Decided on September 15,2018

Dwijendra Barman S/O Lt Pabindra Barman Appellant
Principal Judge, Family Court, Cachar And 3 Ors Respondents


Suman Shyam, J. - (1.) Heard Mr. A.S. Bhattacharjee, learned senior counsel assisted by Mr. S.G. Bhattacharjee, learned counsel appearing for the writ petitioner. I have also heard Mr. U.K. Nair, learned Senior Standing Counsel, Gauhati High Court, appearing for respondent no. 1 and Mr. D. Nath, learned Additional Senior Government Advocate, Assam, appearing for the respondent nos. 2 and 3.
(2.) The writ petitioner is aggrieved due to non-consideration of his case for promotion to the post of Superintendent in the establishment of Family Court, Cachar at Silchar, on regular basis. The facts of this case, in a nutshell, are that the writ petitioner was originally appointed in the post of LDA in the establishment of the Family Court, Cachar. While the petitioner was serving in the post of LDA, by the notification dated 19/01/2006, the Government of Assam had created one post of UDA and one post of Nazir in the said establishment. Since both the newly created posts carried the same pay scale, the writ petitioner and the private respondent (since deceased), who were both serving as LDA, were considered for promotion against the said posts, where-after, the respondent no. 4 was promoted to the post of UDA while the writ petitioner was promoted to the post of Nazir. Subsequently, the private respondent was promoted to the post of Superintendent but the petitioner's case was not considered for promotion on the ground that as per the provision of Assam Family Courts Rule, 1990, Nazir is not one of the feeder posts for promotion to the next higher post of Superintendent and the said post can be filled up only from the cadre of UDA. During the pendency of this writ petition, the respondent no 4, who was promoted to the post of Superintendent in the Family Court, Cachar at Silchar has expired, as a result of which, the writ petitioner has been officiating in the post of Superintendent with effect from 01/08/2016 till today.
(3.) Mr. Bhattacharjee, learned senior counsel for the petitioner submits that the post of Nazir does not find mention in Rule 10 of the Rules of 1990 since the said post was not in existence when the Rules were framed. But after the creation of the post of Nazir, the Rules ought to have been amended suitably so as to incorporate therein, the post of Nazir, which had not been done in this case. In view of such omission to amend the Rules, the petitioner has been deprived of regular promotion to the post of Superintendent to which he is entitled to by virtue of his seniority. It is the submission of the learned senior counsel that the petitioner had been posted as Nazir not by his own choice but it was the decision of the respondents to promote him to the post of Nazir while promoting the respondent no. 4 to the post of UDA and therefore, the petitioner cannot be penalized for the said action of the authorities.;

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