Point of Law: Under Rule 12 (1), there is a requirement for making an assessment of likely number of vacancies to be filled up by promotion in next year in each cadre and such assessment is required to be made before end of each year.

JUDGMENT :

1. The extraordinary jurisdiction conferred upon this Court by Article 226 of the Constitution of India has been sought to be invoked by means of this writ petition. The issue relates to a claim for promotion of the petitioner, which, according to him was entitled to and therefore to give the effect of such promotion. At the outset, it may however be mentioned that the petitioner had retired from his services on 31.10.2011.

2. Before coming to the issue which has fallen for consideration, it would be convenient if the facts of the case are narrated in brief.

3. The petitioner was appointed in the year 1981 as an ACS officer Class II. He had retired from service on 31.10.2011 on attaining the age of superannuation and at that point of time, he was holding the post of Joint Secretary to the Government of Assam, Department of Secretariat Administration. The grievance of the petitioner pertains to the aspect of promotion from the rank of Senior Grade II to Senior Grade I of the ACS for the year 2011. It is the specific case of the petitioner that there was failure on the part of the respondent authorities to undertake the exercise for promotion which mandates an assessment of the vacancies in the coming year and such assessment is to be made by the end of the previous year. It is contended that though the petitioner was within the zone of consideration, no such exercise was undertaken, as a result of which, before the exercise of promotion could be undertaken, the petitioner had retired from his service.

4. I have heard Shri I. Chowdhury, learned Senior Counsel assisted by Shri S. Biswakarma, learned counsel for the petitioner whereas the State respondents are represented by Shri C.S. Hazarika, the learned State Counsel.

5. The learned Senior Counsel for the petitioner has referred to Rule 12 of the Assam Civil Service Rules, 1998 (hereinafter called the Rules), which pertains to the general procedure of promotion. Under Rule 12 (1), there is a requirement for making an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre and such assessment is required to be made before the end of each year. He submits that in the Gradation List published in the year 2002, whereas the petitioner was placed against Sl. No. 242, one Mohammed Parvez Shah was at Sl. No. 244. The learned Senior Counsel has also referred to Rule 12 (4) which lays down the criteria for promotion, which is “merit with due regard to seniority”. Attention of this Court has also been drawn to Rule 12 (2) as per which, a list of officers four times the number of actual vacancies in order of seniority are required to be considered for such promotions. It is submitted that for the year 2011, the number of vacancies were 23. However, the promotional exercise was delayed and the promotions were ultimately given in the year 2012 by which time, the petitioner had retired from service on 31.10.2011. Ultimately, the promotions were made, vide order dated 04.08.2012 which, amongst others, contain the name of Shri Parvez Shah at Sl. No.12. It is the contention of the petitioner that when a person junior to the petitioner in the Gradation List was considered and thereafter promoted to the post of Senior Grade I of the ACS, the petitioner could not have been denied of such consideration in accordance with the Rules.

6. The learned Senior Counsel has also submitted that there has been instances of delay on earlier occasion also. By drawing attention of this Court to the minutes of meeting of the Selection Board held on 08.09.2011, the learned Senior Counsel has submitted that in the said meeting, promotion of the vacancies for the year 2010 was also considered and accordingly, retrospective promotion was given from 01.06.2010 to 3 persons, namely Shri Krishna Ram Mili, Shri Munibur Rahman and Shri Hemanta Kr. Baidya, who are at Sl. Nos. 7, 15 and 17. It is submitted that all the said incumbents had earlier retired from service and