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2013 DIGILAW 320 (GAU)

Susanta Kumar Bhattacharjee v. Union of India

2013-05-17

I.A.ANSARI, P.K.MUSAHARY

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JUDGMENT I.A. Ansari, J. 1. Heard Mr. J.P. Chouhan, learned counsel, appearing for the petitioner, and Mr. A.K. Bora, learned Central Government counsel, appearing for the respondents. This writ petition, made under Article 226 of the Constitution of India, has put to challenge the order, dated 25.02.2010, passed, in Original Application (in short, 'OA') No. 156/2009, whereby the learned Central Administrative Tribunal (in short, 'the Tribunal'), Guwahati Bench, has dismissed the OA. 2. Before we come to the merit of the present writ petition, which has put to challenge, as mentioned above, the impugned order passed by the learned Tribunal, it is necessary to take note of the material facts, which have led to the passing of the impugned order by the learned Tribunal. The material facts are, therefore, set out, in brief, as under: (i) The petitioner herein was initially appointed, on 01.08.1980, in the office of the Directorate of Census Operation and he came, on 15.06.1989, on deputation, in the post of Lower Division Clerk (in short, 'LDC')/to the office of the present respondents. By Order, dated 20.03.1996, the petitioner was permanently absorbed, in the post of LDC, in the borrowing Department w.e.f. 30.10.1992. (ii) While, thus, the petitioner was appointed as LDC, on 01.08.1980, in the parent Department, he came to the borrowing Department, in the post of LDC, on 15.06.1989, and came to be permanently absorbed, in the post of LDC, in the borrowing Department, on 30.10.1992. The petitioner's date of permanent absorption, in the borrowing Department, was modified by order, dated 17.04.1996, passed by the respondents herein, and given effect from the date of his joining the borrowing Department i.e., 15.06.1989. The next promotional post for an LDC, in the establishment of the respondents, is Upper Divisional Clerk (in short, 'UDC') and recruitment for promotion to the post of UDC is governed by the Regional Office, Ministry of Environment and Forests (Group-C and Group-D) Recruitment Rules, 1992 (hereinafter referred to as the 1992 Rules'). In terms of the 1992 Rules, the post of UDC is a non-selection post and is required to be filled up 100% on promotion, failing which by transfer on deputation. In terms of the 1992 Rules, the post of UDC is a non-selection post and is required to be filled up 100% on promotion, failing which by transfer on deputation. (iii) In terms of the 1992 Rules, which is undeniably prospective in nature, a person is required to put in a minimum period of 8 (eight) years of regular service, in the grade of LDC, for becoming eligible for promotion to the post of UDC. The petitioner was promoted to the post of UDC, on 15.06.1997, by computing completion of eight years of service, as LDC, in the establishment of the respondents. As the petitioner had grievance against his being treated as UDC w.e.f. January, 1992, he approached the Tribunal by OA No. 52/2007. The said OA was withdrawn by order, dated 15.05.2008, because the petitioner was, in the meanwhile, promoted to the next higher post of Assistant (Group-B), w.e.f., 18.02.2008, by an order issued, in this regard, on 17.03.2008. Prior to filing of the OA No. 52/2007, the petitioner had also filed OA No. 43/1994, seeking absorption, which was disposed of by order, dated 03.10.1994, requiring the respondents to consider the petitioner's request for absorption sympathetically. In course of time, the petitioner came to be absorbed, w.e.f. 30.10.1992, as already mentioned above. Aggrieved by the fact that he was being treated to have become eligible for promotion w.e.f. January, 1992, and not w.e.f. 01.08.1980, when he joined the post of LDC in his parent Department, the petitioner filed the OA, which has led to the filing of the present writ petition. 3. Having examined the grievance of the petitioner, the learned Tribunal has pointed out that since the petitioner has been absorbed w.e.f. 30.10.1992, he is precluded from asking for antedating his promotion to the post of UDC and, thereafter, to the post of Assistant. The remedy, therefore, lies, in the case of the petitioner, in putting to challenge his effective date of absorption. Based on this conclusion, the learned Tribunal has held that so long as the absorption of the petitioner, in the post of LDC, remains w.e.f. 30.10.1992, the petitioner cannot be given the benefit of promotion from the date he has sought for. 4. Based on this conclusion, the learned Tribunal has held that so long as the absorption of the petitioner, in the post of LDC, remains w.e.f. 30.10.1992, the petitioner cannot be given the benefit of promotion from the date he has sought for. 4. Having dispassionately examined the case of the petitioner, we find ourselves fully in agreement with the learned Tribunal that so long as the effective date of absorption of the petitioner, in the post of LDC, in the respondents' establishment, is not modified, changed or altered, neither the petitioner could have claimed, nor the learned Tribunal could have given, the relief of antedating the petitioner's promotion, as had been sought for by the petitioner. 5. Situated thus, when we do not find that the ultimate conclusion, reached by the learned Tribunal, suffers from any infirmity, factual or legal, we are constrained to hold that the writ petition has no merit and the same must, therefore, fail. 6. In the result and for the forgoing reasons, this writ petition is hereby dismissed. 7. Before parting with this writ petition, it is made clear that the petitioner shall remain at liberty to take, if so advised, appropriate steps, in accordance with law, for modification, amendment or alternation of his effective date of absorption. No order as to costs.