Meghalaya High Court
The Union Of India & Ors. vs . Kumar Keshab Kalita on 1 October, 2021
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 03 HIGH COURT OF MEGHALAYA
Regular List AT SHILLONG
WA No. 58 of 2017
Date of order: 01.10.2021
The Union of India & Ors. Vs. Kumar Keshab Kalita
Coram:
Hon'ble Mr. Justice Biswanath Somadder, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. R. Debnath, CGC
For the Respondent(s) : Mr. Philemon Nongbri, Adv.
i) Whether approved for Yes/No
reporting in Law journals etc.:
ii) Whether approved for publication Yes/No
in press:
JUDGMENT:(per the Hon'ble, the Chief Justice) (Oral) This appeal arises in respect of a judgment and order passed by a learned Single Judge on 20th May, 2014, in WP(C) 358 of 2010 (Kumar Keshab Kalita vs. Union of India & others).
The appellants before us are the Union of India, the Director General, Assam Rifles and two other authorities of Assam Rifles.
By the impugned judgment and order, the learned Single Judge proceeded to allow the writ petition in part, with certain directions. Before we proceed to dwell upon the impugned judgment and order, the brief facts of the instant case are required to be taken note of:-
The respondent/writ petitioner was enrolled on 21st December, 1985, as Rifleman General Duty (Rfn/GD) and thereafter, remustered to the post of Havildar Store Keeper Technical (Engineer) in the month of August, 1997. The next promotional post of Havildar Store Keeper Technical (Engineer) is Naib Subedar SKT (Engineer). It is an Page 1 of 6 admitted case of the parties that as per the Assam Rifles Recruitment Amendment Rules, 2009, a new recruitment process has been implemented for promotion from the post of Havildar Store Keeper Technical (Engineer) to Naib Subedar SKT (Engineer). The post of Naib Subedar SKT (Engineer) is a cent per cent promotional post, and the Havildar Store Keeper Technical (Engineer) having minimum service of 5 (five) years as Havildar Store Keeper Technical (Engineer) together with a total of 18 (eighteen) years of service and passed Map Reading Standard II and Technical Trade Test I is eligible for promotion. It is stated that the respondent/writ petitioner had successfully completed Map Reading Standard II and also successfully completed the Technical Trade Test II. It is further case of the respondent/writ petitioner that inspite of successfully completed the Technical Trade Test III as early as 2003, he was not sent for undergoing Technical Trade Test II. It may be pertinent to mention that for undergoing Technical Trade Test I, the concerned Havildar Store Keeper Technical (Engineer) should have successfully completed firstly the Technical Trade Test III and secondly, Technical Trade Test II. The respondent/writ petitioner had successfully completed the Technical Trade Test II on 22nd March, 2010, and also completed the Technical Trade Test I on 22nd June, 2010.
It is the further case of the respondent/writ petitioner that he was denied the opportunity of undergoing Technical Trade Test II while his juniors had been deputed for undergoing Technical Trade Test I and as a result, further promotion to the post of Naib Subedar SKT Page 2 of 6 (Engineer) was denied to him. The respondent/writ petitioner had filed many representations to the concerned authority for sending him to undergo Technical Trade Test II and I. In support of this fact, the respondent/writ petitioner also annexed the copies of the representations. It is a fact that at the time of holding the DPC on 15th July, 2009, the respondent/writ petitioner was not eligible for promotion to the post of Naib Subedar SKT (Engineer). Before deciding the matter finally, the learned Single Judge called for filing of affidavits and the stand of the respondents before the writ Court (being the appellants herein), as spelt out in the impugned judgment and order, reads thus;
"5. The respondents filed joint affidavit-in-opposition wherein, had clearly stated that the petitioner was not eligible for promotion to the pot of Naib Subedar SKT (Engineer) at the time of holding the DPC on 15.07.2009. The respondents in their affidavit-in-opposition further stated that the petitioner will be promoted to the next higher rank of Naib Subedar SKT (Engineer) in his turns subject to availability of vacancy. This Court vide order dated 18.03.2014 directed the respondents to file additional affidavit mentioning the particulars of the vacancies in the post of Naib Subedar SKT (Engineer) arising after the last DPC i.e. 15.07.2009.
6. The respondents filed joint additional affidavit dated 01.05.2014 wherein, it is stated "that the writ petitioner had acquired the Qualitative Requirement (QR) for promotion in March 2010 but could not be promoted to the rank of Naib Subedar/Store Keeper Technical (Engineer) due to the non-availability of vacancy in the said rank. That from September, 2011 till date 02 (two) vacancies had occurred 01 (one) in the unreserved category and 01 (one) in the reserved category meant for Scheduled Tribe (ST) candidates and 02 (two) Hav/SKT (Engr) viz; Hav/SKT (Engr) Mathai PC from the unreserved category and Hav/SKT (Engr) L Seimang from Scheduled Tribe (ST) category had been promoted with effect from 01 September 2011 and 01 November 2011 respectively." It appears from the additional affidavit filed by the respondents that there was only one vacancy in the post of Naib Subedar SKT (Engineer) in the unreserved category and against that unreserved category one Shri. Mathai PC i.e. Havildar Store Keeper Technical (Engineer) had already been promoted".Page 3 of 6
The learned Single Judge in the impugned judgment and order at the very outset observed, inter alia, to the effect that the Court had full sympathy for the respondent/writ petitioner in the given case but because of hard fact that he was not eligible at the time of consideration for promotion to the post of Naib Subedar SKT (Engineer), by the duly constituted DPC held on 15th July, 2009, the relief sought for in the writ petition could not be granted in full.
The operative portion of the impugned judgment and order reads as follows:-
"7. It is very clear from the inter-se seniority lists of the Havildars Store Keeper Technical (Engineer), the said Shri. Mathai PC, Havildar Store Keeper Technical (Engineer) is senior to the petitioner inasmuch as his seniority position is at Srl.No.11 while the seniority position of the petitioner is at Srl.No.17. In the additional affidavit filed by the respondents, it is also stated that for the one vacancy in the post of Naib Subedar SKT (Engineer), arisen after the last DPC i.e. 15.07.2009, the petitioner is not in the zone of consideration. It is very clear in the given case that the petitioner had been denied for consideration to the next higher post of Naib Subedar SKT (Engineer) because of the failure on the part of the respondents to send him to undergo the training for Technical Trade Test I. But at the same time, the Court cannot direct the respondents to promote the ineligible persons to the next higher post. In the given case, this writ petition is disposed of by directing the respondents to consider the case of the petitioner definitely for promotion to the next higher post of Naib Subedar SKT (Engineer) as soon as vacancy arises in the post of Naib Subedar SKT (Engineer).
8. In the peculiar facts and circumstances of this case, if the petitioner is promoted to the next higher post of Naib Subedar SKT (Engineer), his promotion should be w.e.f. Shri. Mathai PC, Havildar Store Keeper Technical (Engineer) was promoted to the post of Naib Subedar SKT (Engineer).
9. With the above observations and directions, this writ petition is disposed of".
The only significant issue of the appellants as raised before us appears to be the direction given by the learned Single Judge in favour of the respondent/writ petitioner to give him promotion with retrospective Page 4 of 6 effect. That the respondent/writ petitioner had been wronged, could be a factor which weighed in the mind of the learned Single Judge. It also appears to be based on a broad conspectus of relevant facts which were duly considered by the learned Single Judge.
We are, however, of the view that if the respondent/writ petitioner is considered for promotion to the next higher post of Naib Subedar SKT (Engineer), his promotion cannot be given to him with retrospective effect. The wrongdoing, if any, on the part of the concerned authority cannot be compensated in such a manner. At first, it has to be translated into damages and is thereafter required to be quantified by a competent Civil Court. The writ Court, which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent/writ petitioner on account of wrongdoing, if any, on the part of the concerned authority.
We, therefore, modify the impugned judgment and order only to the extent that in the event, the respondent/writ petitioner is promoted to the next higher post of Naib Subedar SKT (Engineer), he will be at liberty to approach a competent Civil Court claiming damages against the concerned authority for its wrongdoing, if any, the fate of which shall be decided strictly in accordance with law and not based on any observation made herein. We further observe that in the event, the respondent/writ petitioner has entered the zone of consideration for the next higher post of Naib Subedar SKT (Engineer), the concerned authority shall take a decision thereon, without any further delay, taking into consideration the fact that he Page 5 of 6 has a judgment and order passed partly in his favour, way back in May, 2014, i.e., more than seven years ago.
The writ appeal stands disposed of accordingly.
(W. Diengdoh) (Biswanath Somadder)
Judge Chief Justice
Meghalaya
01.10.2021
"Sylvana PS"
Page 6 of 6