Gauhati High Court
Smti. Nizara Ramchiary vs State Of Assam And 5 Ors on 18 February, 2021
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GAHC010210862019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/287/2019
SMTI. NIZARA RAMCHIARY
W/O SHRI MEGHANATH GAYARY, PRESENTLY RESIDING AT JAPORIGOG,
C/O SHRI SADANANDA BASUMATARY, NABIN INGTI PATH, HOUSE NO.5,
P.O. DISPUR, P.S. DISPUR, DIST- KAMRUP METRO, GHY-6, ASSAM.
VERSUS
STATE OF ASSAM AND 5 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, POWER DEPARTMENT, DISPUR, GHY-6
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE ACCOUNTANT GENERAL (A AND E)
ASSAM MAIDAMGAON
BELTOLA GUWAHATI- 781029 ASSAM.
4:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
POWER (ELECTRICITY) DEPARTMENT
DISPUR GUWHATI-6.
5:THE CHIEF ELECTRICAL INSPECTOR-CUM-ADVISOR
ASSAM PUB SARANIA
MAHABHAIRAB BUILDING
GUWAHATI- 781003.
6:SHRI HEDAYATULLA AHMED
ELECTRICAL JUGALI (NOW JUNIOR ASSTT.) IN THE OFFICE OF THE
CHIEF ELECTRICAL INSPECTOR-CUM-ADVISOR
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ASSAM PUB SARANIA
MAHABHAIRAB BUILDING
GUWAHATI- 781003
Advocate for the Petitioner : MR. B RAMCHIARY
Advocate for the Respondent : GA, ASSAM
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
18.02.2021
(Sudhanshu Dhulia, C.J.)
Heard Mr. B Ramchiary, learned counsel for the appellant. Also heard Mr. TC Chutia,
learned Additional Senior Govt. Advocate, Assam, appearing for respondent Nos.1, 2, 4 and 5,
Mr. C Baruah, learned counsel for respondent No.3 and Mr. SY Ahmed, learned counsel for
respondent No.6.
2. The present writ appeal has been filed challenging the judgment and order dated
30.07.2019 passed by the learned Single Judge in WP(C) 6576/2013 by which the petitioner's
writ petition which was filed as a challenge to the promotion of the private respondent No.6
to the post of Junior Assistant in the department of Chief Electrical Inspector-cum-Advisor,
Assam, has been dismissed. Both the writ appellant/writ petitioner and the respondent No.6
worked in Grade-IV post in the department of Chief Electrical Inspector-cum-Advisor, Assam.
In the said department, the total number of vacancies to the next higher post, i.e. Junior
Assistant was 10 out of which 8 were to be filled up by way of direct recruitment and only
one which was in the Head office, was to be filled up by way of promotion from amongst the
Grade-IV employees. A notice was issued by the department on 07.05.2013 which called for
the desired eligible candidates to apply for the promotional post if they had the following
qualifications which were in the aforesaid notification:
"(i) Rendered at least 5 (five) years of regular service in the office, if he/she
has passed Higher Secondary or equivalent examination.
(ii) Rendered at least 7 (seven) years of regular service in the office, if he/she
passed Matriculation or equivalent examination."
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3. The said notification was in conformity with Rule 10 of the Assam Directorate
Establishment (Ministerial) Service Rules, 1973 which reads as under:
"10. [Junior Assistant]. - Appointment shall be made by the appointing authority-
(1) by direct recruitment;
(2) by selection on the basis of suitability with due regard to seniority from
amongst other Class-III employees as classified in the Assam Services
(Revision of Pay) Rules, 1983 of the office whose scale of pay are less than
that of the [Junior Assistant] and who have passed (i) the Higher Secondary
School Leaving Certificate Examination/Pre-University Examination or
equivalent examination and have rendered not less than 5 years, or (ii) the
Matriculation or equivalent examination and have rendered not less than 7
years of continuous service in the Office on the 1st day of the year in which
the selection is made.
(3) By selection on the basis of suitability [with due regard to seniority] 1 from
amongst the Grade IV staff of the office who passed (i) the Higher Secondary
or equivalent examination and have rendered not less than 5 years or (ii) the
matriculation or equivalent examination and have rendered not less 7 years of
continuous service in the office on the 1st day of the year in which the
selection is made.
[Note:- (1) Recruitment under sub-rules (2) and (3) shall not exceed 5 per
cent and 10 per cent respectively of the cadre strength of [Junior Assistant]
of that Office;
Note:- (2) If in an office the 5 per cent and 10 per cent of the strength of the
cadre of [Junior Assistant], as aforesaid, be less than 1, even then 1 post
shall be filled up under sub-rules (2) and (3), as the case may be;
Note- (3) In the event of sufficient numbers of suitable persons not being
available under sub-rules (2) and or (3), the balance shall be filled up under
sub-rule (1).]"
(emphasised provided)
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4. Admittedly there was only one post which was to be filled up by way of promotion
from amongst Grade-IV employees and the qualification was that an employee must have
done Higher Secondary (Class- XII) Examination and should have rendered minimum 5 years
of regular service in the department or should be a matriculated and should have rendered
more than 7 years of regular service in the department. After examining the applications of
the eligible candidates, the department shortlisted 3 candidates in the order of seniority. They
were as under:
"Name Date of Educational Caste
appointment Qualification
1. Smti Nizara Ramchiary 14.06.1999 HSLC passed ST(P)
2. Md. Hedayatullah Ahmed 04.09.2001 HSSLC passed General
3. Sri Nijwn Gayari 18.07.2005 BA passed ST(P)"
5. Admittedly the name of the appellant/writ petitioner was at Sl. No.1 being the senior
most in the department and having all the eligible qualifications. She also belongs to
Scheduled Tribe (Plain). In the normal course this appointment was liable to be given to her
as the promotion was to be made on the basis of the suitability with due regard to seniority
and there was a categorical remark in the selection which stated as under:
"The special reports for promotion, service records of all above candidates
were examined. There is no adverse comments and no departmental
proceedings pending against the incumbents."
6. In other words, there was no disqualification attached to any of these candidates.
Under the circumstances, suitability and seniority were the factors liable to be considered.
Instead what was done by the department was that they applied 100 point roster and
declared that this post has to be filled up when the vacancy falls on point 3 which is a post to
be filled up by a General candidate and since Md. Hedayatulla Ahmed who was at serial no.2,
was a general candidate, he was promoted.
7. Aggrieved by the impugned promotion order dated 01.11.2013, the appellant
approached this Court by filing writ petition. The learned Single Judge did not find force in
the contention of the learned counsel for the petitioner and dismissed the writ petition. The
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learned Single Judge was of the view that in such a situation 100 point roster was to be
followed.
8. At the time of hearing the present appeal, it was placed before us that there was only
one post in the department which is to be filled up by way of promotion. Although the total
posts may be 9 but, the remaining 8 posts have to be filled up by way of direct recruitment.
Therefore, effectively there was only one post in which the departmental candidates were
competing. In such a situation, our considered view is that there could be no application of
100 point roster in view of the decision of the Hon'ble Apex Court in the case of Post
Graduate Institute of Medical Education and Research v. Faculty Association , reported in
(1998) 4 SCC 1 which was later on relied upon by the Three Judges Benches of the Hon'ble
Supreme Court in the case of S.R. Murthy vs. State of Karnataka and others, reported in
(1999) 8 SCC 176. In para 34 of the judgment in the case of Post Graduate Institute of
Medical Education and Research, the following has been held:
"34. In a single post cadre, reservation at any point of time on account of
rotation of roster is bound to bring about a situation where such a single post in
the cadre will be kept reserved exclusively for the members of the backward
classes and in total exclusion of the general members of the public. Such total
exclusion of general members of the public and cent per cent reservation for the
backward classes is not permitted within the constitutional framework."
9. Mr. SY Ahmed, learned counsel for the respondent No.6 has, however, contended that
the aforementioned case is only applicable when there is only a "single post in the cadre", but
in the present case, admittedly there are 9 posts in the cadre and therefore, this law will not
be applicable and the 100 point roster was rightly applied.
10. We, however, disagree with the submission made by the learned counsel for
respondent No.6 for the simple reason that there is only one post in the department which
was to be filled up by way of promotion. Therefore, by logic the ratio laid down by the Apex
Court in the case of Post Graduate Institute of Medical Education and Research v. Faculty
Association is also applicable in this case as there was only one post in the department which
was to be filled up by way of direct promotion and therefore, there cannot be a reservation
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on a single post. Since there cannot be reservation on this post, there cannot be any
application of 100 point roster which can only be applied when reservations have to be
followed.
11. In that view of the matter, we allow the writ appeal and set aside the order dated
30.07.2019 passed by the learned Single Judge and direct the authorities to give appointment
to the appellant to the post of Junior Assistant forthwith.
12. We make it very clear at this stage that learned counsel for the appellant has prayed
that appointment is liable to be given to the appellant from the year 2013 and the backwages
be also given. We, however, reject the said prayer outrightly. Admittedly, the writ appellant
has not worked on this post. Therefore, there is no question of giving her salary for the
period in which she has not worked as admittedly she has worked only in Grade-IV post. The
only question which remains is the calculation of the seniority for the post of Junior Assistant.
Since we are of the view that promotion to the appellant has been wrongly denied, the
appellant would be at liberty to move a representation before the concerned authority for
recalculating the seniority as Junior Assistant in the department which shall be considered in
accordance with law.
JUDGE CHIEF JUSTICE
Comparing Assistant
