TAFIKA MANOWARA RAHMAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr. N. Upa-dhyay, learned standing counsel, Irrigation Department, Assam appearing for the respondent Nos. 1 to 5 and Mr. S.M. Baruah, learned counsel representing respondent No. 7.

(2.) The petitioner by way of instituting the present writ petition has prayed for a direction upon the respondent authorities to promote her to the post of Senior Assistant with retrospective effect, i.e. w.e.f. the date of the promotion of respondent Nos. 6 and 7 with consequential benefits.

(3.) The petitioner, herein, was initially appointed on ad-hoc basis as Lower Division Assistant (LDA) in the establishment of the Executive Engineer, Dhansiri Project Division (Irrigation), Udalguri (respondent No.5) against a leave vacancy. The application of the petitioner for appointment on compassionate ground, in pursuance to the death of her father, who was working as a Head Assistant in the establishment of the respondent No. 5, was approved by the Government in the Irrigation Department and the same was communicated to the respondent No. 5 vide communication dated 02 .04.1996. Accordingly, the respondent No. 5 vide order dtd. 13/5/1996 proceed to appoint the petitioner on compassionate ground against the post of LDA with prospective effect. The appointment of the petitioner on compassionate ground against the vacant post available in the establishment of the respondent No. 5 was put to challenge by one Bibekananda Das before this Court by way of instituting writ petition being C.R. No. 2251/1996. This Court while issuing notice in the matter stayed the effect and operation of the order dtd. 13/5/1996. Accordingly, the respondent No. 5 vide order dtd. 30/5/1996 proceeded to cancel the appointment effected in respect of the petitioner vide order dtd. 13/5/1996. Subsequently, the writ petition being C.R. No. 2251/1996 being dismissed, the respondent No. 5 proceeded vide order dtd. 2/4/1998 to appoint the petitioner as LDA against the vacant post available in his establishment with prospective effect. The petitioner accordingly joined her services. The services rendered by the petitioner w.e.f. the year 1995 in pursuance to the order dtd. 23/5/1995 not being reckoned for the purpose of fixation of her seniority in the establishment of respondent No. 5, the petitioner had approached this Court by way of instituting writ petition being W.P.(C) No. 1933/2001. A Coordinate Bench of this Court vide order dtd. 2/11/2006 disposed of the said writ petition by directing the respondent authorities to consider the representation submitted in the matter by the petitioner, herein, within the time-frame prescribed. As the matter was pending consideration of the grievance raised by the petitioner in her representation in terms of the direction passed by the Coordinate Bench of this Court vide order dtd. 2/12/2006, the petitioner made a request before the competent authority for her transfer to the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, i.e. the respondent No. 4 against an available vacancy. The application of the petitioner was considered and the Chief Engineer, Irrigation, Assam vide order dtd. 19/8/2005 proceeded to transfer the petitioner to the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, on her own request. The said transfer order was subject to the condition that the petitioner would not claim any transfer TA/DA for the purpose and her seniority would be counted in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, w.e.f. the date of her joining therein. The directions as passed by the Coordinate Bench of this Court vide order dtd. 2/12/2006 in W.P.(C) No. 1933/2001 was considered by the respondent No. 4 and vide order dtd. 21/12/2006, the petitioner's services were regularized for all purpose including seniority w.e.f. 23.05. 1995, the petitioner contends that the said order was not brought to her knowledge. The petitioner having joined the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai in terms of the order dtd. 21/12/2006, her seniority in the cadre of LDA was placed below that of the existing incumbents therein, more particularly, the respondent Nos. 6 & 7. It is to be noted that the petitioner had joined as Junior Assistant in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai on 23/8/2005. Basing on the seniority position obtaining in the establishment of the Executive Engineer, Mangaldai Division (Irrigation), Mangaldai, the respondent No. 6 was promoted to the post of Senior Assistant vide order dtd. 25/6/2010, while the respondent No. 7 was so promoted w.e.f. 13/10/2010. The petitioner on her turn came to be promoted to the post of Senior Assistant vide order dtd. 9/8/2012. Thereafter, the respondent No. 6 was further promoted to the post of Head Assistant in the year 2015. The respondent No. 6 came to be placed under suspension, vide order dtd. 21/9/2019 in contemplation of drawl of the departmental proceeding and accordingly the petitioner was directed to take charge of the post of Head Assistant till the proceedings against the respondent No. 6 was brought to its logical conclusion. The petitioner while functioning as the Head Assistant on In-Charge basis, had come across the order dtd. 21/12/2006. The petitioner's services now having been regularized w.e.f. the year 1995, she took up the matter for her retrospective promotion to the post of Upper Division Assistant (UDA) by reckoning her to be senior to the respondent Nos. 6 & 7.