Jahirul Islam vs The State Of Assam And 2 Ors
2024 Latest Caselaw 4142 Gua

Gauhati High Court

Jahirul Islam vs The State Of Assam And 2 Ors on 11 June, 2024

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                    Page No.# 1/7

GAHC010117402024




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

                               Case No. : I.A.(Civil)/1769/2024

            JAHIRUL ISLAM
            SON OF LATE MAHABBAT ALI, HOUSE NO. 14, BAGHORBORI ROAD,
            PANJABARI, GUWAHATI- 781037, KAMRUP METRO, ASSAM, PIN- 781037



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REPRESENTED BY THE L.R. AND SECRETARY TO THE GOVERNMENT OF
            ASSAM, JUDICIAL DEPARTMENT, DISPUR, GUWAHATI- 781006

            2:HONBLE THE GAUHATI HIGH COURT
             REPRESENTED BY THE REGISTRAR GENERAL
             GAUHATI HIGH COURT
             GUWAHATI- 781001

            3:THE REGISTRAR ESTABLISHMENT
             GAUHATI HIGH COURT
             GUWAHATI- 78100

Advocate for the Petitioner   : MR. A CHAMUAH

Advocate for the Respondent : GA, ASSAM




             Linked Case : WP(C)/2755/2024

            JAHIRUL ISLAM
            SON OF LATE MAHABBAT ALI
             HOUSE NO. 14
                                                                         Page No.# 2/7

           BAGHORBORI ROAD
           PANJABARI
           GUWAHATI- 781037
           KAMRUP METRO
           ASSAM
           PIN- 781037


           VERSUS

           THE STATE OF ASSAM AND 2 ORS
           REPRESENTED BY THE L.R. AND SECRETARY TO THE GOVERNMENT OF
           ASSAM
           JUDICIAL DEPARTMENT
           DISPUR
           GUWAHATI- 781006

           2:HONBLE THE GAUHATI HIGH COURT
           REPRESENTED BY THE REGISTRAR GENERAL
            GAUHATI HIGH COURT
            GUWAHATI- 781001
            3:THE REGISTRAR ESTABLISHMENT
           GAUHATI HIGH COURT
            GUWAHATI- 781001
            ------------
           Advocate for : MR. A CHAMUAH
           Advocate for : GA
           ASSAM appearing for THE STATE OF ASSAM AND 2 ORS



                                 BEFORE
                  HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                      ORDER

11.06.2024 Heard Mr. A. Chamuah, learned counsel for the applicant/writ petitioner. Also heard Mr. G. Baishya, learned Standing Counsel, Gauhati High Court.

2. The writ petitioner is employed as a Court Officer in the Gauhati High Court. He joined his service in the Registry as a Computer Operator on 14.08.1996. Subsequently, he was promoted to the post LDA on 20.06.2007 and thereafter further promoted to the post of Senior Administrative Assistant. This post was later Page No.# 3/7

re-designated as Senior Judicial Assistant vide Notification No. 04.02.2016. In response to the Notification calling for option from interested persons to fill-up the post of Court Officer, the petitioner applied and by notification dated 18.04.2016, the petitioner was appointed as a Court Officer.

3. It is the submission of the learned counsel for the petitioner that notwithstanding he being promoted to the post of Court Officer in the year 2016, the petitioner has not been considered for the next higher post of Assistant Registrar inspite of his seniority in the feeder cadre. The learned counsel for the petitioner submits that the post of a Court Officer is a Class-II(C) post as notified under the Schedule 1 to Rule 11 of the Gauhati High Court Service Rules, 1967. It is submitted that notwithstanding his claim to be considered for the next higher post, his claim has been overlooked. The learned counsel for the petitioner submits that the reason why the petitioner is overlooked for being considered for promotion is because of a rider in his order of promotion to the post of Court Officer that his seniority will be maintained in his original cadre, i.e., Senior Judicial Assistant and his further promotion will be considered on that basis. The learned counsel for the petitioner submits that this aspect of the matter was considered in writ appeals and by a Judgment rendered in W.A. No. 05/2023 and W.A. No. 71/2023 decided on 28.03.2024 by a Division Bench of this Court. The Court has held that a similar rider which was reflected in the promotion order of the incumbents in the said appeals, will not operate as a bar for their confirmation in the higher post. He submits that in that view of the matter, his claim for being considered to the next higher post could not have been overlooked by the Registry and he ought to have been permitted to submit his application in respect of the said post and be permitted to participate in the ensuing selection process. Being aggrieved, the writ petition has been filed.

4. This Court while issuing notice on 30.05.2024 kept the prayer for interim Page No.# 4/7

relief open for consideration.

5. On 10.06.2024 upon submitting before the Court that an Interlocutory Application has been filed praying for interim orders, the matter was directed to be listed expeditiously along with the I.A.(Civil) No. 1769/2024. Accordingly, the said writ petition along with the Interlocutory Application has been listed before this Court today.

6. The learned counsel for the petitioner submits that this interlocutory application has been filed seeking urgent orders from this Court to permit the petitioner to participate in the ensuing selection process for the post of Assistant Registrar to be held on 12.06.2024 as per Notification no. HC.V-25/2014/488/Estt. Dated 07.06.2024. The learned counsel for the petitioner submits that there is no bar under the Rules nor any notification as pointed out before the Court which may reveal that the petitioner is not qualified to hold and/or be permitted to participate in the said interview.

7. The learned Standing Counsel, Gauhati High Court submits that he requires instructions in the matter. The petitioner has belatedly filed the interlocutory application, therefore no interim order is called for at this stage.

8. The learned counsel for the parties have been heard. On a pointed query by the Court as to why the interim order was not pressed on a day when the matter was moved and Notice was issued, the learned counsel for the petitioner has referred to the Notification memo No HC.V-25/2014/488/Estt. dated 07.06.2024 stating that on a day when the notice was issued in the writ petition, there was no intimation given that the selection process for the post of Assistant Registrar will be called for shortly. Upon being aware of the said notification which was issued on 07.06.2024, this interlocutory application has been filed praying for appropriate orders Page No.# 5/7

9. The pleadings on record have been carefully perused. The Judgment pressed into service has also been carefully noted. The ratio of the writ appeals being W.A. No. 05/2023 and W.A. No. 71/2023 decided on 28.03.2024, is with regard to the right of confirmation of the incumbents therein in the higher post in which they were promoted in view of the rider in their appointment/promotion order that their seniorities in the original posts shall be maintained. On the facts of the case therein, the appellate Court held that once the original posts which had fallen vacant pursuant to the promotion of the incumbents therein and those vacant posts have subsequently been filled up by other candidates, there is no scope for the incumbents therein to be reverted back to their original posts and therefore although the Rules have not been put to challenge, the rider in the notification will not operate as a bar in issuing appropriate order confirming the incumbents in the post in which they have been promoted.

10. Coming back to the facts of the case, the Judgment pressed into service by the learned counsel for the petitioner will have no relevance in view of the fact that the issue here is the denial of the claim of the writ petitioner to participate with the selection process for the next higher post in the post of Assistant Registrar. There is no issue raised in the present proceedings regarding the confirmation of the writ petitioner in the post of Court Officer.

11. Be that as it may, upon careful perusal of the Rules it is seen that Rule 7 of the Gauhati High Court Service Rules has defined "Gazetted Officer". The Schedule 1 appended to the Rules show that the Court Officer is a post shown as Gazetted Officer under Class-II(C). The post of Court Officer is shown as Class-II(C) along with the posts of Administrative Officer (Judicial), Stamp Reporter, Protocol Officer, Assistant Librarian and Senior Systems Officer.

12. Coming back to Rule 7 of the said Rules, under sub-Rule 3, it is provided that Page No.# 6/7

the Assistant Registrar shall be appointed from amongst the State Judicial Service Grade-III Officers, or by promotion from the Gazatted Officers of the High Court Service belonging to Class-II(b), II(C) or II(D) from amongst advocates having not less than five years of continuous service in the bar.

13. The Standing Counsel, Gauhati High Court has not been able to point out that there is any amendment or addendum to the Rules which will operate as a bar to permit the writ petitioner from offering his candidature prescribed. If Rule 7 is to be read as prescribed, it is seen that the one of the feeder cadre for promotion to the post of Assistant Registrar is from the Gazetted Officer under Class ii(c).

14. Under such circumstances, where there prima facie appears to be no dispute that Court Officer is a Class II(C) post under the Rules and Class II(C) posts are shown to be feeder posts for promotion to the post of Assistant Registrar as one of the sources along with Class II(b) posts, it appears that the petitioner may have a claim for being considered for selection and appointment to the post of Assistant Registrar.

15. This is a prima facie view expressed by the Court subject to such notifications and amendments to the Service Rules as may be placed before the Court by the Standing Counsel of the High Court.

16. The petitioner/applicant is therefore permitted to participate in the ensuing selection process for the post of Assistant Registrar notified by vide Notification No. HC.V-25/2014/488/Estt. dated 07.06.2024 subject to his fulfillment of other prescription under the Rules.

17. However, the participation of the petitioner for selection and promotion to the post of Assistant Registrar will not confer any right on the petitioner and such right if any is made subject to the outcome of the writ petition including the parameters laid down in Notification No. HC.V-105/2013/142/Estt. Dated Guwahati, Page No.# 7/7

the 2nd March, 2021.

18. In the event, the petitioner is selected and promotion to the post of Assistant Registrar then such promotion and appointment order shall not be issued without leave of this Court.

19. This interlocutory application and the writ petition to be listed again on 26.06.2024.

20. Meanwhile, the learned counsel for the petitioner will take all necessary steps on the respondents within the course of the day.

21. The Respondents are permitted to file their response in the meantime if the need so arises.

JUDGE

Comparing Assistant