Jobi Bharali Borah vs The State Of Assam And 3 Ors
2022 Latest Caselaw 2679 Gua

                                                                    Page No.# 1/5

GAHC010221622018




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

                               Case No. : WP(C)/7118/2018

            JOBI BHARALI BORAH
            W/O- LATE DEBESWAR BORAH, R/O- D B ENCLAVE, FLAT NO. DB 403,
            SAMAGAM PATH, HATIGAON, GUWAHATI- 781038, DIST- KAMRUP(M),
            ASSAM



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REP. BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM, LABOUR
            AND FAMILY WELFARE DEPTT, DISPUR, GHY- 6

            2:THE SECRETARY
            TO THE GOVT OF ASSAM
             LABOUR AND FAMILY WELFARE (B) DEPTT
             DISPUR
             GHY- 6

            3:THE CHIEF INSPECTOR OF THE FACTORIES
            ASSAM
             BETKUCHI
             LOKHRA
             GHY- 40

            4:RAJIB BORKATAKY
             PRESENTLY WORKING AS COMPUTER
             OFFICE OF THE CHIEF INSPECTOR OF FACTORIES
            ASSAM
             BETKUCHI
             LOKHRA
             GUWAHAT

Advocate for the Petitioner   : MR. S S GOSWAMI
                                                                        Page No.# 2/5


Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 03-08-2022

Heard Mr. S.S. Goswami, learned counsel for the petitioner and Mr. T.C. Chutia, learned Addl. Senior Government Advocate for the respondents in the Labour and Family Welfare Department of the Government of Assam. Also heard Mr. S. Khound, learned counsel for the respondent No. 4.

2. In this writ petition, a communication dated 27.11.2017 from the Deputy Secretary to the Government of Assam, Labour Welfare Department to the Chief Inspector of Factories, Assam is assailed wherein it is provided that the Personnel (B) Department had regretted its inability to relax the Rule 11(2) of the Assam Factory Inspectorate Statistical Officers (Recruitment & Promotion) Service Rules, 2015 (for short 'the Rules of 2015'). The petitioner was appointed as a Computor in the Office of the Chief Inspector of Factories by an order dated 31.12.1998 and since then, the petitioner is serving as such. There was no service rule in the office of the Chief Inspector of Factories till the Rules of 2015 were framed and notified by the notification dated 30.09.2015. Rule 3 of the Rules of 2015 provides for the class and cadre which is Statistical Officer in Grade-II and Statistical Assistant in Grade-III and Computor in Grade-III. Rule 5 provides for the method of recruitment to the cadre of Computor which shall be made by direct recruitment only and the recruitment to the cadre of Statistical Assistant be made by promotion from the cadre of Computor and the recruitment to the cadre of Statistical Officer be made by promotion from the Page No.# 3/5

cadre of Statistical Assistant. If suitable candidates within the service are not available for the cadre of Statistical Officer, recruitment may also be made by direct recruitment. Rule 6 gives an indication that there is no provision under the Rules for making direct recruitment to the cadre of Statistical Assistant. Rule 8 provides for the academic qualification for Computor which is HSSLC pass with Economics/Mathematics/Statistics as one of the subjects and that for Statistical Officer to be Degree with Economics/Mathematics/Statistics as one of the subjects. No academic qualification is provided for the cadre of Statistical Assistant.

3. Rule 11 provides for the recruitment by promotion where it is provided that subject to suitability as may be decided by the Selection Committee and by the Appointing Authority, an officer belonging to the cadre of Computor shall be promoted to the cadre of Statistical Assistant and that of Statistical Assistant to the cadre of Statistical Officer. Rule 11(2) provides that a member of the cadre of Computor and Statistical Assistant shall be eligible for promotion as Statistical Assistant and Statistical Officer respectively subject to the incumbent concerned having the qualification of graduation in Economics/Mathematics/Statistics. In other words, in a situation where no qualification is prescribed for Statistical Assistant, where cadre of Statistical Assistant can be filled up only by promotion from the cadre of Computor, for promotion only those persons in the cadre of Computor who have a graduate degree in Economics/Statistics/Mathematics would be promoted, meaning thereby that those Computors who do not have the degree of Economics/Mathematics/Statistics as a qualification would not be promoted. In other words, those Computors without a graduate degree in Economics/Mathematics/Statistics will have no eligibility of promotion under the Service Rules. The Rules apparently appears to be defective in nature that no Page No.# 4/5

promotional avenue is provided to the Computors not having the qualification of graduate in Economics/Mathematics/Statistics.

4. It is in the aforesaid circumstance, the impugned communication dated 27.11.2017 made by the Deputy Secretary to the Government of Assam, Labour Welfare Department that the Personnel (B) Department had regretted its inability to relax the Rule 11(2) of the Rules of 2015 is assailed in this writ petition. No reasons are forthcoming as to why the Personnel (B) Department had so regretted.

5. Be that as it may, we have been informed that in respect of another incumbent Computor namely, Smt. Swarna Borah, who had the qualification of HSSLC pass with Economics/Mathematics/Statistics as a subject, was promoted to the cadre of Statistical Assistant by relaxing the provisions of Rule 11(2)(a) in exercise of the powers provided under Rule 21 of the Rules of 2015.

6. In view of the inconsistency within the Rules, it is noted that definitely the members in the cadre of Computor not having the qualification of graduate in Economics/Mathematics/Statistics would face undue hardship in the event the required relaxation is not made inasmuch as, the legal right of having a promotional avenue for such category of Computor will be non-existent if the provision of Rule 11(2) is given its effect in the manner it stands. Rule 11(2)(a) also appears to be fundamentally defective from the point of view that where no educational qualification is provided for the cadre of Statistical Assistant under Rule 8, but for the purpose of giving promotion to the said cadre, the qualification of graduate with Economics/Mathematics/Statistics is sought to be brought in, which again would be a conflict between the Rule 8 and the Rule 11(2)(a).

7. In the circumstance, we require the petitioner to submit an application Page No.# 5/5

before the Principal Secretary to the Government Assam, Labour and Family Welfare Department to invoke the provisions of Rule 21 of the Rules of 2015, so as to relax the Rules in the case of the present petitioner by taking note of the undue and insurmountable hardship that Rule 11(2)(a) may bring to the petitioner. Upon such representation being submitted, the Principal Secretary to pass a reasoned order thereon within a period of 1 month from the date of receipt of the representation. In considering such representation under Rule 21, the Principal Secretary may also take note of the undue hardship that may be caused by Rule 11(2)(a) as indicated above. If necessary, the Principal Secretary may also take up the issue on the consistency of the Rules of 2015 and take any decision on the same. As considering the nature of the issue raised in this writ petition, no relief is sought for by the petitioner against the respondent No. 4, we deem it appropriate to delete the respondent No. 4 as a respondent. If the respondent No. 4 has any grievance or there is any violation of his legal right, liberty would remain to approach independently of this writ petition. Writ petition stands allowed of as indicated above.

JUDGE

Comparing Assistant