WP(C) 5829/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Both the writ petitions being interconnected have been heard tog ether and are being disposed of by this common judgment and order. 2. In WP(C) No. 5829/2006, the challenge made is the Annexure-5 order dated 8.11.2006, by which other writ petitioner in WP(C) No. 137/2007 was allowed to perform the duties of Accountant at Cachar Zilla Parishad in the capacity of Acc ountant-cum-Store Keeper with immediate effect. He was allowed to draw his month ly salary at Cachar Zilla Parishad, Silchar against the sanctioned post of Accou ntant-cum-Store Keeper of Patharkandi Development Block from where he was posted and/or allowed to perform the duties of Accountant at Cachar Zilla Parishad. 3. In the second writ petition, the petitioner has challenged the order dat ed 30.12.2006, by which his services in the Zilla Parishad as Accountant was dis continued. However, the petitioner is still continuing in Cachar Zilla Parishad as Accountant on the strength of the interim order passed on 10.1.2007. 4. I have heard Mr. N. Dhar, learned counsel for the petition in WP(C) No. 5829/2006 as well as Mr. P.K. Roy Choudhury, learned counsel for the petitioner in WP(C) No. 137/2007. I have also heard Ms. R. Chakraborty, learned Additional Sr. Govt. Advocate, Assam. 5. Both the learned counsel appearing for the respective petitioners have a rgued in reference to the provisions of Assam Panchayat Act, 1994 and the Assam Panchayat (Administrative Rules), 2002. According to Mr. Choudhury, learned coun sel for the petitioner in WP(C) No. 137/2007, the petitioner although is an empl oyee of the Patharkandi Development Block, but having regard to the definition u nder Section 2 (39) of the Assam Panchayat Act, 1994, there is nothing wrong in posting him in the Zilla Parishad. He further submits that having regard to the staffing pattern of Gaon Panchayat, Anchalik Panchayat and Zilla Parishad as ind icated in Rule 2 of the Assam Panchayat (Administrative) Rules, 2002 coupled wit h the Clause 2 (iii) of the said Rules, there is no impediment in posting a Bloc k Development employee in the Zilla Parishad. 6. On the other hand, Mr. Dhar, learned counsel for the petitioner in WP(C) No. 5829/2006 submits that the petitioner who is presently working as Lower Div isional Assistant (LDA) being an employee of the Zilla Parishad is entitled to g et promotion to the post of Accountant and the same cannot be blocked by way of bringing the other writ petitioner to the Zilla Parishad. 7. During the course of hearing of the writ petition, Mr. Dhar, learned cou nsel for the petitioner in WP(C) No 5829/2006 has drawn my attention to the Noti fication dated 9.9.2010 issued by the Government of Assam in the Panchayat & Rur al Development Department, by which sanction towards creation of certain posts i ncluding the post of Accountant was conveyed. As per the said notification an LD A is entitled to get consideration for promotion to the post of Accountant. He h as also referred to the letter dated 25.2.2011 addressed to the Cachar Zilla Par ishad by the Commissioner, Panchayat & Rural Development Department. By the said letter, referring to the pendency of the instant proceeding, the Commissioner & Secretary desired the status report regarding this proceeding. It was also conv eyed that because of pendency of this proceeding there is bar of withdrawing the services of the petitioner in WP(C) No. 137/2007 from the Zilla Parishad and to post him at Patharkandi Development Block or any other block. 8. Mr. Dhar, learned counsel for the petitioner in WP(C) No. 5829/2006 has also placed reliance on the decision of the Apex Court in State of Tribunal Vs. K.K. Roy reported in (2004) 9 SCC 65 by which the Apex Court dealing with the ri ght to promotion observed that absence of avenue for promotion would entitle the incumbent to get consideration for graded scale for promotion. 9. The services of both the petitioner involved in this proceeding were pro vincialised along with 4565 numbers of Panchayat employees of Gaon Panchayat and Mahkuma Parishad constituted under Assam Panchayati Raj Act, 1972 with immediat e effect from 2.10.1991. It is on that basis, Mr. Choudhury, learned counsel for the petitioner in WP(C) No. 137/2007 submits that when the services of both the incumbents had been provincialised by same order, it does not lie on the mouth of the petitioner in WP(C) No. 5829/2006 to contend that the petitioner should b e treated not at par with him, he being an employee of the Zilla Parishad. He al so submits that the petitioner being in the post of Accountant-cum-Store Keeper in the Development Block, there is nothing wrong in allowing him to look after t he duties and responsibilities of the post of Accountant in the Zilla Parishad. 10. Mr. Dhar, learned counsel for the petitioner in WP(C) No. 5829/2006, on the other hand submits that the petitioner in the said writ petition being an em ployee of Cachar Zilla Parishad in the cadre of LDA is entitled to get promotion to the post of Accountant. In this connection, the other petitioner has brought on record through a rejoinder affidavit that there are other senior LDAs in the Zilla Parishad (district wise cadre) and thus the petitioner cannot claim his p romotion excluding the cases of those senior LDAs. In this connection he has ref erred to Rule 4 of the aforesaid Rules of 2002. 11. Irrespective of allowing the petitioner involved in WP(C) No. 137/2007 t o look after the duties and functions of Accountant in the Zilla Parishad with t he creation of more posts of Accountant by Notification dated 9.9.2010, the case of the petitioner involved in WP(C) No. 5829/2006 will have to be considered pr ovided he fulfills eligibility criteria and comes within the zone of considerati on. The authority will also have to consider the case of the petitioner involved in WP(C) No. 137/2007 as to whether he being an employee of the Patharkandi Dev elopment Block is entitled to be posted in the Zilla Parishad. In fact he was so posted by the Notification dated 8.11.2006. As per the said order, the petition er was allowed to perform the duties of Accountant at Cachar Zilla Parishad in t he capacity of Accountant-cum-Store Keeper with immediate effect, but he was all owed to draw his monthly salary at Cachar Zilla Parishad against the sanctioned post of Accountant-cum-Store Keeper of Patharkandi Development Block. 12. Considering the matter in its entirety, both the writ petitions are disp osed of directing the Commissioner & Secretary to the Government of Assam in the Panchayat & Rural Development Department to decide the issue raised in both the writ petitions by refereeing the relevant facts and the rules applicable to the case. Upon such determination of the issue, necessary follow up action thereof shall also be taken. Let entire exercise be carried out as expeditiously as poss ibly, preferably within 31.8.2011. Till passing of the appropriate order in term s of this order, status quo shall be maintained. 13. Both the writ petitions are disposed of.