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2017 DIGILAW 264 (GAU)

RAMESH CHANDRA BHARALI v. GOURI KANTA SARKAR

2017-03-01

SUMAN SHYAM

body2017
JUDGMENT : This interlocutory application has been filed with a prayer for alteration/vacation/modification of the interim order dated 09.09.2015 passed by this Court in WP(C) No.5369/2015 directing the respondents to consider the case of the petitioner and respondent No.5 in the event of making any order of promotion for filling up the post of Superintendent in the Directorate of Welfare of Scheduled Castes (SC), Assam. 2. The respondent No.1, Gouri Kanta Sarkar, had filed the WP(C) No.5369/2015, inter alia, challenging the seniority position assigned to the applicant herein above him in the cadre of U.D.Assistant in the Directorate of Welfare of Scheduled Castes in Assam wherein this Court had passed the interim order dated 09.09.2015. During the pendency of WP(C) No.5369/2015 the applicant herein had also approached this Court by filing a separate writ petition bearing WP(C) No.3158/2016, inter alia, seeking a direction upon the respondents to promote the petitioner therein in the cadre of Superintendent in the Directorate of Welfare of Scheduled Castes since the department has found him to be senior to the opposite party No.1. It appears from the record that the selection committee constituted by the department for the purpose of selecting candidates for promotion to the post of Superintendent had met on 29.03.2014 and upon due consideration of the candidature of both the candidates, had recommended the case of the applicant herein for promotion to the post of Superintendent. 3. Mr. U. K. Nair, learned counsel for the applicant, submits that the applicant is due for retirement upon attaining the age of superannuation with effect from 31.03.2017. He is now officiating in the post of Superintendent. However, due to the interim order passed by this Court in the pending writ proceeding the respondents are not taking any action for issuing a formal order of promotion in terms of the DPC recommendation made on 29.03.2014 as a result of which the applicant is faced with serious prospect of retiring from service without availing the benefits attached to the promotional post. Mr. Nair, therefore, prays for a direction upon the respondents to issue appropriate order in terms of the selection committee recommendation dated 29.03.2014. 4. Mr. Gogoi, on the other hand, has vehemently opposed the prayer made by the applicant on the ground that his client is senior in service and therefore, ought to have been promoted in place of the applicant. Nair, therefore, prays for a direction upon the respondents to issue appropriate order in terms of the selection committee recommendation dated 29.03.2014. 4. Mr. Gogoi, on the other hand, has vehemently opposed the prayer made by the applicant on the ground that his client is senior in service and therefore, ought to have been promoted in place of the applicant. Since the recommendation for promotion is made by overlooking the seniority of the opposite party No.1, hence, according to Mr. Gogoi, the same is not sustainable in the eye of law and therefore, is liable to be interfered with by this Court. Mr. Gogoi, however, has fairly submitted that the issue regarding inter se seniority of both the candidates has been referred to the Personnel Department of the Government of Assam and a decision in respect thereof is awaited. Mr. Gogoi has also submitted that his client is in service till October, 2017. 5. After hearing the learned counsel for both parties it is apparent that the core controversy involved in both the writ petitions relate to the question of inter-se seniority of both the candidates, the determination of which would be possible only at the stage of final hearing of the writ petition. However, the disposal of the writ petition may not be possible on or before 31.03.2017. In such an event the applicant may have to retire without enjoying the fruits of the recommendation made by the DPC on 29.03.2014. On the other hand, the opposite party No.1 being the next candidate in line would automatically be entitled to promotion with effect from 01.04.2017. The question that would remain to be answered in both the writ petitions is as regards the effect that is required to be given to such promotion, which issue can be adequately gone into at the stage of final hearing of the writ petition. 6. Having regard to the above facts and circumstances of the matter and for the ends of justice, this I.A. is disposed of with a direction upon the respondents to issue final order of promotion in favour of the applicant in terms of the selection committee recommendation dated 29.03.2014. The promotion so granted would, however, be subject to further orders that may be passed by this Court in both the pending writ petitions. 7. The promotion so granted would, however, be subject to further orders that may be passed by this Court in both the pending writ petitions. 7. It is made clear that in the event the respondents delay the promotion of the opposite party No.1 when the same becomes due, he will be at liberty to approach this Court seeking appropriate relief. 8. The I.A. stands disposed of.