Gauhati High Court
Dilip Kr Deb vs The State Of Assam And Ors on 13 December, 2018
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/9
GAHC010092012010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 234/2010
1:DILIP KR DEB
S/O LT. GOPESH CH. DEB, R/O AZAD SAGAR ROAD, PO. SETTLEMENT
ROAD, PS. KARIMGANJ, DIST. KARIMGANJ, ASSAM.
VERSUS
1:THE STATE OF ASSAM AND ORS
REP. BY THE COMISSIONER and SECY. TO THE GOVT. OF ASSAM,
EDUCATION ELEMENTARY DEPTT., DISPUR, GHY-6.
2:JT. SECY. TO THE GOVT. OF ASSAM
EDUCATIONELEMETNARY DEPTT.
DISPUR
GUWAHATI-6
3:DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
4:BIREN SAIKIA
BEEO
C/O O/O THE DY. INSPECTOR OF SCHOOLS
NAGAON
DIST. NAGAON
ASSAM
5:BIPULJIT BARMAN
DEEO
C/O O/O THE DY.INSPECTOR OF SCHOOLS
DHUBRI
DIST. DHUBRI
ASSAM
Page No.# 2/9
6:OMAR ALI
BEEO
C/O O/O THE DY. INSPECTOR OF SCHOOLS
KALIABOR
DIST. NAGAON
ASSAM
7:KHAGEN CH. BAIDYA
BEEO
C/O O/O THE DY. INSPECTOR OF SCHOLS
BONGAIGAON
DSIT. BONGAIGAON
ASSAM
8:SANGITA BARUA
BEEO
C/O O/O THE DY. INSPECTOR OF SCHOOLS
DIBRUGARH
DIST. DIBRUGARH
ASSAM
9:JAWAHARLAL RAI
BEEO
C/O O/O THE DY. INSPECTOR OF SCHOOLS
KAMRUP
DIST. KAMRUP
ASSAM
10:JILMOHAN SARKAR
BEEO
O/O THE DY. INSPECTOR OF SCHOOLSUDALGURI
DIST. UDALGURI
ASSAM
11:BINOY KR. DAS
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
KOKRAJHAR
DIST. KOKRAJHAR
ASSAM
12:SUNIL KR. SARMA
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
HAILAKANDI
DIST. HAILAKANDI
ASSAM
Page No.# 3/9
13:PARESH HAZARIKA
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
NAGAON
DIST. NAGAON
ASSAM
14:CHANDRA KAMAL BORA
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
DHEMAJI
DIST. DHEMAJI
ASSAM
15:JOY KANTA KAKOTY
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
DHEMAJI
DIST. DHEMAJI
ASSAM
16:ANITA DAS
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
GOALPARA
DIST. GOALPARA
ASSAM
17:JOYNAL ABEDIN SIKDAR
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
BARPETA
DIST. BARPETA
ASSAM
18:DHANESWAR ROY
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
DHUBRI
DIST. DHUBRI
ASSAM
19:AZIZUL ISLAM
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
DHUBRI
Page No.# 4/9
DIST. DHUBRI
ASSAM
20:RAFIJUDDIN AHMED
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
LAKHIMPUR
DIST. LAKHIMPUR
ASSAM
21:ABDUL WAHID
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
CACHAR
DIST. CACHAR
ASSAM
22:ANOWAR HUSSAIN
BEEO
O/O THE DY. INSPECTOR OF SCHOOLS
BONGAIGAON
DIST. BONGAIGAON
ASSA
Advocate for the Petitioner : MR.M CHOUDHURY
Advocate for the Respondent :
Page No.# 5/9
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
Date : 13-12-2018
1. Heard Mr. M Choudhury, learned Senior Counsel assisted by Mr. P K Munir, learned counsel for the petitioner. Also heard Mr. N Sarma, learned Standing Counsel, Elementary Education Department.
2. As agreed to by the parties and considering that this matter is of the year 2010, the same is taken up for disposal at the admission stage. While taking up the matter for disposal, the Court has also considered that the respective pleadings of the parties have been exchanged.
3. The fact of the case in a nutshell is as follows:
4. The petitioner was appointed as a Sub-Inspector of Schools in the Education Department on 19.05.1984. In the Gradation List prepared for the rank of Sub-Inspector of Schools, the position of the petitioner was at Sl. No. 171 whereas those of the private respondents were below than that of the petitioner. Thereafter, in the promotional exercise from the rank of Sub-Inspector of schools to the rank of Block Elementary Education Officer (herein after BEEO), the petitioner was duly promoted vide an order dated 24.09.2004. In the said list of selected candidates the position of the petitioner was at Sl. No.6 whereas amongst the other respondents, the position of the respondent No.12 was 25 where as that of the respondent No.22 was 20. Thereafter, the authorities prepared a provisional Gradation List of Officers in the rank of BEEO in which the position of the petitioner was placed below then that of the private respondents and accordingly the petitioner had filed his objection to the said provisional Gradation List.
5. In spite of objection filed by the petitioner, a final Gradation List was published on 15.10.2009 wherein the position of the petitioner was placed against Sl No.22 which is below the position of the private respondents including the respondent Nos. 12, who was at Sl. No.9 and the respondent No.22, who was at Sl. No.21. Subsequently, in a promotional exercise Page No.# 6/9 which culminated in the order of promotion dated 23.12.2009, the private respondents were promoted to the post of Deputy Inspector of Schools and the petitioner was deprived from such promotion. Assailing the final Gradation List dated 15.10.2009 and the promotion order dated 23.12.2009, the present writ petition has been filed.
6. Mr. Choudhury, learned Senior counsel, at the outset has submitted that in the meantime, all the private respondents had retired from their services and therefore, his writ petition would be confined for consideration of his case only without disturbing the said private respondents. Referring to the Rules governing the field namely, the Assam Education Service Rules, 1982, Mr. Choudhury, learned senior counsel submits that Deputy Inspector of Schools is a cadre defined under Rule 3(b) Class-II. Rule 24 of the said Rules is in connection with preparation of a Gradation list which has to be done every year, cadre-wise indicating the seniority etc. Rule 12 lays down the general procedure for promotion and under Sub Rule (2) it is incumbent upon the authorities to consider four times number of vacancies of incumbent in order of seniority for the parties of promotion. The criteria for such promotion is laid down in Rule 12(4) which is "merit cum seniority".
7. Mr. Choudhury submits that in the promotional exercise leading to publication of the order dated 23.12.2009, the petitioner was not even aware if his was duly considered. He submits that even assuming that his position in the said final Gradation List dated 15.10.2009 is correct, his case ought to have been considered in view of the admitted position that 25 number of posts were under consideration for promotion. In other words, Mr. Choudhury submit that if 25 posts were vacant, 100 numbers of Officers in the rank of BEEO need to be considered. The materials made available to the petitioner do not indicate any kind of consideration of the case of the petitioner. As a result, the petitioner was not even aware of the criteria that was adopted for affecting such promotion and giving benefit to the Officers, who was junior to the petitioner. Mr. Choudhury, accordingly submits that this is a fit case which call for interference in the form of a direction for holding a review DPC for the petitioner to consider his case fairly as on 2009 and give him the consequential benefit. Mr. Choudhury submits that the petitioner has also retired in the meantime.
8. Replying to the submissions of Mr. Choudhury, Mr. N Sarma, learned Standing Counsel, Elementary Education Department has produced the minutes of the meeting dated 19.10.2009 of the Selection Committee which was constituted for promotion to the rank of Page No.# 7/9 Deputy Inspector of Schools from Block Elementary Education Officer. Mr. Sarma submits that the process undertaken was done in a fair manner by following the Rules and there is no scope for interference by this Court. Mr. Sarma also brings to the notice of this Court that a show cause notice was issued to the petitioner on 15.05.2014 and in the ensuing Departmental Proceeding, a penalty was also imposed upon the petitioner vide order dated 17.01.2018 and therefore in the subsequent promotional exercise carried out in the year 2014, though his case was considered, the same was kept in sealed cover in accordance with law. Mr. Sarma, accordingly submits that no interference may be made by this Court and in any case, the writ petitioner having retired from service, no effective relief can be granted to him.
9. Mr. Choudhury, learned Senior counsel in his reply fairly submits that the writ petition was filed in the year 2010 and at that point of time the Departmental Proceeding which was initiated in the year 2014 could not be contemplated and therefore there is no occasion for him to make any averment or challenge an event which was not existing at that point of time. He submits that any subsequent event is not at all material for consideration of his case in the year 2009 which has to be considered on the basis of the materials existing as on that date. Subsequent events can be considered only for promotional exercise undertaken after such event has occurred. Mr. Choudhury submits that even without taking into consideration the promotional exercise carried out in the year 2014, the petitioner has a legal right for fair consideration in the promotional exercise made in the year 2009.
10. In support of the submission, Mr. Choudhury, learned Senior counsel relied upon the following decisions:
(i) (1999) 5 SCC 762 (Bank of India and another vs Degela Surya
Narayana)
(ii) (2007) 6 SCC 524 (State of Kerala and other vs E. K. Bhaskaran
Pillai).
11. In the case of Degela Surya Narayana (supra) a more or less similar situation had arisen. The respondent in that case was aggrieved by non consideration of his case for promotion in the year 1986-87 and in the meantime, in the year 1991 a Departmental proceeding was initiated against him. The Hon'ble Apex Court has held that in the year 1986-87 when the incumbent became due for promotion and the Page No.# 8/9 Promotion Committed had held its proceedings, there was no Departmental inquiry pending against him and therefore a subsequent event will not have any bearing in considering the case of the petitioner.
12. On the point of being entitlement to the benefit on retrospective basis the case of E K Bhaskaran Pillai (Supra) was cited. In the said case, the Hon'ble Supreme Court has held that the principle of "no work no pay" cannot be accepted as a Rule of thumb. It has been held that in the event of succeeding any challenge made to an action of superseding in service, which was because of wrong denial, the incumbent should be given full benefits.
13. The minutes of the Selection Committee for promotion to the rank of Deputy Inspector of Schools from BEEO held on 19.12.2009, produced by Sri N Sarma, learned counsel for the Department have been perused. On perusal, the said minutes do not reveal that the case of the petitioner was at all considered. Though reference has been made to certain Officers against whom DP was pending and whose cases were kept in sealed cover, it does not appear that the case of the petitioner, as has been stated above was taken up for consideration. On a query made by this Court Mr. Sarma is not able to show anything in the said minutes regarding consideration of the case of the petitioner. The admitted facts of the case regarding the initial appointment of the petitioner and his promotion to the further Grade of DEEO on 24.09.2004 would certainly require consideration of the case of the petitioner for promotion to the rank of Deputy Inspector of Schools which he otherwise appear to be eligible. Non consideration appears to be ex-facie illegal and arbitrary. As has been laid down by various pronouncement, promotion is of cherished right and legitimate expectation of an employee and every employee is entitled to a fair consideration for such promotion subject to his eligibility.
14. In this case, no question has been raised on the eligibility of the petitioner for being promoted to the rank of Deputy Inspector of Schools in the exercise carried out in the year 2009. Without even going to the subsequent exercise of 2014, which is not the subject matter of the writ petition, this Court feels that the interest of justice would be served if the case of the petitioner is directed to be re-consider by constituting a review DPC. The fact that the petitioner has retired in the meantime would have no bearing because the entitlement of the petitioner has to be examined from the year 2009 when the exercise for promotion to the Page No.# 9/9 rank of Deputy Inspector of Schools was carried out. The aforesaid direction is based on the guidelines laid down in the case laws cited by on behalf of the petitioners.
15. This writ petition is accordingly disposed of by directing the respondent No.1 to constitute a review DPC to examine the case of the petitioner as per law for promotion to the rank of Deputy Inspector of School in the same line in which such exercise was carried out in the year 2009 culminating in the order of 15.10.2009. In the event, the petitioner is found to be eligible for promotion, he should be given notional benefit of such promotion considering the fact that the petitioner has retired from service in the meantime.
16. The aforesaid exercise should be carried out and completed within a period of three months from today and the outcome should be communicated to the petitioner.
17. This writ petition is accordingly disposed of.
JUDGE Comparing Assistant