Gauhati High Court
Page No.# 1/4 vs The State Of Assam And 2 Ors on 7 November, 2022
Page No.# 1/4
GAHC010152972019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4612/2019
JIBON BHARALI AND 3 ORS.
S/O. LT. LABARAM BHARALI, VILL. KARATIPAR, P.S. TITABOR, DIST.
JORHAT, PIN-785630, ASSAM.
2: MEHBUB ALAM LASKAR
S/O. KD. MATIUR RAHMAN LASKAR HOUSE NO. 12
LAKMINAGAR HATIGAON SAMANAY PATH
P.O. HATIGAON
DISPUR
GUWAHATI-06.
3: AMAL SALOI
S/O. SRI BIPIN SALOI
R/O. DURGASOROBOR
ADINGGIRI
P.O. MALIGAON
P.S. JALUKBARI
GUWAHATI-11
4: ANAJAN JYOTI KALITA
S/O. SRI RAMESH CHANDRA KALITA
P.O. SAWKUCHI
P.S. BASISTHA
GUWAHATI-40
DIST. KAMRUP (M)
ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY THE PRINCIPAL SECRETARY, FOOD CIVIL SUPPLIES AND
CONSUMER AFFAIRS DEPTT., DISPUR, ASSAM, GUWAHATI-781006.
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2:THE DIRECTOR
OFFICE OF THE DIRECTORATE OF FOOD
CIVIL SUPPLIES AND CONSUMER AFFAIRS
ASSAM BHANGAGARH
GUWAHATI-781005.
3:HIMANJIT OJAH
SENIOR ASSISTANT
O/o DIRECTOTRATE OF FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS
ASSAM BHANGAGARH ROAD
GHY
Advocate for the Petitioner : MR. J SARMAH
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 07-11-2022
JUDGMENT AND ORDER (ORAL)
Heard Mr. J Sarma, learned counsel for the petitioner and Mr. TC Chutia,
learned Additional Senior Government Advocate for the respondents No. 1 and 2
being the authorities in the Food Civil Supplies and Consumer Affairs
Department, Government of Assam. As regards the respondent No. 3, office
note of 07.11.2019 indicates that notice had been served, but none appears.
However, considering the nature of the order proposed to be passed, we are not
required to hear the respondent No. 3.
2. The petitioners have been appointed as Data Entry Operators in the Food
Civil Supplies and Consumer Affairs Department of the Government of Assam.
This writ petition is instituted on the grievance that no promotional avenue is
available to the petitioners and they are continuing in the same post of Data
Entry Operator.
3. The respondents in the Food Civil Supplies and Consumer Affairs
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Department in their affidavit in opposition in paragraph 9 thereof take a stand
that the post of Data Entry Operator were created as per Government Letter No.
FSB.4/2006.24 dated 18.07.2007 and that the post of Data Entry Operator are
not cadred post under the Assam Directorate Establishment (Ministerial) Service
Rules, 1973 (in short Rules of 1973). A stand has been taken by the
respondents that as the posts of Data Entry Operator are not cadred post,
therefore, their promotional avenue would not be covered by the Rules of 1973.
4. Admittedly, the Rules of 1973 would be applicable to the posts cadred
under the said Rules and the stand of the respondents that the posts involved in
the present writ petition being ex-cadred posts are not covered by the
promotional avenue provided in the Rules of 1973 would have to be accepted.
But, however, we have also taken note that the petitioners are appointed by
following the due procedure of law against the posts of Data Entry Operator and
are continuing in such posts for a long period of time.
5. The aforesaid situation was examined by the Hon'ble Supreme Court in
Food Corporation of India and others -vs- Parashotam Das Bansal and others,
reported in (2008) 5 SCC 100. In paragraph 12 thereof, the Hon'ble Supreme
Court arrived at its conclusion that when employees are denied an opportunity
of promotion for long years on the ground that they fell within a category of
employees excluded from promotional prospect, the superior court will have the
jurisdiction to issue necessary direction. In paragraph 13 thereof, it had been
provided that if there is no channel of promotion in respect of a particular group
of officers resulting in stagnation over the years, the court although may not
issue any direction as to in which manner a scheme should be formulated or by
reason thereof interfere with the operation of existing channel of promotion to
the officers working in different departments and officers of the Government,
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but the jurisdiction to issue direction to make a scheme cannot be denied to a
superior court of the country. Paragraphs 12 and 13 of Parashotam Das Bansal
(supra) are quoted below:-
"12. When employees are denied an opportunity of promotion for long
years (in this case 30 years) on the ground that they fell within a category of
employees excluded from promotional prospect, the superior court will have the
jurisdiction to issue necessary direction.
13. If there is no channel of promotion in respect of a particular group of
officers resulting in stagnation over the years, the court although may not issue
any direction as to in which manner a scheme should be formulated or by
reason thereof interfere with the operation of existing channel of promotion to
the officers working in different departments and officers of the Government
but the jurisdiction to issue direction to make a scheme cannot be denied to a
superior court of the country."
6. Going by the proposition laid down by the Hon'ble Supreme Court in
Parashotam Das Bansal (supra), we accordingly issue a direction to the
authorities in the Food Civil Supplies and Consumer Affairs Department,
Government of Assam to formulate an appropriate scheme providing for
appropriate promotional relief to the petitioners in view of the acceptance of the
situation that the posts of Data Entry Operator are ex-cadred and would not be
covered for promotion by the Rules of 1973. The relevant scheme be framed
within a period of three months from the date of receipt of a certified copy of
this order.
The writ petition is allowed as indicated above.
JUDGE
Comparing Assistant
