LAWS(GAU)-2013-11-21

NIRODA GOGOI Vs. DIBRUGARH UNIVERSITY

Decided On November 27, 2013
Niroda Gogoi Appellant
V/S
DIBRUGARH UNIVERSITY Respondents

JUDGEMENT

(1.) Whether the petitioner is entitled to monetary benefits with retrospective promotion to the post of Computer when her case could not be considered by respondent-University on the date the post fell vacant without any valid justification, is the moot point in this writ petition. The case of the petitioner is that she was appointed as draftsman in the Planning & Construction (P & C) Branch of the Dibrugarh University on 2.5.1984. The post of Computer is the next promotional post for Draftsman, which became vacant on 31.12.1996. The qualification for the post of Computer (P&C) is Diploma holder or Certificate holder with a minimum of 6 years experience of working in the particular line. The petitioner was admittedly eligible for promotion to the post of Computer as on 31.12.1996. In fact, according to the petitioner, she was verbally entrusted with the additional duty and responsibility for the post of Computer. The petitioner, therefore, applied for promotion to this post as early as 21.1.1997 when she filed an application to the Registrar of the University (respondent 2). After inordinate delay, the respondents held the selection process for promotion to the post of Computer on 8.2.1999, but no promotion order was issued even after they continued to utilize her service in this post. Ultimately, on 5.3.2003, the respondent No. 2 allowed the petitioner to officiate in this post but without retrospective effect w.e.f. 1.1.1997. Nor was she granted charge allowance from 1.1.1997 to 5.3.2003. The petitioner was also denied of her annual increment from 1.3.2004 or the scale of promotion since 2001. On the basis of the repeated representations made by her, the Vice-Chancellor of the University finally constituted a two-man Committee to enquire into her case. After long delay, the respondent No. 2 by his letter dated 28.4.2006 informed her that the Executive Committee in its 275th meeting rejected her case on the basis of the report of the Enquiry Committee. Aggrieved by this, she is now approaching this Court in this writ petition.

(2.) In resisting the writ petition, the respondents in their affidavit-in-opposition deny that the petitioner was ever either verbally or in writing requested to discharge the duties of the post of Computer in addition to her duties as Draftsman. The answering respondents do admit that the petitioner was called for interview before the Selection Committee on 8.2.1999 for the post of Computer, but then the sitting of the Selection Committee had to be postponed on that day. The case of the respondents is that the selection for the post of Computer was being made through the Selection Committee with an external expert from the Public Works Department, which was strongly opposed by the Dibrugarh University Employees' Association, which demanded that the post of Computer be filled up by promotion on the basis of seniority. According to the answering respondents, one Mrs. Niroda Das, having the requisite qualification was working as Draftsman in the Department of Applied Geology since 1979 and the demand of the Association was to promote her to the post of Computer. This resulted in postponement of the meeting of the Selection Committee scheduled for 8.2.1999 for considering the promotion of the petitioner the post of Computer. They deny that the petitioner had appeared before the Selection Committee on 8.2.1999. As the sitting of the Selection Committee was not held on 8.2.1999, the question of issuing the order of promotion for the petitioner does not arise. The answering respondents also point out that though the petitioner claimed to have submitted various representations, the materials on record show that the University had her received on the representation dated 8.7.1999 and 28.9.2000. The answering respondents also deny that the service book and original personal file of the petitioner where recommendation had been made by the University Engineer for her promotion to the post of Computer were missing from the Establishment Branch of Dibrugarh University or that the same resulted in not considering her various representations. The respondents point out that the petitioner, who was serving as Draftsman, was allowed to officiate on promotion as Computer for a period of three months vide the order dated 5.3.2003 and was attached to the Planning and Construction Branch of Dibrugarh University. The petitioner was given scale promotion by the order dated 29.1.2008 and was allowed to draw her annual increment w.e.f. the day of raising her basic pay on 1.3.2008. Earlier, the petitioner was granted annual increment w.e.f. 1.3.2004 to 1.3.2006 in the pay scale of Rs. 3760-9400 vide the order dated 24.10.2006 Another order was issued on 13.3.2007 granting annual increment for the year 2007 in the pay scale of Rs. 3760-9400/-. In this order, it was made clear that the date of effect of annual increment was deferred to 3.3.2007 due to grant of earned leave for four days w.e.f. 27.2.2007 to 2.3.2007. The answering respondents further aver that a three man Committee was set up to examine the grievances of the petitioner concerning her claim to charge allowance and promotion. The report of the Committee was examined by the Executive Council of the University, which after considering the suggestions made by the Committee, came to the conclusion that the question of appointing the petitioner to the post of Computer with retrospective effect did not arise and that the petitioner is also not entitled to any special charge allowance for the period commencing from 1.1.1997 to 4.3.2003. These are the main thrust of the stance taken by the respondent-University.

(3.) After hearing Mr. P.J. Saikia, the learned counsel for the petitioner, and Mr. K. Agarwal, the counsel for the University, it becomes clear that the claim of the petitioner for special charge allowance from 1.1.1997 to 4.3.2003 has no legs to stand on inasmuch as no substantial evidence could be produced by her to show that she had actually discharged the additional duty of Computer. The only evidence she has is in the form of the Office Order dated 11.4.1996 issued by the University Engineer, Dibrugarh University allowing her, with the approval of the Registrar, to work at site in addition to her existing duties and attached with one Mrs. Depali Phukan, Asst. Engineer (Civil). Now, what is to be noted is that the University Engineer has no authority to engage the petitioner for such work. As the respondents have denied approving such engagement, in the absence of any order in writing by the Registrar to that effect, such office order cannot be acted upon to hold that she is entitled to charge allowance. Coming now to the question as to whether the petitioner is entitled to retrospective promotion with monetary benefits, the submission of the learned counsel for the petitioner is that the petitioner was admittedly eligible, and, in fact, the only eligible candidate, for promotion to the post of Computer and as the only eligible candidate, she ought to have been promoted on 31.12.1996, when the post fell vacant. He contends that as she had been denied of such promotion till 5.3.2003 without any valid reason, the granting of promotion to the petitioner with retrospective promotion with monetary benefits i.e. with effect from 31.12.1996 or, at any rate, with effect from 8.2.1999 when she was called for interview and the same was cancelled, is highly warranted. The learned counsel submits that the cancellation of the interview on the ground that a demand was made by the Dibrugarh University Employees' Association for promoting Mrs. Niroda Das, who was not eligible for the post, cannot be a relevant consideration for postponing the selection process. After all, this resulted in denying timely promotion to the petitioner. As she has been denied of timely promotion, concludes the learned counsel for the petitioner, she is certainly entitled to retrospective promotion with full monetary benefits to compensate her for infringing her fundamental right to be considered for said promotion in time.