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2024 DIGILAW 793 (GAU)

Mesete-U v. State of Nagaland

2024-05-31

SANJAY KUMAR MEDHI

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JUDGMENT : SANJAY KUMAR MEDHI, J. 1. The subject matter of challenge in this writ petition is an order dated 08.07.2020 by which the promotion of the petitioners to the rank of Female Health Worker (FHW) Supervisor has been put on hold. The petitioners have also prayed for giving effect to the promotion from the date of their promotion i.e. 09.06.2020 with all consequential benefits. 2. Before going to the issue which requires a determination, it would be convenient if the facts of the case are narrated in brief. 3. 16 numbers of petitioners have joined together in this petition. The projected case of the petitioners is that they were initially appointed as Female Health Workers and Auxiliary Nurse-Midwife (FHW/ANM) in the year 1988 and have been working continuously. In the year 2003, there was a policy whereby avenues were generated for promotion from the rank of FHW to FHW Grade-I and thereafter to FHW Supervisor. In terms of such policy, vide order dated 28.03.2006, the petitioners were promoted to the rank of FHW Grade-I. In the list enclosed to the promotional order, the names of the petitioners appear from S. Nos. 88 to 117. After working in the said posts of FHW Grade-I, vide an order dated 09.06.2020, the petitioners were further promoted to the next higher post of FHW Supervisor. The order reflects that the said promotion was done with approval of the P&AR Department and the concurrence of the Finance Department. However, vide the impugned order dated 08.07.2020, the promotions of the petitioners were put to hold. It was further stated that so far as the proposed upgradation of 20% Supervisors to the post of FHW Special Grade, the approval of the Cabinet was not taken. Consequently, vide Cabinet approval dated 13.06.2022, the incumbents in the post of Supervisors were promoted to the post of FHW Special Grade. The petitioners were expecting that upon such development, their promotions would be restored and accordingly they had submitted representation on 10.05.2023 wherein it was highlighted that the petitioners were to retire soon and the benefits of promotion were to be given. However no such benefits were given and accordingly the instant writ petition was filed on 01.06.2023. 4. I have heard Kekhriengulie, learned counsel for the petitioners. I have also heard Shri N. Angami, learned Government Advocate, Nagaland for the State/respondents. 5. However no such benefits were given and accordingly the instant writ petition was filed on 01.06.2023. 4. I have heard Kekhriengulie, learned counsel for the petitioners. I have also heard Shri N. Angami, learned Government Advocate, Nagaland for the State/respondents. 5. The learned counsel for the petitioners, at the outset, had drawn the attention of this Court to certain orders passed in this proceeding. By referring to the order dated 10.08.2023, it is submitted that this Court had directed the State Counsel to seek instructions for the steps taken for promotion of the petitioners. In the order dated 22.08.2023, the submission of the State Counsel was recorded that the petitioners would be entitled to be promoted with all consequential benefits, even if they retire in the meantime. Vide order dated 21.09.2023, the learned State Counsel was directed to file affidavit in this regard. In the meantime, on 14.09.2023, the petitioners were released from service. Subsequently, in the order of the Court dated 16.10.2023, the submission of the State Counsel was recorded that the Government was actively considering of giving retrospective promotion to the petitioners. 6. It is submitted on behalf of the petitioners that the promotions given to them vide order dated 09.06.2020 was a regular promotion which was given with due approval of the P&AR Department and concurrence of the Finance Department. It is submitted that such promotion was not conditional on the promotion of the other incumbents from the post of Supervisors to FHW Special Grade. It is accordingly submitted that the impugned order dated 08.07.2020 whereby the promotions of the petitioners have been put on hold is unsustainable in law as the issue of Cabinet approval was not in connection with the promotion of the petitioners but for promotions of certain incumbents to the next higher Grade of FHW Special Grade. The learned counsel for the petitioners has also drawn the attention of this Court to the affidavit-in-reply wherein a vacancy list has been annexed. It is demonstrated that at least 26 numbers of clear vacancies in the post of Supervisors were existing at the time of promotion of the petitioners which were retirement vacancies. It is therefore contended that the Cabinet approval to the promotion of the other incumbents to FHW Special Grade cannot be linked with the promotion of the petitioners. It is demonstrated that at least 26 numbers of clear vacancies in the post of Supervisors were existing at the time of promotion of the petitioners which were retirement vacancies. It is therefore contended that the Cabinet approval to the promotion of the other incumbents to FHW Special Grade cannot be linked with the promotion of the petitioners. It is also submitted that till date, the order of promotion dated 09.06.2020 has not been cancelled and therefore the petitioners, though retired from service, are entitled to be given all the benefits of the promotional post including the back wages. 7. In support of his submission, the learned counsel has relied upon the following case laws: (i) C.O. Arumugan vs. State of Tamil Nadu, 1991 Supp. (2) SCC 199 (ii) Kopsi Panor and Others vs. State of Arunachal Pradesh and Others, (2004) 1 GLR 263 (iii) Dr. M. Laitphlang and Others vs. State of Meghalaya and Others, (2004) 2 GLR 546 (iv) State of Haryana and Others vs. Gurcharan Singh and Others, (2004) 12 SCC 540 (v) Pradip Namosudra vs. State of Assam and Others, 2014 (5) GLT 39 (vi) Major General H.M. Singh, VSM vs. UOI and Others, (2014) 3 SCC 670 8. In the case of C.O. Arumugan (supra), the Hon’ble Supreme Court has held that every civil servant has a right to have his case considered for promotion according to his turn and it is guarantee flowing from Article 14 and 16 of the Constitution of India. The consideration of promotion could be postponed only on reasonable ground. 9. In the case of Kopsi Panor (supra), this Court has observed that though an employer is not bound to fill up every vacancies, yet continued denial to fill up such pasts without any justification/justified reason may be regarded as unjust and require intervention of the Writ Court. 10. In the case of Dr. M. Laitphlang (supra), it has been held as follows: “35. To be considered for promotion, when a person becomes so eligible, is his fundamental right and denial of such a right, if discriminatory, cannot be permitted by a Writ Court. 10. In the case of Dr. M. Laitphlang (supra), it has been held as follows: “35. To be considered for promotion, when a person becomes so eligible, is his fundamental right and denial of such a right, if discriminatory, cannot be permitted by a Writ Court. In the case of Delhi Jal Board vs. Mahinder Singh, (2000) 7 SCC 210 , the Apex Court held “The right to be considered by DPC is a fundamental right guaranteed under Article 16 of the Constitution of completely failed to show as to why promotion could not have been accorded to the writ petitioners, when the writ petitioner had become eligible for promotion in the year 1955-96.” 11. In the case of Gurcharan Singh (supra), the Hon’ble Supreme Court has observed that Government having taken policy decision, must implement that policy fairly and uniformly. It is not open to the Govt. to discriminate between persons similarly situated. 12. The case of Pradip Namosudra (supra) has been relied upon to bring home the contention that the right of eligible employee to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16. The guarantee of a fair consideration is a matter of promotion under Article 16 virtually flows from the guarantee of equality under Article 14 of the Constitution of India. 13. In the case of Major General H.M. Singh (supra), it has been held that non-consideration of the promotion of the senior most eligible for consideration is unfair as he would be deprived of his fundamental right guaranteed under Articles 14 & 16. 14. Per contra, Shri Angami, learned State Counsel has submitted that there was a valid reason for withholding the promotional order dated 09.06.2020. By referring to the order dated 08.07.2020 which has been impugned in this proceeding, the learned State Counsel has submitted that there was apparently lack of Cabinet approval to the promotion of certain incumbents from Supervisors to FHW Special Grade and therefore, had given approval on 13.06.2022 for upgradation to the FHW Special Grade and therefore, from the said date, the case for promotion of the petitioners are under consideration. He has also informed the Court that after the aforesaid development in the form of Cabinet approval dated 13.06.2022, the matter was sent to the DPC. He has also informed the Court that after the aforesaid development in the form of Cabinet approval dated 13.06.2022, the matter was sent to the DPC. However, the DPC had declined to give such promotion in view of the policy decision of the State that the DPC is not competent to give retrospective effect to promotion of incumbents who had retired from service in the meantime. He submits that it is in this context that a submission was made on 16.10.2023 that the aspect of giving retrospective promotion to the petitioners were under consideration which has been observed by this Court in the order. 15. As regards the existence of vacancies, the learned State Counsel has submitted that the petitioners in their own understanding and admission had made a claim on the vacancy arising on the upgradation of certain incumbents from the post of Supervisors to FHW Special Grade. It is submitted that in view of such admission and understanding, the petitioners cannot be allowed to take a stand that there were clear retirement vacancies at the time of promotion of the petitioners vide the order dated 09.06.2020. 16. The learned State Counsel has also submitted that the approval of the P&AR Department and concurrence of the Finance Department which are reflected in the initial order of promotion dated 09.06.2020 are also reflected in the impugned order dated 08.07.2020 and therefore he contends that such approval and concurrence would not put the matter to a vacancy per se will not create a right to be promoted. He contends that though a fair consideration for promotion can be a right, there cannot be an inherent right to be promoted of a government servant. 17. In support of his submission, the learned State Counsel has relied upon the case of Union of India and Others vs. K.K. Vadera and Others, AIR 1990 SC 442 to contend that mere arising of vacancy would not give a right to an employee for promotion. He has further cited the case of Union of India and Another vs. Manpreet Singh Poonam and Others, (2022) 6 SCC 105 to contend that there is no fundamental right for promotion and the right is only for a fair consideration. 18. The rival contentions have been duly considered and the materials placed before this Court have been carefully examined. 19. 18. The rival contentions have been duly considered and the materials placed before this Court have been carefully examined. 19. The policy adopted by the State, as would appear from the communication dated 20.01.2003 would show that the FHW Grade-I were liable to be promoted to FHW Supervisor on fulfilling the eligibility criteria and it is not in dispute that all the petitioners had fulfilled such eligibility criteria. As recorded above, all the petitioners were appointed as FHW/ANM on 11.08.1988. The petitioners were given the benefit of promotion to the post of FHW Grade-I on 28.03.2006 which is also an admitted position and accordingly the eligibility of the petitioners to be promoted to the next higher Grade of FHW Supervisor is not in dispute. The records clearly reveal that vide order dated 09.06.2020, all the petitioners were indeed promoted to the post of FHW Supervisors. A bare perusal of the said order would reveal that the same was issued with approval of the P&AR Department and with the concurrence of the Finance Department of the State. The impugned order dated 08.07.2020 however has put on hold to the aforesaid promotional order dated 09.06.2020. The reason which would appear from the impugned order is that the Cabinet had not given approval to the upgradation of certain incumbents who were working in the post of Supervisors and were upgraded to FHW Special Grade. Though there are averments in the writ petition that to the understanding of the petitioners, their promotions were against those posts, the petitioners have subsequently brought on record in the reply affidavit that as on the date of their promotions, at least 26 clear retirement vacancies in the post of Supervisors were existing. An exercise of promotion is strictly within the domain of the employer and in which vacancy an employee would be posted would not be within the ambit/knowledge of such an employee. The existence of clear vacancies due to retirement of the incumbents in the higher post of Supervisors is not disputed. Therefore, even assuming that to the understanding of the petitioners, their promotions to the post of those Supervisors who were upgraded to FHW Special Grade, the same cannot be a reason to put on hold their promotions made vide order dated 09.06.2020, more so when clear vacancies were existing. Therefore, even assuming that to the understanding of the petitioners, their promotions to the post of those Supervisors who were upgraded to FHW Special Grade, the same cannot be a reason to put on hold their promotions made vide order dated 09.06.2020, more so when clear vacancies were existing. It is also not the case of the State that in those vacancies which had arisen due to retirement of incumbents in the post of Supervisors, some other incumbents were promoted or the said posts were abolished. In view of such facts and circumstances, this Court is of the considered opinion that there was no justifiable reason to put on hold the promotions of the petitioner which was made vide order dated 09.06.2020. 20. From the case laws cited, it is clear that though there may not be an indefensible right for promotion, such right would definitely extend for a fair consideration. In fact, in the instant case, the consideration was already made and the petitioners were promoted vide the order dated 09.06.2020 and the challenge is only with regard to the order dated 08.07.2020 by which the promotions were put to hold. This Court is of the opinion that the reasons for withholding the promotions are extraneous, irrelevant and not at all acceptable. 21. This Court has been informed that the petitioners have retired from their service as FHW Grade-I without getting the benefit of promotion to the post of FHW Supervisor. Though a statement has been made by the learned State Counsel that the cases of the petitioners for giving promotion is under consideration from 13.06.2022 i.e. the date of Cabinet approval subject to final decision by the Government, this Court is, however, of the view that the Cabinet approval for Special Grade made on 13.06.2022 cannot be linked with the promotion of the petitioners made on 09.06.2020. In view of the above, this Court directs that the impugned order dated 08.07.2020 so far it withheld the promotion of the petitioners to the post of FHW Supervisors is unsustainable in law and accordingly set aside. Consequently, the petitioners are to be deemed to be promoted from 09.06.2020 as FHW Supervisor. In view of the above, this Court directs that the impugned order dated 08.07.2020 so far it withheld the promotion of the petitioners to the post of FHW Supervisors is unsustainable in law and accordingly set aside. Consequently, the petitioners are to be deemed to be promoted from 09.06.2020 as FHW Supervisor. Though the petitioners have claimed all benefits, this Court is of the opinion that since the petitioners, though promoted had not served as FHW Supervisors, they would not be entitled to the monetary benefit for the period thereafter till their retirement on 14.09.2023. However, all notional benefits including fitment in the appropriate scale for calculation of their pension is to be given by considering that the petitioners were promoted and working as FHW Supervisors since 09.06.2020. 22. The writ petition accordingly stands allowed. 23. Cost made easy.