Judgment · High Court · 2012

This writ appeal is directed against the judgment dated 16th November, 2 010 passed by the learned Single Judge dismissing the writ petition filed by the appellant praying for a direction to the respondent 1 to issue order granting p ro-forma promotion to the rank of Chief Medical & Health Officer from the date o f promotion of respondent 4.

#2. We have heard Mr NC Barooah, learned counsel for the appellant a well as Mr B Gogoi, learned Standing Counsel, Health representing the respondent 1 and Mr C Baruah, learned Standing Counsel, Assam Public Service Commission (APSC).

#3. The writ appellant was initially appointed temporarily for a period of f our months to the post of Health Officer-I of the Health and Family Planning Dep artment, Government of Assam on 8.10.1975 under Regulation 3(f) of the Assam Pub lic Service Commission(Limitation of Function) Regulation, 1951 and thereafter, her service was extended from time to time. Later on, after the appellant was se lected by the APSC in a selection process, she was appointed as Health Officer-I with effect from 24.9.1976 vide notification dated 2.2.1977. On 13.3.1986, her services were placed at the disposal of the Labour & Employment Department and s he was posted by the Labour & Employment Department as Medical Officer at ESI Ho spital at Beltola, Guwahati. The appellant continued to serve the Labour & Emplo yment Department and questioning the position of one Dr (Mrs) Makan Bhagabati in the provisional gradation list of doctors in the Health Department dated 7.10.1 994, she filed a writ petition numbered as WP(C) No 4811 of 2005 and pursuant to the order of this Court dated 3.1.2008, submitted a representation on 9.1.2008 for correction of her seniority position in the said list. The petitioner also s ubmitted a representation on 18.10.2008 to the respondent 1 praying for her prom otion to the rank of Chief Medical & Health Officer with effect from the date he r junior, Dr Hari Prasad Ojah, was promoted to the said post. It appears that Dr Hari Prasad Ojah was promoted to the post of Chief Medical & Health Officer vid e notification dated 12.11.2007. As the said representation dated 18.10.2008 was not disposed of, the appellant approached this Court by filing an application u nder Article 226 of the Constitution of India.

#4. Contention was advanced before the learned Single Judge by the writ peti tioner that when promotions were made in her parent department, she ought to hav e been given notional promotion on the principle of (cid:28)next below rule (cid:29).

#5. The learned Single Judge noted that prior to 18.10.2008, the writ petiti oner had not prayed for her promotion on the said principle, although several pr omotions were effected to different grades between 1994-1997 and that only when Dr Hari Prasad Ojah was promoted as a Chief Medical & Health Officer, the petiti oner filed the said representation. It was also noted by the learned Single Judg e that promotion to the post of Chief Medical & Health Officer is to be made fro m the cadre of Sub-divisional Medical & Health Officer and the post of Sub-divi sional Medical & Health Officer is to be filled up by promotion from the post of Sr Medical & Health Officer. The petitioner had continued the entire service ca reer under the Labour & Employment Department at Guwahati and the learned Single Judge had drawn an inference that all throughout, the petitioner did not raise the issue of pro-forma promotion as raising of such an issue may have entailed, in all probability, her posting away from Guwahati. The learned Single Judge opi ned that Court cannot be oblivious of laches of the writ petitioner while consid ering grant of equitable relief. Considering the aforesaid and also noting that the petitioner had not served in either of the two feeder cadres, the Court decl ined to give any direction for considering promotion of the petitioner to the po st of Chief Medical & Health Officer at that belated stage. Mr Barooah, learned counsel for the appellant, submits that the case of 6. the appellant is covered by a judgment of this Court rendered in the case of Dr Prafulla Chandra Saikia vs. State of Assam and others, reported in 2007 (4) GLT 267 and the learned Single Judge fell into error in not appreciating the aforesa id judgment in its correct perspective. He contends that the parent department w as duty bound to grant notional promotion to the appellant when her juniors were promoted on the application of (cid:28)next below rule (cid:29) and, therefore, the learned S ingle Judge was not correct in dismissing the writ petition on the ground of del ay and laches. In order to buttress his submission, the learned counsel also rel ies upon the decisions of the Apex Court in the case of State of Mysore v. M.H. Bellary, reported in AIR 1965 SC 368 and in the case of Bal Kishan vs. Delhi Adm inistration and another, reported in AIR 1990 SC 100. Mr B Gogoi, learned Standing Counsel, Health Department, submits that th 7. e appellant has retired from service. Learned counsel submits that the learned S ingle Judge distinguished Dr Prafulla Chandra Saikia(supra) on facts on the grou nd that the writ petitioner in the said case had represented time and again for pro-forma promotion which was denied to him and which is not the case with the a ppellant, who had chosen to raise the issue at the fag end of her service career . He also submits that the appellant cannot be considered for promotion to the p ost of Chief Medical & Health Officer without first considering her case for pro motion to the cadres of Sub-divisional Medical & Health Officer and Sr Medical & Health Officer and no such prayer was made in the writ petition for such consid eration. By filing an additional affidavit in the appeal, the appellant has state 8. d that by a notification dated 21.1.2011, the appellant was reverted back to the Health and Family Welfare Department and posted as Sr Medical & Health Officer in which post, she joined on 27.1.2011. Thereafter, she was again promoted to th e post of Sub-divisional Medical & Health Officer and the appellant joined in th at post on 28.1.2011. It has also been brought on record that Dr Hari Prasad Oja h was promoted to the rank of Joint Director of Health Services by a notificatio n dated 26.7.2010.

#9. The Apex Court in State of Mysore(supra), while considering the service prospects of a deputationist in his parent department, in the context of the rul es in question, had held that service of an employee in another department is eq uivalent to service in the parent department and so long as the service of the e mployee in the new department is satisfactory and is securing increments and p romotions in the department, the service should be deemed to be rendered in the parent department so as to entitle him to promotions which are open on seniorit y-cum-merit basis.

#10. In Bal Kishan(supra), the Supreme Court laid down that no junior should be confirmed or promoted without considering the case of his senior and any dev iation from this principle will have demoralising effect in service, apart from being contrary to Article 16(1) of the Constitution.

#11. In Prafulla Chandra Saikia(supra), this Court, noting that the represent ations submitted by the petitioner from time to time with his parent department remained un-responded, negatived the plea of lack of enterprise of the petitione r. This court allowed the writ petition holding that it was a solemn duty of the parent department in particular to consider the case of the petitioner for prom otion and as such, directed consideration of the case of the petitioner for prom otion to the ranks higher than that of Medical & Health Officer-I to which offic ers equally placed like him in the department had been promoted.

#12. There cannot be any dispute with regard to the principle of (cid:28)next below rule (cid:29). It is not in dispute that though promotions were effected to the next hi gher posts in the year 1994-1997 and although the case of the appellant was appa rently not considered by the parent department, the appellant did not raise any grievance that her case was wrongly not considered on the principle of (cid:28)next bel ow rule (cid:29). It appears that the appellant bided her time and did not raise any obj ection and allowed a settled position to emerge. It was only when Dr Hari Prasa d Ojah was promoted as Chief Medical & Health Officer on 12.11.2007 that the app ellant submitted a representation dated 18.10.2008. Significantly, in the writ p etition filed, the appellant had not also prayed for promotion to the post of Sr Medical & Health Officer and Sub-divisional Medical & Health Officer on the pri nciple of (cid:28)next below rule (cid:29). Delay defeats equity and in the facts and circumsta nces of the case, we see no good ground to interfere with the judgment of the le arned Single Judge.

#13. In view of the above, the writ appeal is dismissed. No costs.