Gauhati High Court
Ranu Bhusan Das vs The State Of Assam And Ors on 6 June, 2023
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GAHC010182242012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1655/2012
RANU BHUSAN DAS
S/O LATE SUDHIR KUMAR DAS, VILL MAXIPUR, P.O. MALUA, P.S.
BADARPUR, DIST- KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM AND ORS
REPRESENTED BY THE COMMISSIONER and SECRETARY, P.W.D.
DEPARTMENT, NOW NATIONAL HIGH WAY ROAD, GOVT. OF ASSAM,
DISPUR, GHY-6
2:THE CHIEF ENGINEER
NATIONAL HIGH WAY ROAD DIVISION
CHANDMARI
GHY-3
3:THE EXECUTIVE ENGINEER
KARIMGANJ NATIONAL HIGH WAY DIVISION PWD
P.O. and DIST- KARIMGANJ
ASSA
Advocate for the Petitioner : MR.I A TALUKDAR
Advocate for the Respondent : SC, PWD
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
Date : 06-06-2023
Heard Mr. A.I. Talukdar, learned counsel for the petitioner. Also
heard Mr. P Nayak, learned counsel appearing for all the respondents.
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2. The present writ petition is filed assailing an order dated
12.06.2010 issued by the respondent No.3 whereby the representation filed
by the petitioner claiming arrears of salary was rejected.
3. The brief facts leading to the present writ petition is that while the
petitioner was holding a substantive post of Peon under the respondent
authorities, he was promoted to the post of Tracer in officiating basis by an
order dated 31.03.2000 issued by the Respondent No.3. The claim of the
petitioner is that, though he was promoted to the aforesaid post on
31.03.2000 with definite scales of pay, he was paid such salary in the
promoted post till the month of June, 2000 only. Though the salary was
stopped, however, he continued to work as Tracer in the promoted post till
the month of December, 2009. Thereafter without any order of reversion,
the petitioner was not allowed to work as Tracer rather he was entrusted
with the work of Peon i.e., in his substantive post.
4. Being aggrieved, the petitioner filed various representations
before the authorities for redressal of his grievance. When such
representations were not considered, he approached the Assam
Administrative Tribunal for redressal of his grievances and a case being
Case No.65ATA/2009 was registered.
5. The learned Tribunal under its order dated 16.02.2010 disposed
of the said petition and remanded back the matter to the department with
a direction to consider the appeal preferred by him. It was further directed
that the appeal be disposed of through a speaking order within 3 (three)
months. Pursuant to the said order, the appeal of the petitioner was
considered and by the impugned order, the authorities rejected the claim of
the petitioner.
6. The prayer of the petitioner was rejected concluding that the
order of promotion of the petitioner from the post of Peon to the post of
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Tracer was done without observing any necessary formalities and without
obtaining government approval and therefore the same was not valid. It
was also concluded that though no order of reversion was passed, however,
the petitioner was reverted to the post of Peon with effect from June 2000
and since then his salary has been drawn and disbursed as Peon.
Accordingly, it was concluded that in the aforesaid backdrop, the petitioner
is not entitled for any arrears of salary for serving as Tracer.
7 Assailing such order, Mr. I.A Talukdar, learned counsel for the
petitioner submits that the respondents themselves have admitted that the
promotion order was issued and no reversal order was passed. Therefore,
as they had authorized the petitioner to work as Tracer, the authorities are
bound to pay the scales of pay of Tracer to the petitioner and therefore, the
impugned order is liable to be interfered and a direction should be issued to
the respondent authorities to pay the petitioner the arrears of salary from
June 2000 till December 2009 as he worked as Tracer without any order of
reversion till the month of December, 2009.
8. Mr. Talukdar, further contends that there is no fault on the part of
the petitioner in getting the promotion as well as he worked as Tracer from
the month of June 2000 to the month of December, 2009. Therefore, the
respondents cannot refuse to pay the salary. In support of such
contention, Mr. Talukdar relies on the judgment of the Meghalaya High
Court rendered in Bainsten G. Momin Vs. State of Meghalaya & Anr
reported in 2017 (3) GLT (ML) 130.
9. Per contra, Mr. P Nayak, learned counsel for the respondents submits
that the petitioner himself through his representation dated 09.03.2007 has
admitted that he worked as Tracer on being promoted till the month of May
2000 and his service was brought back to his earlier position within 2
months after the promotion order dated 31.03.2000 and he himself
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admitted that since the month of June, 2000 he started getting the salary
of Peon. Therefore, in view of such contention, even if it is assumed that
the petitioner has worked as Tracer, his salary as Tracer has already been
paid till the month of May, 2000 and from the month of June 2000 he
started getting salary of his original post i.e. Peon.
10. This Court has given anxious considerations to the arguments
advanced by the learned counsel for the parties and perused the materials
including the impugned order.
11. The fact remains that the petitioner was promoted vide order
dated 31.03.2000 by the Executive Engineer. The petitioner has not
disputed the contention that such promotion was made dehors rules. It is
also not under challenge the verbal reversal from the post of Tracer to the
post of Peon. The petitioner himself pleaded that he started working again
as Peon from the month of January 2010 and his claim is for the arrear of
salary from June 2000 to December, 2009 as Tracer. No challenge to the
revision has been made.
12. The respondent authority has disputed the entitlement of arrears
salary not only in the impugned order but also by filing an affidavit. It is
the contention that the order of promotion was issued without following
due process and that the petitioner was reverted to his original post from
the month of June 2000 itself, though no order of reversal was passed.
The petitioner though claims that he continued to work till the month of
December, 2009, such statement has been denied by the respondent
authorities and the respondent authority contends that the petitioner
worked till the month of May 2000.
13. Law is well settled that certain disputed questions of facts cannot be
determined in a writ proceeding. Therefore, such dispute whether the
petitioner worked as Tracer till May 2000 or till December, 2009 cannot be
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ascertained inasmuch as, no tangible materials have been produced before
this Court by the petitioner to ascertain that he continued to work as a
Tracer in the promoted post till the month of December 2009. Rather, the
fact remains that by filing a representation on 09.03.2007 before the Chief
Engineer, PWD (Roads) Assam, the petitioner has candidly admitted that to
his displeasure after serving two months as Tracer after his promotion on
31.03.2000, he was again brought back to the earlier post as Peon.
14. Therefore, for the determination made herein above, this Court is of
the inherent view that no illegality has been committed by the authorities in
rejecting the claim of the petitioner.
15. Coming to the judgment relied upon by Mr. Talukdar, this Court is
of the considered opinion that the said judgment is not applicable in the
present case inasmuch as, in the case of Bainsten G Momin (supra), the
case was that the petitioner was reinstated in terms of Court order but did
not join due to miscommunication and therefore, he was granted arrear of
salary though he did not work after reinstatement for the aforesaid period.
In the case in hand, facts are totally different as discussed herein above
and therefore, the judgment will be of no help in determining the present
writ petition.
16. In view of the aforesaid reasons and discussion herein above, this
Court finds no merit in the present writ petition and accordingly the same
stands dismissed. Parties to bear their own cost.
JUDGE
Comparing Assistant
