IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA AND ARUNACHAL PRADESH) W.P(C) 2085/2004

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA AND ARUNACHAL PRADESH) W.P(C) 2085/2004 Sri Amarendra Kumar Singh Son of Sri M.M.P. Singh Technical Assistant, Inland Waterways Authority of India (Ministry of Surface Transport) 5 th Floor, Parameswari Building, Chatribari, A.T. Road, Guwahati Petitioners - Versus 1. The Union of India, represented by the Secretary, Government of India, Ministry of Shipping, New Delhi The Chairman, Inland Waterways Authority of India, A-13, Section-I Noida , Dist.-Gautam Budh Nagar, Uttar Pradesh. 3. The Secretary, Inland Waterways Authority of India, A-13, Section-I Noida , Dist.-Gautam Budh Nagar, Uttar Pradesh. 4. The Assistant Secretary (Estt.) Inland Waterways Authority of India, A-13, Section-I Noida , Dist.-Gautam Budh Nagar, Uttar Pradesh. 5. The Section Officer (Estt), Inland Waterways Authority of India, A- 13, Section-I Noida , Dist.-Gautam Budh Nagar, Uttar Pradesh. 6. The Director/Regional Head, Inland Waterways Authority of India, 5 th Floor, Parameswari

2 2 Building, Chatribari, A.T. Road, Guwahati Shri N.C. Konar, Assistant Director, Inland Waterways Authority of India, A-13, Section-I Noida , Dist.-Gautam Budh Nagar, Uttar Pradesh. 8. Shri Sital Ram Maurya, Assistant Director, Inland Waterways Authority of India, A-13, Allahabad, U.P. (60F/44, Nawab Yusuf Road Civil Lines, Allahabad (U.P.). 9. Sri V.N. Mishra, Inland Waterways Authority of India, 5 th Floor, Parameswari Building, Chatribari, A.T. Road, Guwahati Inland Waterways Authority of India, represented by its Chairman, A-13, Sector-I, Noida, Uttar Pradesh Respondents BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA For the Petitioner: For the Respondents: Mr. M. Chanda, Advocate Mr. N. Choudhury, Mr. S.P. Choudhury, Advocates Mr. J.M.A. Choudhury, CGC Date of hearing & Judgment and order: JUDGEMENT AND ORDER (ORAL) The petitioner, who has been promoted to the post of Assistant Director from the Technical Assistant by office order dated

3 3 during the pendency of this proceeding has prayed for antedating his promotion to the said post with effect from The petitioner has also called in question the Annexure-V and VI orders dated and , by which the respondents No. 7, 8 and 9 have been promoted to the post of Assistant Director. According to the petitioner but for clubbing of vacancies, which had fallen vacant over the years for consideration in a single selection, the petitioner would have earned his promotion way back in In this connection, the petitioner has also emphasized the need for promotion on the basis of year wise panel in case of any delay in holding the DPC. 2. I have heard Mr. M. Chanda, learned counsel for the petitioner as well as Mr. N. Choudhury, learned counsel representing the respondents No. 2 to 6. I have also heard Mr. J.M.A. Choudhury, learned CGC, representing the Union of India i.e. the respondent No. 1. I have also considered the relevant materials on record including the minutes of the DPC forming subject matter of dispute. 3. As per the Recruitment Rule, the promotion to the post of Assistant Director is effected from amongst the diploma and degree holders. For diploma holders, the requirement is 5 years experience in the feeder grade and for degree holder, the requirement is 3 years experience. 50% post of Assistant Director are required to be filled up by promotion and the balance 50% by direct recruitment. The petitioner became eligible for promotion in March, 1996 on completion of required length of service in

4 4 the feeder grade. At that relevant point of time, total cadre strength of Assistant Director was 9 (7 permanent and 2 temporary). It is on record that as against 9 posts there were 10 incumbents holding the post of Assistant Director. 4. Certain vacancies occurred in the cadre of Assistant Director in the year 1995, 1997 and 1998 due to the resignation tendered by three Assistant Director. The claim of the petitioner for consideration of his case is against those vacancies. According to the petitioner, since he had become eligible for promotion in March, 1996, his case ought to have been considered against one of those vacancies. 5. It is on record that the case of the petitioner was considered for promotion in 2001, but the DPC having not recommended his case, he could not be promoted. As noted above, he has now been promoted by order dated In the counter affidavit filed by the respondents, the case projected by the petitioner in the above manner has been dealt with, particularly in paragraph 10. The three vacancies about which the petitioner has mentioned in the writ petition arose on ; and , when three Assistant Director resigned from service. As noted above, the total cadre strength of Assistant Director at that relevant point of time was 9 (7 permanent and 2 temporary). Two posts pf Assistant Hydrographic Surveyor were converted to Assistant Director on temporary

5 5 basis as per the approval accorded by the Board in its 31 st meeting held on In the counter affidavit, the respondents have stated that against 9 posts of Assistant Director, there were 10 incumbents in position. 7. The affidavit further states that when the petitioner became eligible for consideration for promotion in March, 1996 on completion of three years regular service in the feeder grade, there were no vacant post of Assistant Director to consider his case. All the aforesaid three vacancies although were there, but two temporary posts of Assistant Director indicated above had been re-allocated to the Survey Wing and the 3 rd post was adjusted against the excess incumbent holding the post of Assistant Director. 8. In view of the above position, the case of the petitioner could not be considered, as there was no vacancy. The next DPC was held on when 4 more posts of Assistant Director were sanctioned by the Government on based on the recommendation of the Staff Inspection Unit. Another three vacancies of Assistant Director also arose on when incumbents Assistant Director had been promoted to the post of Deputy Director. Against the said 7 vacancies, 3 were appointed by direct recruitment and 4 were promoted. At that relevant point of time, the seniority position of the petitioner was at serial No. 6. In this connection, the respondents have annexed the Annexure-4 seniority list dated Pursuant to the DPC that was held in March, 2001, the

6 6 officers above the petitioner were found suitable for promotion and they had been promoted. In between the petitioner had approached the Patna High Court by filing a writ petition, which was registered and numbered as CWJC No. 2872/2001. The writ petition was disposed of by order dated with the direction to the respondents to consider the representation that was filed by the petitioner. In the counter affidavit, the respondents have stated that pursuant to the said direction of the Patna High Court, the representation made by the petitioner was disposed of rejecting the claim of the petitioner for retrospective promotion. 9. It appears that after disposal of the earlier writ petition filed by the petitioner in the above manner, the petitioner made series of representations to the respondent authority, the last one being on In the meantime, one of the respondents was also promoted in the year The petitioner has challenged the promotion orders of 2001 and Since the instant proceeding was initiated in 2004, we are not concerned in this proceeding as to what has transpired after filing of the writ petition on The petitioner has also not brought on record anything to agitate his grievance in respect of any denial of promotion during the period from the date of filing of the writ petition upto the date of granting him promotion by the aforesaid order dated The issue, which falls for consideration of this Court is as to whether the

7 7 petitioner was deprived of consideration for promotion on attaining the eligibility in March, 1996 and thereafter. 11. As noted above, the cadre strength of the posts of Assistant Director at that relevant point of time was 7 (permanent). However, 2 temporary posts were converted to Assistant Director making the total cadre strength 9. As against the said total cadre strength 10 incumbents were there which resulted in 1 excess incumbent. Two out of the 3 vacancies that arose on , and due to resignation tendered by three officers had to be adjusted by re-allocation to Survey Wing from which they were brought to the cadre of Assistant Director by temporary conversion. The 3 rd post was adjusted against the excess incumbent against the 10 th post of Assistant Director. Thus, there was no vacant post to consider the case of the petitioner and for that matter any of the incumbents in the feeder cadre of Technical Assistant. 12. Vacancies arose only in 2000 and 2001, about which, mention has been made above and the case of the petitioner was considered against 4 promotional vacancies along with other incumbents. Admittedly his seniority position at that point of time was at serial No. 6. It is on record that 4 incumbents who occupied higher seniority position above the petitioner had been promoted. 13. Mr. M. Chanda, learned counsel for the petitioner submits that the respondents have not disclosed the correct position in stating that 3

8 8 vacancies referred to above had to be adjusted by re-allocation and adjustment of the excess incumbent Additional Director. According to him, those vacancies were available towards consideration of the case of the petitioner. He submits that the re-allocation and adjustment had been made only against 4 promotional vacancies that arose in 2000/2001. However, there is no material particulars disclosed either in the writ petition or in the reply affidavit to appreciate the said stand. This Court cannot proceed on hypothesis, but will have to adjudge the matter on definite pleadings and on disclosure of substantive materials. 14. Mr. Chanda, learned counsel for the petitioner has also argued that since the promotion involved selection, the respondents could not have granted promotion to the respondents No. 7, 8 and 9 only on the basis of their seniority position above the petitioner. Mr. N. Choudhury, learned counsel representing the respondents, on the other hand, submits that the DPC recommended the promotion applying the test of selection. In this connection, he has referred to the minutes of the selection, on perusal of which, it is found that the DPC did consider the case of the incumbents including that of the petitioner applying the test of selection and after going through their service records, experience, seniority etc. 15. Although, it has been argued by Mr. Chanda, learned counsel for the petitioner that in absence of any reason assigned in the said minutes and there being no reference to the ACRs etc., the promotion effected on that basis are not sustainable in law, but, in absence of any requirement

9 9 of recording specific reasons in the Recruitment Rules, the said submission made by the learned counsel for the petitioner cannot be accepted. Further with the passage of time, the petitioner cannot be allowed to develop his case without there being any pleadings to that effect. I am satisfied that the DPC applied its mind towards consideration of the case of the incumbents including that of the petitioner. It is not a case of exclusion of the case of the petitioner from the purview of consideration, but his case was also considered applying the test of selection. 16. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly, it is dismissed. However, there shall be no order as to costs. JUDGE Mkk