NIRMALI HAZARIKA Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this writ petition, the petitioners are questioning the legality of the Cabinet Memorandum dated 26.2.2003 and the consequential order dated 26.2.2003 regularizing the services of the private respondents with retrospective effect and the gradation list prepared therefore placing them below the private respondents. The petitioner No. 1 was appointed as Lecturer in Botany on 24.4.1987 at the State Institute of Science Education (SISE), Assam on ad-hoc basis, and was regularised in that post with effect from 20.3.1992 in terms of the order dated 8.4.1992 issued by the Education Department, Assam. On 22.3.2002, she was appointed as Academic Officer (Biological Science) in the Board of Secondary Education, Assam on probation for a period of two years. Subsequently, on the recommendation of the Assam Public Service Commission (APSC), she was promoted to the rank of Reader in the State Council of Educational Research and Training (SCERT), Guwahati by the notification dated 27.3.2002. The petitioner No. 2 was appointed as Lecturer in Physics in the SCERT in terms of the Notification dated 29.6.1992 on ad-hoc basis, and was appointed as Lecturer in the State Institution of Science Education on 14.9.1993 after obtaining the approval of the APSC. She, along with the petitioner No. 1, was promoted together by the same notification dated 27.3.2002.

(2.) According to the petitioners, both of them have been urging the respondent authorities to prepare the gradation list of Officers in the cadre of Reader/Assistant Director/Controller of Examination of SCERT, Assam and thereafter initiate the process for filling up the vacant posts in the next higher cadre of Deputy Director, etc., but in vain. The draft gradation list showing such officers prepared by the SCERT Officers' Association was submitted before the respondent No. 2 as early as 2007, but no action has been taken by them till now even though there are few posts of Deputy Director lying vacant even though few posts are occupied by the Assam Education Service (AES) personnel. They have also pointed out that a few personnel who had been originally appointed in the centrally sponsored temporary scheme viz. EOSE (Environment Orientation to School Education) project, presently adjusted against SCERT after winding up the scheme, applied for promotion to the higher post of the same cadre by claiming seniority from the date of initial joining in the project. They were, nevertheless, so promoted without going through the regular process of recruitment conducted by the APSC against ex-cadre posts: such posts were personnel to them and would cease to exist after their retirement. Even then, according to the petitioners, these appointees are claiming counting of their seniority from the date of initial joining of their services.

(3.) The further case of the petitioners is that they have come to learn that a gradation list was prepared, which was forwarded by the respondent No. 2 to the respondent No. 1 vide the letter dated 31.5.2010 wherein the names of the respondents No. 3, 4 and 5 were placed above their names despite the request made by them to the contrary. The petitioner No. 1 through his letter dated 25.6.2010 addressed to the respondent No. 1 raised objection against the said gradation list making her junior to the respondent No. 3, 4 and 5 and prayed for fresh preparation of the gradation list reflecting her seniority above them. The petitioners along with two officers in their cadre by the letter dated 20.7.2011 addressed to the Principal Secretary to the Government of Assam, Department of Personnel (B) prayed for finalization of the gradation list of officers in the cadre of Readers, etc. for promotion to the post of Deputy Director of SCERT by counting the seniority of the respondents No. 3, 4 and 5 from the date of their regularization/Cabinet decision and not from the date of their initial appointment. At this stage, it may be noted that the petitioner No. 2, who admittedly belongs to Scheduled Caste (SC) community, claims that she is the senior-most Reader among SC community and points out that till now the post of Deputy Director has not been filled up by any SC candidate. She complains that all Departments except the SCERT have been promoting SC/ST candidates and that though the posts are lying vacant, she has not been promoted for the last ten years though she belongs to SC community.