Gauhati High Court
Bipin Ch. Deka vs The State Of Assam And 5 Ors on 4 January, 2022
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GAHC010128442013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/77/2013
BIPIN CH. DEKA
S/O LATE ASHOK DEKA, R/O BALISHIHA, P.S. DHEKIAJULI, DIST-
SONITPUR, ASSAM, PIN-784110
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, EDUCATION HIGHER DEPARTMENT, DISPUR, GHY-6
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GHY-6
3:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY-19
4:THE GOVERNING BODY
REPRESENTED BY ITS SECRETARY CUM PRINCIPAL LOKANAYAK OMEO
KUMAR DAS COLLEGE
DHEKIAJULI-784110
DIST- SONITPUR
ASSAM
5:THE PRINCIPAL
LOKANAYAK OMEO KUMAR DAS COLLEGE
DHEKIAJULI-784110
DIST- SONITPUR
ASSAM
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6:KUKIL KUMAR BHARALI
S/O SRI TANKESWAR BHARALI
LOKANAYAK OMEO KUMAR DAS COLLEGE
DHEKIAJULI-784110
DIST- SONITPUR
ASSAMLOKANAYAK OMEO KUMAR DAS COLLEGE
DHEKIAJULI-784110
DIST- SONITPUR
ASSA
Advocate for the Petitioner : MR.A BHATTACHARYA
Advocate for the Respondent : MR.D CHOUDHURY
BEFORE
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 04-01-2022
Heard Mr. T.J. Mahanta, learned senior counsel for the petitioner. Also
heard Mr. K. Gogoi, learned standing counsel for the respondents No.1 and 3
being the authorities under the Higher Education Department of the Govt. of
Assam, Mr. A. Chaliha, learned counsel for the respondent No.2 being the
authorities under the Finance Department and Ms. P. Bora, learned counsel
for the respondents No.4 and 5 being the authorities of the LOKDC.
2. The Office Note indicates that Mr. S. Deka and Ms. K. Mishra, learned
counsel have entered appearance for the respondent No.6. But when the matter
is taken up, none appears for the said respondent although the cause list
indicates the name of the learned counsel.
3. The petitioner was a Grade-IV employee in the Lokanayak Omeo Kumar
Das College (LOKDC) at Dhekiajuli in the Sonitpur district. By the resolution
No.5 dated 07.06.1994 of the Governing Body of LOKDC, the petitioner who is
referred as the senior most qualified Grade-IV employee of the college, was
promoted to the vacant post of LDA held by Keshab Ch. Kalita, who in turn was
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promoted by the same resolution as UDA in the college. At the relevant point of
time when the resolution of the Governing Body was passed on 07.06.1994, it is
stated that Assam Aided College Employees Rules, 1960 (in short Rule of 1960)
governed the promotion. Rule 4(3) of the Rules of 1960 inter alia provides that
the Governing Body concerned shall after due advertisement in atleast two
newspapers make appointment of Office Assistant subject to the approval of
the Director of Public Instruction, Assam.
4. In the instant case, it being a case of promotion to a post of Office
Assistant, it is accepted by the learned counsel for the parties that the
promotion of the petitioner as per the resolution of the Governing Body of
LOKDC would be governed by Rule 4(3) of the Rules of 1960. It being so, it is
submitted that there is a requirement of the Director of Public Instruction now
to be read as Director of Higher Education, Assam to approve the resolution by
which the petitioner was promoted. The matter remained as such that although
there was a resolution by the Governing Body promoting the petitioner as LDA,
but it was not placed before the Director for its approval as required under the
Rules. In the meantime, the Rules of 1960 was replaced by the Assam College
Employees (Provincialisation) Rules, 2010 (in short Rule of 2010) which again
was framed under Section 12 (1) of the Assam College Employees
(Provincialisation) Act, 2005. Rule 7(a) of the Rule of 2010 provides that all
appointments either direct recruitment or by promotion shall be made by the
Director on the basis of recommendation of the Governing Body based on the
recommendation of the Selection Committee/Departmental Promotion
Committee duly constituted. In exercise of power under Section 7(a) of the
Rules of 2010, the Director of Higher Education, Assam passed the order dated
26.06.2012 which reads as extracted:-
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"In exercise of power conferred under provision of Rule 7(a) of the
"Assam College Employees (Provincialisation) Rules, 2010, Govt. O.M.
No.B(2)H.155/2004/5, dated 24.06.2004 and on the basis of the
recommendation of Departmental Promotion Committee and the Governing
Body's resolution No.5 dated 07.06.1994 adopted in the Governing Body of
LOKD College, P.O. Dhekiajuli, District-Sonitpur, the Director of Higher
Education, Assam is pleased to promote Sri Bipin Ch. Deka, Grade-IV to the
post of Junior Assistant vice Sri Kukil Kr. Bharali, Senior Assistant
accommodated against the post of UDA (Sr. Asstt) vice Sri K.C. Kalita
(promoted) in the scale of Pay Band (PB-2) Rs.5200-20,200/- with Grade Pay of
Rs.2200/- p.m. and other allowance as admissible with effect from the date of
joining as Junior Assistant."
5. A reading of the order dated 26.06.2012 gives an indication that the
Director had exercised his power under Rule 7(a) of the Rules of 2010 to
promote the petitioner to the post of Junior Assistant of the College.
6. In the aforesaid factual matrix, we arrive at a situation where there is a
recommendation by the Governing Body of the LOKDC dated 07.06.1994
promoting the petitioner to the post of LDA which again under the Rules of
1960 requires approval of the Director, but the same was not placed before the
Director for his approval. On the other hand, by the order dated 26.06.2012, the
Director exercises his power under Rule 7(a) of the Rules of 2010 to now
promote the petitioner to the post of Junior Assistant. Admittedly where there
was a recommendation in favour of the petitioner by the Governing Body by its
resolution of 07.06.1994, there was no occasion for the Director to now exercise
his power under Rule 7(a) of the Rules of 2010 again promote the petitioner to
the post of Junior Assistant. The jurisdiction that was vested in the Director was
either to approve or disapprove the earlier recommendation of the Governing
Body dated 07.06.1994 and merely because it was done belatedly after almost
18 years, it by itself cannot bestow a jurisdiction on the Director under Rule 7(a)
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of the Rules of 2010 to now again promote the petitioner to the post of Junior
Assistant.
7. From such point of view, the order dated 26.06.2012 appears to be an
order without jurisdiction. But however the purport of the order is that the
petitioner is to be promoted as Junior Assistant which was the post earlier
nomenclatured as LDA. The satisfaction of the Director that the petitioner is to
be promoted as Junior Assistant/LDA can be construed to be an act on the part
of the Director to have approved the earlier recommendation of the Governing
Body dated 07.06.1994, which act of approval was also a statutory requirement
under the Rules of 1960. Accordingly, interfering with the order dated
26.06.2012 in its present form where the power under Section 7(a) of the Rules
of 2010 was exercised, we modify the same order to implicate that it was an
order approving the recommendation of the petitioner for promotion as LDA by
the resolution of the Governing Body dated 07.06.1994.
8. It is stated by Mr. K. Gogoi, learned counsel for the Higher Education
Department that in the intervening situation, there is an order dated 14.11.2006
of the Under-Secretary to the Govt. of Assam in the Education (Higher)
Department by which there is an indication that atleast as on 14.11.2006 there
was a vacant post of LDA in the LOKDC Dhekiajuli. Accordingly, it is an agreed
submission by Mr. T.J. Mahanta, learned senior counsel for the petitioner and Mr.
K. Gogoi, learned counsel for the Higher Education Department that the
promotion of the petitioner by the resolution of the Governing Body dated
07.06.1994 which is understood to have approved by the Director as per the
order dated 26.06.2012 as indicated above be construed to have effect from
14.11.2006. As agreed by the learned counsel, we ordered accordingly. The
promotion of the petitioner in LOKDC be construed to have effect from
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14.11.2006 and the petitioner be provided with the necessary consequential
benefits of such promotion. The benefit be given within a period of three
months from the date of receipt of the certified copy of the order and the
respondent authorities may work out as to what benefit the petitioner would be
entitled.
9. The writ petition stands allowed as indicated above.
JUDGE
Comparing Assistant
