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2016 DIGILAW 517 (GAU)

Amarendra Kumar Singh v. Union of India

2016-06-07

AJIT SINGH, SUMAN SHYAM

body2016
JUDGEMENT : Suman Shyam, J. 1. Heard Mr. G. Saha, assisted by Mrs. M. Das, learned counsel for the appellant. Also heard Mr. S.K. Ghosh, learned counsel appearing for respondent No.2 to 6. None appears for the private respondents. 2. This writ appeal is directed against the judgement and order dated 27/07/2012 passed in WP(C) No. 2085/2004 whereby, the learned Single Judge had dismissed the writ petition filed by the appellant inter-alia praying for ante-dating his promotion to the post of Assistant Director with effect from 06/03/1996. 3. The appellant, who is a graduate Civil Engineer, was initially appointed as Supervisor on 15/12/1987 in the department of Inland Waterways Authority of India (IWAI) and thereafter, he was promoted to the post of Technical Assistant (TA) on 06/03/1993. As per the Recruitment Rules (R.R). of the IWAI, a graduate Engineer holding the post of TA would become eligible for being considered for promotion to the next higher post of Assistant Director on completion of 3 (three) years of continuous service in the feeder cadre. According to the appellant, he had become eligible for promotion to the post of Assistant Director on 06/03/1996 i.e. after completion of 3 (three) years in the post of TA. However, despite availability of vacancies at the relevant point of time, the respondent authorities did not convene DPC for 7 (seven) long years until the month of March, 2001 as a result of which the appellant was denied promotion in the year 1996. It is also the case of the appellant that the respondent Nos. 7, 8 and 9, are diploma holders and had acquired the eligibility for being promoted to the post of Assistant Director later then the appellant. Notwithstanding the same, by the order dated 12/04/2001, the respondent nos. 7 and 8 were promoted to the post of Assistant Director and the vide order dated 26/04/2002 the respondent no. 9 was also promoted to the said post of Assistant Director by ignoring the appellant. The grievance of the appellant is that in the year 1996 or at-least on 01/07/1997, there were vacancies available in the post of Assistant Director due to the resignation of three incumbents. But the authorities did not consider the case of the appellant for promotion against any of those vacancies although he was elligible. The grievance of the appellant is that in the year 1996 or at-least on 01/07/1997, there were vacancies available in the post of Assistant Director due to the resignation of three incumbents. But the authorities did not consider the case of the appellant for promotion against any of those vacancies although he was elligible. Again in the month of March, 2001, some more vacancies arose in the post of Assistant Director, taking the total number of vacancies to 7 (seven) posts. However, even then the appellant was not recommended for promotion to the post of Assistant Director and on the contrary the private respondents were promoted. Although the appellant had subsequently been promoted to the post of Assistant Director on 6-1-2011, yet, he had claimed that such promotion be given effect from 6/3/1996 i.e. the date when he had become eligible for promotion under the Rules. 4. The learned counsel for the appellant Mr. Saha submits that although the appellant is senior to the private respondents, yet, injustice has been meted out to his client by giving him promotion to the post of Assistant Director at a much later date though he was entitled for such consideration way back in the year 1996. According to the learned counsel, such injustice has been caused to his client solely on account of the fact that the department had failed to prepare year-wise penal of the eligible candidates as per the requirement of the Rules and on the contrary clubbed all the vacancies arising during the period from 1996 to 2001, as a result of which, his client was denied proper consideration by the DPC. In support of his aforesaid argument, Mr. Saha has relied upon a decision of the Apex Court in the case of Union of India and others Vs. N.R. Banerjee and others reported in (1997) 9 SCC 287 . 5. Mr. Ghosh, learned counsel for the respondents, on the other hand, submits that during the period from 1996 to 2001, there was no available vacancy in the post of Assistant Director which could be filled up by way of promotion. By referring to the averments made in the counter affidavit filed by the department, Mr. Gosh submits that although there were 9 (nine) vacancies in the rank of Assistant Director, yet, there were 10 incumbents holding the post of Assistant Director at that point of time. By referring to the averments made in the counter affidavit filed by the department, Mr. Gosh submits that although there were 9 (nine) vacancies in the rank of Assistant Director, yet, there were 10 incumbents holding the post of Assistant Director at that point of time. Two out of the three vacancies that arose due to resignation of the officers had to be adjusted by re-allocation to the Survey Wing while the 10th incumbent had to be adjusted against the third vacancy. 6. Mr Gosh further submits that it was only in the year 2001 that 3 (three) vacancies arose in the Department and 4 (four) more posts of Assistant Director were created by the Government, taking the total number of vacancies to 7 (seven). As per the Rules, since only 50% of the vacancies in the post of Assistant Director could be filled up by way of promotion, hence, the DPC has considered the candidature of the eligible candidates including the appellant, who had come within the zone of consideration for filling up four posts by way of promotion. The learned counsel submits that in the DPC meeting held in the year 2001 the appellant’s case was also considered but since the criteria of promotion is seniority cum suitability, hence, cases of first 4 (four) eligible candidates in order of seniority were recommended for promotion to the post of Assistant Director against the aforementioned 4 (four) vacancies. The appellant being placed at Sl. No. 6 in the seniority list, his case could not be recommended in the year 2001 for promotion. However, subsequently, when more vacancies arose, the case of the appellant was again considered and was duly recommended pursuant whereto he was promoted to the post of Assistant Director on 6-1-2011. The learned counsel, therefore, submits that the claim of the appellant is wholly without any basis and the same has been rightly rejected by the learned Single Judge. 7. A perusal of the materials on record goes to show that the department had published a seniority list for the cadre of Technical Assistant on 06/02/1998. As per the said seniority list, the respondent nos. 7, 8 and 9 were placed above the appellant. It is the admitted position of fact that the appellant had not challenged the seniority list of Technical Assistant published by the authorities. 8. As per the said seniority list, the respondent nos. 7, 8 and 9 were placed above the appellant. It is the admitted position of fact that the appellant had not challenged the seniority list of Technical Assistant published by the authorities. 8. Record further reveals that the appellant had earlier approached the Patna High Court by filing CWJC No. 2872/2001 agitating similar grievances and by the order dated 01/03/2001, the Patna High Court had disposed of the said writ petition by directing the respondent authorities to consider the representation filed by the petitioner making the claim of promotion as noted above. The authorities had, thereafter, rejected the representation filed by the appellant by issuing a speaking order, which order is however, not on record. But it is the admitted position of fact that the appellant had not challenged the said rejection order by filing appropriate proceeding. 9. Although the appellant had claimed that there were vacancies available during the year 1996 to 2001 so as to consider his case for promotion, yet, the said claim could not be established by him on the basis of materials on record. That apart, since the respondent Nos. 7, 8 and 9 were evidently senior to the appellant, hence, the orders dated 12/04/2001 and 26/04/2002 promoting them to the post of Assistant Director, in our opinion, also does not suffer from any illegality. The submission made by the learned counsel for the appellant assailing the said orders of promotion, therefore, does not merit acceptance by this court. 10. Taking note of facts and circumstances of the case, the learned Single Judge had arrived at a categorical finding that prior to 2001 there was no vacant post of Assistant Director against which the appellant could have been promoted and that the 4 (four) vacancies arising in the year 2001 were rightly filled up by promoting the suitable candidates whereby, the appellant was also considered by the DPC but could not be recommended due to his seniority position. The conclusions reached by the learned Single Judge appears to be based on the materials available on record and the same, in our view, does not call for any interference by this court. The conclusions reached by the learned Single Judge appears to be based on the materials available on record and the same, in our view, does not call for any interference by this court. Moreover, the appellant not having challenged the earlier order passed by the department rejecting his representation for ante-dating his promotion to the post of Assistant Director, the appellant cannot be allowed to agitate the same issue once again in this proceeding. 11. For the reasons stated above, this writ appeal is held to be devoid of any merit and the same is accordingly dismissed. There would be no order as to costs.