IMPORTANT POINT
Promotion eligibility under service rules must be adhered to, but challenges may be dismissed if the respondent has retired or is nearing retirement.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

Heard Shri G. Jalan, learned counsel for the petitioner. Also heard Shri N.Upadhyay, learned Standing Counsel, Irrigation Department.

2. The instant writ petition has been filed with the following relief.

“In the premises aforesaid, it is humbly prayed that your Lordships may be pleased to issue Rule, call for records, issue notice calling upon the respondents to show cause as to why a writ in the nature of Mandamus be not issued directing the respondents to cancel, recall or otherwise forbear from giving effect to the Order dated 08.01.2018 (Annexure-3) promoting the private respondent in the Office of the Lakhimpur Division (Irrigation), North Lakhimpur and / or why a writ in the nature of Certiorari be not issued setting aside and quashing the Order dated 08.01.2018 (Annexure-3) promoting the private respondent in the Office of the Lakhimpur Division (Irrigation), North Lakhimpur and / or why a writ in the nature of Mandamus be not issued directing the respondent authorities to de novo initiate a process for selection of eligible candidate for promotion to the post of Junior Assistant in the Office of the Lakhimpur Division (Irrigation), North Lakhimpur and upon cause or causes shown and after hearing the parties be pleased to allow the writ petition and /or pass such further order / orders as your Lordships may deem fit and proper.

And During the pendency of the Rule, Your Lordships may be pleased to stay the operation of the order dated 08.01.2018 (Annexure-3) promoting the private respondent in the Office of the Lakhimpur Division (Irrigation), North Lakhimpur and / or pass such further order/ orders as Your Lordships may deem fit and proper.”

3. The facts projected, in a nutshell is that the petitioner was initially appointed as a Muster Roll Worker in the Irrigation Department, Lakhimpur in the year, 1989. Subsequently, his services were regularised as a Peon vide order dated 22.07.2005. It is the case of the petitioner that similar benefit of regularisation was also given to the respondent no.5. The grievance of the petitioner is however in connection with the promotion granted to the respondent no. 5 as Junior Assistant vide order dated 08.01.2018. It is averred that such promotion is not in accordance with law as the respondent no. 5 does not have the eligibility criteria.

4. Shri Jalan, the learned counsel for the petitioner has submitted that the services of the parties are governed by the Assam Ministerial District Establishment Service Rules, 1967. It is submitted that the aforesaid Rules have undergone amendments and as per the present requirements for promotion to the post of Junior Assistant, an incumbent is required to be a Graduate. It is contended that while the petitioner is a Graduate, the respondent no. 5 is a Matriculate. He accordingly submits that the order of promotion of the respondent no. 5 is liable to be set aside with a further direction to consider the case of the petitioner. He has also informed this Court that though the respondent no. 5 has been served, the said respondent no. 5 has chosen not to appear and contest the writ petition.

5. Per contra, Shri Upadhyay, the learned Standing Counsel, Irrigation Department has submitted that the entire facts have not been revealed in the writ petition and a very important aspect regarding the process of regularisation of the services of the petitioner has not been disclosed. He has submitted that the regularisation of the services of the petitioner was in terms of a General Order dated 03.10.2005 whereby certain posts were created only for the purpose of regularising the incumbents which were personal to them. It is submitted that the petitioner is a beneficiary of the said process.

6. In this regard, the learned Standing Counsel has placed before this Court the aforesaid communication dated 03.10.2005 along with the enclosures which contain the name of the petiti