High Court
Case Details
WP(C) 451/2008 BEFORE THE HON’BLE MR JUSTICE HRISHIKESH ROY Heard Mr. DK Sarmah, learned counsel appearing for the petitioner. The responden ts are represented by Mr. J Handique, learned Govt. Advocate. 2.
Legal Reasoning
The petitioner is serving as an Accountant in the Food, Civil Supplies & Consumer Affairs Branch under the Kamrup Dy. Commissioner Office. He challenges the order dated 17.2.2003 (Annexure-G) of the Director, Food & Civil Supplies ( for short the Director), whereby promotion was denied to the petitioner to the c adre of Sub-Inspector of Food & Civil Supplies on the ground that he did not qua lify for promotion. Under Rule 11(2) of the Assam Supplies Service (Amendment) R ules, 1989 (hereinafter referred to as ’the Service Rules’ ), 25% of the vacanci es in the cadre of Sub-Inspector of Food & Civil Supplies are to be filled up by promotion from amongst the Ministerial cadre i.e. L.D.As./Account Assistants et c., who have outstanding ability and have rendered minimum 5 years service in th e feeder cadre on the first day of the year in which the selection for promotion is made. 3. Through the letter dated 28.5.1990 (Annexure-A), the Director of Food & Civil Supplies started the process of promotion from ministerial cadre against t he 25% vacant posts of Sub-Inspector and particulars of the eligible feeder cadr e staff was requisitioned by the Director for placing the same before the Select ion Committee. As the petitioner who initially joined in a Grade-IV Post on 3.8. 1982 was promoted to the Grade-III post on 2.11.1992, had in the meantime acquir ed the qualifying service of 5 years as an L.D.A., he was expecting consideratio n by the Selection Committee. But the expected did not happen and accordingly th e aggrieved petitioner gave representation for consideration. 4. Thereafter another promotion exercise was undertaken through the letter dated 24.7.1996 (Annexure-E) of the Director but even on this occasion, the peti tioner’s promotion was not considered and the petitioner again gave representati on for his promotion. It may be noted herein that as the petitioner was promoted to the cadre of L.D.A. on 2.11.1992, he completed the required 5 years service on 2.11.1997. In this very year, he was posted as an Account Assistant on 7.2.19 87, but his joining as L.D.A. on 2.11.1992 is the relevant date as both L.D.As./ Account Assistants are in the feeder cadre for promotion to the post of Sub-Insp ector of Food & Civil Supplies. 5. Since promotion was denied repeatedly, the aggrieved petitioner filed th e Civil Rule No.627/1998 and while disposing of the case through the judgment da ted 23.9.2002 (Annexure-F), the following observation was made by the Court: (cid:28) & & & & & & & &.. A perusal of the aforesaid selection proceedings would go to show th at the authority had decided that any incumbent having benchmark ’Good’ in ACRs of the preceding 5 years will be treated as outstanding. The ACRs for the years 1987-91 in respect of the petitioner, as produced by the learned Govt. Advocate, show that the petitioner has been graded as ’Good’ in the years 1987, 1988 and 1989, whereas for the years 1990 and 1991, he has been graded as ’Very Good’. Th at writ petitioner, therefore, satisfied the eligibility condition of being of o utstanding ability as enjoined by Rule 11(2) of the Rules. The respective cases of the eligible persons were required to be considered with reference to the fir st day of the calendar year in which selection are made. The case of the petitio ner, therefore, had to be considered as on 1.1.92. On the said day, the writ pet itioner was holding the post of Accounts Assistant and therefore, was eligible f or consideration for promotion to the post of Sub-Inspector. That the writ petit ioner had the requisite length of service is not in dispute. However, the author ity construed the case of the petitioner as on the date of selection i.e. 13.8.9 2 and on the said date as he was holding the post of Accountant, the selection C ommittee found him to be ineligible for consideration for selection. The Selecti on Committee appears to have mis-construed the provision of Rule 11(2) of the Ru les by considering the case of the petitioner as on the date of selection instea d of the first day of the year in which the selection is made. In the above fact s, this Court unhesitatingly comes to the conclusion that the writ petitioner ha s been wronged and would now be entitled to appropriate reliefs at the hands of
Decision
the Court. 4. The writ petitioner is presently holding the post of Accountant. It is s ubmitted at the Bar that notwithstanding his promotion to the post of Accountant , the writ petitioner would like his entitlement for promotion to the post of Su b Inspector w.e.f. 1.1.92 to be considered by the authority. As the writ petitio ner has been wrongly denied the said promotion, his subsequent promotion to the post of Accountant cannot come in the way of consideration of his entitlement fo r promotion to the post of Sub Inspector as on 1.1.92. 5. In view of the above, Director of Food and Civil Supplies, Govt. of Assa m is hereby directed to constitute a review selection committee for consideratio n of the case of the writ petitioner for promotion to the post of Sub Inspector as on 1.1.92 in accordance with the Rules and regulation in force. On the basis of recommendation of the said review selection committee, the authority will pas s appropriate orders for promotion of the writ petitioner and if he is found ent itled to promotion shall grant all consequential reliefs as may flow from such p romotion. Necessary consequential actions in terms of the directions contained h erein shall be initiated and completed by the authority within a period of 3 mon ths from the date of receipt of this order. The writ petition is allowed as indicated above. (cid:29) As can be seen from the above judgment, the Court held that the petition 6. er satisfies the eligibility criteria of (cid:28)outstanding ability (cid:29), as enjoined by R ule 11(2) of the service Rule, since on the date of consideration of promotion i .e. 1.1.1992, his service record for the relevant years were very good/good. Wit h this observation, the Court directed the Government to constitute a Review Sel ection Committee for considering promotion for the petitioner. 7. The minutes of the Review Selection Committee which met on 7.1.2003, how ever noted that the petitioner did not have the mandatory 5 years qualifying ser vice as L.D.As./Account Assistants and on that basis he was declared to be ineli gible for promotion. But surprisingly the Selection Committee which met earlier on 13.8.1992 declared that the petitioner and 7 others in the feeder cadre (unde r consideration in 1992) had acquired the qualifying 5 years service as on 1.1.1 992, in the feeder cadre. But the earlier DPC held the petitioner to be ineligib le for promotion as he was holding the post of Accountant. 8.1. Mr. DK Sarmah, learned counsel submits that Rule 11(2) of the Service Ru les envisage 5 years service in any of the feeder cadre posts of L.D.As./Account Assistants and the petitioner’s posting to the post of Accountant can’t be a ba r to consider his promotion to 25% of the promotional vacancies in the cadre of Sub Inspector of Food & Civil Supplies, on the basis of his service as a L.D.A. 8.2. The petitioner further contends that the Review Selection Committee, whi ch met on 7.1.2003 erred by declaring that the petitioner did not have the quali fying service of 5 years as L.D.A./Account Assistant as on 1.1.1992. The mistake apparently occurred because the Review Selection Committee failed to note that the petitioner was inducted to the cadre of L.D.A. on 2.11.1992. But the petitio ner’s appointment on 7.2.1987 as Account Assistant was wrongly considered to dec lare that he did not have the qualifying 5 years service as on 1.1.1992. Mr. Sar mah submits that the service in the cadre of L.D.A. can’t be discounted, since t his is also in the feeder cadre and he argues that the Review Selection Committe e which met on 7.1.2003 committed a glaring error in declaring the petition to b e ineligible. 9. The Review Selection Committee minutes shows that the petitioner was pro moted to the post of Typist on 2.11.1982. The earlier Selection Committee which met on 13.8.1992, declared the petitioner to be eligible as on 1.1.1992 in so fa r as the qualifying service in the feeder cadre is concerned. But the petitioner was not recommended by the DPC since on the date of the meeting i.e. 13.8.1992 he was serving in the post of Accountant. The Review Selection Committee (after the Court’s judgment in Civil Rule No.627/1998) on the other hand hadn’t conside red the petitioner on the ground that he did not have the qualifying service of 5 years as on 1.1.1992. 10. In the earlier judgment of 23.9.2002 (Annexure-F) in the Civil Rule No.6 27/1998, the Court considered the petitioner’s eligibility under Rule 11(2) of t he Service Rules and declared that he satisfied the eligibility criteria for pro motion. On this basis, the Court ordered for constitution of Review Selection Co mmittee to consider promotion of the petitioner. If the State had any grievance on the finding recorded in the judgment in the Civil Rule No.627/1998, they shou ld have sought legal redressal but even though the judgment was left undisturbed , the Review Selection Committee erroneously concluded that the petitioner does not possess the qualifying service of 5 years in the feeder cadre. 11. If the petitioner had joined as L.D.A. on 2.11.1982, he will acquire the 5 years qualifying service by 2.11.1987 and since both L.D.A. & Account Assista nt are feeder cadre posts under Rule 11(2), the later appointment of the petitio ner on 7.2.1987 as Account Assistant can’t obliterate the starting date of his q ualifying service i.e. 2.11.1982, when he was promoted as L.D.A. in the Director ate. 12. In the earlier round, the Court categorically observed that the petition er possess the qualifying service under Rule 11(2) as on 1.1.1992 and considerin g the fact that he joined in the feeder cadre on 2.11.1982, it is not understood as to how the Review Selection Committee declared the petitioner to be ineligib le on this Count. An obvious mistake was committed by the Selection Committee by reckoning the qualifying service of the petitioner from 7.2.1987, when he joine d as Account Assistant and therefore this wrong is required to be rectified to p romote the petitioner since on both earlier occasions, the DPC erred in denying promotion to the petitioner for the reasons stated. 13. In view of the foregoing discussion, the respondents are directed to tak e requisite steps to consider the petitioner’s promotion under Rule 11(2) of the Service Rules as on 1.1.1992, in terms of the Court’s judgment dated 23.9.2002 in the Civil Rule No.627/1998. As it was already held that the petitioner satisf ies the eligibility criteria, the promotion should be considered on that basis. Necessary consequential benefits should also be given as the petitioner’s promot ion is directed to be considered as on 1.1.1992. The entire exercise in this reg ard be completed within 2 months from the date of receipt of this order. Since t he petitioner is deprived since long, a copy of this order be furnished to Mr. J Handique, the Govt. Advocate for communication to the concerned authorities. 14. ost. With the above direction, the case stands allowed without any order on c