HARENDRA NATH SARMA Vs. THE STATE OF ASSAM

JUDGEMENT

(1.) THE petitioner who has already retired from service on attaining the age of superannuation on 30/11/2010 has filed this writ petition for a direction to the respondents to provide him promotion to the post of Director, Finance (Economic Affairs) department with effect from 04/09/2002. Be it stated here that the petitioner was promoted as Director of Institutional Finance on officiating basis vide order dated 14/12/2004. Thereafter vide notification dated 14/02/2011 (Annexure -VII) his officiating promotion under regulation 4(d) of the Assam Public Service Commission (Limitation of Function) Regulation, 1951 was regularized against the post of Director, Finance, Economic Affairs Department. According to the petitioner since there was vacancy, he ought to have been promoted as Director, Finance (Economic Affairs) Department with effect from 04/09/2002 instead of 14/12/2004 and regularized vide notification dated 14/02/2011.

(2.) I have heard the petitioner in person and have also heard Mr. D. Saikia, learned AAG, Assam assisted by Mr. B. Gogoi, learned Standing Counsel, Finance Department. I have also considered entire materials on record. The petitioner appearing in person has argued that in fact the petitioner was entitled to get promotion in 2001. In this connection, he has referred to the provisions of the Assam Finance Economic Service (Amendment) Rules, 1995. He has also referred to the original Rules of 1989. As per the provisions of Rule 12 (Proviso) no person shall be eligible for promotion from one cadre to another unless he has completed not less than 3(three) years of continuous service in the cadre for which he is considered for promotion. According to the petitioner at the time of incorporation of the said provision, the post of Director was not there which was incorporated by the Amendment Rules of 1995 and accordingly the requirement of three years of continuous service in the lower cadre is not applicable in case of the promotion to the post of Director. Thus, according to the petitioner, irrespective any experience in the feeder cadre he was entitled to get promotion as soon as the vacancy arose in 2001. However, the fact of the matter is that the petitioner had completed three years of service in 2002 in the feeder cadre and this precisely the reason as to why he has prayed for retrospective promotion with effect from 04/09/2002.

(3.) AS regards the plea of the petitioner that his case for promotion should have been considered as soon as the earlier incumbent had attained the age of superannuation on 30/04/2001, it is an admitted position that the said earlier incumbent was granted extension of service on contractual basis which came to an end on 30/07/2003. This aspect of the matter was also considered in the earlier round of litigation. Taking note of the said position, the Court also took note of the fact that the Finance Department after the end of the period of extension of service of the earlier incumbent had initiated the process of selection for regular promotion to the post of Director, Finance (Economic Affairs) as well as Director, Institutional Finance, both of which are Class -I posts. Accordingly, the selection Board recommended the petitioner along with one Shri Rajani Rnajan Hazarika for promotion. Pursuant to such recommendation, both of them were promoted on 14/12/2004. While the petitioner was appointed to the post of Director, Institutional Finance, said Shri Rajani Ranjan Hazarika was promoted to the post of Director, Finance (Economic Affairs) Department.