Ajiruddin Ali vs The State Of Assam And 7 Ors
2023 Latest Caselaw 2921 Gua

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GAHC010171212023




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

                         Case No. : WP(C)/4463/2023

         AJIRUDDIN ALI
         SON OF LATE MOHAMMAD ALI,
         RESIDENT OF VILLAGE- BUJRUK MANIKPUR,
         P.O.- KRISHNAI, P.S.- KRISHNAI,
         DISTRICT- GOALPARA, ASSAM,
         PRESENTLY SERVING AS KHALASI,
         IN THE OFFICE OF THE EXECUTIVE ENGINEER, PUBLIC HEALTH
         ENGINEERING,
         GOALPARA DIVISION, DISTRICT- GOALPARA, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE
         GOVERNMENT OF ASSAM,
         PUBLIC HEALTH ENGINEERING DEPARTMENT,
         DISPUR, GUWAHATI-6.

         2:THE SECRETARY TO THE GOVT. OF ASSAM
          P.H.E. DEPARTMENT
          DISPUR
          GUWAHATI-6.

         3:THE SECRETARY TO THE GOVT. OF ASSAM
          PERSONAL (B) DEPARTMENT
          DISPUR
          GUWAHATI-6.

         4:THE CHIEF ENGINEER
          PUBLIC HEALTH ENGINEERING
          (WATER)
         ASSAM
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             HENGRABARI
             GUWAHATI-36

            DISTRICT- KAMRUP(M)
            ASSAM.

            5:THE SUPERINTENDING ENGINEER
             PUBLIC HEALTH ENGINEERING
             OFFICE OF THE CHIEF ENGINEER
             PHE(W)

            HENGRABARI
            GUWAHATI-36

            DISTRICT- KAMRUP(M)
            ASSAM.

            6:THE EXECUTIVE ENGINEER
             PUBLIC HEALTH ENGINEERING
             GOALPARA DIVISION
             GOALPARA
             DISTRICT- GOALPARA

            ASSAM.

            7:THE SUPERINTENDING ENGINEER
             P.H.E.
             GUWAHATI CIRCLE
             GUWAHATI-21.

            8:THE DIVISIONAL LEVEL SELECTION COMMITTEE
             REPRESENTED BY THE CHAIRMAN CUM SUPERINTENDING ENGINEER

            PUBLIC HEALTH ENGINEERING

            GUWAHATI CIRCLE

            GUWAHATI-21

Advocate for the Petitioner   : MR. J I BORBHUIYA

Advocate for the Respondent : SC, P H E




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
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                                    ORDER

05.08.2023 Heard Mr. L. Mohan, learned counsel for the petitioner and Mr. H. Sarma, learned Government Advocate for the respondent No. 3 and Mr. D. Gogoi, learned Standing Counsel for the PHE Department.

2. This writ petition is filed by the petitioner who is aggrieved by non- consideration of his case for the post for his promotion to the next higher post of Pump Operator.

3. The learned counsel for the petitioner submits that the petitioner was appointed as a work-charged employee in the Department and subsequently regularized by order dated 19.12.2003 whereby he was regularized along with other similarly situated persons as Khalasi which is in the category of work- charged employees.

4. The learned counsel for the petitioner submits that the Division Level Selection committee promotion to various Grade-III post under Goalpara PHE Division in its meeting held on 08.07.2022 had recommended the cases of the petitioner along with other persons for being promoted to the post of Pump Operation under Goalpara Division. The said recommendation, however, was returned back by communication dated 19.12.2022 by the Office of the Chief Engineer, PHE(Water), Assam on the ground that the post of the petitioner is personal post and therefore no promotion to any higher post is envisaged in terms of the Office Memorandum No. 117/2022 dated 02.06.2022.

5. In that view of the matter, the learned counsel for the petitioner submits that his claim which was forwarded by the Divisional Selection Committee ought to have been carried forward and his claim for promotion ought to have been Page No.# 4/5

granted by the concerned authorities, however, the same not having been done, the petitioner is aggrieved and has filed the writ petition.

6. Mr. B. Gogoi, learned Standing Counsel appearing for the PHE Department submits that in terms of the Judgment of a Division Bench of this Court rendered in Dilip Talukdar and Ors. Vs. State of Assam and ors , reported in 2017 SCC OnLine Gau 914, it has been held that posts which are personal to the employees, are not open for promotion in the regular cadre. It is submitted that the petitioner was appointed as a work-charged Khalasi and subsequently, was regularized as a work-charged Khalasi and he is still rendering his services as a work-charged Khalasi.

7. The learned counsel for the respondents submits that the post of Khalasi are outside the regular cadre and therefore, his regularization to the post is to a personal post which will not be available after his retirement. Consequently, there being outside the regular cadre, there cannot be a claim for promotion of persons holding personal post belonging to the regular cadre under the service Rules.

8. Mr. H. Sharma, learned counsel for the respondent No. 3 also makes similar submissions.

9. Having considered the submissions made by the learned counsels, this Court is of the view that the matter will require adjudication. Therefore, the learned counsel for the respondents are permitted to obtain required instructions and place it before the Court so that the matter can be heard preferably if possible at the motion stage.

10. List the matter after two weeks.

11. Although no notice has been issued, learned counsel for the petitioner Page No.# 5/5

however will furnish extra copies of the writ petitions to the respective counsels to obtain their required instructions in the matter.

JUDGE

Comparing Assistant