The main legal point established in the judgment is that promotion to a reserved post is subject to the constitutional mandate and administrative prerogative of the employer, and it cannot be insisted upon by the employees.

JUDGMENT :

Rai Chattopadhyay, J.

1. The present appellants preferred a review petition before the Hon’ble Single Bench, along with an application for recalling, with respect to its order dated 14.01.2020, passed in writ petition No.WPA 23763 of 2019, being Nos. RWV 36 of 2020 and CAN 1 of 2020 respectively. Both of those applications were disposed of by the Hon’ble Single Judge vide order dated 21.04.2022 when the Bench has directed for rejection of both the said applications.

Hon’ble Single Judge’s order dated 21.04.2022 as well as the order passed in Writ Petition No. 23763 of 2019, are under challenge in these appeals.

2. Mr. Kishore Dutta has represented the appellant/municipality here. Appellant’s challenge is with regard to the verdict of the Hon’ble Single Judge, that the respondent No.1/ writ petitioner should be immediately recommended (within a stipulated time) for appointment on promotion to the vacant post of “Assistant Engineer”, of the said municipality. In its order dated 14.01.2020, the Hon’ble Single Bench has also directed that upon recommendation by the appellant/municipality, the name of the respondent No.1/writ petitioner should be forthwith approved by the present respondent No. 4 i.e, the Directorate of Local Bodies, Government of West Bengal, within the time period, as directed.

3. Mr. Dutta has firstly said that such directions by the Hon’ble Single Bench, would be violative of the constitutional provisions and thus not maintainable. He specifies that the ‘vacant post’ of Assistant Engineer, as indicated by the Hon’ble Single Judge, is a post reserved for candidates belonging to the category of Schedule Caste/ Schedule Tribe. The respondent No.1/writ petitioner not belonging to the said category, but being an unreserved category employee, would not be a suitable and eligible candidate for the said post. He has said that the Hon’ble Single Judge has erred in orders dated 14.01.2020 and 21.04.2022 (rejecting the review petition) by not considering that recommendation of an unreserved employee for promotion to a post earmarked as reserved, would tantamount to violation of Constitutional mandate as envisaged in Article 16(4A) and Article 16(4B) of the Constitution of India.

4. According to the appellant/municipality, the directions as above, by the Hon’ble Single Bench, suffers from non-application of judicious mind to the distinguishing features between the provisions envisaged under Article 14 and Article 16(4A) & (4B) of the Constitution of India. It is stated that the respondent No.1/writ petitioner being an unreserved employee, could not claim any right for consideration for promotion to a reserved post and that he could not have agitated any violation of his rights as envisaged under the Constitution as equal to the candidates, who might have been the suitable candidates for that post, having belonged to a reserved category. Thus the appellant/municipality has challenged the suitability of the respondent No.1/writ petitioner, for promotion to the said vacant post.

5. Mr. Dutta, for the appellant/municipality would further say that the respondent No.1/writ petitioner would not even be suitable and eligible in terms of experience in the field, as required for promotion to the said post as per the notification. According to the appellant, the feeder post for promotion would be that of a ‘sub-assistant engineer’, wherein an aspirant would require to serve for a minimum period of 10 years, before he be eligible for promotion to the next higher post in the cadre. It is indicated that admittedly, the respondent No.1/writ petitioner was occupying the post of a ‘sub-assistant engineer’, with effect from 20.01.2016. Therefore as on the date of notification, the respondent No.1/writ petitioner would not even have sufficient years of service in the feeder post and so would not have been eligible in terms of experience.

6. Veracity of qualification of the respondent No.1/writ petitioner has also been questioned by the ap