Page No.# 1/7 GAHC010042502021 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1506/2021 HITEN PATHAK S/O RAJANI KANTA PATHAK. RESIDENT OF KRISHNANAGAR, AEI ROAD, GUWAHATI 781003, KAMRUP M ASSAM VERSUS THE COMMISSIONER AND SECRETARY TO THE HEALTH AND FAMILY WELFARE DEPTT AND 2 ORS DISPUR GUWAHATI 06 2:THE DIRECTOR OF HEALTH EDUCATION SIX MILE KHANAPARA GUWAHATI 781022 3:THE PRINCIPAL CUM CHIEF SUPERINTENDENT GAUHATI MEDICAL COLLEGE AND HOSPITAL GUWAHATI 78103 Advocate for the Petitioner : MR. U K NAIR, MR. M P SARMA Advocate for the Respondent : SC, HEALTH, Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 13.03.2025 Heard Mr. M.P. Sarma, learned counsel for the petitioner. Also heard Ms. D. Bora, learned Standing Counsel appears for the Health Department. 2. The petitioner was appointed as an Artist by Order No. MC/94/65/Pt-6/53 dated 02.01.1996 and joined the Department of Pathology at Gauhati Medical College & Hospital (GMCH) on the same date. Since his appointment, the petitioner has been working as an Artist in the Department of Pathology, GMCH. Subsequently, the petitioner was transferred to the position of Office Assistant in the Department of Pulmonary Medicine, GMCH, by Order No. MC/94/65/Pt-XII 1373-A dated 16.09.2020. This order was issued during the period when the country was grappling with the COVID-19 pandemic. Despite this transfer, the petitioner continued to serve as an Office Assistant in the Department of Pulmonary Medicine, even though his original appointment was as an Artist in the Department of Pathology. The petitioner contends that the position of Office Assistant carries a lower pay scale than that of an Artist, and the duties and functions associated with the two posts are distinct. Additionally, the educational qualifications required for each position are different. The petitioner further submitted that there are four similar Artist posts at GMCH, which have been filled, with the incumbents continuing to hold their respective positions. 3. Being aggrieved by the decision of the authorities to continue his services as an Office Assistant in the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH), instead of permitting him to render services as an Artist in the Department of Pathology, GMCH, the petitioner submitted a representation to the authorities, which was received on Page No.# 3/7 23.02.2021. 4. The learned counsel for the petitioner submits that the representation was submitted along with all relevant documents. However, this representation was not disposed of by the respondent authorities. Instead, on 24.02.2021, the petitioner was released from the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH), and was placed under the disposal of the Director of Medical Education for potential engagement in other medical colleges in Assam. In response, the petitioner submitted another representation dated 26.02.2021, expressing his grievances regarding the release order issued on 24.02.2021. 5. The learned counsel for the petitioner submits that the petitioner was appointed as an Artist through a proper selection process, and there is no dispute regarding his appointment or the services he has rendered. However, the impugned order dated 24.02.2021, which released him from the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH), and placed him at the disposal of the Director of Medical Education for engagement in any other medical colleges with immediate effect, is arbitrary. Therefore, the petitioner argues that the order should not have been issued and seeks to have it interfered with, set aside, and quashed. 6. The respondent have contended in case of the petitioner filing a counter affidavit, in the counter affidavit the averments made by the petitioner were not denied at the time when the affidavit has been filed the petitioner was still working under the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH), in view in the interim orders passed by the Court in the present writ petition. Subsequently, further additional affidavit was filed by the respondent authorities to state that the post of Artist held by the Page No.# 4/7 petitioner was not converted in to Office Assistant but due to shortage of man power in the post of Junior Assistant and Senior Assistant he was engaged as an Office Assistant in the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH). 7. The respondents have contended that, in the counter affidavit filed by the petitioner, the averments made by the petitioner were not denied. At the time the affidavit was filed, the petitioner was still working in the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH), pursuant to the interim orders passed by the Court in the present writ petition. Subsequently, the respondent authorities filed an additional affidavit stating that the petitioner’s post as an Artist was not converted into that of an Office Assistant. Instead, due to a shortage of manpower in the posts of Junior Assistant and Senior Assistant, the petitioner was engaged as an Office Assistant in the Department of Pulmonary Medicine, GMCH. 8. The learned counsel for the parties have been heard, and the pleadings available in the Court have been carefully perused. 9. After considering the averments made in the writ petition as well as in the affidavit-in-opposition, it is clear that there is no dispute that the petitioner was engaged as an Artist by order dated 02.01.1996 and subsequently joined the Department of Pathology, Gauhati Medical College & Hospital (GMCH), in the post of Artist, as per the joining letter dated 02.01.1996. It is also undisputed that the petitioner rendered his services in the position of Artist. During the COVID-19 pandemic period, the petitioner was engaged as an Office Assistant in the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH), by the order dated 16.09.2020, which a common order was issued for several other employees, including the writ petitioner. Page No.# 5/7 Pursuant to this order, he was released from the Department of Pathology, GMCH, and instructed to report to his new place of posting. The learned counsel for the petitioner has not been able to refer to any rules, notifications, or office memorandum that lay down the parameters of the job profile for the post of Artist. 10. The respondents do not dispute the petitioner’s contention that he was appointed as an Artist and is currently engaged to work as an Office Assistant in the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH). 11. The petitioner has not been able to show the Court that the post of Artist is not a transferable post. 12. The case projected by the petitioner in the writ petition is that, notwithstanding his appointment as an Artist, his engagement as an Office Assistant is an attempt by the authorities to convert his initial appointment as an Artist to that of an Office Assistant. However, in light of the additional affidavit filed by the respondent on 20.02.2025 and the averments made in Paragraph 2(ii), which state that the post of Artist held by the petitioner has not been converted into that of an Office Assistant, as mentioned in the Order dated 21.11.2024, this Court is of the view that the apprehension expressed by the petitioner that he is being reverted from the post of Artist to that of Junior Assistant cannot be accepted as correct based on the facts pleaded. 13. There is a clear averment in the additional affidavit filed by the respondent authorities that the petitioner is still holding the post of Artist and drawing the salary as admissible under the provisions of law. By order dated 24.02.2021, the petitioner was released from the Department of Pulmonary Medicine, Gauhati Medical College & Hospital (GMCH), and was placed under Page No.# 6/7 the disposal of the Director of Medical Education for engagement in other medical colleges. It is observed that, pursuant to his services rendered as an Office Assistant in the Department of Pulmonary Medicine, GMCH, the petitioner was released from services and placed under the Director of Medical Education for possible engagement in other medical colleges. This order does not indicate that the petitioner is to be engaged or re-engaged as an Office Assistant. As noted earlier, the petitioner has not been able to demonstrate that the post of Artist is not transferable, or that under the Directorate of Medical Education, Assam, his services cannot be utilized. It is also noted that the representation filed by the petitioner has not been disposed of, as submitted before this Court. 14. Under such circumstances, this Court is of the view that the writ petition can be disposed of with the direction to the respondent authority to look into the grievances raised by the petitioner and since the petitioner is engaged as an Artist by his appointment order dated 02.01.1996 the petitioner should be permitted to work as an Artist. However, in which department or which college the petitioner is required to work the same shall be subject to the decision of the respondent authorities, provided the same is permissible under the provisions of law and the service Rules. The representation stated to have been pending before the authorities be disposed of by passing a speaking order within 30 days from the date of receipt of copy of this order. Copy of the speaking order be served upon the writ petitioner. Till such an order is passed, the interim order dated on 08.03.2021 passed by this Court will continue. 15. Further, it is seen that by the certificate dated 26.11.2021, the petitioner was shown to have been working as an Artist at Gauhati Medical College & Hospital from 02.01.1996 to 23.02.2021 and from 31.03.2021 to the date of issuance of the certificate. The apprehension expressed by the petitioner that Page No.# 7/7 the certificate indicates a gap period, which may be construed as a break in service, is unfounded in view of the averments made in Paragraph 2(ii) of the additional affidavit filed by respondent no. 3. The affidavit states that the post of Artist held by the petitioner is not vacant, and he continues to hold the said post of Artist without any break in his appointment. 16. With the above observations, the writ petition stands disposed of. JUDGE Comparing Assistant