Chandan Nath vs The State Of Assam And 3 Ors
2022 Latest Caselaw 429 Gua

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GAHC010015212022




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

                                   Case No. : WA/48/2022

            CHANDAN NATH
            S/O LATE DHIRENDRA CHANDRA NATH
            RESIDENT OF BONOMALI ROAD, BYE LANE NO. 1, TARAPUR SILCHAR 3,
            CACHAR, ASSAM, 788725



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
            OF ASSAM, REVENUE DEPARTMENT, DISPUR, GUWAHATI 06

            2:THE PRINCIPAL SECRETARY
            TO THE GOVT. OF ASSAM
             REVENUE AND DM(S) DEPARTMENT
             DISPUR
             GUWAHATI 06

            3:THE DEPUTY COMMISSIONER

             CACHAR
             SILCHAR


            4:THE ADDITIONAL DEPUTY COMMISSIONER

             CACHAR
             SILCHAR

Advocate for the Petitioner   : MR. M H LASKAR

Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

09-02-2022 (Oral) Sudhanshu Dhulia, CJ

The matter is taken up through video conferencing.

This appeal has been filed by the appellant/writ petitioner against the judgment and order of the learned Single Judge dated 16.12.2021 passed in WP(C) 2056/2015 by which the writ petition was dismissed.

2. Heard Mr. M.H. Laskar, learned counsel for the appellant. Also heard Mr. J Handique, learned standing counsel, Revenue and Disaster Management Department, appearing for respondent Nos.1 and 2 and Mr. D.K. Sarma, learned Additional Senior Government Advocate, Assam, appearing for respondent Nos.3 and 4.

3. The brief facts of the case are that the writ petitioner/appellant was appointed as Chainman in the office of the Deputy Commissioner, Cachar on 03.06.1987. He was promoted to the next higher grade of "Duftry" vide order dated 24.02.2006. It is made clear that both Duftry and Chainman are Grade-IV posts. All the same, the post of Duftry carries one more increment.

4. However, vide order dated 04.03.2006, the writ petitioner/appellant was reverted from the post of Duftry to the post of Chainman without giving any show-cause or any opportunity of hearing. The writ petitioner/appellant challenged the order of reversion before this Court in writ petition, being WP(C) No.5059/2011. During hearing of the writ petition, a statement was made by the counsel for the State that there were vacancies of Duftry available and the Page No.# 3/6

petitioner would be considered on the said post and on the basis of the said statement, the writ petition was disposed of vide order dated 27.03.2014 directing the Deputy Commissioner, Cachar at Silchar to consider the case of the petitioner for promotion/upgradation, either to the post of Duftry or to the post of Process Server, if the petitioner has the requisite qualification. The relevant paragraphs of the order dated 27.03.2014 reads as under:-

"Mr. Nath, learned counsel for the petitioner submits that the writ petition may be disposed of directing the Deputy Commissioner to consider his case for promotion/upgradation either to the post of Duftry or to the post of Process Server with effect from the date when his juniors were promoted. Mrs. Singh, learned standing counsel submits that if the petitioner is eligible for consideration for promotion/upgradation either to the post of Duftry or to the post of Process Server, his case would be considered in accordance with law. Having regard to the aforesaid submissions advanced, the writ petition is disposed of directing the Deputy Commissioner, Cachar at Silchar to consider the case of the petitioner for promotion/upgradation, either to the post of Duftry or to the post of Process Server, if the petitioner has the requisite qualification and his case for promotion was not earlier considered, with effect from the date when his juniors were promoted. The same shall be done by 30th June, 2014. The writ petition is accordingly disposed of. No costs."

5. All the same, the petitioner was not promoted to the post of Duftry. But on 12.09.2014 a detail speaking order was passed citing the reasons as to why the petitioner could not be promoted to the post of Duftry. The reasons cited were that the post of Duftry is not a promotional post of Chainman, the post of Chainman is temporary in nature and retained on year to year basis, and the nature of work of Chainman is not same with the ministerial staff such as Duftry, Process Server, Chowkidar, etc. Page No.# 4/6

6. Admittedly, there are no separate service rules which stipulate work conditions of Chainman or Peon, etc. in the department, but the admitted position is that both the posts of Chainman and Peon are Grade-IV posts. In the writ petition, being WP(C) No.2056/2015, the writ petitioner/appellant had again challenged this order, i.e. order dated 12.09.2014. However, the learned Single Judge vide the impugned order dated 16.12.2021 dismissed the writ petition on grounds that the authority, while dismissing the claim of the petitioner on 12.09.2014, had assigned cogent reasons and therefore, it does not call for any interference. Paragraphs 21, 22, 23, 24 and 25 of the order dated 16.12.2021 reads as under:

"21. In the instant case, the order of rejection dated 12.09.2014 takes into account certain factors namely,

(i) the post of Duftry is not a promotional post of Chainman,

(ii) the promotional post of Chainman is Lot Patwary,

(iii) the Gradation List of Chainman is separately maintained.

(iv) the nature of work of Chainman is not the same with ministerial staff.

22. This Court is of the view that the aforesaid consideration are all relevant and bona fide. This Court has also noticed that in the two nos. Of Gradation Lists annexed to the Writ Petition, the same pertaining to Chainman is an exclusive one which pertains to the Land Records Establishment of the DC Office, which the other pertains to Ministerial Staff.

23. This Court also finds force in the contention of the learned State Counsel that the work assigned to a Chainman is mainly seasonal work pertaining to the field as and when settlement operations are taken up. The said post of Chainman cannot be regarded to be a post identical to the post of Peon post promotional ladder is wholly different. While a Chainman can aspire to become a Lot Patwary, subject to having the qualification, a Peon can become a Junior Assistant.

24. Under the aforesaid facts & circumstances, this Court is of the view that no Page No.# 5/6

enforceable right of the petitioner has been able to be established in the present case and therefore, the same is liable to be dismissed.

25. No order as to cost."

7. The matter is now in appeal before this Court. After hearing the learned counsel for the writ petitioner/appellant and the State counsel at length, it appears that one important aspect of the matter was perhaps not placed before the learned Single Judge, which is the reversion of the writ petitioner/appellant from the post of Duftry to the post of Chainman in the year 2006, and this, in our opinion, was an error committed by the State. It is also an admitted position that the writ petitioner/appellant was reverted to the post of Chainman without giving any show-cause or any opportunity of hearing. Moreover, there are admittedly no rules which can establish that the post of Chainman and Peon are not equal and are not the feeder cadre for the post of Duftry. As such we do find substance in the claim of the writ petitioner/appellant. All the same, there is another aspect which has been disclosed at the Bar that the writ petitioner/appellant, meanwhile, has reached the age of superannuation and has retired from service on 31.01.2022.

8. In view of the above, we are of the opinion that the writ petitioner/appellant was wrongly reverted to the post of Chainman. Therefore, he is now liable to be considered as Duftry but he will not be entitled to the salary for the post of Duftry as the writ petitioner/appellant had not worked in the post of Duftry. In other words he shall be notionally treated as Duftry and shall also be considered to have retired as a Duftry.

9. The impugned order of the learned Single Judge is hereby set aside and the writ appeal is allowed to the following extent:

The department shall consider the writ petitioner/ appellant as Duftry and Page No.# 6/6

he shall be deemed to have retired from service as Duftry. However, he will not be given any salary for the post of Duftry but his pension will now be calculated as Duftry (from 2006 onwards) and the same shall be given within two months from the date of receipt of a certified copy of this order.

                      JUDGE                           CHIEF JUSTICE




Comparing Assistant