Bhaskar Bhattacharya, J. - (1.) By this writ application, the writ petitioner, an employee of Calcutta Metropolitan Development Authority (C.M.D.A), initially prayed for direction upon the respondents to promote the petitioner to the post of Assistant Administrative Officer w.e.f. June 29, 1991 with all admissible service benefits and to give retrospective effect to the promotion of the petitioner to the post of Head Assistant from 3rd September, 1979. During the pendency of this writ application, the writ petitioner has already been promoted to the post of Assistant Administrative Officer and, as such, by filing a supplementary affidavit the petitioner has prayed for further declaration that he is entitled to get benefit of the post of Administrative Officer w.e.f. 29th April, 1997 and that he is also entitled to the benefit of the post of Assistant Administrative Officer w.e.f. 29th June, 1991.
(2.) The case made out by the petitioner may be summarised thus: (a) The petitioner joined C.M.D.A on June 12, 1973 and was promoted to the post of Head Assistant on September 3, 1979. But in view of pendency of two writ applications, the said order of promotion to the post of Head Assistant could not be effective and he joined the post of on 25th February, 1981. (b) The petitioner demanded that his joining to the post of Head Assistant and the benefits should be reckoned from 3rd September, 1979 inasmuch as due to pendency of the writ application he could not join the service. Furthermore, one Sint. Susmita Biswas, who was promoted to the post of Head Assistant got the benefit w.e.f. 3rd September, 1979. (c) From the post of Head Assistant the petitioner was promoted to the post of Section Officer on 1st April, 1987 and from the said post he was further promoted to the post of Assistant Administrative Officer on August 26, 1996 whereas his colleagues got the benefit of promotion to the post of Assistant Administrative Officer w.e.f. June 29, 1991. According to jim Sint. Susmita Biswas and Sri Umesh Chandra Dutta, two other employees also got benefit to the post of Assistant Administrative Officer on June 29, 1991, although the petitioner is senior to Smt. Susmita Biswas and Umesh Chandra Dutta. (d) C.M.D.A published a combined seniority list on 30th November, 1991 being Annexure 'N' to the writ application wherefrom it would appear that the name of the petitioner would appear as Sl. No. 2. All the persons from Section 1. No. 1 - 10 the petitioner had got further promotion to the post of Administrative Officer. Smt. Susmita Biswas and Sri Umesh Chandra Dutta were promoted to the post of Administrative Officer on 29th April, 1997 whereas the petitioner is still working as Assistant Administrative Officer although he appeared at SI. No.2 of the combined seniority list dated 30th November, 1991. Similarly one Sri Pratul Chandra Ghosh, a junior to the petitioner, was also promoted to the post of Administrative Officer by order dated 7th May, 1997. (e) The acts on the part of the C.M.D.A were, thus, highly discriminatory and offended to Articles 14 and 16 of the Constitution of India. This application is opposed by the C.M.D.A by filing affidavit- in-opposition and further opposition to the supplementary affidavit and its defence can be summarised thus : (a) Although the petitioner was promoted on 3rd September, 1979 and was instructed to join in the post of Head Assistant, he did not join the said post by due date and claimed that he should be promoted to some other post like Senior Purchase Assistant or Assistant Purchase Officer which was not existing in C.M.D.A. Such demand of the petitioner could not be entertained. There was no injunction order restraining the petitioner from joining the said post. (b) The petitioner ultimately joined the promotional post of Head Assistant on 25th February, 1981. Smt. Susmita Biswas joined C.M.D.A as a transferee work-charged U.D. Assistant from erstwhile C.M.P.O. with less than three years past service. She was brought under regular establishment in C.M.D.A w.e.f. 01/06/1979 and according to her seniority and service from that date she had been given promotion to the Head Assistant under order dated 7th August, 1984. (c) Although the petitioner got his promotion to the post of Section Officer on the same date along with Sri Umesh Chandra Dutta, the petitioner joined as Head Assistant on 25th February, 1981 whereas Sri Umesh Chandra Dutta joined on 4th September, 1979. (d) According to Regulation 17 of C.M.D.A Service Regulations, 1975, promotion to higher post is made on the basis of merit, relative suitability of a candidate for a particular post and seniority and the seniority is not the only criterion and the merit assessed on the basis of Annual Confidential Report (A.C.R.) are also taken into consideration before any promotion is granted. The case of the petitioner was duly considered at the time of giving promotion of Section Officers to the post of Assistant Administrative Officer. Unfortunately, the A.C.R. markings of the petitioner were much below the qualifying standard fixed for granting promotion to the higher post. He was, thus, been superseded by a number of junior Section Officers.
(3.) After hearing the learned Counsel for the parties and after. going through the aforesaid materials on record, I, thus, find that there was no impediment in joining the promotional post of Head Assistant prior to 25th February, 1981 and, as such, the other colleagues of the petitioner, who were promoted along with the petitioner in view of their earlier date of joining, became senior in the post of Head Assistant.;