The main legal point established in the judgment is the entitlement to exemption from the departmental examination for promotion, the principle of estoppel by election, and the jurisdiction of the respondents in stopping increments.

JUDGMENT :

(Tapabrata Chakraborty, J.)

1. The present writ petition has been preferred challenging an order dated 19th June, 2019 passed by the learned West Bengal Administrative Tribunal in OA 659 of 2018 wherein the petitioner prayed for the following reliefs :

‘(a) Mandatory order do issue commanding the respondents, and their men agent and assigns to produce the record of the case including the Memo bearing No. 1963/3/BWD dated 13.07.2018, being annexure “A-12” herein, so that cognisable justice may be rendered by quashing the same;

(b) Mandatory order do issue commanding the respondents, and their men agent and assigns to confirm the benefits of exemption from appearing in the Departmental Examination, for being promoted to the post of Executive Engineer (Civil) as granted to the applicant.

(c) Mandatory order do issue commanding the respondents, and their men agent and assigns to promote the applicant to the post of Executive Engineer (Civil) upon fulfilling all the eligibility criterions for the promotion.’

2. The learned Tribunal rejected the prayers holding that the petitioner was not entitled to be exempted from appearing in the departmental examination on the date of his promotion to Assistant Engineer (in Short, AE) with retrospective effect from 21st November, 1994 as he was liable to pass the departmental examination at that relevant period for not crossing 52 years of age.

3. During pendency of the writ petition, the petitioner, namely, Bidyut Kumar Nandi (in short, Bidyut) expired on 12th January, 2020 and thereafter the present applicants, who are the heirs of the deceased, have been brought on record.

4. Mr. Dhar, learned senior advocate appearing for the heirs of Bidyut, submits that that having granted promotion to the post of AE with retrospective effect from 21st November, 1994 vide memo dated 28th March, 2018, the respondents had no jurisdiction to stop his increments with effect from 1st July, 2018 vide order dated 13th July, 2018 on a purported plea that he had not been granted exemption from passing the departmental examination. The said order had been passed on an erroneous premise in as much as there was no requirement to pass any departmental examination for continuance in the post of AE.

5. He contends that Bidyut fulfilled all the eligibility criteria under the recruitment rules for promotion to the post of AE in the year 1992 but such promotion was illegally withheld for more than a decade and ultimately granted by a memo dated 6th August, 2013 and in the midst thereof, Bidyut crossed the age of 52 years. Such illegality was subsequently rectified by the respondents themselves and Bidyut was granted retrospective promotion to the post of AE with effect from 21st November, 1994 vide order dated 28th March, 2018 with notional benefits. It would be explicit from the memo dated 15th June, 2018 that Bidyut had fulfilled all conditions for promotion to the post of Executive Engineer (in short, EE) but such promotion was illegally withheld on a purported plea that he had not obtained exemption from passing the departmental examination being oblivious of the fact that it was an impossibility on the part of the petitioner to appear in any departmental examination for promotion to the post of EE in the year 1994 since he was granted promotion to the feeder post, being the post of AE, by a memo dated 6th August, 2013. In support of the arguments advanced, reliance has been placed upon the judgments delivered in the case of Union of India and another –vs- Col.A.D. Nargolkar and Others, reported in (2019) 13 SCC 723, Gopi Chand Vishnoi –vs- State of UP and Another, reported in (2006) 9 SCC 694, Devendra Kumar –vs State of Uttaranchal and Others, reported in (2013) 9 SCC 363.

6. Per contra Mr. Bandopadhyaya, learned advocate appearing for the State submits that as per the recruitment rules there are two requirements for promotion to the post of EE. An incumbent is required to complete six years of service as AE and ha