IMPORTANT POINT
The right to notional promotion and subsequent benefits is not established solely based on the timing of a selection committee meeting before an employee's retirement. Fair consideration for promotion is a right, but notional promotion cannot be granted without evidence of discrimination or unreasonable action in the promotion process.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. The writ petition has been filed with the following relief:

“Under the afore stated premises, it is humbly prayed that Your Lordships may be graciously pleased to admit this Writ Petition, call for the records and issue Notice/Rule calling upon the Respondents to show cause as to why, a Writ in the nature of Mandamus and/or Certiorari and/ or any other Writ, direction or Order of the like nature be not issued for: giving notional promotion to the Petitioner to the post of Section Assistant w.e.f. 01.06.2020, i.e. the date on which, decision was taken by the Selection Committee to select the Petitioner for promotion and such promotion may be taken into account which assessing the post retirement and pensionary benefits of the Petitioner and on hearing the cause or causes as may be shown, to make the rule absolute and/or to pass such further other order as your Lordship may deem fit and proper.

AND

Pending final adjudication of the Instant Writ Petition, Your Lordships may also be pleased to restrain the Respondents from cancelling the decision taken in the meeting held on 01.06.2020 in the Office of Respondent No. 4 to select the Petitioner for promotion to the post of Section Assistant.”

2. The facts projected by the petitioner are that he was appointed as Khalasi vide an order dated 13.12.1989 in Public Health Engineering (PHE) Department in the Karimganj PHE Division. A provisional inter se list of Khalasi was prepared in which, the name of the petitioner figured against S. No. 66. The aforesaid provisional list was finalized on 29.05.2020 and the name of the petitioner had figured at S. No. 58.

3. The promotional exercise was undertaken by a Selection Committee which had held its meeting on 01.06.2020 for considering promotions to various vacant posts of Grade-III and Grade-IV. According to the petitioner, though his name was recommended for promotion, before such promotion could be given effect to, the petitioner had attained the age of superannuation on 30.09.2020 and had retired from service. The claim of the petitioner is that he is entitled to be given notional benefit of such promotion and accordingly, the consequential post retirement benefits.

4. I have heard Shri D. Chakrabarty, learned counsel for the petitioner. Also heard Ms. M. Kalita, learned counsel representing the PHE Department, Assam whereas Shri D. Bhattacharrya, learned counsel appears for the Accountant General, Assam.

5. Shri Chakrabarty, learned counsel for the petitioner has submitted that his name was within the zone of consideration in the final gradation list wherein, he was placed against S. No. 58. He has also contended that the date of superannuation of the petitioner was after about 4 months from the date when the Selection Committee had made the recommendations. He accordingly submits that the delay in effecting the promotions should not cause prejudice to the petitioner and he be granted the benefits of notional promotion from such date and consequently all the post retirement benefits by construing that he had retired from the promoted post of Grade-III.

6. In support of his submissions, Shri Chakrabarty, learned counsel for the petitioner has relied upon the following decisions:

(i) Nalini Kant Sinha vs. State of Bihar and Others, 1993 Supp. (4) SCC 748

(ii) State of Uttar Pradesh and Others vs. Roshan Singh and Others, (2006) 13 SCC 661

(iii) Union of India vs. Hemraj Singh Chauhan and Others, (2010) 4 SCC 290

7. This Court has, however, noted that the cases of Nalini Kant Sinha (supra) and Roshan Singh and Others (supra) are not relevant to the present subject matter.

8. In the case of Hemraj Singh Chauhan (supra), the Hon’ble Supreme Court has reiterated the requirement of a fair consideration for promotion. The aspect of delay on the side of the respondent authorities was also considered by the Hon’ble Court.

9. Per contra, Ms. Kalita, learned counsel representing the PHE has submitted that the post of Khalasi is