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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Arun Dev Choudhury, J.
Anamika Tamuli W/o. Lakheswar Saikia – Petitioner
Versus
The State of Assam Rep. by Comm. And Secy. And Ors. - Respondents
WP(C)/21 of 2021
Decided On : 12-05-2022
Constitution of india, 1950 – Article, 226 –Grant of seniority and financial benefit –Petitioner challenges order, whereby prayer of petitioner for grant of seniority and financial benefit with retrospective effect from date of original DPC held has been rejected – Undisputed background facts of present litigation can be summarized - that in case of a notional promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. [Para 20, 21]
Finding of the court:
Thus it is clear that in case of a notional promotion from retrospective date, it cannot entitle employee to arrears of salary as incumbent has not worked in promotional post – These ratios were based on the principle of no work no pay – Therefore, in view of the aforesaid pronouncements and in given facts and circumstances narrated herein above, this court is of considered opinion that petitioner is not entitled for any arrears of salary/back wages for period she did not work – However, Petitioner shall be entitled for arrears of salary on the basis of re-fixation of pay and allowances notionally w.e.f. if any, i.e. date when petitioner was promoted.
Results: Writ petition is allowed.
JUDGMENT :
Heard Mr. H. K. Das, the learned counsel for the petitioner. Also heard Ms. R. S. Deori, the learned Standing Counsel for the respondent Nos. 1, 2 and 3.
1. By way of the present writ petition, the petitioner challenges the order dated 19.03.2020, whereby the prayer of the petitioner for grant of seniority and financial benefit with retrospective effect from the date of original DPC held on 30.07.2015 has been rejected. The undisputed background facts of the present litigation can be summarized as follows:-
II. Pursuant to a Notification dated 17.05.2010, appointing the petitioner to the post of ASCO, the petitioner joined the service on 18.05.2010.
III. The Gradation List reflecting the seniority position of the ASCOs till 2012, the petitioner was placed below one Akhtar Hussain.
IV. Being aggrieved, the petitioner submitted a representation before the Additional Chief Secretary to the Government of Assam, Soil Conservation Department on 14.08.2015 claiming that the petitioner has been wrongly placed below the said Akhtar Hussain in the Final Gradation List dated 30.07.2015.
(V) The petitioner claims that prior to such representation dated 14.08.2015, on 30.07.2015, the Departmental Promotion Committee in its meeting held on the even date, recommended different persons for promotion to the next higher rank of Divisional Soil Conservation Officer (in short DSCO). The petitioner claims that she has been wrongly refused such recommendation and one post was kept vacant for the said Akhtar Hussain as he was not eligible for promotion at that point of time.
(VI) Subsequently, by Notification dated 28.09.2015, 10 (ten) ASCOs were promoted to the next higher post of DSCO wherein the petitioner’s name did not figure.
(VII) Being aggrieved, the petitioner approach this Court by way of WP(C)/6558/2015 assailing the seniority position of the petitioner in final gradation list dated 30.07.2015 and also assailing the decision of the Departmental Promotion Committee.
(VIII) This Court by judgment dated 08.08.2017 allowed the said writ petition. As the said determination is relevant for present determination, the relevant paragraphs are quoted herein below:-
“24……. Even though in the appointment order of the respondent No. 5 the period for which he was appointed was not prescribed, fact remains that it was made under Regulation 3(f) of the 1951 Regulation. The nature of appointment under the 3(f) Regulation is ad hoc and a stop-gap arrangement and the Service Order provides for direct recruitment to the post ASCO through the APSC. Therefore, the case of the respondent No. 5 is squarely covered by corollary to Conclusion (A) of Direct Recruit Class II Engineering Officer’s Association (supra). Even though the respondent No. 5 continued as ad hoc appointee for some length of time, such period of service cannot be taken into consideration for the purpose of regularization with retrospective effect. However, the State respondents have taken into consideration this period of service and has granted retrospective regularization of service of respondent No. 5 with effect from 09.04.2003 by the impugned order dated 10.01.2012 despite the fact that he obtained recommendation from APSC in the year 2011 after failing to get selected on a number of previous occasions.
25…… In view of the above discussions, the writ petition is allowed. The order of regularization of the respondent No. 5 with effect from 09.04.2003 is set aside and the respondent authorities are directed to treat the respondent No. 5 to have been appointed as ASCO regularly with effect from 10.01.2012. State respondents are directed to appropriately correct the Gradation List dated 30.06.2015 as per respondent No. 5’s merit position in the recommendation of the APSC
Point of Law : In case of a notional promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post.
An employee denied promotion due to administrative errors is entitled to retrospective promotion and benefits once exonerated from charges.
Promotions take effect from the date granted, not from the date of vacancy, and retrospective seniority cannot be assigned.
Retrospective promotion cannot be claimed as a matter of right when disciplinary proceedings or penalties were operative at the time of the Departmental Promotion Committee (DPC) assessment, and prom....
Promotions may be granted retrospectively with salary when administrative delays occur due to no fault of the employee, avoiding disparate treatment based on administrative negligence.
Promotion eligibility requires fulfillment of specific conditions at retirement; mere vacancy does not confer entitlement to retrospective promotion.
The right to be considered for promotion is a fundamental right, but there is no absolute right to promotion itself, which becomes effective only upon assumption of duties.
Promotions in service are effective only from the date granted, not retrospectively, unless explicit rules allow such actions.
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