IMPORTANT POINT
The court established that employees have a legal right to fair consideration for promotion based on eligibility, even if there is no indefeasible right to promotion itself.

JUDGMENT :

Sanjay Kumar Medhi, J.

The issue involved in this writ petition pertains to a claim for giving retrospective effect to the promotion of the petitioners as Assistant Engineers in the Panchayat and Rural Development Department.

2. As per the facts projected, the petitioners, who were initially Diploma holders were appointed as Junior Engineers in the Panchayat and Rural Development Department. While in service, the petitioners had acquired the Degree of Associate Membership Examination in Civil Engineering (India) (AMICE) (I), in the year 2013, which the petitioners contend to be equivalent to Degree in Civil Engineering. As per the Rules holding the field, namely, Assam Panchayat and Rural Development Officers (Technical) Service Rules of 2015 (hereinafter Rules of 2015), more particularly, Rule 11(4)(c), when a Diploma holder who was appointed in the post of Junior Engineer obtains the Degree of Engineering, he is to be promoted to the next available vacancy of Assistant Engineer in consultation with the Assam Public Service Commission (APSC). It is further stipulated that such promotion would be considered as direct appointment. A meeting was held on 05.06.2014 and the minutes of meeting indicate that 27 nos. of posts of Assistant Engineers were vacant. Since no action was taken to promote the petitioners, they had filed a writ petition being WP(C)/279/2015. The said writ petition was disposed of vide order dated 15.05.2017 with a direction to consider their cases for promotion within 6 months. Though the period of 6 months was stipulated, the order of promotion was ultimately passed on 10.01.2020. The petitioners' claim is to give retrospective effect to the said order of promotion.

3. I have heard Sri K.N. Choudhury, learned Senior Counsel assisted by Shri C. Goswami, learned counsel for the petitioners. I have also heard Shri S. Dutta, learned Standing Counsel, Panchayat and Rural Development Department; Shri R. Borpujari, learned Standing Counsel, Finance Department and Shri S.K. Medhi, learned Standing Counsel, Accountant General, Assam.

4. Shri Choudhury, the learned Senior Counsel, by referring to the Rules of 2015, has submitted that the Rules provide in clear terms that if a Junior Engineer of the Assam Panchayat and Rural Development Officers (Technical) Service acquires the academic qualification as prescribed for a direct recruitment for the post of Assistant Engineer, he should be promoted as Assistant Engineer in consultation with the Commission against the next available vacancy in the cadre and such promotion would be treated as direct recruitment. Specific reference has been made to Rule 11(4)(c). He submits that there is no ambiguity regarding the acquiring of the Degree by the petitioners in the year 2013 and therefore, it was incumbent upon the respondent authorities to consider and promote the petitioners to the posts of Assistant Engineer. He has also highlighted the aspect of availability of vacancies which has been noted in the Minutes of Meeting dated 05.06.2014 wherein 27 nos. of vacant posts were recorded to be existing. The learned Senior Counsel submits that the initial writ petition filed by the petitioners, namely, WP(C)/279/2015 was disposed of vide order dated 15.05.2017 with a direction to consider the cases of the petitioners within 6 months. However, such promotions were made only on 10.01.2020. He therefore submits that the effect of the promotion should be given from the date of availability of the vacancies in the cadre of Assistant Engineer.

5. Per contra, Shri Dutta, the learned Standing Counsel of the Department has resisted the writ petition. By drawing the attention of this Court to the relevant Rules, he contends that the aspect of promotion is conditional and the same is subject to suitability. By referring to the affidavit-in-opposition filed on 31.08.2022, the learned Standing Counsel has submitted that there was some issue with the Degree of AMICE (I) obtained by the petit