Bipin Ch. Deka vs State Of Assam And 5 Ors

Heard Mr. T.J. Mahanta, learned senior counsel for the petitioner. Also heard Mr. K. Gogoi, learned standing counsel for the respondents No.1 and

3 being the authorities under the Higher Education Department of the Govt. of Assam, Mr. A. Chaliha, learned counsel for the respondent No.2 being

the authorities under the Finance Department and Ms. P. Bora, learned counsel for the respondents No.4 and 5 being the authorities of the LOKDC.

The Office Note indicates that Mr. S. Deka and Ms. K. Mishra, learned counsel have entered appearance for the respondent No.6. But when the

matter is taken up, none appears for the said respondent although the cause list indicates the name of the learned counsel.

The petitioner was a Grade-IV employee in the Lokanayak Omeo Kumar Das College (LOKDC) at Dhekiajuli in the Sonitpur district. By the

resolution No.5 dated 07.06.1994 of the Governing Body of LOKDC, the petitioner who is referred as the senior most qualified Grade-IV employee of

the college, was promoted to the vacant post of LDA held by Keshab Ch. Kalita, who in turn was promoted by the same resolution as UDA in the

college. At the relevant point of time when the resolution of the Governing Body was passed on 07.06.1994, it is stated that Assam Aided College

Employees Rules, 1960 (in short Rule of 1960) governed the promotion. Rule 4(3) of the Rules of 1960 inter alia provides that the Governing Body

concerned shall after due advertisement in atleast two newspapers make appointment of Office Assistant subject to the approval of the Director of

Public Instruction, Assam.

In the instant case, it being a case of promotion to a post of Office Assistant, it is accepted by the learned counsel for the parties that the promotion

of the petitioner as per the resolution of the Governing Body of LOKDC would be governed by Rule 4(3) of the Rules of 1960. It being so, it is

submitted that there is a requirement of the Director of Public Instruction now to be read as Director of Higher Education, Assam to approve the

resolution by which the petitioner was promoted. The matter remained as such that although there was a resolution by the Governing Body promoting

the petitioner as LDA, but it was not placed before the Director for its approval as required under the Rules. In the meantime, the Rules of 1960 was

replaced by the Assam College Employees (Provincialisation) Rules, 2010 (in short Rule of 2010) which again was framed under Section 12 (1) of the

Assam College Employees (Provincialisation) Act, 2005. Rule 7(a) of the Rule of 2010 provides that all appointments either direct recruitment or by

promotion shall be made by the Director on the basis of recommendation of the Governing Body based on the recommendation of the Selection

Committee/Departmental Promotion Committee duly constituted. In exercise of power under Section 7(a) of the Rules of 2010, the Director of Higher

Education, Assam passed the order dated 26.06.2012 which reads as extracted:-

“In exercise of power conferred under provision of Rule 7(a) of the “Assam College Employees (Provincialisation) Rules, 2010, Govt.

O.M. No.B(2)H.155/2004/5, dated 24.06.2004 and on the basis of the recommendation of Departmental Promotion Committee and the

Governing Body’s resolution No.5 dated 07.06.1994 adopted in the Governing Body of LOKD College, P.O. Dhekiajuli, District-

Sonitpur, the Director of Higher Education, Assam is pleased to promote Sri Bipin Ch. Deka, Grade-IV to the post of Junior Assistant vice

Sri Kukil Kr. Bharali, Senior Assistant accommodated against the post of UDA (Sr. Asstt) vice Sri K.C. Kalita (promoted) in the scale of Pay

Band (PB-2) Rs.5200-20,200/- with Grade Pay of Rs.2200/- p.m. and other allowance as admissible with effect from the date of joining as

Junior Assistant.â€​

A reading of the order dated 26.06.2012 gives an indication that the Director had exercised his power under Rule 7(a) of the Rules of 2010 to

promote the petitioner to the post of Junior Assistant of the College.

In the aforesaid factual matrix, we arrive at a situation where there is a recommendation by the Governing Body of the LOKDC dated 07.06.1994

promoting the petitioner to the post of LDA which again under the Rules of 1960 requires approval of the Director, but the same was not placed

before the Director for his approval. On the other hand, by the order dated 26.06.2012, the Director exercises his power under Rule 7(a) of the Rules

of 2010 to now promote the petitioner to the post of Junior Assistant. Admittedly where there was a recommendation in favour of the petitioner by the

Governing Body by its resolution of 07.06.1994, there was no occasion for the Director to now exercise his power under Rule 7(a) of the Rules of

2010 again promote the petitioner to the post of Junior Assistant. The jurisdiction that was vested in the Director was either to approve or disapprove

the earlier recommendation of the Governing Body dated 07.06.1994 and merely because it was done belatedly after almost 18 years, it by itself

cannot bestow a jurisdiction on the Director under Rule 7(a) of the Rules of 2010 to now again promote the petitioner to the post of Junior Assistant.

From such point of view, the order dated 26.06.2012 appears to be an order without jurisdiction. But however the purport of the order is that the

petitioner is to be promoted as Junior Assistant which was the post earlier nomenclatured as LDA. The satisfaction of the Director that the petitioner

is to be promoted as Junior Assistant/LDA can be construed to be an act on the part of the Director to have approved the earlier recommendation of

the Governing Body dated 07.06.1994, which act of approval was also a statutory requirement under the Rules of 1960. Accordingly, interfering with

the order dated 26.06.2012 in its present form where the power under Section 7(a) of the Rules of 2010 was exercised, we modify the same order to

implicate that it was an order approving the recommendation of the petitioner for promotion as LDA by the resolution of the Governing Body dated

07.06.1994.

It is stated by Mr. K. Gogoi, learned counsel for the Higher Education Department that in the intervening situation, there is an order dated

14.11.2006 of the Under-Secretary to the Govt. of Assam in the Education (Higher) Department by which there is an indication that atleast as on

14.11.2006 there was a vacant post of LDA in the LOKDC Dhekiajuli. Accordingly, it is an agreed submission by Mr. T.J. Mahanta, learned senior

counsel for the petitioner and Mr. K. Gogoi, learned counsel for the Higher Education Department that the promotion of the petitioner by the resolution

of the Governing Body dated 07.06.1994 which is understood to have approved by the Director as per the order dated 26.06.2012 as indicated above

be construed to have effect from 14.11.2006. As agreed by the learned counsel, we ordered accordingly. The promotion of the petitioner in LOKDC

be construed to have effect from 14.11.2006 and the petitioner be provided with the necessary consequential benefits of such promotion. The benefit

be given within a period of three months from the date of receipt of the certified copy of the order and the respondent authorities may work out as to

what benefit the petitioner would be entitled.

The writ petition stands allowed as indicated above.