Gauhati High Court
Ashutosh Dey vs The State Of Assam And 2 Ors on 15 June, 2022
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GAHC010184302019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5709/2019
ASHUTOSH DEY
S/O- LATE ANANDA CHANDRA DEY,
R/O- BIDYASAGAR SARANI, WARD NO.2,
SETTLEMENT ROAD, P.S AND DIST- KARIMGANJ, PIN- 788712
VERSUS
1: THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT OF
ASSAM, PWD (ROADS) DEPTT, DISPUR, GUWAHATI- 06
2:THE CHIEF ENGINEER PWD (BORDER ROADS)
ASSAM CHANDMARI GUWAHATI- 03
3:THE EXECUTIVE ENGINEER PWD BADARPUR BRC DIVISION
BADARPUR DIST- KARIMGANJ PIN- 78871
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : GA, ASSAM
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 15-06-2022
Heard Mr. F.U. Barbhuiya, learned counsel for the petitioner, who
submits that the petitioner should have been considered for promotion from
Grade-IV Khalasi to the post of Section Assistant. He further submits that
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the impugned order dated 15.02.2019 passed by the respondent No.1,
rejecting the petitioner's claim for promotion should be set aside.
2. The petitioner's case in brief is that he was engaged as a Work
Charge Worker on 02.06.1988 in the Public Works Department. His service
was thereafter regularized vide order dated 04.05.2005 with effect from
22.07.2005, to a post made personal to him.
3. The petitioner's counsel submits that the petitioner should be
considered for promotion to the post of Section Assistant, which is a Grade-
III post, in terms of Rule 6(6)(b) of the Assam Ministerial District
Establishment Service Rules, 1967 (hereinafter referred to as the "1967
Rules"). The petitioner's counsel submits that the petitioner in the
meantime has retired from service on 31.07.2020.
4. In support of his submission that a Grade-IV employee can be
promoted to a Grade-III post, learned counsel for the petitioner has placed
reliance upon the judgment of this Court in Achyut Kalita -Vs- State of
Assam & Ors., reported in 2017 (5) GLT 577.
5. Mr. R. Dhar, learned Additional Senior Government Advocate,
Assam appearing for all the respondents submits that the petitioner's
service being regularized against a post made personal to him, the
petitioner cannot be promoted as he is presently holding an ex-cadre post.
6. I have heard the learned counsels for the parties.
7. The impugned order dated 15.02.2019 issued by the respondent
No.1 is to the effect that the petitioner does not have the educational
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qualification required for promotion to the post of Section Assistant, as the
petitioner is only an HSLC pass, while a candidate for promotion to Section
Assistant is required to be an HSSLC pass in Science Stream.
8. Besides the above, this Court in various judgments has held that
when regularization of a Grade-IV Muster Roll/Work Charge Worker had
been done against a personal post, the post held by those persons would
be outside the cadre of a Grade-IV post, i.e. an ex-cadre post. This Court in
WP(C) No.2416/2014; WP(C) No.3116/2014; WP(C) No.4254/2014 and
WP(C) No.9451/2019 has held that unless a person who is holding an ex-
cadre post is en-cadred into a cadre post, which is a feeder cadre to a
higher post, the person holding the personal post cannot be promoted to a
higher cadre post. The decisions made by this Court has been upheld by
the Division Bench of this Court in Dilip Talukdar & Ors. -Vs- State
of Assam & Ors., reported in 2017 (2) GLT 135. The Division Bench
in Paragraph 12 of Dilip Talukdar (supra) has held as follows:-
"12. We have seen the reasons recorded by the learned Judge
for the impugned verdict and find that the posts against which the
writ petitioners were regularized were never added to the notified
cadre in the department. Yet no plea was advanced for en-cadrement
of the posts held by the affected parties. The promotion in the
department can be considered only from the eligible employees in the
feeder cadre and the writ petitioner being outside of the cadre, cannot
have any enforceable right to claim promotion, particularly when, the
regularization order itself stipulates that they are regularized in posts
personal to them. Such temporary creation of post cannot
automatically add to the cadre strength of the department and claim
for promotion from a person holding an ex-cadre post, is not legally
tenable. Therefore we see no basis to take a different view in the
matter than the one taken by the learned Single Judge, in dismissing
the cases."
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9. As the writ petitioner is holding an ex-cadre post, there is no
question of the petitioner being promoted or considered for promotion to a
Grade-III post, as he is presently holding an ex-cadre post. Further, the
judgment relied upon by the petitioner, i.e. Achyut Kalita (supra), is not
applicable to the facts of this case, as the petitioner therein was appointed
as Grade-IV Khalasi on compassionate ground, i.e. to a regular sanctioned
post. However, the petitioner here was a Work Charge Worker, whose
service was subsequently regularized against a post made personal to him.
10. In view of the above difference in facts, the judgment in
Achyut Kalita (supra) is not applicable to the facts of this case.
11. Due to the reasons stated above, this Court does not find any
merit in the writ petition. The writ petition is accordingly dismissed.
JUDGE
Comparing Assistant
