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2014 DIGILAW 1008 (GAU)

Subodh Chandra Kataki v. State of Assam

2014-11-20

BIPLAB KUMAR SHARMA

body2014
JUDGMENT Biplab Kumar Sharma, J. 1. The petitioner is aggrieved by the Annexure-14 communication dated 8th August, 2012, by which his prayer for consideration of his case for promotion to the post of Superintendent was rejected. For a ready reference, the aforesaid letter dated 8th August, 2012 is quoted below: "From Smti. Ashadeep Talukdar, ACS, Joint Secy. to the Govt. of Assam, Labour & Employment Department. To Shri S.C. Kataki, Retd. U.D. Assistant, O/o the Chief Inspector of Boilers, Assam, Shantinagar, Bye Lane No.-2, P.O.-Kahilipara, Guwahati-19. Sub Matters related to notional promotion. Ref. Your application dated 15.12.2011. Sir, In inviting a reference to your letter on the subject cited above, I am directed to communicate with regret that your petition for notional promotion to the post of superintendent in the office of the Chief Inspector of Boilers, Assam cannot be agreed upon. Extract of Personnel (B) Departments endorsement vide U/O No. 359, dated 02.08.2012 is reproduced below: "Since no Selection Committee Meeting was held nor the name of S.C. Kataki was recommended for promotion to the post of Superintendent and since no junior to Shri Kataki was promoted to the post of Superintendent super ceding him, the claim of Shri Kataki (who has since retired) for notional promotion to the post of Superintendent cannot be agreed upon." Yours faithfully, Sd/- illegible 8.8.12 Joint Secy. to the Govt. of Assam, Labour & Employment Department." The petitioner has already retired from service on attaining the age of superannuation on 30th September, 2011. The respondent No. 4 has also retired from service. Earlier he had filed a writ petition being WP(C) No. 8894/2004 claiming seniority over the petitioner in reference to the promotion to the post of UDA way back in 1987. While entertaining the writ petition by order dated 6th December, 2004, while declining to restrain the official respondents from promoting the present petitioner, who was the respondent No. 5 in the writ petition, to the post of Superintendent, observed thus:-- "Heard Mr. Sarania, learned counsel for the petitioner on the interim prayer and also heard M.S.R. Chakravarty, learned State counsel. Mr. Sarania submits that he is going to be deprived of his promotion as Superintendent because of the wrong promotion given to the Respondent No. 5 as UDA way back in 1987 (28.2.1987). Sarania, learned counsel for the petitioner on the interim prayer and also heard M.S.R. Chakravarty, learned State counsel. Mr. Sarania submits that he is going to be deprived of his promotion as Superintendent because of the wrong promotion given to the Respondent No. 5 as UDA way back in 1987 (28.2.1987). Though the whole basis of the claim of the petitioner for his sole consideration for promotion to the post of Superintendent is the purported wrong committee by the official respondent in promoting Respondent No. 5 as UDA way back in 1987. Considering this, I am not inclined to pass any interim order restraining the official respondent from promoting the Respondent No. 5 as Superintendent. However, such promotion of the Respondent No. 5 during the pendency of the writ petition shall be the subject to the outcome of the result of the writ petition." 2. After the aforesaid development and because of the aforesaid observation, the official respondents did not conduct the selection for promotion to the post of Superintendent, although the process was initiated for the same. In this connection, Mr. S.C. Biswas, learned counsel for the petitioner has referred to the statements made in paragraph 8 of the writ petition, in which it has been specifically stated that when the post of Superintendent had fallen vacant on 1st April, 2003, upon retirement of the earlier incumbent with effect from 31st March, 2003, process was initiated for promotion to the said vacant post and accordingly, ACRs etc. were also called for. However, because of the aforesaid writ petition filed by the respondent No. 4, the process was stopped although there was no order restraining the official respondents to hold the selection. 3. The aforesaid writ petition was withdrawn by the respondent No. 4 by filing Misc. Case No. 3236/2011 by order dated 1st December, 2011. While allowing the prayer made in the said miscellaneous application, the writ petition was dismissed. Thus, the issue raised in the said writ petition was not pressed by the respondent No. 4. By the time, the writ petition was withdrawn on 1st December, 2011, the petitioner retired from service on 30th September, 2011. Similarly, the respondent No. 4 also retired from service 1 (one) year thereafter, on 30th September, 2012. 4. After the aforesaid development, the petitioner made a representation for his promotion to the post of Superintendent retrospectively with notional benefits. By the time, the writ petition was withdrawn on 1st December, 2011, the petitioner retired from service on 30th September, 2011. Similarly, the respondent No. 4 also retired from service 1 (one) year thereafter, on 30th September, 2012. 4. After the aforesaid development, the petitioner made a representation for his promotion to the post of Superintendent retrospectively with notional benefits. However, his prayer having been rejected by the aforesaid Annexure-14 communication dated 8th August, 2012, he filed the instant writ petition. 5. In the counter affidavit filed by the respondent No. 2, it has been stated that the case of the petitioner was not required to be considered as at the relevant point of time, no selection was held coupled with the fact that no juniors have superseded him. In the counter affidavits filed by the respondent No. 2 and also the respondent No. 3, the specific plea of the petitioner that the selection process was initiated but because of the writ petition filed by the respondent No. 4, the same was not conducted has not been denied. 6. From the above narration of fact, what has emerged is that the case of the petitioner along with others was required to be considered when the vacancy arose in 2003 upon retirement of the earlier incumbent. As stated in the writ petition, the vacancy arose with effect from 1st April, 2003. In fact process was also initiated to fill up the post but because of the writ proceeding initiated by the respondent No. 4, the process was stopped. The petitioner being in service was naturally an aspirant for promotion. However, when the process was initiated, the same had been stopped although there was no interim order restraining the official respondents and he lost his right to get considered for promotion. In the meantime, during pendency of the writ petition he retired from service. His representation having been rejected by the aforesaid impugned communication dated 8th August, 2012, he has filed the instant writ petition. 7. As to what is the reason assigned for non consideration of the case of the petitioner retrospectively has been noted above and in fact is contained in the impugned communication. The ground of the respondents towards non consideration of the case of the petitioner is that since no selection was held, there is no requirement to consider the case of the petitioner from the due date. The ground of the respondents towards non consideration of the case of the petitioner is that since no selection was held, there is no requirement to consider the case of the petitioner from the due date. When the vacancy arose with effect from 1st April, 2003, the process of selection was initiated but as noted above, because of the aforesaid writ proceeding initiated by the respondent No. 4, the same was stopped although there was no stay order restraining the respondents from going ahead with the selection. It is not the case of the respondents that the post was not required to be filled up. The only ground assigned in the impugned communication is that since there was no selection, there was no requirement to consider the case of the petitioner with retrospective effect. Although the petitioner cannot claim promotion as a matter of right but certainly he can claim consideration of his promotion from the due date. 8. In view of the above, the writ petition is allowed by setting aside and quashing the impugned communication dated 8th August, 2012 (Annexure-14) directing the respondents to hold the selection confining the same to all eligible candidates including the petitioner as of 2003, i.e. when the vacancy arose. In the event, the petitioner is found suitable for promotion, he shall be deemed to have been promoted with effect from the due date, however, he will not be entitled to any back wages except notional fixation of pay, which will help him to get his pension refixed. Let the aforesaid exercise be carried out and completed as expeditiously as possible, preferably within 3(three) months. Petition allowed