- (1.) AN appointment on a vacancy consequent on an under secretary going on leave preparatory to retirement in the office of the Damodar Valley corporation is the subject-matter of challenge in the Writ petition on which the above Rule has been issued.
(2.) MATERIAL facts are not in dispute. The petitioner is a confirmed Assistant controller of Purchases, a Class I post under the Damodar Valley Corporation (hereinafter referred to as the said corporation ). At the relevant time and even now he is at the top of the gradation List. On April 9, 1970 he was duly recommended by the Departmental promotion Committee for promotion to the next higher rank. One of the posts in the promotional rank to which the petitioner may be promoted is that of an under-secretary. One Sri k. P. Singh who was holding the post of an under-secretary went on leave preparatory to retirement on January 5, 1971. In the consequent vacancy the corporation instead of promoting anyone from the administrative branch of services and particularly the petitioner who would have been entitled to such promotion on the recommendation of the Departmental Promotion Committee passed the following order, "sri S. R. Sengupta, Under Secretary, should be counted against the post of under-secretary in the Secretariat that will fall vacant consequent on Sri K. P. Singh proceeding on leave preparatory to retirement with effect from 5th january, 1971. Sri R. P. Bose, officiating executive engineer (civil) Chandrapura Thermal power Station (Construction) D. V. C. , chandrapura is transferred with immediate effect and posted as officer on special duty in the Secretariat, D. V. C. , calcutta on his own pay and pay scale against the post of under-secretary vice sri S. R. Sengupta counted against another post of under secretary as above. " being aggrieved by this order which resulted in denial of an immediate promotion, the petitioner moved this court with the above Writ petition and has prayed for an appropriate Writ for cancellation of the aforesaid order dated January 5, 1971.
(3.) PETITIONER's grievance is two fold. In the first place, it is claimed in paragraph 16 of the writ petition that the impugned order dated January 5, 1971 made in disregard of the recommendations of the departmental Promotion committee, is violative of the rules of procedure regarding recruitment laid down in a manual known as, "job, description and Classification List. " The second grievance of the petitioner is that the impugned order has been passed arbitrarily and malafide to deprive the petitioner of his right to promotion to the post of an undersecretary by circumventing the recommendation of the Departmental promotion Committee and in disregard of Regulation 14 of the Damodar valley Corporation Service Regulations (hereinafter referred to as "service regulations". These are also the two points which have been seriously pressed at the hearing by Mr. Bagchi who is appearing in support of this rule.;