WP(C) 4497/2009 BEFORE THE HON’BLE MR. JUSTICE ASOK POTSANGBAM JUDGMENT AND ORDER (ORAL) 1. Heard Ms. P. Barman, learned counsel appearing for the petitioner and Mr . D. Saikia, learned counsel appearing on behalf of the respondent No.2. Also he ard Mr. U.K. Goswami, learned counsel appearing on behalf of the remaining respo ndents. 2. This writ petition is filed seeking to quash the impugned order dated 23 .9.2009 wherein, the promotion of the petitioner to the post of UDA in Non-Forma l & Adult Education, Government of Assam, was disallowed by the government on th e ground that the post of UDA held by the petitioner was a personal post which s tood abolished on retirement of the last incumbent who held the post. 3. The following facts which are not in dispute and which are necessary for disposal of this case, are ascertained from the documents available on record a nd pleading of the parties in the case - i) The petitioner while was working as the seniormost LDA in the office of the District Adult Education Officer, Darrang, was promoted as UDA and posted in the office of District Adult Education Officer, Darrang,by an order dated 24.8. 2004 issued by the Director of Non-Formal & Adult Education, Government of Assam . The post against which the petitioner was promoted was the resultant vacancy c aused by the retirement of one Shri Pabitra Kumar Bora. ii) By different orders issued by the Government, starting from July, 2004, the post of UDA and some other posts have been retained for the District of Darr ang and the last order retaining the post held by the petitioner was issued on 1 0.8.2007. In the retention orders issued on 16.8.2008 and 26.8.2009, the post of UDA was not retained for the District of Darrang, though some of the posts name ly - DAEO, Steno, SA and LDA have still been retained by the latest retention or der dated 27.8.2009. iii) Though the post of UDA was not retained by any specific order of the Gov ernment, yet the petitioner was given his pay and allowances in the grade of UDA till the month of June, 2009 and from July, 2009 onwards, the salary of the pet itioner as UDA have been stopped. District Adult Education Officer, Darrang had requested, vide letter dated 9.7.2009, the Director Non-Formal and Adult Educati on to issue retention order for the lapsed period of retention of the post of UD A. The Government, vide letter dated 23.9.2009, informed the Director of Non-For mal & Adult Education, Assam, respondent No.4, stating that the post of UDA held by the petitioner for the last about five (5) years was a personal post which s tood abolished as soon as the last incumbent holding the post retired and as suc h the petitioner could not have been promoted to the post of UDA as the post cou ld not be continued any further after the retirement the last incumbent in 2004. 4. The respondent No.4 has filed an affidavit stating that the post agains t which the petitioner was promoted in the year 2004 is found to be a personal p ost which stood abolished when the last holder of the post, Shri Pabitra Kumar B ora retired from the post in the year 2004 and therefore, the petitioner could n ot have been promoted against a personal post. The respondent No.4 has also subm itted that initially 110 different posts in different categories in the Adult Ed ucation Department were created under a centrally sponsored scheme and the centr ally sponsored scheme was subsequently discontinued in the year 1998 and thereaf ter, those posts have been brought under the Non-plan head. As per the creation order dated 27.10.1999, the post so created shall be personal to the existing in cumbent and the same stood abolished as soon as the incumbent holding the post e ither retired or expired. It is further submitted that in view of the above, the Government had not issued the sanction for retention of the post and as a resul t, the pay and allowances of the petitioner had not been paid. 5. It appears that the affidavit of the Government is completely silent as to how the petitioner could get his salary from August 2004 to June 2009 and als o the affidavit is also silent about the position of other posts. Mr. Goswami ha s produced an order of the Government wherein, the request for retention of thre e (3) posts have been concurred by the Finance Department and the post of UDA is not included in the said three (3) posts. From the above, it appears that some of the posts covered by the 110 posts created in 1998 are allowed to be retained selectively whereas some are not allowed and the reasons for this discriminatio n are not available in the affidavit. There is no dispute at the Bar that the pe titioner had never been at fault, neither he has played any role in getting hims elf promoted to the post of UDA. It is a matter of record that the petitioner wa s never informed by any of the respondents or the authority of the Department th at the post against which he was promoted was a personal post. Instead he was al lowed to enjoy the promotion for more than five (5) years and on one fine mornin g, the petitioner was informed that he could not be promoted to the post of UDA as the post was a personal post which stood abolished on retirement of the last incumbent. 6. Government, being an ideal employee, should have taken all possible care to ensure that an incumbent who is promoted to a post is regularly promoted with all the benefits attached to the post and the government was expected to inform the incumbent about the nature and status of the post before the promotion orde r was issued and had it been done so, the petitioner would not have suffered. Th is approach of the government is unreasonable and unacceptable to the Court as t he petitioner has been put to serious disadvantage; rather he has been pushed ou t of service by the discriminatory act of the respondents. In view of the above , the learned Standing Counsel appearing for the Finance Department was requeste d by the Court on 10.8.2010 to obtain instruction from the Finance Department as to whether the Finance Department would be agreeable to create a supernumerary post of UDA to accommodate the petitioner till he retires/get promotion to some other higher post. In response to the request made by the Court, Mr. D. Saikia, learned Standing Counsel, Finance Department has placed an instruction in the fo rm of a letter, conveying the willingness of the Finance Department, to create a supernumerary post of UDA to accommodate the petitioner if the Education Depart ment moves for the same. However, if the supernumerary post is created, the post shall be a personal post to the writ petitioner and the same shall stand abolis hed when petitioner retires from the post. The instruction dated 11.8.2010 issue d by the Joint Secretary, Finance Department; Government of Assam shall form a p art of the record. Mr. Goswami, learned Standing Counsel appearing for the Educa tion Department submits that as per the instruction received by him which is pla ced before the Court, the retention order of the post held by the petitioner was not issued by the Government because of objection from the Finance Department a nd if the Finance Department is agreeable they have no objection in initiating a ppropriate move for the same. 7. In view of what has been discussed herein above, this petition is dispos ed of with a direction to the Commissioner and Secretary, Secondary Education, G overnment of Assam, to initiate a proposal to the Finance Department either for the purpose of creation of supernumerary post in the grade of UDA w.e.f. July,20 09 or for retention of the post of UDA, within a period of one month from the da te of receipt of a certified copy of this order and the Finance Department, on r eceipt of such proposal from the Commissioner & Secretary Secondary Education, s hall issue the necessary concurrence and sanction order as proposed by the Secon dary Education Department within a period of one (1) month from the date of rece ipt of the proposal from the Secondary Education Department. 8. With the above observations and directions, this petition stands dispose d of.