Dismissed

Mitali Talukdar v. Assam Power Distribution Co. Ltd. and 11 Ors.

Gauhati HC16 Aug 2022WP(C)/7273/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition by a retired employee seeking notional promotion and benefits after two junior colleagues were promoted. The Court held the claim was time-barred as the petitioner failed to challenge earlier promotion orders that finalized the zone of consideration, and her late claim was barred by settled principles of finality and laches.

What did the court decide?

writ petition dismissed with no order as to cost; petitioner allowed to approach authorities regarding retirement benefits.

Mitali Talukdar Vs Assam Power Distribution… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/13

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GAHC010234562019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : W.P.(C) No. 7273/2019

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Mitali Talukdar, W/o- Shri Toilendra Nath Kalita, Village - Nikamul, Mazgaon, G.N.B. Road, Tezpur, P.O. Nikamul, P.S. Mahabhairab, District - Sonitpur [Assam], PIN- 784001.

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……………… Petitioner

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- Versus -

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Assam Power Distribution Company Ltd. represented by The Chief General Manager [H.R], APDCL [CAZ], Bijulee Bhawan, Paltanbazar, Guwahati, PIN- 781001.

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The Chief General Manager [HQR], APDCL, Bijulee Bhawan, Paltanbazar, Guwahati, PIN- 781001.

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The Chief General Manager [D], APDCL [LAR/UAR/CAR], Bijulee Bhawan, Paltanbazar, Guwahati, PIN- 781001.

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The Chief General Manager [F & A], APDCL, Bijulee Bhawan, Paltanbazar, Guwahati, PIN- 781001.

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The Deputy Personal Manager [HQR], O/o The CGM [HQR], APDCL, Bijulee Bhawan [2nd Floor], Paltanbazar, Guwahati, PIN- 781001.

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The General Manager, Tezpur Zone, APDCL, CAR, Tezpur, PIN- 784001.

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The Deputy General Manager, Tezpur Electrical Circle, APDCL, CAZ, Tezpur, PIN- 784001.

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The Asstt. General Manager, T & C Division, APDCL, CAZ, Tezpur, PIN- 784001.

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The Chief Executive Officer, Tezpur Electrical Circle, APDCL, CAZ, Tezpur, PIN- 784001.

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The Sub Divisional Engineer, T & C, APDCL, CAZ, Tezpur, PIN- 784001.

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Shri Rajib Kalita, Divisional Head Asstt., O/o Nagaon Electrical Divisional-II, APDCL [CAR], Nagaon, P.O. Itachali, PIN- 782003.

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Shri Ajit Kalita, Divisional Head Asstt. O/o T & C Division, APDCL [LAR], Tezpur, Sonitpur, PIN- 784001.

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……………….Respondents

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Advocates :

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Petitioner : Mr. J. Kalita, Advocate Respondents 1 – 10 : Mr. S.P. Sharma, learned Standing Counsel,

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Assam Power Distribution Company Ltd.

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Date of Hearing & Judgment & Order : 16.08.2022

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER

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Heard Mr. J. Kalita, learned counsel for the petitioner and Mr. S.P. Sharma, learned Standing Counsel, Assam Power Distribution Company Ltd. [APDCL] for the respondent nos. 1 – 10. None has appeared for the respondent no. 11 and respondent no. 12 today on call though they had appeared earlier through their engaged counsel.

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By this writ petition preferred under Article 226 of the Constitution of India, the petitioner has sought for a direction in the nature of Mandamus to the respondent authorities in the APDCL to give notional promotion to the petitioner in the post of Divisional Head Assistant [DHA] with effect from the date her juniors/similarly situated candidates i.e. the respondent no. 11 and respondent no. 12 were promoted in terms of an Office Order no. 31 dated 03.07.2019 along with other consequential benefits. The petitioner has also sought for a direction to the respondent authorities to initiate appropriate process in respect of the representation dated 05.07.2019 and the representation dated 05.08.2019 for giving notional promotion to the petitioner in the post of Divisional Head Assistant [DHA] in the respondent APDCL since the petitioner had retired from service w.e.f. 31.07.2019 on attaining the age of superannuation.

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The petitioner in order to seek the above reliefs, has laid her case in the following manner :

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3.1. The petitioner joined service as Lower Division Assistant [LDA] in the respondent APDCL on 07.09.1983 and the respondent no. 11 had also joined in the service on the same date i.e. on 07.09.1983. The service of respondent no. 12 was regularized in the post of LDA-cum-typist w.e.f. 22.06.1983 by an Office Order dated 02.11.2012.

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3.2. The petitioner has projected that she is aggrieved by an Office Order no. 31 dated 03.07.2019 whereby 22 nos. of Upper Division Assistants [UDA] including the respondent no. 11 and the respondent no. 12, had been promoted to the post of Divisional Head Assistant [DHA] with effect from the date of joining in the post.

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3.3. The main ground of challenge of the Officer Order no. 31 dated 03.07.2019 is that the petitioner was senior to the respondent no. 11 and the respondent no. 12 in the cadre of UDA and by the Office Order no. 31, the respondent authorities in the APDCL had promoted the respondent no. 11 and the respondent no. 12, thereby, allowing the said respondents to supersede the petitioner in an unjust manner.

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3.4. During her service tenure, the petitioner was given first financial upgradation by an Office Order dated 03.08.1991 and the second financial upgradation by an Office Order dated 11.12.2008. The petitioner was thereafter promoted to the post of UDA by an Office Order dated 17.11.2015.

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3.5. When the petitioner, the respondent no. 11 and the respondent no. 12

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were working in the post of UDA, the respondent APDCL authorities published the impugned Office Order no. 31 dated 03.07.2019 whereby the respondent no. 11 and the respondent no. 12 along with 20 other UDAs had been promoted to the post of Divisional Head Assistant [DHA] with effect from their respective dates of joining in the post. The Office Order has also mentioned the places of posting of those 22 nos. of promotees. The petitioner stated to have submitted a representation dated 05.07.2019 raising a grievance that the respondent no. 11 had joined in service on the same date as like her but the respondent no. 11 had been promoted by the impugned Office Order dated 03.07.2019 whereas the name of the petitioner had been dropped from the said order of promotion.

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3.6. When the representation was pending for disposal, the petitioner was released from service by a Release Order dated 31.07.2019 w.e.f. 31.07.2019 [afternoon] on reaching the age of superannuation on 60 years. After retirement, the petitioner submitted another representation on 05.08.2019, raising similar grievances as like the representation dated 05.07.2019, submitted earlier. It was contended by the petitioner that the respondent no. 11 ought to have been treated as junior because the date of birth of the respondent no. 11 is later than the date of birth of the petitioner.

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Mr. Kalita, learned counsel for the petitioner has referred to an Office Order no. 198 dated 29.12.2012, annexed to the affidavit-in-opposition of the respondent APDCL authorities, to submit that the seniority list of LDA/BC/ASKs w.e.f. 01.01.1981 to 31.12.2010 was shown to be updated only on 31.12.2018 and, as such, it was not the original seniority list. It is submitted by him that the name of the respondent no. 12 and the respondent no. 11 had figured at serial

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no. 259[a] and at serial no. 267 vis-à-vis the petitioner’s position at serial no. 304 without following due procedure and, as such, the respondent authorities could not have acted upon such seniority list to give promotion to the post of DHA. Having noted such irregularities, the Court by its orders dated 01.10.2021 and 06.06.2022, directed the respondents to produce the original final seniority list contained as part of Office Order no. 198 dated 29.12.2012 instead of the up-dated version. Reiterating his submission that the petitioner was/is senior to the respondent no. 11 and the respondent no. 12 both in the cadre of LDA as well as in the cadre of UDA, he has submitted that a perusal of the original records would reveal the actual position of inter-se seniority of the petitioner qua the respondent no. 11 and the respondent no. 12.

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Mr. Sharma, learned Standing Counsel, APDCL has placed the original records containing the promotional exercise undertaken for promoting the candidates from the post of LDA to the post of UDA and from the post of UDA to the post of DHA. By referring to the records, Mr. Sharma has submitted that notwithstanding the inter-se seniority positions of the petitioner, the respondent no. 11 and the respondent no. 12 in the cadre of LDA, the inter-se seniority positions of these three candidates had again been determined by an Office Order no. 50 dated 17.09.2015 and an Office Order no. 64 dated 17.11.2015 in the post of UDA. It was in the year 2015, the inter-se seniority of the respondent no. 11 and the respondent no. 12 on one hand and the petitioner on the other hand were finalized in the post of UDA and the seniority positions of the respondent no. 11 and the respondent no. 12 in the post of UDA qua the petitioner had not been assailed by the petitioner at any point of time. Mr. Sharma has submitted that even by this writ petition, the inter-se seniority of

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the respondent no. 11 and the respondent no. 12, finalized by the Office Order no. 50 dated 17.09.2015, have not been assailed. In such view of the matter, it is not open for the petitioner to assail the seniority of the respondent no. 11 and the respondent no. 12 in the post of DHA at this distant point of time and also to seek notional promotion on that basis.

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I have duly considered the submissions of the learned counsel for the parties and have also perused the materials on record placed by the parties through their pleadings. I have also perused the original records placed by the learned Standing Counsel, APDCL.

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On perusal of the original records, it is noticed that the Departmental Promotion Committee [DPC] held a meeting on 25.08.2015 to consider inter alia the matter of promotion from the post of LDA to the post of UDA. The DPC noted that there were 219 posts of UDA lying vacant in different offices of the APDCL. As per the proceedings of the DPC meeting held on 25.08.2015, it considered performance reports and seniority positions of the candidates placed for its consideration and recommended 191 nos. of candidates including the respondent no. 11 and the respondent no. 12 at serial no. 108 and serial no. 103, for promotion to the post of UDA. The DPC did not recommend the name of 52 nos. of candidates for promotion to the post of UDA due to non-receipt of their performance reports and it advised to call for their performance reports for last 3 [three] years for consideration of their promotion. Amongst the said 52 nos. of candidates, the name of the petitioner figured at serial no. 32. Pursuant to the recommendation of the DPC, the Office Order no. 50 dated 17.09.2015 came to be published under the hand of the respondent no. 2, whereby, 193

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nos. of LDAs, etc. were promoted to the post of UDA with effect from the date of their joining the post and the places of posting were also mentioned therein. Amongst the 193 nos. of LDAs, etc. so promoted, the names of the respondent no. 11 and the respondent no. 12 were included. The name of the respondent no. 11 figured at serial no. 110 whereas the name of the respondent no. 12 figured at serial no. 105. The Officer Order no. 50 dated 17.09.2015 was followed by another order bearing no. 64 dated 17.11.2015, also issued under the hand of the respondent no. 2. By the Office Order no. 64 dated 17.11.2015, 15 nos. of LDAs, etc. came to be promoted to the post of UDA with effect from their respective date of joining the post and their respective places of posting were also mentioned therein. In the list of 15 nos. of UDAs so promoted, the name of the petitioner had figured at serial no. 10.

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As a result of the Office Order no. 50 dated 17.09.2015 and the Office Order no. 64 dated 17.11.2015, the inter-se seniority positions of the UDAs so promoted, were determined on the basis of their respective dates of joining the post of UDA. By virtue of their promotions by the Office Order no. 50 dated 17.09.2015, the seniority of the respondent no. 11 and the respondent no. 12 had been counted from their respective date of joining in the post of UDA, which were earlier to the petitioner. Learned Standing Counsel, APDCL has submitted, on the basis of records, that the respondent no. 11 and the respondent no. 12 had joined the post of UDA on 24.09.2015 and 22.09.2015 respectively and on the other hand, the petitioner had joined the post of UDA on 03.12.2015 pursuant to the Office Order no. 64 dated 17.11.2015.

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In the writ petition, there is no averment in relation to the Office

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Order no. 50 dated 17.09.2015 whereby 193 nos. of LDAs including the respondent no. 11 and the respondent no. 12, were promoted to the post of UDA and the Office Order no. 64 dated 17.11.2015 whereby 15 nos. of LDAs including the petitioner, were promoted to the post of UDA. The petitioner is, thus, found to have maintained conspicuous silence with regard to such determination of seniority by the Office Order no. 50 dated 17.09.2015 and Office Order no. 64 dated 17.11.2015. It is in the aforesaid backdrop, the plea raised in this writ petition is required to be considered.

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By the Office Order no. 50 dated 17.09.2015, not only the respondent no. 11 and the respondent no. 12 had been promoted but another 191 LDAs were promoted to the post of UDA and during the subsequent four years, their seniority positions had continued in the said manner. There is no whisper in the writ petition to the effect that the petitioner submitted any representation against the Office Order dated 17.09.2015 at any subsequent point of time.

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Mr. Kalita, learned counsel for the petitioner has submitted that the respondent no. 12 was regularized in the post of LDA-cum-typist w.e.f. 22.06.1983 by an Office Order dated 02.11.2012 and according to the petitioner, such order of regularization is illegal. If in the view of the petitioner the regularization of the respondent no. 12 in the post of LDA-cum-typist by the order dated 02.11.2012 was illegal, the petitioner ought to have made a challenge against the said order dated 02.11.2012 immediately thereafter or after the Office Order no. 50 dated 17.09.2015 but the petitioner did not challenge the order dated 02.11.2012 immediately thereafter nor it has been challenged in this writ petition, filed in the year 2019.

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It has been submitted that the criteria for promotion from the post of UDA to the post DHA is on the basis of seniority and performance reports. By the Office Order no. 50 dated 17.09.2015, the seniority positions of 193 nos. of UDAs including the respondent no. 11 and the respondent no. 12, had been determined on the basis that their seniority in the post of UDA would be counted from their respective date of joining. By the subsequent Office Order no. 64 dated 17.11.2015, the seniority positions of 15 nos. of UDAs including the petitioner so promoted, had been determined on the basis that their seniority would be counted from their respective dates of joining. Thus, when the case for promotion from the post of UDAs to the post of DHA came to be considered and was undertaken, the seniority positions determined by the Office Order no. 50 dated 17.09.2015 and the Office Order no. 64 dated 17.11.2015 were taken into consideration as such seniority positions have not been disturbed by mounting any challenge from the end of the petitioner at any prior point of time. The DPC in order to consider the matter of promotion from the post of UDA to the post of DHA held its meeting on 24.01.2019. In its meeting dated 24.01.2019, the DPC considered the cases of the 44 nos. of UDAs including the cases of the respondent no. 11 and the respondent no. 12, on the basis of performance reports and after consideration, the DPC recommended a number of candidates for promotion to the post of DHA. Amongst the cases considered by the DPC in its meeting held on 24.01.2019, the cases of the respondent no. 11 and the respondent no. 12 were included. Only the cases of the candidates who were within the zone of consideration were placed before the DPC and the DPC after consideration of the performance reports of the UDAs who were within the zone of consideration, recommended the cases who

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were found fit to be promoted. It is noticed that the name of the petitioner was not included in the zone of consideration to be placed before the DPC for promotion to the post of DHA. It is not the case of the petitioner that the petitioner ought to have been included within the zone of consideration for promotion in the post of DHA and placed before DPC in its meeting held on 24.01.2019.

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It is settled law that an order of promotion effected in a cadre having large number of candidates is to be challenged at the earliest point of time but in the case in hand, the Office Order dated no. 50 dated 17.09.2015 had remained unchallenged for a long period of about four years. Such a position has also been highlighted by the Hon’ble Supreme Court of India in the decisions in A.J. Fernandis vs. Divisional Manager, South Central Railway and others, reported in [2001] 1 SCC 240 and P.S. Sadasivaswamy vs. State of Tamil Nadu, reported in [1975] 1 SCC 152, relied on by the learned counsel for the respondents. In P.S. Sadasivaswamy [supra], it was held that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion: It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The decisions in Union of India and others vs. Sheela

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Rani, reported in [2007] 15 SCC 230 and K. Mandalaimuthu and another vs. State of Tamil Nadu and others, reported in [2006] 6 SCC 558, relied on by the learned counsel for the petitioner, are found of no assistance to the case of the petitioner.

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It is, thus, settled that a person who feels aggrieved by his/her nonpromotion, should ventilate his/her grievance and approach the Court as early as possible. If a person is aggrieved by his/her non-promotion and determination of seniority of others from his cadre in the next promotional post by any promotion order, the same should be challenged at the earliest before the matter becomes stale. If by an order of promotion from one particular cadre to another particular cadre, the seniority of the candidates so promoted are determined in the next promotional post and if a person who is promoted to the same promotional post at a subsequent date, his/her seniority in the promotional would obviously get counted from the date of his/her promotion, unless stated otherwise. When the question arises for promotion to the next promotional post on the criteria of seniority-cum-merit, it is the seniority in the cadre which is given priority. In the case in hand, by the Office Order no. 50 dated 17.09.2015, 193 nos. of UDAs including the respondent no. 11 and the respondent no. 12, were promoted to the post of UDA and as a result, their seniority have been counted from the date of their respective dates of joining the post of UDA. As the petitioner was promoted to the post of UDA by the subsequent Office Order no. 64 dated 17.11.2015, the petitioner’s seniority in the post of UDA has been counted from the date of her joining the post of UDA. The said position of inter-se seniority had continued till 21.04.2019 when the DPC considered the cases of candidates within the prescribed zone of

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consideration for promotion to the post of DHA. As the petitioner was not included within the prescribed zone of consideration because of already determined inter-se seniority between the petitioner vis-à-vis the respondent no. 11 and the respondent no. 12 by virtue of the Office Order no. 50 dated 17.09.2015 and the Office Order no. 64 dated 17.11.2015, the petitioner could not have made any challenge in relation to inclusion of the respondent no. 11 and the respondent no. 12 within the prescribed zone of consideration; their subsequent recommendation for promotion and consequent promotion to the post of DHA by Office Order no. 31 dated 03.07.2019, without making any challenge to the Office Order no. 50 dated 17.09.2015 and the Office Order no. 64 dated 17.11.2015. Consequently, the plea raised by this writ petition to give her notional promotion in the post of DHA with effect from the date with which the respondent no. 11 and the respondent no. 12 were promoted are found not merited. As a result, the writ petition is found devoid of any merit and the same is dismissed. There shall, however, be no order as to cost.

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At this stage, Mr. Kalita, learned counsel for the petitioner has submitted that the petitioner has not received any retiral benefit till date. The petitioner is at liberty to approach the respondent APDCL authorities by representation highlighting the said aspect and in the event such a representation is preferred by the petitioner, the respondent authorities shall consider the same in accordance with law in an expeditious manner.

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JUDGE

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Comparing Assistant

Mitali Talukdar v. Assam Power Distribution Co. Ltd. and 11 Ors.

Case brief

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Mitali Talukdar v. Assam Power Distribution Co. Ltd. and 11 Ors.

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