Page No.# 1/6 vs The State Of Assam And 7 Ors
2021 Latest Caselaw 368 Gua

                                                                 Page No.# 1/6

GAHC010060612017




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

                          Case No. : WP(C)/8130/2017

         JAGANNATH BHAGAWATI and 3 ORS
         S/O LATE N.C. BHAGAWATI, ASSTT. TOURIST INFORMATION OFFICER,
         POSTED AT TOURIST INFORMATION BUREAU, GUWAHATI, RAILWAY
         STATION.

         2: BIMAL BORA
          S/O LATE S.R. BORA
         ASSTT. TOURIST INFORMATION OFFICER
          POSTED AT TOURIST INFORMATION BUREAU
          GUWAHATI
          KAMAKHYA

         3: MUKUNDA KUMAR ROY
          S/O SRI T.ROY
         ASSTT. TOURIST INFORMATION OFFICER
          POSTED AT KAZIRANGA

         4: MANTU KUMAR SARMA
          S/O LATE B.P. SARMA
         ASSTT. TOURIST INFORMATION OFFICER
          POSTED AT NAGAO

         VERSUS

         THE STATE OF ASSAM and 7 ORS.
         REPRESENTED BY THE COMMISSIONER and SECY. TO THE GOVT. OF
         ASSAM, TOURISM DEPTT., DISPUR, GUWAHATI-06

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

         3:SRI HIRAN KUMAR SAIKIA
                                                            Page No.# 2/6

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

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

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

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

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

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

Advocate for the Petitioner : MR.A K DUTTA
Advocate for the Respondent : GA, ASSAM

                                BEFORE
              HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                      ORDER

Page No.# 3/6

Date : 04-02-2021

(1) Heard Mr. R.P. Kakoti, learned senior counsel for the petitioners. Also heard Mr. D. Nath, learned Additional Senior Government Advocate, Assam for the respondent Nos.1 & 2 and Mr. R.M. Deka, learned counsel for the respondent Nos. 3 to 8.

(2) The petitioners are praying for notional promotion to the post of Assistant Tourism Information Officer from the year 2005. At the outset, learned senior counsel for the petitioners submits that he does not have any grievance against the promotion of the respondent Nos. 3 to 8 to the post of Tourism Information Officer.

(3) The petitioners' case is that they were serving as Receptionists in the Directorate of Tourism since the date they were appointed to the said post, i.e., in the year 1991/92 under the Directorate of Tourism, Assam. They are former militants, who under the Rehabilitation Scheme of the Government, were appointed as Receptionists, which was an ex-cadre post.

(4) Being aggrieved by being appointed to an ex-cadre post, having no promotional avenue, the petitioners filed WP(C) No.7131/2005 before this Court, praying that the post of Receptionists should be encadred under the Assam Tourism and Service Rules, 1992, hereafter referred to as the "1992 Rules" and that they should be given promotional avenue to the post of Assistant Tourist Information Officer, hereinafter referred to as the "ATIO". WP(C) No. 7131/2005 was disposed of vide order dated 11.03.2014. Paragraph Nos. 9 to 12 of the order dated 11.03.2014 passed in WP(C) No.7131/2005 states as follows:

"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 o f 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 Page No.# 4/6

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 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."

(5) As the petitioners were aggrieved by the order dated 11.03.2014 passed in WP(C) No. 7131/2005, the petitioners filed two writ appeals, being W.A. Nos. 16/2015 & 86/2015. The petitioners were aggrieved with the order of the Single Judge, wherein he held that willing Receptionists with requisite qualification should be allowed to join the cadre of Junior Assistant, ignoring the fact that the Junior Assistant themselves were stagnating in their cadre without promotion for several years. Further, the stand of the petitioners in the writ appeals was that Receptionists being distinctly different from Junior Assistant in their job profile, the petitioners should be considered for promotion to the post of ATIO only.

Subsequently, W.A. Nos. 16/2015 & 86/2015 were disposed of vide orders dated 20.03.2015 and 28.04.2015 respectively, with the following common direction passed in both the writ appeals, which is to the effect that the posts of Receptionists should be encadred and to provide some reasonable percentage of the posts of ATIO for promotion from the post of Receptionists. The operative portion of the orders are as follows:-

"6) It is seen that there are fourteen persons working in the said posts as ex- cadre. A permanent need for the posts has been felt and yet the government has categorized the said posts as ex-cadre, which appears to be illegal. Ex-cadre post can be created only in exceptional circumstances where posting or promotion is to be given to a person and that post is co-terminus with his retirement. Here (in this case) that is not the situation. It is therefore directed that keeping in view the observations made by the Supreme Court in Raghunath(supra) the government should en-cadre the receptionist posts and also should provide promotional avenues keeping aside some reasonable percentage of posts for promotion ~ and the rest for direct recruitment to the post of assistant tourist information officer."

(6) Consequent to the Judgment of the Division Bench in the writ appeals, the Governor of Assam was pleased to include the post of Receptionists as a cadre post under Section 3(1) Page No.# 5/6

(f) of the 1992 Rules, by inserting the same in Schedule-1, vide notification dated 23.12.2016. Thereafter, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the 1992 Rules was amended by the Assam Tourism Services (Amendment) Rules, 2017, hereinafter referred to as the "amended 2017 Rules" vide notification dated 09.06.2017. In terms of the amended 2017 Rules, the following was inserted in Rule-6, sub-Rule (3), Clause (a) of the 1992 Rules:

"Provided that 20% of total post of Assistant Tourist Information Officer may be kept reserved for filling up through promotion from Receptionists, subject to fulfillment of the following conditions:

I) Completion of minimum 7 years of service as Receptionists. II) Holder of a Bachelor degree in Arts, Science or Commerce from a University recognized by the Government.

              III)     Fluency in English or any other Foreign language.
              IV)      Performance record."
(7)    Subsequent to the above, the petitioners were promoted to the post of ATIO on
17.07.2017.

(8)    Mr. R.P. Kakoti, the learned senior counsel for the petitioners submits that under the

amended 2017 Rules, the petitioners had become eligible for promotion in the year 2005, as the petitioners had raised their grievances with regard to they being appointed to ex-cadre posts having no promotion avenue in the year 2005 itself, by filing WP(C) No.7131/2005.

Thus, the petitioners should be granted notional promotion to the post of ATIO from the year 2005. Further, they should be considered for further promotion to the post of Tourism Information Officer.

(9) Mr. D. Nath, the learned counsel for the State respondents submits that as the Government had encadred the post of Receptionists on 23.12.2016 vide notification dated 23.12.2016 and the amended 2017 Rules having come into force thereafter on 09.06.2017, the seniority of the petitioners would have to be determined w.e.f. their date of joining in the cadre post of Receptionists. He submits that as the petitioners were subsequently promoted to the cadre of ATIO on 17.07.2017, their seniority in the cadre of ATIO would have to be counted from 17.07.2017. However, if the petitioners are notionally promoted to the post of Page No.# 6/6

ATIO in the year 2005, there would be chaos in the Department, as the same would be de hors the rules.

(10) Mr. R.M. Deka, learned counsel for the respondent Nos.3 to 8 submits that as the petitioners' counsel had stated that the petitioners have no grievance against the promotion of the respondent Nos. 3 to 8 to the post of Tourist Information Officer, he has no comments to make with regard to the prayer for notional promotion of the petitioners to the post of ATIO, so long as the same does not affect the seniority of the respondent Nos.3 to 8 over the petitioners in the grade of Tourist Information officer.

(11) I have heard the learned counsels for the parties. As can be seen from the records, the post of Receptionists became en-cadred in the 1992 Rules only vide notification dated 23.12.2016 and by the amendment made by way of the amended 2017 rules, the petitioners were promoted to the post of ATIO on 17.07.2017.

(12) In the case of Uttaranchal Forest Rangers Association (Direct Recruit) & Ors Vs. State of U.P, reported in 2006 10 SCC 346, the Apex Court has held that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre. In the present case, the petitioners were borne in the cadre of ATIO only on 17.07.2017 on their promotion and as such, their seniority in the cadre would have to be counted only from the said date. There is also nothing to show that the amended 2017 Rules have been given retrospective effect. As such, there is no question of giving notional promotion to the petitioners from the year 2005.

(13) In view of the above reasons, the prayer of the petitioners for notional promotion from the year of 2005 cannot be considered, as the same would be de hors the amended 2017 Rules. Consequently, this Court does not find any merit in this writ petition and the same is accordingly dismissed.

JUDGE

Comparing Assistant