Judgment · High Court · 2012

I have heard Mr. M. Chanda, learned counsel for the petitioner as well a s Mr. N. Choudhury, learned counsel representing the respondents No. 2 to 6. I h ave also heard Mr. J.M.A. Choudhury, learned CGC, representing the Union of Indi a i.e. the respondent No. 1. I have also considered the relevant materials on re cord including the minutes of the DPC forming subject matter of dispute. As per the Recruitment Rule, the promotion to the post of Assistant Dire 3. ctor is effected from amongst the diploma and degree holders. For diploma holder s, the requirement is 5 years experience in the feeder grade and for degree hold er, the requirement is 3 years experience. 50% post of Assistant Director are re quired to be filled up by promotion and the balance 50% by direct recruitment. T he petitioner became eligible for promotion in March, 1996 on completion of requ ired length of service in the feeder grade. At that relevant point of time, tota l cadre strength of Assistant Director was 9 (7 permanent and 2 temporary). It i s on record that as against 9 posts there were 10 incumbents holding the post of Assistant Director.

Certain vacancies occurred in the cadre of Assistant Director in the yea r 1995, 1997 and 1998 due to the resignation tendered by three Assistant Directo r. The claim of the petitioner for consideration of his case is against those va cancies. According to the petitioner, since he had become eligible for promotion in March, 1996, his case ought to have been considered against one of those vac ancies.

It is on record that the case of the petitioner was considered for promo tion in 2001, but the DPC having not recommended his case, he could not be promo ted. As noted above, he has now been promoted by order dated 6.1.2011.

In the counter affidavit filed by the respondents, the case projected by the petitioner in the above manner has been dealt with, particularly in paragra ph 10. The three vacancies about which the petitioner has mentioned in the writ petition arose on 24.11.1995; 26.5.1997 and 18.4.1998, when three Assistant Dire ctor resigned from service. As noted above, the total cadre strength of Assistan t Director at that relevant point of time was 9 (7 permanent and 2 temporary). T wo posts pf Assistant Hydrographic Surveyor were converted to Assistant Director on temporary basis as per the approval accorded by the Board in its 31st meetin g held on 29.10.1992. In the counter affidavit, the respondents have stated that against 9 posts of Assistant Director, there were 10 incumbents in position. The affidavit further states that when the petitioner became eligible fo 7. r consideration for promotion in March, 1996 on completion of three years regula r service in the feeder grade, there were no vacant post of Assistant Director t o consider his case. All the aforesaid three vacancies although were there, but two temporary posts of Assistant Director indicated above had been re-allocated to the Survey Wing and the 3rd post was adjusted against the excess incumbent ho lding the post of Assistant Director.

In view of the above position, the case of the petitioner could not be c onsidered, as there was no vacancy. The next DPC was held on 27.3.2001 when 4 mo re posts of Assistant Director were sanctioned by the Government on 20.11.2000 b ased on the recommendation of the Staff Inspection Unit. Another three vacancies of Assistant Director also arose on 26.4.2001 when incumbents Assistant Directo r had been promoted to the post of Deputy Director. Against the said 7 vacancies , 3 were appointed by direct recruitment and 4 were promoted. At that relevant p oint of time, the seniority position of the petitioner was at serial No. 6. In t his connection, the respondents have annexed the Annexure-4 seniority list dated 6.2.1996. Pursuant to the DPC that was held in March, 2001, the officers above the petitioner were found suitable for promotion and they had been promoted. In between the petitioner had approached the Patna High Court by filing a writ peti tion, which was registered and numbered as CWJC No. 2872/2001. The writ petition was disposed of by order dated 1.3.2001 with the direction to the respondents t o consider the representation that was filed by the petitioner. In the counter a ffidavit, the respondents have stated that pursuant to the said direction of the Patna High Court, the representation made by the petitioner was disposed of rej ecting the claim of the petitioner for retrospective promotion.

It appears that after disposal of the earlier writ petition filed by the petitioner in the above manner, the petitioner made series of representations t o the respondent authority, the last one being on 28.1.2004. In the meantime, on e of the respondents was also promoted in the year 2002. The petitioner has chal lenged the promotion orders of 2001 and 2002.

Since the instant proceeding was initiated in 2004, we are not concerned in this proceeding as to what has transpired after filing of the writ petition on 17.3.2004. The petitioner has also not brought on record anything to agitate his grievance in respect of any denial of promotion during the period from the d ate of filing of the writ petition upto the date of granting him promotion by th e aforesaid order dated 6.1.2011. The issue, which falls for consideration of th is Court is as to whether the petitioner was deprived of consideration for promo tion on attaining the eligibility in March, 1996 and thereafter.

As noted above, the cadre strength of the posts of Assistant Director at that relevant point of time was 7 (permanent). However, 2 temporary posts were converted to Assistant Director making the total cadre strength 9. As against th e said total cadre strength 10 incumbents were there which resulted in 1 excess incumbent. Two out of the 3 vacancies that arose on 24.11.1995, 25.6.1997 and 18 .4.1998 due to resignation tendered by three officers had to be adjusted by re-a llocation to Survey Wing from which they were brought to the cadre of Assistant Director by temporary conversion. The 3rd post was adjusted against the excess i ncumbent against the 10th post of Assistant Director. Thus, there was no vacant post to consider the case of the petitioner and for that matter any of the incum bents in the feeder cadre of Technical Assistant.

Vacancies arose only in 2000 and 2001, about which, mention has been mad e above and the case of the petitioner was considered against 4 promotional vaca ncies along with other incumbents. Admittedly his seniority position at that poi nt of time was at serial No. 6. It is on record that 4 incumbents who occupied h igher seniority position above the petitioner had been promoted. Mr. M. Chanda, learned counsel for the petitioner submits that the respo 13. ndents have not disclosed the correct position in stating that 3 vacancies refer red to above had to be adjusted by re-allocation and adjustment of the excess in cumbent Additional Director. According to him, those vacancies were available to wards consideration of the case of the petitioner. He submits that the re-alloca tion and adjustment had been made only against 4 promotional vacancies that aros e in 2000/2001. However, there is no material particulars disclosed either in th e writ petition or in the reply affidavit to appreciate the said stand. This Cou rt cannot proceed on hypothesis, but will have to adjudge the matter on definite pleadings and on disclosure of substantive materials.

Mr. Chanda, learned counsel for the petitioner has also argued that sinc e the promotion involved selection, the respondents could not have granted promo tion to the respondents No. 7, 8 and 9 only on the basis of their seniority posi tion above the petitioner. Mr. N. Choudhury, learned counsel representing the re spondents, on the other hand, submits that the DPC recommended the promotion app lying the test of selection. In this connection, he has referred to the minutes of the selection, on perusal of which, it is found that the DPC did consider the case of the incumbents including that of the petitioner applying the test of se lection and after going through their service records, experience, seniority etc .

Although, it has been argued by Mr. Chanda, learned counsel for the peti tioner that in absence of any reason assigned in the said minutes and there bein g no reference to the ACRs etc., the promotion effected on that basis are not su stainable in law, but, in absence of any requirement of recording specific reaso ns in the Recruitment Rules, the said submission made by the learned counsel for the petitioner cannot be accepted. Further with the passage of time, the petiti oner cannot be allowed to develop his case without there being any pleadings to that effect. I am satisfied that the DPC applied its mind towards consideration of the case of the incumbents including that of the petitioner. It is not a case of exclusion of the case of the petitioner from the purview of consideration, b ut his case was also considered applying the test of selection.

For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly, it is dismissed. However, there shall be no order as to cos ts.