BHABENDRA KR KALITA Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. R. C. Saikia, learned counsel for the petitioner, Mr. R. K. Bora, learned Government Advocate, Assam and Mr. T. Chutia, learned Standing Counsel, Board of Secondary Education, Assam, appearing for the respondents No. 2 to 4. Service of notice on the respondents No. 5 to 10 have been presumed by order dated 21.11.2003 passed by this Court.

(2.) The petitioner was appointed as a Lower Division Assistant in the Board of Secondary Education, Assam (hereinafter referred to as the Board) on 2.1.1975. A gradation list of the employees of the Board in the cadre of Lower Division Assistant and Typist as on 19.8.1984 was published on 20th October 1984. The respondent No. 5 who was promoted to the post of LDA from the post of Senior Grade Typist with effect from 1.8.76 was placed above the petitioner in the aforesaid gradation list. The respondents No. 6 to 10, however, were placed below the petitioner in the said gradation list. As by orders dated 17.5.96 and 10.1.1997 the respondents No. 5 and 6 were promoted to the next higher post of Assistant Superintendent, the petitioner challenged the aforesaid promotions by instituting a writ proceeding before this Court which was registered and numbered as Civil Rule No. 349 of 1997. The afore said writ proceeding i.e. C.R. 349/1997 was closed by this Court by order dated 24.1.2001 directing consideration of the case of the petitioner in accordance with the rules, guidelines and executive instructions of the Board, as may be in force. Prior to that, an interim order was passed by this Court on 29.6.2000 directing the petitioner to furnish an undertaking of good behaviour for consideration of his case for promotion. The petitioner, it is to be noticed, was facing a departmental proceeding on an allegation of misbehaviour with a senior since the year 1998 and in the said proceeding a decision was taken by the Board that the petitioner should furnish an undertaking of good behaviour to the Board. After the aforesaid undertaking was furnished by the petitioner, his case for promotion to the next higher post of Asstt. Superintendent was considered and, being found fit and eligible, the petitioner was promoted to the post of Asstt. Superintendent by order dated 30.1.2000. However, in the meantime, as the respondents Nos. 7, 8, 9 and 10 who are junior to the petitioner in the post of LDA were promoted to the higher post of Asstt. Superintendent by various orders passed in the year 1998 and as the case of the petitioner pursuant to the order dated 24.1.2001 passed by this Court in C.R. No. 349/1997 was considered and rejected, the promotions of the respondents No. 5 to 10 to the next higher posts including the post of Superintendent to which some of the respondents have been promoted has been sought to be challenged by means of the present writ appli- cation.

(3.) In so far as the placement of the respondent No. 5 in the gradation list at a place above the petitioner is concerned, the materials on record have established that the Board had taken a resolution in the year 1979 that Senior Grade Typists who are promoted to the post of LDA should have their seniority counted in the post of LDA from the date of their posting as Senior Grade Typist as both the posts i.e. LDA and Senior Grade Typist are in the same scale of pay. The aforesaid resolution of the Board makes it clear that the decision is not to be applied retrospectively and is not to affect incumbents who may have, in the meantime, been promoted to the post of UDA. Neither the petitioner nor the respondent No. 5 had been promoted to the post of UDA at the relevant point of time i.e. in the year 1979. The aforesaid persons were promoted to the post of U.D.A. in the year 1985 and therefore resolution of the Board not to operate the decision retrospectively cannot apply to the facts of the present case. No infirmity therefore is discernible in placement of the respondent No. 5 above the petitioner in the gradation list and his promotion made to the post of Assistant Superintendent by order dated 17.5.1996.