Samiran Panchanan Vs the State of Assam and 2 Ors.

Heard Mr. A Deka, learned counsel for the petitioner. Also heard Mr. P. N. Sarma, learned Standing Counsel, Elementary Education Department, Assam, appearing for respondent nos.1 & 2 and Mr. A Chaliha, learned Standing Counsel, Finance Department, Assam, appearing for the respondent no.3.

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2. The petitioner, by way of instituting the present writ petition, has prayed for a direction upon the respondent authorities to grant notional promotion to the petitioner to the post of Assistant Planning Officer and to re-compute his pension and pensionary benefits, after reckoning the scale of pay of the post of Assistant Planning Officer.

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3. The facts in brief, requisite for adjudication of the issue arising in the present writ petition, are noticed, hereinbelow. The petitioner was initially appointed as Computor in the establishment of the Director, Elementary Education, Assam, vide an order dated 10.02.1988. Thereafter, the petitioner was promoted to the post of Statistical Assistant, vide an order dated 13.06.1990. The petitioner projects that incumbent in the post of Planning Assistant being promoted to the post of Assistant Research Officer in the establishment of Directorate of Elementary Education, Assam, the petitioner, vide order dated 31.10.1994, was posted as Planning Assistant against the vacancy, so occasioning. However, the petitioner was not authorized the scale of pay of Planning Assistant. The petitioner, thereafter, moved to the Government in the Education Department praying for maintaining parity, with regard to the scale of pay authorized to the post of Planning Assistant in the Directorate of Elementary Education, with that of the post of Planning Assistant, as available in the Directorate of Secondary Education, Assam.

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The petitioner, now holding the post of Planning Assistant, claiming

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promotion to the higher post of Assistant Planning Officer/Assistant Research Officer, had instituted a writ petition before this Court being WP(C) No. 1876/2016. A co-ordinate Bench of this Court, vide order dated 23.07.2019, proceeded to dispose of the said writ petition by directing the respondent authorities to consider the case of the petitioner along with other eligible candidates for promotion to the aforesaid higher posts of Assistant Planning Officer/Assistant Research Officer, provided, the said posts are found under promotional quota and vacant posts exist for effecting such promotion.

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The petitioner, in terms of the directions passed by this Court vide the said order dated 23.07.2019, approached the respondent authorities praying for consideration of his case for promotion to the next higher post of Assistant Planning Officer/Assistant Research Officer/Statistical Assistant.

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The directions passed by the Court, not having been complied with, the petitioner had also instituted a Contempt case being Cont.Case(C)No. 145/2020. In terms of the directions passed by the Court, vide the said order dated 23.07.2019, the Government in the Elementary Education Department, Assam, required the Director of Elementary Education, Assam, vide a communication dated 21.11.2020, to clarify as to whether there was any executive order holding the field governing the service conditions of the Research/Planning/Statistical personnel under the Directorate.

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The Director of Elementary Education, Assam, vide a communication dated 05.01.2021, responded to the said communication dated 21.11.2020 and projected that the posts of Statistical Assistant/Progress Assistant/Computor, as well as the post of Assistant Statistical Officer/Research Assistant are all non-gazetted posts and the incumbents were promoted from time to time by constituting Directorate Level Committee. However, it was clarified that there was no Service Rules or any Executive Order existing governing promotions to the said categories of posts under the Directorate. Accordingly, the Director had highlighted that it would be convenient if the Service Rules for the said cadres are formulated at the earliest.

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The Director of Elementary Education, again, vide order dated 21.03.2022,

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informed the Government in the Education Department, Assam, that there were 22 (twenty-two) vacant posts of Assistant Planning Officer, 3 (three) vacant posts of Assistant Research Officer and 1 (One) vacant post of Statistical Officer. It was also highlighted that although there was no service rules or executive orders facilitating promotion of Planning and Statistical personnel of the Elementary Education Department, previous instance of promotion to the post of Assistant Planning Officer/Assistant Research Officer/Statistical Officer of the Directorate, without service rules reveals that the said posts are promotional posts.

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The Government in the Elementary Education Department, Assam, vide a communication dated 21.06.2022, intimated the Senior Standing Counsel, Elementary Education Department, Assam, that the promotion directed to be considered by this Court, vide the order dated 23.07.2019, was not taken forward due to unavailability of Service Rules for the Planning and Statistical personnel under the Directorate of Elementary Education, Assam. It was also projected that the Department had processed a file for framing service orders namely the Assam Elementary Education (Planning & Statistical) Service Orders, 2022, to facilitate the promotion process of all eligible candidates including the petitioner, herein. As the petitioner was on the verge of his retirement on attaining the age of superannuation, the petitioner approached the respondent authorities, vide a representation dated 14.12.2022, to consider his case for promotion to the post of Assistant Planning Officer/Research Officer/Statistical Officer. It was projected that the date of superannuation of the petitioner would fall on 28.02.2023. The petitioner is found to have superannuated from his services w.e.f 28.02.2023 and, thereafter, the respondent authorities had proceeded to promote 22 (twenty-two) nos. of Statistical Assistant/Planning Assistant working in the Directorate of Elementary Education to the post of Assistant Planning Officer, with prospective effect. However, the petitioner having retired from his services, prior to the date of issuance of the notification dated 31.05.2023, the name of the petitioner was not incorporated, therein.

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Being aggrieved, the petitioner has instituted the present writ petition,

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praying for relief, as noticed, hereinabove.

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4. The learned counsel for the petitioner by reiterating the facts noticed, hereinabove, has submitted that the respondent authorities, in spite of the directions passed by this Court vide the order dated 23.07.2019 in WP(C)No.1876/2016, had not processed the matter expeditiously and had waited till the time the petitioner had superannuated from his services for the purpose of effecting promotions from the post held by the petitioner to the next higher post of Assistant Planning Officer. He submits that the petitioner having rendered 27 (twenty-seven) years of service as Planning Assistant in the Directorate of Elementary Education, Assam, and he being the senior-most incumbent in the post of Planning Assistant, the respondents are required to be directed to promote the petitioner with retrospective effect from a date prior to the date he had proceeded on superannuation.

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5. Mr. A. Deka, learned counsel for the petitioner submits that the said directions, if passed, would redress the grievance of the petitioner of being not considered even once for promotion to the next higher grades of the service, above the post of Planning Assistant, in the establishment of the Directorate of Elementary Education, Assam.

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6. The learned counsel representing the respondents have submitted that the petitioner had retired from his services w.e.f. 28.02.2023, on reaching the age of superannuation and accordingly, the petitioner cannot now be promoted with retrospective effect i.e., a date prior to his date of superannuation from service. It was further highlighted that the present writ petition was instituted much after the date of superannuation of the petitioner. In support of their contention, the learned counsel for the respondents have relied upon the decision of the Hon’ble Supreme Court in the case of Government of West Bengal Vs. Dr. Amal Satpathi , reported in (2024) SCC online SC 3512.

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7. I have heard the learned counsel for the parties and perused the materials brought on record.

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8. The facts noticed, hereinabove, are not in dispute. This Court finds that after being placed against the post of Planning Assistant, the petitioner was not considered for promotion to the next higher grades. The respondent authorities during the period, the petitioner was in service, had not proceeded to consider his case for promotion on the plea that no Service Rules and/or Executive orders existed governing the service conditions of incumbents in the planning wing of the Directorate of Elementary Education, Assam. It was only in the year 2022, that the respondent authorities processed the matter for framing of a Service Order viz. The Assam Elementary Education (Planning & Statistical) Service Orders, 2022. However, no exercise for carrying out promotions of the incumbents in the planning wing either under the said Service Orders of 2022 or otherwise following past practice is found to have been carried out, during the period the petitioner was in service.

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9. The petitioner has initiated the present proceedings seeking notional promotion to the post of Assistant Planning Officer w.e.f. a date prior to date of his superannuation and upon fixation of pay in the pay scale of Assistant Planning Officer, to revise his pension and pensionary benefits with release of the arrears so working out. The petitioner while making the said prayer has not brought on record any material to demonstrate that promotion in his case would also be permissible to be made, in terms of the procedure in place for effecting such promotion, with retrospective effect after his superannuation.

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10. This Court also notes that the present writ petition was initiated after the petitioner had superannuated from his services. Accordingly, the issue arising for examination by this Court in the present proceeding is as to whether a direction is permissible to be issued in the matter upon the respondents to promote the petitioner with retrospective effect w.e.f. the date prior to his superannuation from service.

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11. It is a settled position of law that a retired employee cannot claim for a retrospective promotion w.e.f., a date when he was in service, inasmuch as, it would be impermissible for such employee to assume the charge of the promotional post.

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Further, it is seen that the petitioner, herein, had claimed for a promotion to the post of Assistant Planning Officer, w.e.f., a date prior to date of his superannuation, whereas the present writ petition was filed only on 28-08-2023 i.e., with undue delay.

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12. Accordingly on the count of delay and laches of this petition, the same would mandate to be dismissed. With regard to the non-maintainability of the present writ petition instituted for claiming promotion after retirement, this Court for the conclusions drawn by it, draws support from the following decisions of the Hon’ble Supreme Court.

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13. In the case of State of Uttaranchal Forest Rangers’ Association Vs. State of U. P ., reported in (2006) 10 SCC 346 , the Hon’ble Supreme Court has held that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime.

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14. Further the Hon’ble Supreme Court, on the issue as to whether an employee could be validly promoted after his retirement date, in the case of Government of West Bengal Vs. Dr. Amal Satpathi (supra) had laid down that it is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. It further held that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. It thus held that the petitioner in the above case had superannuated before his promotion was effectuated, the petitioner was not entitled to retrospective financial benefits associated to the promotional post, as he did not serve in that capacity.

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15. Applying the said decisions of the Hon’ble Supreme Court to the facts of

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the present case, in addition to the maintainability of the present writ petition on the ground of delay and laches, the claims made by the petitioner would not also mandate an acceptance, inasmuch as, the petitioner after his superannuation cannot assume the charge of his promotional post.

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16 . In view of the above discussion, this Court finds that the claim made by the petitioner in the present writ petition would not mandate an acceptance and accordingly the writ petition is held to be devoid of any merit and the same stands dismissed. However there would be no order as to costs.

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JUDGE

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Comparing Assistant

Samiran Panchanan v. the State of Assam and 2 Ors.

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Samiran Panchanan v. the State of Assam and 2 Ors.

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