Back
2022 Supreme(Gau) 286
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, J.
Tulumoni Devi, W/o. Ratul Neog - Petitioner
Versus
The State of Assam, Rep. by its Commissioner and Secy. to the Govt. of Assam Elementary Education & Ors. - Respondents
WP(C) No. 1173 of 2022
Decided On : 19-05-2022
For the Petitioner: Mr. A.C. Borbora.
For the Respondent: SC Elem. Edu.
Point of Law : In event an employee is subjected to a departmental proceeding but otherwise was entitled to be considered for promotion, such consideration cannot be denied and it is incumbent upon the authorities to give a consideration to the claim for promotion.
Headnote:
Constitution of India, 1950 - Articles 14 and 16 – Equality before Law - Both petitioner and respondent were Assistant Professors in Government Sikhshan Mahavidalaya, and both claimed eligibility for being promoted to cadre of Professor - In process by the impugned notification of the Special Commissioner, Elementary Education Department, Government of Assam, respondent was allowed to officiate as Professor and was posted on promotion at CTE - Notification pertaining to the promotion of respondent no. 8 is assailed in this writ petition on the ground that prior to such promotion being meted out to the respondent no. 8, the petitioner also ought to have been considered for similar promotion - In event an employee is subjected to a departmental proceeding but otherwise was entitled to be considered for promotion, such consideration cannot be denied and it is incumbent upon the authorities to give a consideration to the claim for promotion (Para 6).
Findings of the Court :
Procedure having not been adopted and the petitioner being not subjected to a consideration for promotion at the relevant point of time when the other similarly situated employees were so considered, Court are of the view that the legal right of the petitioner to be so considered had been violated - Accordingly, the respondents in the SCERT are directed to constitute a Review Departmental Promotion Committee to consider the claim of the petitioner for promotion as it stood when the other similarly situated employees were so considered which ultimately resulted in the notification for giving effect to promotion to such other employees - In event, Review DPC finds that the petitioner was otherwise eligible and ought to have been promoted, consequential orders be issued for the purpose - Court also take note that by the order, the petitioner had been exonerated of all the charges that were made against her in the departmental proceeding that was initiated - From such point of view, had the petitioner been considered for promotion at the relevant point of time and the results thereof been kept in a sealed cover, the same could have been acted in favour of the petitioner but as because it was not so done, the legal right of the petitioner to be considered for promotion had been affected.
Result – Writ petition stands allowed
JUDGMENT :
Heard Mr. A.C. Borbora, learned senior counsel assisted by Mr. B.P. Borah, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned counsel for the respondents no. 1, 2, 3, 4 and 6 being the authorities under the Elementary Education Department, Government of Assam and Ms. D.D. Barman, learned Additional Senior Government Advocate for the respondent no. 5 being the Deputy Commissioner, Nagaon and Mr. B. Gogoi, learned counsel for the respondent no. 7 being the Departmental Promotion Committee represented by the Chairman, SCERT as well as Mr. M.K. Das, learned counsel for the respondent no. 8, Binita Pathak.
2. Both the petitioner Dr. Tulumoni Devi and the respondent no. 8 Binita Pathak were Assistant Professors in the Government Sikhshan Mahavidalaya, Nagaon and both claimed eligibility for being promoted to the cadre of Professor. In the process by the impugned notification dated 28.12.2021 of the Special Commissioner, Elementary Education Department, Government of Assam, the respondent no. 8 Binita Pathak was allowed to officiate as Professor and was posted on promotion at CTE Nagaon. The notification dated 28.12.2021 pertaining to the promotion of the respondent no. 8 Binita Pathak is assailed in this writ petition on the ground that prior to such promotion being meted out to the respondent no. 8, the petitioner also ought to have been considered for similar promotion.
3. We have taken note that the Institute CTE, Nagaon and the Government Sikhshan Mahavidalaya, Nagaon are one and the same institute and therefore, it has to be construed that the order of promotion given to the respondent no. 8 Binita Pathak was in respect of Government Sikhshan Mahavidalaya, Nagaon.
4. Mr. A.C. Borbora, learned senior counsel for the petitioner candidly makes a statement that the petitioner is not interested to assail the promotion of the respondent no. 8 but on the other hand, is more interested to establish her own legal right to be considered for promotion at the relevant point of time when the respondent no. 8 was so promoted.
5. It is stated that when the process for promotion to the cadre of Professor in the CTE/IASEs and Government B.Ed. Colleges was initiated, there was a departmental proceeding pending against the petitioner. As because of the pendency of the departmental proceeding, the petitioner was not given a due consideration for such promotion although under the law, the petitioner had a legal right to be so considered.
6. The law in this respect is settled by the Supreme Court in Union of India and others v. K.V. Jankiraman and others reported in (1991) 4 SCC 109, wherein it had been held that in the event an employee is subjected to a departmental proceeding but otherwise was entitled to be considered for promotion, such consideration cannot be denied and it is incumbent upon the authorities to give a consideration to the claim for promotion and further the results to be kept in a sealed cover are to be acted upon after completion of the departmental proceeding depending on the manner in which the departmental proceeding was concluded.
7. The aforesaid proposition had again been clarified in paragraphs 12 and 13 in its pronouncement in the State of M.P. v. J.S. Bansal and another reported in (1998) 3 SCC 714 which is extracted as below :
“12. Both these memoranda were considered by this Court in Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 : (1993) 23 ATC 322] in which it was laid down that consideration of an employee for promotion, selection grade, crossing of efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of any preliminary enquiry or criminal investigation but the “Sealed Cover Procedure” can be resorted to if a charge-sheet has been issued or the departmental proceedings are pending or the employee has been placed under suspension. It was also laid down that if on a consideration of the name of the delinquent employee, the recommen
