Sri Subrata Deb v. Sri Kamal Kumar Mitra

The instant writ petition is filed by the petitioner, Sri Subrata Deb, a Researc h Assistant, working under the Director of Social Welfare, Assam for issuance of writ of certiorari by quashing the Notification No.SWD.25/2000/140 dated 24.12. 2003, whereby and whereunder the respondent No.3, Sri Kamal Kumar Mitra was prom oted to the post of Superintendent along with another person, Sri Dhirendra Baru a, who has already been retired from service and the Notification No.SWD.25/2000 /152 dated 09.01.2004, whereby and whereunder one Sri Bidyut Kumar Gupta was pro moted to the post of Superintendent in the vacant post of Sri Dhirendra Baruah, since retired, and also to promote him to the post of Superintendent. Heard Mr. S. S. Dey, learned counsel appearing for the petitioner and Mr. B Chet ri, learned Sr. Govt. Advocate appearing for the State respondents. The brief facts, require to be discussed, are as follows:- The petitioner was initially appointed to the post of Statistical Assistant in t he Office of the Director of Social Welfare, Assam on 06.08.1976 and thereafter he was promoted to the post of Research Assistant vide order dated 25.02.1985 gi ving effect from 05.03.1985 and accordingly, he had joined to the said post. Whi le the petitioner was working as Research Assistant, a provisional gradation lis t of Class-III and Class-IV employees was published and in the said list the nam e of the petitioner was shown at Sl. No. 1 against the post of Research Assistan ts and the name of respondent No. 3 was shown at Sl. No. 1 against the post of U D Assistants. It is also pleaded that the post of Superintendent has always been filled up on promotion from amongst the senior most Research Assistant on the b asis of seniority as the post of Research Assistant carries higher pay scale tha n the pay scale of UD Assistant. The post of Superintendent of the Directorate h as fallen vacant due to retirement of one Sri BC Sen and the said post was fille d up by way of promoting one Smt. Chhaya Deb, the senior most Research Assistant vide order No. DSW(E)/33/89/1 dated 19.09.1989 and the aforesaid Sri Sen was al so promoted to the post of Superintendent from the feeder post of Research Assis tant. The main contention of the petitioner in the instant writ petition is that thoug h the petitioner was holding the higher post than the post held by the responden t No. 3, a UD Assistant, he was not promoted to the post of Superintendent, rath er the respondent No. 3 was promoted to the post of Superintendent, which is not hing but violation of Articles 14 and 16 of the Constitution. It is the further case of the petitioner that though promotion itself is not a r ight of an employee, but consideration for promotion to a higher post is obvious ly a right and career progress in service is also a legal right, even not a fund amental right. In the instant case, the petitioner has completed more than 20 ye ars of service in the post of Research Assistant, but his case was not considere d by the Authority for career progress in service, though there is a promotional avenue. The respondent-State by way of filing an affidavit-in-opposition denied the cont ention of the petitioner, inter alia, that he was superseded by the respondent N o. 3, rather fact remains that the post held by the petitioner is not the feeder post for the post of Superintendent and thus his case could not be considered f or promotion to the post of Superintendent. It is the further case of the respon dents that on an earlier occasion the respondents committed irregularity by way of giving promotion to some of the Research Assistants to the posts of Superinte ndent and violated the provisions of the Recruitment Rules relating to promotion to the post of Superintendent. As per the Recruitment Rules, the post of UD Assistant is the feeder post for pr omotion to the post of Superintendent and the respondent No. 3 admittedly is an UD Assistant and he was rightly considered and promoted to the post of Superinte ndent. Rule 8 of the Assam Directorate Establishment (Ministerial) Services Rules, 1973 , relating to appointment to the post of Superintendent, states inter alia, that the appointment shall be made by the appointing authority on promotion on the b asis of seniority-cum-merit from amongst the in service UD Assistants, who have rendered not less than 7 years of service as UD Assistant on the year in which s election for promotion is made. Thus, the respondent No. 3 and another Sri Dhire ndra Barua were promoted to the posts of Superintendent as per provisions of the Recruitment Rules. It is finally contended in the affidavit-in-opposition that the prospect of prom oting the Research Assistant to the post of Superintendent on earlier occasion b y the Authority was illegal and irregular as per the Recruitment Rules and the r espondents had decided not to commit the same mistake again while considering th e promotion of respondent Nos. 3 and 4 as well as another UD Assistant, Sri Dhir endra Barua, since retired. Mr. Dey, learned counsel for the petitioner in his usual fairness submitted that the post of Research Assistant, which is being held by the petitioner is not th e feeder post for promotion to the post of Superintendent and admittedly the pos t of UD Assistant is a feeder post. As the respondents on earlier occasion promo ted some of the Research Assistants to the post of Superintendent, the petitione r has a legitimate expectation that he would also get the similar treatment, mor e so, though the petitioner has completed more than 20 years in the post of Rese arch Assistant, but his case was never considered by the authority for promotion to the post of Assistant Research Officer. Thus, it would be proper for the Cou rt to dispose of the writ petition with a simple direction to the State responde nts to consider the case of the petitioner for promotion to the post of Assistan t Research Officer, and if the said post is not available then, his case may be considered for promotion to any suitable post taking note of his present pay sca le. Mr. Chetri, learned Sr. Govt. Advocate while countering the submission of Mr. De y would contend that promotion to a particular post is not a substantive right o f an employee as the same depends on selection by the Selection Committee. He fu rther submits that right to get a particular position in the seniority list is n ot a vested right or accrued right of the employee. Obviously, an employee has a right to be considered for promotion subject to vacancy in the higher post is a vailable. He again contended that in the instant case, the respondent Nos. 3, 4 and another person namely, Sri Dhirendra Baruah were promoted to the post of Sup erintendent, as they were holding the feeder post of UD Assistant and also were in the zone of consideration, but admittedly the petitioner was not holding the feeder post of Superintendent. Thus he even has no right to claim for considerat ion for promotion to the said post. However, ultimately Mr. Chetri submits that as the petitioner has served the res pondent government for more than 20 years, let the matter be left to the governm ent for consideration. This Court has gone through the Rule 8 of the Recruitment Rules for the post of Superintendent and it appears that the posts of Research Assistant is not includ ed in the feeder post and not only that, from other documents, it also appears t hat the post of Research Assistant does not come within the Ministerial Staff ca dre like the UD Assistant. Therefore, the authority rightly did not consider the case of the petitioner while promoting the respondent Nos. 3 and 4. As on earlier occasion some of the Research Assistants were promoted to the post of Superintendent, that does not create a right in favour of the petitioner as by this time it is settled that any irregularity or illegality committed by the authority would not create a right for its employee for getting the same benefit . However, as the case of the petitioner has never been considered by the authorit y for career prospect, it would be proper for the court to direct the State resp ondent to consider the case of the petitioner for promoting him to the higher po st namely, the post of Assistant Research Officer, if otherwise he is not disqua lified. If the post of Assistant Research Officer is not vacant at present then the authority may consider the career prospect of the petitioner. Accordingly, i t is ordered. The entire exercise shall be completed within three months from today. Interim order, if any, stands vacated. With the above, the instant writ petition is disposed of. No costs.