DHARMESWAR RABHA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The Writ Appeal is directed against the Order dated 21.9.95 passed by the learned Single Judge in Civil Rule No. 4105/95 Whereby the learned Single Judge refused to pass any interim direction at the stage of issuance of notice of motion. By an order dated 29.11.95 this Court ordered for hearing of the appeal as well as Civil Rule together and accordingly both the cases were heard together.

(2.) The legality and validity of the order dated 8.9.95 passed by the Secretary to the Govt. of Assam, Animal Husbandry and Veterinary Department directing the Director, Animal Husbandry and Veterinary Department to cancel the order of promotion of the Petitioner and the direction to promote the next eligible U.D.A. to the post of Superintendent, as well as the consequent Order passed by the Director dated 12.9.95 are assailed in the Writ Petition.

(3.) The Petitioner comes from the 'Rabha' Community which is recognised as Scheduled Tribe (Plains) in the State of Assam under the Scheduled Tribe Order. 1950 as amended. Petitioner was initially appointed as an L.D.A. in the office of the Director of Animal Husbandry and Veterinary, Assam on 1.4.76 and thereafter he was promoted to the Post of UDA on 1.1.81. The Petitioner being the sole qualified ST(P) candidate in the UDA cadre put up his claim for promotion to the rank of Superintendent on the strength of Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act. 1978. (the act for the sake of brevity). The matter was ultimately considered at the Governmental level and the State Govt. on its own evaluation found that since 1979,9 (nine) posts of Superintendents were filled up for the general candidates, "inspite of the fact that quite a good numbers of backlog posts had to be filled up with the incumbent belonging to Scheduled Caste/Scheduled Tribes (P) etc. so as to liquidate the backlog position as impressed upon by the Government from time to time." The Govt. by its communication bering No. VFV. 385/98/90/ 112 dated 12.12.91 communicates its decision to the Director, A.H. & Veterinary Deptt. advising him to take immediate steps for promotion to the lone eligible Scheduled Tribe (P) candidate namely Sri D.R. Rabha, U.D.A. to the rank of Superintendent and to send compliance report to the Govt. By the aforesaid communication the Govt. deprecated the action of the Director in filling up of the posts of Superintendent in violation of the Act. In pursuance of the aforesaid order the Petitioner was promoted to the post of Superintendent against the vacant post to the promotion of the incumbent vide order dated 18.12.91.Vide No. VFV. 385/90/115 Dated 24.1.92 the Govt. accorded its approval of the promotion of the Petitioner despite of the order of promotion dated 18.12.91 which was approved by the State Govt. on 24.1.92. The minions power refused to give full effect to the order of promotion so much so that Petitioner was not posted and also not given the function of the Superintendent nor he was paid with his salary in the pay scale of Superintendent. Accordingly a Writ Petition was moved by the Petitioner before this Court and this Court upon hearing the respective parties directed the Respondents for passing the appropriate order of posting entrusting the Petitioner with the duties and responsibilities to the post of Superintendent and also to pay the salary of the Petitioner in the pay scale of Superintendent on and from the date of his promotion i.e. 18.12.91 within a specified period. The matter did not end there. According to the Petitioner the said direction was also sought to be rebuffed by way of review Petitioner through Section of employee, in review application No. 7/93 was dismissed on 4.3.93. The aforesaid order was further assailed in the Writ Appeal No. 38/93 which was also dismissed on 20.3.93. The promotion order dated 12.12.91 was this time assailed by 15 (fifteen) U.D.As on the ground that the promotion of the Petitioner as Superintendent was not in-consonnance with the provision of the Act and Rule framed thereunder. In Civil Rule No. 1322/93, interestingly, the Director of Veterinary Department, the Respondent No. 1 filed affidavit stating that the Respondent No. 5 was not entitled to the benefit according to the principle of roster and thereby the Director sought for upsetting direction given to him by his superior authority on evaluation of fact by the order dated 12.12.91. The High Court by its JUDGMENT & ORDER dated 19.9.94 disposed of the Writ Petition directing the Respondents to consider the entire matter and decide whether the Respondent No. 5 was entitled to the benefit of the aforesaid Act and Rules and if the Respondent No. 5 is not entitled to the benefit of the aforesaid Act and Rules, the Secretary shall do the needful to cancel the order of promotion and promote the persons eligible for promotion. It was further asserted by the Petitioner that after the receipt of the JUDGMENT & ORDER of the Court the Respondent No. 2 took up the matter for consideration and in the meantime another 5 (five) UDAs were promoted to the post of Superintendent and as such, after the Act came into force 13 (thirteen) UDA were promoted when the posts of Superintendent including some of the Petitioner in the Civil Rule No. 1321/93, Finally by order dated 8.9.95 the following order was passed by the Secretary to the Govt. of Assam which is quoted below : COPY OF THE ORDER PASSED BY THE SECRETARY TO THE GOVT. OF ASSAM, A.H. & VETERINARY DEPARTMENT ON 8.9.95 Examined the records. Perused also the order passed by the Hon'ble Gauhati High Court in Civil Rule No. 1322/93 on 19.9.94. It appears from the records that Shri Dharmeswar Rabha's position in the Gradation list of U.D.As according to seniority is at serial No. 24, whereas Shri Ahmed Ali stand at 4. When one post of Supdt. fell vacant in 1991, Shri Dharmeswar Rabha, U.D.A. was far below other candidates to be considered for inclusion within the zone of consideration for selection as per existing rules. He had, therefore, no genuine ground to claim that he should have come within the zone of consideration. It is noticed that the vacancy against Roster Point No. 1 was filled up by Shri Safiqur Rahman, a General Category candidate, which caused a backlog of one ST (P) vacancy. Shri Rabha could have a legitimate claim against this backlog had he been within zone of consideration when a vacancy occured in 1991 against Roster point No. 8, but unfortunately for him he was far below in the Gradation list as discussed above. In the circumstances, I find Shri Dharmeswar Rabha not entitled to the benefit of the Assam Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Services and Post Act) 1978. The Director, A.H. & Veterinary will accordingly cancel the order of promotion of Shri Dharmeswar Rabha and promoted the next eligible UDA strictly as per provision in the existing Act/Rules governing such promotions with due regard to the provisions of the Reservation Act/Rules. Sd/- D.B. Chetry Secretary to the Govt. of Assam, A.H. & Veterinary/Department. Consequent thereto the Director, Animal Husbandry and Veterinary vide order dated 12.9.95 cancelled the earlier promotion of the Petitioner to the post of Superintendent. Hence the Writ Petition.