptionists as Jr. Assistants. Consequently, those Receptionists, who do not opt to be Jr. Assistants, will forego the right of being considered for promotion since they voluntarily opt to remain as Receptionists, by refusing to be en-cadred as Jr. Assistants under the Service Rules.

11. In view of the above decision, the process of amendment of the Service Page No.# 4/6

Rules for designation/en-cadrement of the willing Receptionists through amendment of the Service should be carried out expeditiously and preferably within 6 months from today. The next ACP benefit when due should be disbursed to all eligible Receptionists.

12. Consequently, all the interim orders merges with this final order and the case is disposed of in above terms, without any order on costs."

4. Aggrieved by the order of the learned Single Judge, writ petitioners filed two writ appeals, being WA 16/2015 and WA 86/2015. The writ appeals were disposed of by this court with the direction that the Government should en-cadre the posts of Receptionists and a reasonable percentage of the posts of Receptionist should be considered for promotion to the post of Assistant Tourist Information Officer. Consequent to the order passed by this court in the writ appeals, the Assam Tourism Service Rules, 1992 were amended by a notification dated 09.06.2017. In the amended Rules it was provided that 20% of the total post of Assistant Tourist Information Officer shall be kept reserved for filling up through promotion from Receptionists subject to fulfilment of certain eligibility conditions. One of such condition was that the Receptionist, apart from holding a Bachelor degree, must have completed minimum 7 years of service as Receptionist. Subsequent to the amendment of the Assam Tourism Service Rules, 1992, the petitioners were appointed to the post of Assistant Tourist Information Officer with effect from 17.07.2017.

5. The writ petitioners, thereafter, again approached this court by filing a writ petition [WP(C) 7131/2005] contending that since the petitioners had become eligible for promotion in the year 2005 itself as per the amended Rules and since they had approached this court with their grievance in the year 2005 by filing WP(C) 7131/2005, they should be given notional promotion to the post of Assistant Tourist Information officer with effect from the year 2005. However, their claim did not find favour with the learned Single Judge and the writ petition was dismissed by an order Page No.# 5/6

dated 04.02.2021. Aggrieved by the dismissal of their writ petition, one of the writ petitioners are before this court by way of the present appeal.

6. In our considered view, the claim of the present appellant for notional promotion with effect from 2005 is not justified and has rightly been rejected by the learned Single Judge. The Hon'ble Supreme Court, in Uttaranchal Forest Rangers' Association (Direct Recruit) v. State of U.P., reported in (2006) 10 SCC 346, has categorically held that retrospective promotion cannot be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre. The observations of the Hon'ble Supreme court read as under:

This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. In, State of Bihar & Ors v. Akhouri Sachidananda Nath & Ors, this court observed that: (SCC pp. 342-43, para 12)

"12. In the instant case, the promotee respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter-se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondents 6 to 23 can not be Page No.# 6/6

made senior to the respondents 1 to 5 by the impugned Government orders as they entered into the said Service by promotion after the respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned Government orders made in annexures, 8, 9 and 10 is unexceptionable."

7. We are, therefore, of the view that there is no scope for interfering with the view of the learned Single Judge. All the same, considering the fact that the writ appellant has remained in service for long years without any avenues for promotion and, by now, in any case he was appointed as Assistant Tourist Information Officer with effect from 17.07.2017 and he would complete five years of service in the post of Assistant Tourist Information Officer in the year 2022, and since the Assam Tourism Service Rules, 1992 provides that 50% of the post of Tourist Information Officer shall be filled up by promotion from amongst the Assistant Tourist Information Officers who have put in five years of service, we dispose of the writ appeal by directing the respondent authorities to consider the claim of the writ appellant along with other eligible candidates, in accordance with law, by convening DPC immediately after July 17, 2022. Then the claim of the present appellant along with other eligible candidates shall be considered for promotion to the next higher post of Tourist Information Officer. Needless to say that this shall be done in accordance with the Rules.

                                      JUDGE                       CHIEF JUSTICE




Comparing Assistant