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2014 DIGILAW 987 (GAU)

HARENDRA NATH SARMA v. STATE OF ASSAM

2014-11-13

B.K.SHARMA

body2014
ORDER (ORAL) 1. The petitioner who has already retired from service on attaining the age of superannuation on 30/11/2010 has filed this writ petition for a direction to the respondents to provide him promotion to the post of Director, Finance (Economic Affairs) department with effect from 04/09/2002. Be it stated here that the petitioner was promoted as Director of Institutional Finance on officiating basis vide order dated 14/12/2004. Thereafter vide notification dated 14/02/2011 (Annexure-VII) his officiating promotion under regulation 4(d) of the Assam Public Service Commission (Limitation of Function) Regulation, 1951 was regularized against the post of Director, Finance, Economic Affairs Department. According to the petitioner since there was vacancy, he ought to have been promoted as Director, Finance (Economic Affairs) Department with effect from 04/09/2002 instead of 14/12/2004 and regularized vide notification dated 14/02/2011. 2. I have heard the petitioner in person and have also heard Mr. D. Saikia, learned AAG, Assam assisted by Mr. B. Gogoi, learned Standing Counsel, Finance Department. I have also considered entire materials on record. The petitioner appearing in person has argued that in fact the petitioner was entitled to get promotion in 2001. In this connection, he has referred to the provisions of the Assam Finance Economic Service (Amendment) Rules, 1995. He has also referred to the original Rules of 1989. As per the provisions of Rule 12 (Proviso) no person shall be eligible for promotion from one cadre to another unless he has completed not less than 3 (three) years of continuous service in the cadre for which he is considered for promotion. According to the petitioner at the time of incorporation of the said provision, the post of Director was not there which was incorporated by the Amendment Rules of 1995 and accordingly the requirement of three years of continuous service in the lower cadre is not applicable in case of the promotion to the post of Director. Thus, according to the petitioner, irrespective any experience in the feeder cadre he was entitled to get promotion as soon as the vacancy arose in 2001. However, the fact of the matter is that the petitioner had completed three years of service in 2002 in the feeder cadre and this precisely the reason as to why he has prayed for retrospective promotion with effect from 04/09/2002. 3. However, the fact of the matter is that the petitioner had completed three years of service in 2002 in the feeder cadre and this precisely the reason as to why he has prayed for retrospective promotion with effect from 04/09/2002. 3. The petitioner had earlier approached this Court by filing a writ petition being WP(C) No. 4839/2008 when there was delay in regularizing the officiating promotion to the post of Director. He was at the verge of retirement at that point of time. In the judgment dated 02/11/2010 passed in the said writ petition, dealing with the aforesaid plea of the petitioner that there was no requirement to have at-least three years of continuous service in the feeder cadre and that his case for promotion could have been considered as soon as the vacancy arose in 2001, the Court taking note of the provisions of Rule 12 of the aforesaid rules of 1989, held thus :- “It appears from the 1989 Rules, as amended by the 1995 Amendment Rules, that under Rule 12, as amended, an incumbent for promotion from one cadre to another has to have at least 3 (three) years of continuous service in the cadre from which he is considered for promotion.” 4. As regards the plea of the petitioner that his case for promotion should have been considered as soon as the earlier incumbent had attained the age of superannuation on 30/04/2001, it is an admitted position that the said earlier incumbent was granted extension of service on contractual basis which came to an end on 30/07/2003. This aspect of the matter was also considered in the earlier round of litigation. Taking note of the said position, the Court also took note of the fact that the Finance Department after the end of the period of extension of service of the earlier incumbent had initiated the process of selection for regular promotion to the post of Director, Finance (Economic Affairs) as well as Director, Institutional Finance, both of which are Class-I posts. Accordingly, the selection Board recommended the petitioner along with one Shri Rajani Rnajan Hazarika for promotion. Pursuant to such recommendation, both of them were promoted on 14/12/2004. While the petitioner was appointed to the post of Director, Institutional Finance, said Shri Rajani Ranjan Hazarika was promoted to the post of Director, Finance (Economic Affairs) Department. 5. Accordingly, the selection Board recommended the petitioner along with one Shri Rajani Rnajan Hazarika for promotion. Pursuant to such recommendation, both of them were promoted on 14/12/2004. While the petitioner was appointed to the post of Director, Institutional Finance, said Shri Rajani Ranjan Hazarika was promoted to the post of Director, Finance (Economic Affairs) Department. 5. The Court while disposing of the writ petition duly took note of the fact that there was delay in regularizing the officiating promotion of the petitioner which was required to be done in consultation with the APSC and accordingly issued the following direction. “In view of the aforesaid position, the present writ petition is disposed of with a direction to the respondent Nos.1 to 3 to furnish all the required informations to the Commission within a period of 3(three) weeks from today. The Commission within 4(four) weeks from the date of receipt of such informations shall finalize the process of recommending the names of the persons found suitable for promotion in order of preference, as stipulated in sub-rule (5) of Rule 13 of the 1989 Rules. The respondent Nos.1 to 3 shall pass necessary order within 3(three) weeks thereafter. It is needless to say that if the petitioner is found to be suitable for promotion to the post of Director, he shall be entitled to all the service benefits.” 6. After the aforesaid order of this Court, the APSC took up the matter with the departmental authorities and thereafter the Annexure-VII notification dated 14/02/2011 was issued regularizing the officiating promotion of the petitioner which was affected vide order dated 14/12/2004. After such regularization of promotion of the petitioner on 14/02/2011, the petitioner made representation to the departmental authorities for retrospective promotion w.e.f. 04/09/2002 when he had completed three years of service in the feeder cadre. However, the said representations having not yielded any result, he filed the instant writ petition. 7. Admittedly, while the petitioner was provided with promotion, though officiating under regulation 4 (d) of the aforesaid Regulations of 1951, he accepted the same and continued in the said promotional post. It was only in 2008, he filed the aforesaid writ petition being WP(C) No. 4839/2008 which came to be disposed of by order dated 02/11/2010. The only direction issued was to consider the case of the petitioner for regularization of promotion as per the provisions of the 1989 Rules. It was only in 2008, he filed the aforesaid writ petition being WP(C) No. 4839/2008 which came to be disposed of by order dated 02/11/2010. The only direction issued was to consider the case of the petitioner for regularization of promotion as per the provisions of the 1989 Rules. There was no direction to consider the case of the petitioner with retrospective effect as has been prayed in the instant writ petition. Even otherwise also, there could not have been any retrospective promotion, inasmuch as the earlier incumbent holding the post of Director was granted extension of service was continued to hold the post of Director till 30/07/2003. Thereafter, the process of selection was initiated and when the petitioner was found suitable for promotion he was promoted vide order dated 14/12/2004 and thereafter as per the direction of this Court, referred to above, his such promotion was regularized by the aforesaid notification dated 14/02/2011. 8. Referring to the minutes of the selection committee (Annexure-II) dated 06/08/2004, it is the case of the petitioner that although he was recommended for the post of Director, Finance (Economic Affairs) but later on there was manipulation by altering the recommendation as to the post of Director, Institutional Finance. This aspect of the matter has been dealt with by the respondents in their counter affidavit stating that the correction was made by the selection committee itself headed by the Chairman. 9. From the above narration of facts, what has emerged is that in the earlier round of litigation, the prayer of the petitioner was to regularize his service in the promotional post of Director in consultation with the APSC, the writ petition was disposed of directing the authorities to do the needful in the matter as expeditiously as possible as the petitioner was at the verge of retirement. Thereafter the consequential order was issued on 14/02/2011 regularizing the officiating promotion of the petitioner. So far as the claim of the petitioner that he ought to have been promoted to the post of Director, Finance (Economic Affairs), the said aspect of the matter need not be gone into at this stage, inasmuch as the petitioner cannot be restored back to the said position, even it is found that in fact he was entitled to the said post. That apart, the petitioner duly accepted the officiating promotion that was given to him in 2004 and continued with that position till filing of the writ petition in 2008, which was disposed of by the aforesaid order dated 02/11/2010. The respondents having acted as per the direction of this Court, no fault can be attributed to them. 10. In view of this position, no direction can be issued for providing retrospective promotion to the petitioner as has been prayed for in the writ petition. 11. Writ petition is dismissed leaving the parties to bear their own costs.