Page No.# 1/11 GAHC010143302022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4890/2022 PABITRA MOHAN DEKA SON OF LATE PURNA NANDA DEKA, R/O- 23, CIRCULAR PATH, RUKMINI NAGAR, P.O.- ASSAM SACHIVALAYA, P.S. DISPUR, DISTRICT- KAMRUP(M), ASSAM. VERSUS THE STATE OF ASSAM AND 3 ORS TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, SECRETARIAT ADMINISTRATIVE (ESTABLISHMENT) DEPARTMENT, DISPUR, GUWAHATI-6. 2:THE SECRETARY TO THE GOVT. OF ASSAM PERSONNEL (B) DEPARTMENT DISPUR GUWAHATI-6. 3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM GENERAL ADMINISTRATIVE DEPARTMENT (SECRETARIAT GAZETTED CELL) DISPUR GUWAHATI-6. 4:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM GENERAL ADMINISTRATIVE DEPARTMENT ( SECRETARIAT GAZETTED CELL) DISPUR GUWAHATI-6 Advocate for the Petitioner : MR. M K SARMA, MS. K KALITA,MS G DEKA Advocate for the Respondent : SC, GAD, GA, ASSAM Page No.# 2/11 BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 26.05.2026 1. Heard Mr. M. K. Sarma, learned counsel appearing for the petitioner. Also heard Mr. B. Gogoi, the Additional Advocate General, has entered appearance for all the respondents. 2. The petitioner had joined as a Lower Division Assistant in the General Administrative Department, Secretariat Branch on 03.12.1975 and was promoted to the post of Upper Division Assistant with effect from 27.10.1987. The petitioner was promoted to the post of Superintendent by the order dated 01.09.2006 and he discharged his duties as such till the date of his superannuation from service, that is on 28.02.2009. 3. During the course of time when the petitioner was in service, the Gradation List of UDA prepared by the respondent authorities on 31.12.2002 had been put to challenge in Appeal No. 21 ATA of 2003 before the Assam Administrative Tribunal at Guwahati. The appeal was disposed of by the judgment and order dated 13.06.2007 whereby the Gradation List dated 31.12.2002 had been set aside and the official respondents were directed to finalize the Gradation List of UDA under the rules and procedures and the prevailing circulars in determining the interse seniority of the incumbents in the department. Page No.# 3/11 4. It is relevant to note here that the point of reference for determining the seniority and future promotions of the incumbents in the department was correlated to one Kanak Sen Deka, who according to the appellants before the tribunal had joined his services much later than the other incumbents in the department and was junior, at least to the petitioner. 5. Complying with the orders of the Administrative Tribunal, a Gradation List was published on 17.03.2007. By that time, the petitioner had already been promoted to the post of Superintendent on 01.09.2006. Later, the person holding the point of reference, i.e., Kanak Sen Deka had been promoted to the post of Under Secretary, without considering the cases of petitioner and other similarly situated persons who claimed to be senior to Kanak Sen Deka. 6. It is the case of the petitioner that several representations had been filed and acting on the aforesaid representation, which are not a part of records in this case, it is the case of the petitioner that the respondent authorities have decided to extend the benefit to 110 Superintendents who were granted promotion on a date later than the aforesaid Sri Kanak Sen Deka. 7. The order dated 31.07.2013, which granted the financial benefits of retrospective promotion to the serving Superintendent from the date when Sri Kanak Sen Deka had been granted his promotions is reflected herein below for ease of reference: Page No.# 4/11 GOVERNMENT OF ASSAM SECRETARIAT ADMINISTRATION/ESTT)DEPARTMENT. DISPUR (GAZETTED CELL) No.SAE 98/2007/130 From Dated Dispur, the 31 July 2013 From Sri PC Baruah Deputy Secretary to the Govt. of Assam Secretariat Administration (Estt.) Department. To The Accountant General (A&E), Assam, Maidamgaon, Beltola, Guwahati-29 Sub Retrospective promotional benefits to Sri Chakradhar Kalita and 109(one hundred and nine) other Superintendents. Ref This Deptt 's letter No. SAE 98/2007/128 dtd. 14.05.2013 Sir, I am directed to convey the sanction of the Governor of Assam for extending financial benefits on retrospective promotion to Sri Chakradhar Kalita and 109 (one hundred and nine) other Superintendents as mentioned in the enclosed statement for the period of benefits as stated against each of their names in relaxation of Rule FR 17(1) by invoking F R- 5 A. This issues with the concurrence of Finance (Estt.A) Deptt. vide their U/O No.FE 307/13 dated. 29.06.2013 Enclo- As above. Page No.# 5/11 Yours faithfully Deputy Secretary to the Govt. of Assam, Secretariat Administration (Estt.) Department. Memo No. SAE 98/2007/130-A Dated Dispur the 31 July 2013. Copy to:- 1. The Under Secretary to the Govt. of Assam, S.A. (Accounts) Deptt. for information ape necessary action. 2. Finance (Estt. A)Deptt with reference to their U/O No. FE 307/13 dated 29.06.2013 3. S.A.E(Pay Fixation Cell) Deptt. for necessary action 4. Director of Printing & Stationery, Assam, Bamunimaidam, Guwahati-21 for publication of the above in the next issue of Assam Gazettee 5. Person cornicemed 6. Personal file. By order etc. Deputy Secretary to the Govt. of Assam, Secretariat Administration(Estt.) Department Dated Dispur, the 31st July 2013. Memo No. SAE 98/2007/130-B Copy forwarded to 1. The Accountant General (A&E), Assam, Maidamgaon, Beltola, Guwahati-29. Page No.# 6/11 2. Treasury Officer, Dispur Treasury, Guwahati-6. Sr. Financial Adviser, Secretariat Administration Department The petitioner's name appeared at Sl. No.84 of the aforesaid list and it is an admitted position by both the contesting parties that the petitioner had availed the benefits given in the said order also. 8. As has been noted herein above, when Sri Kanak Sen Deka had been given the promotion to the post of Under Secretary on 05.10.2007, since the said incumbent was admittedly junior to the petitioner and other incumbents, the respondents attempted to correct the sufferings of the senior personnel by preparing a Gradation List by Office Order No.SAE.98/ 2007/ Pt. II/12 dated 05.12.2015. 9. Unfortunately, the name of the petitioner did not figure in the aforesaid Gradation List of Under Secretaries published by the Department and therefore, the petitioner had again filed different representation and it is the case of the petitioner that other persons had also filed representations when their names did not figure in the said Gradation List. 10. It is the case of the petitioner that by an addendum dated 07.08.2018, the Secretariat Administration Department directed that the name of the petitioner and two other persons would be read in between Sl. No.67 and 68 of the Gradation List of Under Secretaries published on 05.12.2015. Page No.# 7/11 11. Further case of the petitioner is that other persons whose name were found available in the Gradation List of 05.12.2015, had been granted financial benefit on retrospective promotion by granting them the creation of a supernumerary post from 08.10.2007 to the actual date of joining of those persons as Under Secretaries. 12. It is the case of the petitioner that when other people in the aforesaid Gradation List had been granted the benefit by creation of supernumerary posts and as well as financial benefits on retrospective promotion, the petitioner could not have been left out by the respondents. 13. The petitioner has annexed different orders issued by the Secretariat Administration (Establishment) Department, Dispur to illustrate that different persons had been granted the benefit of a retrospective promotion and financial benefit. It is the case of the petitioner that the petitioner should also be granted notional promotion retrospectively and be granted financial benefits arising out of such notional promotion in accordance with his entitlement. 14. The respondents have filed an affidavit stating that, since the petitioner retired as a Superintendent in the Department and had never joined as an Under Secretary, the actual date of his joining cannot be ascertained at this stage. Consequently, the period for which the supernumerary post is to be created cannot be determined. It is further stated that the petitioner was never promoted to the post of Under Secretary in the Department and had retired Page No.# 8/11 while holding the post of Superintendent. 15. The respondents alleged that the petitioner had retired as a Superintendent, while the other persons to whom the petitioner had referred to in the various other orders had all actually joined as Under Secretaries. Since the petitioner never served as an Under Secretary in the Department, he would not be entitled to any retrospective financial benefit in the post of Under Secretary. 16. I have heard the learned counsel appeal for the contesting parties and I have also gone through the different reports annexed to the writ petition and the affidavit-in-opposition. The different annexures which are not disputed, indicate that the petitioner, as well as several other incumbents who had joined as LDA, who were later promoted to UDA and Superintendents, were denied their due promotion at the right time, while one Sri Kanak Sen Deka had been given a promotion on the basis of an erroneous Gradation List prepared for the post of UDA in the year 2002. 17. This erroneous promotion, based on an incorrect Gradation List, had a cascading effect on the careers of several persons, including the petitioner and it is an admitted position that the Department had tried its best to correct such errors by preparing fresh Gradation Lists and by giving retrospective effect to promotions to those who had already earned promotions in the Department. It is also not the case of the respondent authorities that the petitioner was not entitled to be promoted to the post of Under Secretary on his own turn and that Page No.# 9/11 he was superseded on merit, but from the tenure of the pleadings and the submission made, it is clear that the petitioner had missed out his opportunity for being promoted to the post of Under Secretary, only because the respondents had on earlier occasions depended upon an erroneous Gradation List, which this Court has already seen to have had a cascading effect on the careers of all incumbents who were serving either as UDA or Superintendents at the relevant point of time. 18. It is also an admitted position on records that corrections had been effected by the Department as and when they were brought to notice, and in such circumstances, several persons, who were afforded promotions to the rank of Under Secretaries, were given a retrospective benefit from the date on which Sri Kanak Sen Deka had been promoted. 19. The addendum dated 07.08.2018 also places the petitioner along with two other persons in between Pranab Kumar Sarma and Md. Makibur Rahman. The records annexed to the pleadings in the writ petition show that the promotion to the post of Under Secretary had been given on 30.07.2009 and they had joined on 31st of July, 2009. 20. Mr. Gogoi, learned Additional Advocate General, points out herein that placing the name of the petitioner in between the Sl. No.67 and 68 of the Gradation List of the Under Secretaries also has an anomaly in asmuch as the petitioner had already retired on 28.02.2009, and therefore, he could not have Page No.# 10/11 been granted any promotion on 30.07.2009. This court notices that such a submission appears to be correct. 21. Be that as it may, it would be for the respondent authorities to reconsider the situation and place the petitioner at the correct position in the Gradation List of Under Secretaries of the Secretariat Service published on 05.12.2015, giving effect to the notional promotion of the petitioner from a date, at least prior to the date on which admitted juniors had been afforded promotion. 22. We leave it upon the respondents to correctly fix the position of the petitioner in the Gradation List published on 05.12.2015. 23. In view of the discussions made herein above where the entitlement of the petitioner for a promotion prior to Kanak Sen Deka has not been effectively rebutted by the Department, I am of the considered opinion that the petitioner would be entitled for the grant of notional benefits on being afforded a retrospective notional promotion, which is to be granted to him ahead of his juniors. 24. Accordingly, this writ petition is allowed, by directing the respondent authorities to correctly fix the position of the petitioner in the Gradation List dated 05.12.2015, by determining his notional date of promotion to the rank of Under Secretary and thereafter, grant the petitioner the benefits similar to what has been granted by the orders dated 22nd of February, 2018, 9th of October, 2019 by taking his notional date of promotion at its correct position. Page No.# 11/11 25. Since the petitioner has already retired in the year 2009 and others, similarly situated, have been given the benefits in the year 2019 itself, this Court deems it fit to direct the respondents to complete the entire exercise of giving the benefit to the petitioner within an outer limit of 4 months from the date of submission of a certified copy of this order. 26. Accordingly, this writ petition is disposed of. No cost. JUDGE Comparing Assistant