Gauhati High Court
Satyaban Talukdar vs The State Of Assam And 2 Ors on 22 August, 2023
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/12
GAHC010053342022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1964/2022
SATYABAN TALUKDAR
S/O- LATE HEM CHANDRA TALUKDAR, R/O- PURAN BARKA SATRA, P.O-
KHUDRA DEMOW,
P.S- RANGIA, DIST- KAMRUP
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP,. BY THE COMMISSIONER AND SECRETARY, GOVERNMENT OF
ASSAM, REVENUE (DISASTER MANAGEMENT) DEPARTMENT
DISPUR, GUWAHATI-781006
2:THE COMMISSIONER AND SECRETARY
GOVERNMENT OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-781006
3:THE DEPUTY COMMISSIONER
KAMRUP
AMINGAON
GUWAHATI
ASSA
Advocate for the Petitioner : MR P KATAKI
Advocate for the Respondent : SC, FINANCE
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 22.08.2023 Heard Mr. P. Kataki, learned counsel for the petitioner, Mr. J. Handique, learned counsel for respondent no.1, Mr. P. Nayak, learned standing counsel for the Finance Department, appearing for respondent no.2 as well as Mr. T.C. Chutia, learned Addl. Senior Govt. advocate appearing for respondent no.3.
2. By filing this amended writ petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 13.03.2019 passed by the Deputy Commissioner, Kamrup, Amingaon (respondent no.3), fixing the date of 01.10.2015 as the date from which seniority to the petitioner to the post of Senior Assistant was given. The petitioner is seeking direction to the respondent authorities to consider his promotion w.e.f. 01.10.2005.
3. In brief, the case of the petitioner is that he was serving as Copyist in the establishment of Circle Officer, Rangia Revenue Circle, which was his substantive engagement. His service was regularized vide order dated 16.09.1988. It is projected that the petitioner was holding the charge of post of Senior Assistant of Rangia Revenue Circle w.e.f. 01.10.2005 due to retirement vacancy of the earlier incumbent, and had rendered service till 2009. Claiming entitlement to promotion to the post of Copyist-cum-LDA, the petitioner had approached this Court by filing WP(C) 137/2009 and this Court by order dated 18.08.2015, allowed the writ petition. The relevant paragraphs 12 to 24 is quoted below.
"12. It is not disputed that petitioner is serving as Copyist in the Page No.# 3/12 establishment of respondent No. 5. This is his substantive engagement.
13. It is also not disputed that during his long service career as Copyist, he has been allowed to hold additional charge of LDA. But the fact remains that there has been no substantive promotion of the petitioner to the post of LDA.
14. It is a settled proposition of law that in the absence of statutory service rules governing the service conditions of a group of employees, the draft service rules can be acted upon.
15. Mr. Borkataki, learned counsel for the petitioner has contended that the draft Assam District Copyist Establishment Service Rules, 1991 has been acted upon by the State in affecting promotion of Copyist. This has not been denied or disputed by the respondents.
16. As per Rule 2 (4) of the 1991 Rules, "District Establishment " has been defined to mean and includes all Copyist in the Offices of the Deputy Commissioner, Sub-Divisional Officers, Sub-Deputy Collectors and Block Development Officers of the District. The service i.e. Assam District Copyist Establishment Service comprises of two cadres of posts i.e. Copyist cum-LDA and Copyist. Both the cadres have been conferred the status of Class-III non-gazetted ministerial service. Rule 6 provides for promotion from Copyist to Copyist-cum- LDA. Eligibility criteria is that one must be a matriculate or equivalent examination pass and having rendered minimum 5 years of continuous service in the District Establishment as a Copyist.
17. As already noticed above, petitioner had fulfilled the eligibility criteria for promotion at least from Copyist to Copyist-cum-LDA long back but has not received any consideration for such promotion.
18. In Council of Scientific & Industrial Research Vs. KGS Bhatt reported in (1989) 4 SCC 635, the Hon'ble Supreme Court observed that an organization does not hire a hand but engages or employees a whole man. A person is recruited not just for a job but for a whole career. Therefore, every management/organization should provide realistic opportunity to its employees for promotion.
19. Proceeding further, the Hon'ble Supreme Court in the subsequent decision in FCI & Ors. Vs. Parashotam Das Bansal & Ors. reported in (2008) 5 SCC 100 has held that when employees are denied opportunity of promotion for long years on the ground that they fell within a category of employees excluded from promotional prospect, the superior Court will have the jurisdiction to issue necessary direction. If there is no channel of promotion, the jurisdiction to issue direction to make a scheme providing for promotion cannot be denied to a superior Court of the country.
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20. In Union of India Vs. Hemraj Singh Chauhan & Ors. reported in (2010) 4 SCC 290, the Apex Court has held that the right to be considered for promotion has virtually been elevated to the status of a fundamental right under Article 16 of the Constitution.
21. Viewed in the above context, denial of any promotional avenue of the petitioner since his entry into service as Copyist in the late 1980's is clearly unreasonable and wholly unjustified. In such circumstances, Court is of the view that the respondents should immediately take up the case of the petitioner for promotion to the post of Copyist-cum-LDA under the 1991 Rules, if necessary by antedating such promotion from a date when petitioner become eligible for promotion and subject to availability of vacancy in the higher cadre of Copyist- cum-LDA. Once this exercise is complete, petitioner would come within the ambit of the 1967 Rules in the lower rank of LDA and then would be entitled to a consideration for further promotion to the higher cadre of UDA, subject of course to fulfillment of the eligibility criteria.
22. Ordered accordingly.
23. Let the whole exercise as directed above be carried out within a period of 4 (four) months from the date of receipt of a certified copy of this order.
24. Writ petition is accordingly allowed."
4. The learned counsel for the petitioner has submitted that the respondent no.3, by an order dated 13.07.2016, had promoted the petitioner to the vacant post of Senior Assistant of Kayan Revenue Circle with effect from the date of joining. The said order was challenged by the petitioner by filing WP(C) 194/2017, and this Court by order dated 11.12.2018 accepted the submissions made by the learned counsel for the petitioner that the effective date of promotion should have been ante dated in terms of order of this Court dated 18.08.2015 passed in WP(C) 137/2009. Paragraph 6 to 8 of the said order is quoted below.
"6. Learned counsel for the State however, submits that promotion cannot be given unless there is vacancy available. It has been submitted that the petitioner seems to have been given promotion on the basis of vacancy arising on 30.09.2015 upon retirement of one Abdul Aziz, Senior Assistant working at Kayan Revenue Circle. However, learned counsel for the State submits that if vacancies Page No.# 5/12 were available earlier, the Government can consider his case for promotion.
7. This Court is also of the view that under normal circumstances, retrospective promotion cannot be given unless it is a case of deliberate denial of promotion in spite of existence of vacancies.
Thus, in the event of non-availability of vacancy, the question of unfair denial of promotion cannot arise.
8. Accordingly, in the facts and circumstances of the case, this Court is of the view that the present petition can be disposed of with a direction to the writ petitioner to submit a detail representation claiming promotion to the post of Senior Assistant from an earlier date which shall be considered by the authorities subject to availability of vacancy on such an earlier date. The exercise shall be undertaken by the respondent authorities within a period of 2 (two) months from the receipt of the representation to that effect filed by the petitioner."
5. It has been submitted that the said two orders of the Court was not implemented and therefore, the petitioner had approached this Court by filing Cont.Cas(C) 306/2019 and this Court by order dated 21.01.2020, permitted the petitioner to withdraw the petition with liberty to approach the Court again to challenge the order dated 13.03.2019.
6. The learned counsel for the petitioner has referred to a communication dated 05.01.2021 by the Deputy Commissioner, Kamrup, Amingaon, addressed to the Secretary to the Govt. of Assam, Revenue and DM (LR) Department, wherein it has been stated that the petitioner had been entrusted with the charge of Senior Assistant of Rangia Revenue Circle w.e.f. 01.10.2005 due to vacancy that had arisen due to retirement of Shri Kashi Nath Kalita, the then Senior Assistant, Rangia Revenue Circle on superannuation. Accordingly, it is submitted that the stand of the respondents that there was no vacancy w.e.f. 01.10.2005 was not acceptable because in the affidavit-in- opposition filed by the respondents, the respondent no.3 had not disclosed the date when the post held by Kashi Nath Kalita was filled up. Hence, it is Page No.# 6/12 submitted that in compliance of the previous orders of this Court passed in WP(C) 137/2009 and WP(C) 194/2017 is required to be given effect to and therefore, this was a fit case for issuing a direction upon the respondent authorities, particularly the respondent no.3 to give promotion to the petitioner as Senior Assistant w.e.f. 01.10.2005.
7. The learned Addl. Senior Govt. advocate has submitted that the consistent stand of the State respondent in the proceedings of WP(C) 194/2017 was to the effect that there was no vacancy available earlier and therefore, the petitioner was given the benefit of promotion only when the vacancy arose on 30.09.2015 on retirement of one Abdul Aziz, Senior Assistant working in the Kayan Revenue Circle.
8. It has further been submitted that in paragraph 16 of the judgment dated 18.08.2015, passed by this Court in WP(C) 137/2009, this Court had taken note of the fact that the service under the Assam District Copyist Establishment Service Rules, 1991 (which is still in draft stage), comprises of two cadres of posts i.e. Copyist-cum-LDA and Copyist and that Rule-6 provided for promotion from Copyist to Copyist-cum-LDA, and thereafter, this Court had provided that the respondent should take up the case of the petitioner for promotion to the post of Copyist-cum-LDA under the 1991 Rules, if necessary any ante dating such promotion from a date when petitioner became eligible for promotion and subject to availability of vacancy in the higher cadre of Copyist- cum-LDA, by further providing that once this exercise is complete, the petitioner would come within the ambit of the Assam Ministerial District Establishment Service Rules, 1967 in the lower rank of LDA and then would be entitled to a consideration for further promotion to the higher cadre of UDA, subject to fulfillment of the eligibility criteria. In the said context, it was submitted that by Page No.# 7/12 the order dated 13.07.2016, the respondent no.3 instead of promoting the petitioner to the post of Copyist-cum-LDA, had promoted the petitioner to the higher post of Senior Assistant by bypassing the intervening post of Junior Assistant under the 1967 Rules. It is also submitted that the post of Junior Assistant and Senior Assistant is not envisaged under the draft Assam District Copyist Establishment Service Rules, 1991.
9. In support of his submissions that unless there is a vacancy which is available, the challenge of promotion cannot be ante dated, the learned Addl. Senior Govt. advocate has cited the case of Nirmal Chandra Sinha Vs. Union of India and Ors., (2008) 14 SCC 29. The relevant paragraphs 3 to 11 of the said judgment is quoted below.
"3. Appellant Nirmal Chandra Sinha belongs to the Indian Railway Service of Mechanical Engineers (IRSME) having been appointed on 2.5.1958. When his turn came for consideration for promotion as General Manager, he was working as Chief Mechanical Engineer of Southern Eastern Railway. He was promoted to the post of General Manager on 29.11.1996. He claimed notional promotion w.e.f. 13.3.1996 with consequential benefits. His O.A. was rejected by the Central Administrative Tribunal, but against that order he filed a writ petition which was partially allowed by the High Court.
4. Against the aforesaid judgment of the High Court appeals were filed both by appellant Nirmal Chandra Sinha as well as the Union of India.
5. In the appeal filed by appellant Nirmal Chandra Sinha, the ground taken was that the High Court partially allowed the writ petition by giving him notional promotion as General Manager w.e.f. 13.3.1996 with consequential benefits, but the High Court has wrongly rejected his prayer that he should be senior to the contesting private respondent Nos. 3 & 4. On the other hand, in the appeal filed by the Union of India it was alleged that the High Court wrongly directed that appellant Nirmal Chandra Sinha should be notionally promoted as General Manager w.e.f. 13.3.1996 with consequential benefits.
6. We are of the opinion that the appeal of appellant Nirmal Chandra Sinha being Civil Appeal No. 8058 of 2001 deserves to be dismissed while the appeal Page No.# 8/12 filed by the Union of India being Civil Appeal No. 8059/2001 deserves to be allowed.
7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India and others vs. K.K. Vadera and others 1989 Supp (2) SCC 625, State of Uttaranchal and another vs. Dinesh Kumar Sharma 2007 (1) SCC 683, K. V. Subba Rao vs. Government of Andhra Pradesh 1988(2) SCC 201, Sanjay K. Sinha & others vs. State of Bihar and others 2004 (10) SCC 734 etc.
8. Learned counsel for appellant Nirmal Chandra Sinha, however, relied on a decision of this Court in Union of India vs. B.S. Agarwal and another 1997 (8) SCC 89. We have carefully perused the decision and we are of the opinion that the said decision is distinguishable. In that case the facts were that, under the relevant rule for promotion as General Manager it was necessary to have at least two years' tenure on the lower post. The respondent did not actually have two years' tenure, yet this Court held that he was eligible for promotion since he had been empanelled and the vacancy on which he should be promoted had occurred before two years of his consideration for promotion.
9. In our opinion, the aforesaid decision in Union of India vs. B.S. Agarwal (supra) was given on the special circumstances of that case and on humanitarian considerations, but it cannot be said to be a precedent for other cases. When the rule requires two years' actual service in the lower post before a person can be considered for promotion as General Manager, that rule cannot be violated by considering a person who has not put in two years' service in the lower post.
Moreover, in the aforesaid decision in Union of India vs. B.S. Agarwal (supra), the respondent had not actually been promoted as General Manager, but he only claimed that he was eligible to be considered for promotion as General Manager. This fact also makes the aforesaid decision distinguishable.
10. In the present case, appellant Nirmal Chandra Sinha was promoted as General Manager on 29.11.1996, but he claims that he should be deemed to have been promoted w.e.f. 13.3.1996 with consequential benefits. We are afraid this relief cannot be granted to him. It is settled law that the date of occurrence of vacancy is not relevant for this purpose.
11. For the reasons given above, the impugned judgment is set aside. Civil Appeal No. 8058 of 2001 is dismissed and Civil Appeal No. 8059 of 2001 stands allowed. There shall be no order as to costs."
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10. Accordingly, referring to the above cited case, it is submitted that it is well settled law in service prudence that a promotion would take effect from the date being granted and not from the date of vacancy or creation of post. In other words, the submission of the learned Addl. Senior Govt. advocate to the effect that previous orders of the Court was not compliable in view of the law laid down in the case of Nirmal Chandra Sinha (supra).
11. In the considered opinion of this Court, the observations and finding of this Court recorded in paragraph 21 of order dated 18.08.2015 passed in WP(C) 137/2009 culls out a case where this Court had accepted the contention of the petitioner that ever since his entry into the service as copyist, he has been denied promotion. Therefore, this Court had directed that the case of the petitioner be taken up for promotion to the post of Copyist cum LDA under the Assam District Copyist Establishment service Rules, 1991. Therefore, this is not a case of usual promotion in due course, but here is a case that the petitioner is found to be deprived of any promotional avenue and therefore, direction was issued to ante date his promotion.
12. The State respondents had allowed the order of this Court dated 18.08.2015 passed in WP(C) 137/2009 as well as order dated 11.12.2018 passed in WP(C) 194/2017 to attend finality without any challenge to those two orders. Therefore, on the said facts, the Court finds that the present case in hand is to be distinguishable on facts of the case of Nirmal Chandra Sinha (supra).
13. Therefore, as the orders passed in WP(C) 137/2009 as well as in WP(C) 194/2017 having not been assailed, the State respondents were obliged to comply with the directions contained in the said two orders. Accordingly, it appears that the respondent no.3 i.e. the Deputy Commissioner, Kamrup, Page No.# 10/12 Amingaon had promoted the petitioner from the substantive post of Copyist to the post of Senior Assistant vide order dated 13.07.2016. Therefore, the petitioner had been promoted by two ranks, viz. (1) Copyist-cum-LDA, (2) Junior Assistant. Therefore, the Court is of the considered opinion that in view of the consistent stand of the respondents that there was no vacancy in the post of Senior Assistant, there is no scope of ante dating the effective date of promotion of the petitioner to the post of Senior Assistant w.e.f. 01.10.2005. The petitioner has not been able to show that the respondent no.3 could have ignored the order of this Court dated 18.08.2015 passed in WP(C) 137/2009 to first promote the petitioner to the post of Copyist-cum-LDA, then to bring the petitioner under the ambit of 1967 Rules and place him in the lower rank of LDA (now Junior Assistant) and only then considering him for promotion to the higher cadre of Senior Assistant. Therefore, in the considered opinion of the Court, the petitioner, having been promoted directly to the post of Senior Assistant vide order dated 13.07.2016, it would be an unnecessary exercise to direct the respondent authorities to formally promote the petitioner to the post of Copyist-cum-LDA and then to bring the petitioner to the cadre of LDA under the 1967 Rules and then again to promote him to the post of Senior Assistant (earlier UDA).
14. Moreover, the exercise as referred hereinbefore cannot be ordered because the petitioner has not made a positive response that in the writ petition as to where the post of Copyist-cum-LDA was vacant on 01.10.2015 and correspondingly one post of LDA (Junior Assistant) under the 1967 Rules was also vacant as on 01.10.2015. Merely because in the affidavit filed by the respondent no.3, they have not disclosed as to the date when the post of Kashi Nath Kalita was filled up, would not lead to a presumption that the said post Page No.# 11/12 was lying vacant. Moreso, because as on 01.10.2015, the petitioner cannot be said to be eligible to be promoted to the post of Senior Assistant under the 1967 Rules.
15. There would be some genuine logistic problem in accepting the prayer of the petitioner as made in this writ petition because in order to comply with the previous orders of this Court, the respondent no.3 would first be required to consider the candidature of the petitioner for promotion to the post of Copyist- cum-LDA under the draft 1991 Rules. Thereafter, the petitioner would be brought into the ambit of 1967 Rules and to place the petitioner as LDA (Junior Assistant). Therefore, the respondent no.3 would have to first do that exercise, which would again be subject to availability of the vacant post of LDA (Junior Assistant) in his establishment and then to consider his case for promotion to the post of Senior Assistant. The said exercise, if ordered would be done in the present, is likely to create some administrative problem because of the fact that the petitioner has already been promoted to the post of Senior Assistant by order dated 13.07.2016. Before doing the said exercise, the respondent no.3 would have to keep in oblivion the effect of the said promotion order dated 13.07.2016. Therefore, the exercise as proposed by the petitioner would create a lot of disturbance in the well settled position. Moreover, it is a well settled proposition that on the normal circumstances, in the event of non-availability of vacancy, the question of unfair denial of promotion cannot be agitated. Therefore, in the event the petitioner is placed in the rank of Junior Assistant in the establishment of respondent no.3 and thereafter, it is found that the stand of respondent no.3 in his affidavit-in-opposition is correct that there was no vacancy in the promotional post, the entire exercise would be an exercise in futility.
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16. Therefore, in the considered opinion of this Court, the prayer of the petitioner to quash the impugned order dated 13.03.2019, thereby dismissing the representation of the petitioner which was submitted pursuant to order dated 11.12.2018 passed by this Court in WP(C) 194/2017 is not tenable and therefore, the said prayer is rejected. Consequently, the prayer of the petitioner to direct the respondent authorities, particularly the respondent no.3 to give promotion to the petitioner as Senior Assistant w.e.f. 01.10.2005 is also rejected. Accordingly, the writ petition stands dismissed.
17. The parties are left to bear their own cost.
JUDGE Comparing Assistant