JUDGMENT :

R.M.Chhaya, J

Feeling aggrieved and dissatisfied with the judgment and order dated 01.06.2022 passed by the learned Single Judge in WP(C) No. 7192 of 2021, the original petitioner has preferred this appeal.

2. We have heard Mr. S.P. Choudhury, learned counsel for the appellant and Mr. K.P. Pathak, learned Standing Counsel, Department of Environment & Forest, Government of Assam for the respondents.

3. The following facts emerge from the record of the appeal:

The appellant was initially appointed as a Lower Division Assistant in the office of the Chief Conservator of Forests, Social Forestry, Guwahati on 17.12.1987. Thereafter, the appellant came to be promoted to the post of Senior Assistant (Directorate Level) on 03.09.2014. It is the case of the appellant that by virtue of the provisions of Rule 8 of the Assam Directorate Establishment (Ministerial) Service Rules, 1973 (hereinafter referred to as ‘the 1973 Rules’), the appellant ought to have been promoted to the post of Superintendent as he had completed 7(seven) years of service in the feeder post, which is the eligibility criteria. It is also a matter of fact that the appellant has retired from service on attaining the age of superannuation in the month of February, 2022. It is the further case of the appellant that after retirement some other similarly situated persons have been promoted to the post of Superintendent and, therefore, the case of the appellant should have been considered. The learned Single Judge by the judgment impugned was pleased to dismiss the writ petition against which the present appeal has been filed.

4. Mr. S.P. Choudhury, learned counsel for the appellant has taken this Court through the factual matrix arising in this appeal and has contended that the learned Single Judge has committed an error in coming to the conclusion that there was no pleading in the writ petition as regards the eligibility criteria. Mr. Choudhury has contended that the appellant specifically pleaded that he is entitled to promotion to the post of Superintendent on completion of 7 years of service in the cadre of Senior Assistant and more particularly when vacancy was existing. It was contended by Mr. S.P. Choudhury that the eligibility criteria has not been properly considered by the learned Single Judge and even though the criteria is seniority-cum-merit, as per the 1973 Rules appellant would otherwise also be entitled to promotion. Mr. Choudhury further contended that the appellant had filed a representation to the respondent authority which has not been considered. It was also contended by Mr. Choudhury that the writ petition was filed before his retirement and, therefore, the appellant would be entitled to notional promotion with all benefits including pecuniary benefits. Mr. Choudhury further contended that the criteria for promotion has also not been appreciated by the learned Single Judge and that no affidavit-in-opposition was filed by the respondents in the writ petition and on the aforesaid grounds it was contended that the appeal requires consideration and the same be allowed. Mr. Choudhury has relied upon the judgment of the Hon’ble Apex Court in the case of Ajit Singh & Ors. (II) –vs- State of Punjab & Ors., reported in (1997) 7 SCC 209 to buttress his argument.

5. Percontra, Mr. K.P. Pathak, learned counsel for the respondents has opposed the appeal. Mr. Pathak submitted that the criteria for promotion was seniority-cum-merit and, admittedly, the appellant did not fulfill the same. Referring to the 1973 Rules, Mr. Pathak submitted that the appellant has made an attempt to misread the Rule. He contended that as per Rule 8 of the 1973 Rules, appointment to the post of Superintendent shall be made by the appointing authority by promotion on the basis of seniority-cum-merit from amongst Senior Assistants of the service who have rendered not less than 7 years of service as Senior Assistant on the 1st day of the year in which the selection for promotion is made.