Gauhati High Court
Loken Saikia @ Loken Ch. Saikia vs The State Of Assam And 3 Ors on 13 August, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/6
GAHC010178352015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5458/2015
LOKEN SAIKIA @ LOKEN CH. SAIKIA
S/O. LT. MADHAB CH. SAIKIA, VILL. SENCHOA, P.S. NAGAON SADAR P.S.,
DIST. NAGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, P.W.D.,
DISPUR, GHY-06.
2:THE CHIEF ENGINEER
P.W.D. ROAD
CHANDMARI
GHY-03.
3:THE ADDL. CHIEF ENGINEER PLANNING
PWD ROADS
ASSAM
GHY-03.
4:THE EXECUTIVE ENGINEER
ASSAM STATE PUBLIC WORKS DEPTT.
NAGAON H.H. DIVISION NO.1
NAGAON
ASSAM
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BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocate for the petitioner : Shri J. Das, Advocate.
Advocate for the respondents : Shri D. Nath, SC, PWD.
Date of hearing : 13.08.2024
Date of Judgment : 13.08.2024
Judgment & Order
The instant petition filed under Article 226 of the Constitution of India is on
a claim for promotion from the post of Section Assistant to the post of Sub-
Engineer Gr-II in the Public Works Department.
2. As per the facts projected, the petitioner was appointed as a Section
Assistant on 27.01.1969. While in service, a Draft Seniority list was published on
07.01.2005 in which the petitioner was placed against Sl. No. 16. On the issue
of his promotion, the petitioner had earlier filed WP(C)/3049/2009. However, the
said writ petition was withdrawn on 03.01.2011 with liberty to approach the
authorities with a claim for giving the benefits of the promotion. It is to be
mentioned that the petitioner had attained his superannuation in the meantime
on 31.07.2009. The petitioner had accordingly submitted a representation
seeking the benefits of promotion. The said representation was replied on
07.03.2011 by the Department by stating that there was no instance of
promotion of untrained Section Assistant for the last 5 years and there was also
no provision for giving promotion to a retired employee. The writ petition has
been instituted thereafter with the following prayers:-
"It is, therefore, prayed that Your Lordships would be graciously pleased to admit this
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application, call for the records and issue a Rule, calling upon the Respondents to
show cause as to why a writ in the nature of Mandamus/Certiorari and/or any other
appropriate writ(s), order(s) or direction(s) of the like nature should not be issued
directing the respondents to grant the notional promotional benefits of Sub-Engineer
Grade -II in favour of the petitioner with affect from 27.1.2005 i.e. the date of Draft
Seniority List till 31.7.2009 i.e. the date of retirement of the petitioner along with all
the consequential benefits of promotion in the post of Sub-Engineer Grade-II and upon
perusal of the cause or causes shown, if any, Your Lordships would be graciously
pleased to make the Rule absolute"
3. I have heard Shri J. Das, learned counsel for the petitioner. I have also
heard Shri D. Nath, learned Standing Counsel, Public Works Department.
4. Shri Das, the learned counsel for the petitioner has submitted that vide an
Office Order dated 28.05.1993, 833 numbers of posts of Sub-Engineers Gr-II
were created and Section Assistants who had completed 25 years of continuous
services were held to be eligible. It is submitted that all along, similarly situated
incumbents have been given benefit of the said office order. The learned
counsel has however fairly submitted that in the list appended with Annexure-6,
the names of certain incumbents of various Divisions including the Nagaon
Division where the petitioner was working has been stated and it was clarified
that those incumbents had completed 25 years of continuous service as Section
Assistants. The list being of the year 1992-93, admittedly, the petitioner was not
having the experience of 25 years. The learned counsel however submits that
even after completion of 25 years of continuous service, no promotional benefits
were granted to the petitioner.
5. By drawing the attention of this Court to the averments of the writ petition
more particularly in paragraphs 13 and 14, the learned counsel has submitted
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that so far as the incumbents from the Nagaon Division are concerned, one
junior person was promoted to Sub Engineer Gr-II with ulterior motive. The
learned counsel accordingly submits that suitable directions be issued to give
the petitioner the benefits of promotion to the higher post and consequently to
grant all the post retirement benefits by treating him who have retired from the
higher post of Sub Engineer Gr-II.
6. Per contra, Shri Nath, the learned Standing Counsel of the Department had
submitted that the earlier writ petition which was instituted in the year 2009
was withdrawn with a liberty to approach the authorities. Thereafter, the
petitioner had indeed approached the authorities, which was replied to vide the
communication dated 07.03.2011. By drawing the attention of this Court to the
relief sought for in the prayer portion of the petition, the learned Standing
Counsel has submitted that there is no challenge at all to the aforesaid
communication. He submits that the said communication contains reasons
based on the materials on records and unless such reasons are specifically
challenged on sustainable grounds, this Court may not embark upon to decide
the matter. It is submitted that it is not the decision but the decision making
process which can be the subject matter of an adjudication in a petition under
Article 226 of the Constitution of India and the reasons as have been prescribed
in the communication, it clearly shows that there has been an application of
mind to the relevant factors.
7. Coming to the facts of the case, the learned Standing Counsel has
submitted that even otherwise, the claim of the petitioner is based upon a Draft
Seniority list of the year 2005. He has submitted that there is no averment at all
as to when the said Draft Gradation list was finalized. He has also highlighted
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the aspect that though in paragraph 14, an averment has been made that a
junior person was promoted, apart from the fact that the said person has not
been made a party respondent, the list of untrained Section Assistant is of the
year 1992-93 and there is nothing on record to show that the petitioner had
raised any objection in spite of the fact that he was working in the same
Division. The learned Standing Counsel has also raised the issue of delay in
approaching the Court.
8. The claim in this writ petition, as has been indicated above is towards the
promotion from the post of Section Assistant to Sub Engineer Gr-II. The only
document on the aspect of such promotion is a communication of 28.05.1993
which lays down the criteria as to have the experience of 25 years of continuous
service. As on the date of affecting certain promotions in the year 1992-93, the
petitioner was not having 25 years of continuous service. The petitioner had
approached this Court on the earlier round in the year 2009 at the verge of his
retirement which was on 31.07.2009. The said writ petition was however
withdrawn on 03.01.2011 with a liberty to approach the authorities which the
petitioner had indeed done. The said approach was replied to on 07.03.2011 by
negating the claim of the petitioner by citing certain reasons. This Court is of
the considered opinion that the authorities having applied their mind to the
claim of the petitioner and rejected with certain reasons, unless the said
communication is specifically challenged, this Court would not be in a position to
make any direction for giving the benefits of promotion. That apart, what is
intriguing to note that the petitioner, who had already retired in 2009 and was
communicated with the rejection of his claim in the year 2011, had approached
this Court about 4 years thereafter.
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9. A Court exercising powers under Article 226 is a Court of Equity wherein the
conduct and bona fide of the incumbent approaching this Court is a paramount
importance. Approaching this Court after 4 years in the present case, that too
by an incumbent who had retired in the year 2009 will not be entitled to have
any equitable relief. Further, this Court has noted that the incumbents who were
given the promotion have their names in the list prepared in the year 1992-93
under the specific heading of having completed 25 years. If any incumbent was
given undue benefit, the petitioner should have made an objection at that time
itself which is not seen to be done. Even in the present writ petition, the none
of such incumbents have not been made party respondents. The reasons cited
in the reply dated 07.03.2011 appears to be bona fide and as per the records
pertaining to the issue of promotion.
10. In view of the aforesaid discussion, this Court is of the opinion that no
relief can be granted to the petitioner.
11. Petition accordingly stands dismissed.
JUDGE
Comparing Assistant
