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2015 DIGILAW 223 (GAU)

State of Assam v. Ghanashyam Malakar

2015-02-24

K.SHREEDHAR RAO, P.K.SAIKIA

body2015
JUDGMENT AND ORDER : Heard the appellants and the respondents. 2. There was an advertisement for appointment to the post of Deputy Director in the Dairy Development department issued on 14.11.1997. The appellant applied for the said post and was appointed on 10.6.1998. When the private respondent was working as Assistant Director. There were four posts of Deputy Director - two were to be filled by direct recruitment and two were to be filled by promotion, and one of the posts was reserved for the Scheduled Caste category. 3. The private respondent challenged the public notification issued for appointment to the post of Deputy Director by direct recruitment in a writ petition - Civil Rule 5672/1997. The said writ petition was dismissed. The private respondent filed a writ appeal - WA 129/1998. The said writ appeal was also dismissed. 4. In the process of promotion, the post meant for the Scheduled Caste category was filled by General category and the Scheduled Caste vacancy was carried forward to. 5. The private respondent came to be promoted as Deputy Director on 10.7.2002. He was said to have submitted a representation to the Government urging the latter to place him above the appellant(herein) on the seniority list, since he was eligible to be promoted on the basis of the roster vacancy in the year 1997. Having had no response from the Government after having submitted representations from the year 2004 onwards, the private respondent filed a writ petition - WP(C) 6365/2005. This Court directed the Government to dispose of the representation. The request in the representation was rejected. Hence the writ petition. 6. The learned single Judge allowed the writ petition and directed that the private respondent be placed above the appellant (herein) in the seniority list. Aggrieved by the said order the present appeal is filed. 7. On careful consideration of the facts and on going through the order of the learned single Judge we find that there appears to be inordinate delay and latches on the part of the private respondent in approaching the Court. In the first place he claims he was eligible for promotion in the year 1997. It is inferable from the facts that he was not promoted and the roster vacancy was carried forward to and it came to be filled only in the year 2002. In the first place he claims he was eligible for promotion in the year 1997. It is inferable from the facts that he was not promoted and the roster vacancy was carried forward to and it came to be filled only in the year 2002. The private respondent did not challenge his non-selection in the roster vacancy “at the earliest”. He took promotion to the post of Deputy Director in later course in the year 2002. In the year 2004 he filed a representation. The said representation was not considered. In the year 2009 he filed a writ petition WP(C) 4461 of 2009. 8. The claim of the private respondent for promotion to the post of Deputy Director with retrospective effect is untenable and suffers from delay and latches. In the year 1997 he did not challenge the promotion of the appellant. It is almost after seven years that he made a representation for retrospective promotion. The appellant has been appointed to the post of Deputy Director by direct recruitment. 9. It is well settled principle that the date of continuous service in the cadre post should be the guiding factor to determine the seniority. The private respondent cannot claim seniority in the cadre post of Deputy Director with retrospective effect when he was not even appointed in that cadre. That apart the next promotional vacancy is Joint Director. There is also a roster benefit which the private respondent may be entitled to in the event of vacancy in accordance with law. Irrespective of the seniority of the appellant if the roster vacancy arises the private respondent may become eligible, if he is found suitable at that point of time. In that view of the matter the appeal is allowed.