Jibon Bharali And 3 Ors. vs State Of Assam And 2 Ors.

Heard Mr. J Sarma, learned counsel for the petitioner and Mr. TC Chutia, learned Additional Senior Government Advocate for the respondents No. 1 and 2 being the authorities in the Food Civil Supplies and Consumer Affairs Department, Government of Assam. As regards the respondent No. 3, office note of 07.11.2019 indicates that notice had been served, but none appears. However, considering the nature of the order proposed to be passed, we are not required to hear the respondent No. 3.

The petitioners have been appointed as Data Entry Operators in the Food Civil Supplies and Consumer Affairs Department of the Government of Assam. This writ petition is instituted on the grievance that no promotional avenue is available to the petitioners and they are continuing in the same post of Data Entry Operator.

The  respondents  in  the  Food  Civil  Supplies  and  Consumer  Affairs Department in their affidavit in opposition in paragraph 9 thereof take a stand that the post of Data Entry Operator were created as per Government Letter No. FSB.4/2006.24 dated 18.07.2007 and that the post of Data Entry Operator are not cadred post under the Assam Directorate Establishment (Ministerial) Service Rules, 1973 (in short Rules of 1973). A stand has been taken by the respondents that as the posts of Data Entry Operator are not cadred post, therefore, their promotional avenue would not be covered by the Rules of 1973.

Admittedly, the Rules of 1973 would be applicable to the posts cadred under the said Rules and the stand of the respondents that the posts involved in the present writ petition being ex-cadred posts are not covered by the promotional avenue provided in the Rules of 1973 would have to be accepted. But, however, we have also taken note that the petitioners are appointed by following the due procedure of law against the posts of Data Entry Operator and are continuing in such posts for a long period of time.

The aforesaid situation was examined by the Hon’ble Supreme Court in Food Corporation of India and others –vs- Parashotam Das Bansal and others, reported in (2008) 5 SCC 100. In paragraph 12 thereof, the Hon’ble Supreme Court arrived at its conclusion that when employees are denied an opportunity of promotion for long years on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction. In paragraph 13 thereof, it had been provided that if there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government, but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country. Paragraphs 12 and 13 of Parashotam Das Bansal (supra) are quoted below:-

“12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction.

If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country.”

Going by the proposition laid down by the Hon’ble Supreme Court in Parashotam Das Bansal (supra), we accordingly issue a direction to the authorities in the Food Civil Supplies and Consumer Affairs Department, Government of Assam to formulate an appropriate scheme providing for appropriate promotional relief to the petitioners in view of the acceptance of the situation that the posts of Data Entry Operator are ex-cadred and would not be covered for promotion by the Rules of 1973. The relevant scheme be framed within a period of three months from the date of receipt of a certified copy of this order.

The writ petition is allowed as indicated above.