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2008 DIGILAW 439 (CAL)

Indrajit Ghosh v. Jadavpur University

2008-04-25

KALIDAS MUKHERJEE, PRANAB KUMAR CHATTOPADHYAY

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JUDGMENT: PRANAB KUMAR CHATTOPADHYAY, J. (1) THIS appeal has been preferred at the instance of the writ petitioner assailing the judgment and order passed by the learned single Judge whereby and where under the said learned Single Judge ultimately dismissed the writ petition by the said judgment and order under appeal. (2) THE writ petition was filed by the appellant herein challenging the decision of the respondent authorities for not granting promotion to the said appellant herein as Executive in E-6 grade in Durgapur Steel Plant w. e. f. 30th june, 2000. (3) IT has been argued on behalf of the appellant that the respondent authorities herein denied promotion to the appellant/writ petitioner in the E-6 grade inspite of fulfillment of all the necessary qualifications and conditions for such promotion. It has also been submitted on behalf of the writ petitioner that the Executives who secured lesser points than the appellant/writ petitioner were granted promotion during the years 2000 to 2003 and thus, the rightful and legitimate claims of the said appellant/writ petitioner for promotion were denied unlawfully. (4) WHILE opposing the claims of the appellant/writ petitioner herein it has been argued on behalf of the respondents that the said appellant/writ petitioner cannot demand promotion as a matter of right and at best can claim consideration for promotion to the next higher rank. According to the respondent authorities, the appellant/writ petitioner was duly considered for promotion as soon as he became eligible for such consideration. It has further been submitted on behalf of the respondents that several Executives even after scoring higher points than the appellant/writ petitioner in the line of promotion during the year 2000-2001 did not get promotion for want of vacancy in the promotional post. It is, however, not disputed by the respondents that in the years 2002 and 2003, few Executives even after securing lesser points than the appellant/writ petitioner were granted promotion to higher grade i.e. in E-6 grade in other line of promotion considering the requirement of posts and availability of the vacancies, but the appellant/writ petitioner herein could not be granted promotion in view of non-requirement of post and non-availability of vacancy in the line of promotion. (5) MR. (5) MR. Malay Kumar Basu, learned Senior Counsel representing the respondent authorities submits that in the year 2002-2003, the appellant/writ petitioner was the lone candidate in the Special Steel Marketing Department where no promotion was given during those years and the said appellant/writ petitioner was ultimately granted promotion in the year 2004. The learned counsel of the respondents further submits that the Departmental Promotion committee had proceeded in a fair and impartial manner while recommending the Executives for filling up the promotional posts by adopting the same yardstick and norms. Mr. Basu also submits that the selection of the Executives for promotion to the higher grade is based on the principle of merit-cum-seniority and, therefore, the appellant/writ petitioner herein cannot claim promotion as a matter of right only by virtue of his seniority. According to Mr. Basu, a junior officer can also be promoted to the higher grade upon considering the merit and requirements in the particular line of promotion. (6) IN the supplementary affidavit filed before this Court it has also been mentioned on behalf of the respondents that the promotions are not vacancy based rather requirement based in a particular line of promotion. The relevant portion of the supplementary affidavit affirmed on behalf of the respondents are quoted hereunder : "i say promotions are not vacancy based rather requirement based in the particular line of promotion. " (7) ON examination of the promotion policy for the Executives we find that the promotion between the clusters will depend on the availability of vacancies in the next higher cluster and not on the basis of availability of department wise vacancies as argued on behalf of the respondents. On examination of the said promotion policy we do not find any provision for granting promotion on the basis of requirements in a particular department as specifically urged on behalf of the respondents. Clauses 7.0 and 7.1 of the promotion Policy for Executives mentioned in the Manual of the Steel Authority of India Limited are set out hereunder: "7. 0 PROMOTION BETWEEN CLUSTERS: 7.1 Between Clusters, promotion will depend on availability of vacancies in the next higher cluster. " (8) FURTHERMORE, rules for promotion framed under the aforesaid promotion Policy for Executives also specifically provide that promotion from one cluster to another will depend on availability of vacancies in the next higher cluster. 0 PROMOTION BETWEEN CLUSTERS: 7.1 Between Clusters, promotion will depend on availability of vacancies in the next higher cluster. " (8) FURTHERMORE, rules for promotion framed under the aforesaid promotion Policy for Executives also specifically provide that promotion from one cluster to another will depend on availability of vacancies in the next higher cluster. Rules 8.4 and 8.4.1 are also set out hereunder : " 8. 4. Promotion Between Cluster (E-2 to E-3, E-4 to E-5 to E-6, E-6 to E-7, E-7 to E-8) 8. 4. 1 Promotion from one cluster to another will depend on availability of vacancies in the next higher cluster as specified in Policy Para 7.1." (9) IN the aforesaid circumstances, it cannot be accepted that the promotion of the appellant/writ petitioner herein can be denied for non-availability or requirement of promotional post in the concerned department where the said appellant/writ petitioner was serving. When the vacancies are available in the higher cluster then the same should be filled up by granting promotion to the eligible candidates and in view of the aforesaid promotion policy, total available vacancies in the concerned higher cluster should be taken into consideration and not the requirement of any particular department. In terms of Rule 8. 4. 1, promotion from one cluster to another cluster will depend on availability of vacancies in the higher cluster and not requirement of post in any particular department. On examination of the available records, we are satisfied that several vacancies were available in the higher promotional posts of E-6 grade which were unfortunately filled up by those candidates who secured lesser points than the appellant/writ petitioner. (10) THE appellant/writ petitioner have also filed supplementary affidavit furnishing particulars where from it appears that several Executives were even posted in some other departments on promotion. Therefore, it cannot be said that the eligible candidates can be denied promotion only on the ground of non-availability or non-requirement of the promotional post in a particular line of promotion as suggested on behalf of the respondents. (11) THE respondents by filing reply to the supplementary affidavit specifically admitted that the transfer of Executives to other department or unit may be made before promotion, on promotion or after promotion. The relevant portion of Paragraph 5 (i) of the Supplementary affidavit in reply filed on behalf of the respondent Nos. (11) THE respondents by filing reply to the supplementary affidavit specifically admitted that the transfer of Executives to other department or unit may be made before promotion, on promotion or after promotion. The relevant portion of Paragraph 5 (i) of the Supplementary affidavit in reply filed on behalf of the respondent Nos. 3 and 4 are reproduced here in below: "i further say that the transfer of an executive to other department/unit may be made before promotion, on promotion or after promotion as decided by the competent authority purely on administrative grounds. It is significant to mention that Job rotation of Executives with High potential is, stipulated as the promotion policy itself in paragraph 11. 4.3 which states as follows "these executives may be to rotate among other departments, not necessarily in their lines of promotion in order to groom to occupy senior posts in a later date". (12) IT is true that the writ petitioner was considered for promotion in the years 2000, 2001, 2002 and 2003 and ultimately, granted promotion in the year 2004. The respondent authorities are required to consider the candidature of the appellant/writ petitioner for promotion strictly on the basis of the promotion policy and the rules framed in this regard. The appellant/writ petitioner was never considered unfit for promotion during the years 2000, 2001, 2002 and 2003 by the competent authority, but from the available records it is established that due to non-availability of the vacancies in the promotional posts even superior candidates than the appellant/writ petitioner could not be granted promotion during the years 2000 and 2001. However, in the years 2002 and 2003 several Executives even after securing lesser points were granted promotion to the higher grade only on the ground of availability of vacancies in the line of promotion to the particular department which, in our opinion, cannot be done as per the promotion policy. (13) IN terms of the promotion policy all promotions will be based on total points earned by an Executive on the basis of the factors mentioned in clause 7.2 of the promotion policy for Executives and such promotion will also depend on the availability of vacancies in the next higher cluster which, in the present case, in E-6 grade. (13) IN terms of the promotion policy all promotions will be based on total points earned by an Executive on the basis of the factors mentioned in clause 7.2 of the promotion policy for Executives and such promotion will also depend on the availability of vacancies in the next higher cluster which, in the present case, in E-6 grade. It is not the case of the respondents that the appellant/writ petitioner could not be promoted to the E-6 grade for non-availability of vacancies in the said E-6 grade while several vacancies in the e-6 grade were admittedly, filled up by the Executives who secured lesser points than the said appellant/writ petitioner herein. The appellant/writ petitioner cannot be denied promotion to the higher grade only on the ground of non-requirement of any promotional post to E-6 grade in the concerned department where the said appellant was serving. (14) THE decisions taken by the respondent authorities to deny promotion to the appellant/writ petitioner to E-6 grade in the years 2002 and 2003 are totally illegal being violative of the promotion policy and rules framed by the respondent authorities. (15) FOR the reasons discussed hereinabove, we hold that the appellant herein is entitled to get promotion in the E-6 grade w. e. f. 30th June, 2002 instead of 2004. It would be pertinent to note that no other conditions are required to be fulfilled nor any further formalities required to be complied with for granting promotion to the said appellant/writ petitioner in E-6 grade w. e. f. 30th June, 2002 instead of 2004. Therefore, we direct the respondent authorities to grant promotion to the appellant/writ petitioner in the E-6 grade w. e. f. 30th june, 2002 instead of 2004 and recast the Seniority list in the said E-6 grade upon placing the said appellant/writ petitioner above the candidates who secured lesser points than the appellant/writ petitioner. The respondent authorities are also directed to grant other consequential admissible service benefits including enhancement of emoluments to the appellant/writ petitioner in view of granting promotion to the said appellant/writ petitioner to E-6 grade w. e. f. 30th June, 2002. The respondent authorities are further directed to calculate all the arrear dues admissible to the appellant/writ petitioner on account of granting such promotion in terms of this order within four weeks from date positively and disburse the same to the said appellant/writ petitioner within two weeks thereafter. The respondent authorities are further directed to calculate all the arrear dues admissible to the appellant/writ petitioner on account of granting such promotion in terms of this order within four weeks from date positively and disburse the same to the said appellant/writ petitioner within two weeks thereafter. (16) IN view of the aforesaid directions, the order under appeal passed by the learned Single Judge is set aside. This appeal, therefore, stands allowed. (17) IN the facts and circumstances of this case, there will be, however, no order as to costs.