AUGUSTINE GEORGE MASIH - (1.) PETITIONER has approached this Court praying for a writ of mandamus directing the official respondents to consider and promote the petitioner as Labour Officer-cum-Conciliation Officer against the vacancies which became available under the quota of Labour
(2.) INSPECTORS especially the one which became available on 01.10.2009 on super-annuation of Sh. B.S.Yadav, Labour Officer-cum- Conciliation Officer or with effect from the date when respondents No. 3 and 4 were promoted in the Ministerial quota i.e. 22.04.2010 Counsel for the petitioner contends that with an intention to help respondent No. 5-Sh. D.D.Atri, who belongs to the Labour Inspector cadre and is senior to the petitioner, respondents have, despite the recommendation of the name of the petitioner by the Departmental Promotion Committee (hereinafter referred to as `DPC') held on 05.07.2010 for promotion to the post of Labour Officer-cum- Conciliation Officer, not given effect to the same as on the said date. Respondent No. 5 was not eligible for consideration for promotion as he did not possess the required experience after having acquired the qualification for the post. Instead of giving effect to the DPC recommendation, a fresh DPC meeting was held on 29.09.2010 where the name of respondent No. 5 stands recommended as in the meantime, he had acquired the prescribed experience of three years after attaining the requisite qualifications and being senior to the petitioner. This, the counsel contends, is violative of the principle of equality enshrined under Article 14 of the Constitution of India as promotion to the post of Labour Officer-cum-Conciliation Officer has been intentionally delayed with a mala-fide intention to help respondent No. 5 and to not grant promotion to the petitioner. He further submits that respondent No. 5, during the pendency of the present writ petition, stands promoted to the post of Labour Officer- cum-Conciliation Officer vide order dated 06.11.2010 which cannot sustain and, therefore, prays for quashing of the said order and promoting the petitioner to the post of Labour Officer-cum- Conciliation Officer or in the alternative, he submits that the petitioner be promoted from the date respondent No. 5 has been promoted and he be ranked senior to him. He places reliance upon a judgment of the Supreme Court in the case of Shailendra Daria and others vs. S.P.Dubey and others, 2001 (3) SCT 1, to contend that the essential qualification for promotion has to be taken into consideration at the time of consideration or when the DPC is held and a person, who becomes eligible subsequently, if he is not found eligible earlier for promotion, would not be entitled to consideration and the eligible person, at the time of holding of the first DPC, would have a prior right of promotion. He, accordingly, prays that the present writ petition deserves to be allowed. On the other hand, counsel for the respondents although do not dispute the fact that at the time when DPC dated 05.07.2010 was held, respondent No. 5 was not eligible for promotion as he lacked requisite experience but a person, who is eligible for promotion and whose senior has yet not been promoted, cannot pray for a direction to fill up the post as the decision to fill up a vacancy or not vests with the employer for any good reason, be it administrative, financial or based upon some policy. A further contention has been raised that respondent No. 5 had filed a suit for permanent injunction and consequential relief for mandatory injunction, wherein the trial Court, vide order dated 15.06.2010, was pleased to issue a temporary injunction to the respondents to consider the claim of the plaintiff (respondent No. 5 herein) for promotion and his juniors shall not be promoted unless he is found unfit for promotion on any ground. The case when came up for further consideration on 02.08.2010, a further direction was issued by the trial Court to consider the name of respondent No. 5 for promotion. As per the directions issued by the trial Court, names of the petitioner and respondent No. 5 were considered by the DPC in its meeting held on 29.09.2010 and as respondent No. 5 had fulfilled, by that time, the prescribed experience, his name for promotion was considered and recommended, which was accepted by the competent authority. An order dated 16.11.2010 promoting him to the post of Labour Officer- cum-Conciliation Officer was passed (Annexure R-1). Accordingly, it has been prayed that the present writ petition does not have any merits and deserves to be dismissed.
(3.) I have heard counsel for the parties and have gone through the records of the case.;