Government servants are entitled to promotion based on seniority and vacancy availability; there is no automatic right to promotion without these conditions being met.

JUDGMENT

Akil Kureshi; CJ.:--

This appeal is filed by the State Government to challenge the judgment of the learned Single Judge, dated 29th January 2021, passed in WP(C) No.437/2017. The respondent herein original petitioner had filed the said petition with a prayer that he should be promoted to the post of Sub-Divisional Controller considering his total length of service and seniority and that such promotion should be granted with retrospective effect from the year 2010.

Briefly stated, the facts are that the petitioner was appointed as a Junior Store Keeper in the State service on 30th April 1990 in the Directorate of Food and Civil Supplies Department. Under a memorandum, dated 20th April 1998, a charge sheet was framed against the petitioner. The disciplinary authority held that the charges were proved. Appellate authority confirmed the decision. This resulted into imposition of penalty on the petitioner in the year 2003 by which a recovery of an amount of Rs.2,44,238/- was ordered against the petitioner.

In the year 2007, persons junior to the petitioner in his cadre of Store Keeper were promoted to the post of Inspector (Food). The petitioner was not promoted. He, therefore, filed WP(C) No.276/2012 which was decided by the learned Single Judge by a judgment dated 27th January 2016. The respondents were directed to convene a review Departmental Promotion Committee (DPC) and consider the case of the petitioner as on the due date when his juniors were promoted. This exercise led to the petitioner’s promotion as Food Inspector w.e.f. 3rd January 2007. On the basis of his retrospective promotion and improved seniority position, the petitioner claimed further promotion to the post of Sub-Divisional Controller which was not granted to him by the department. The petitioner, therefore, filed the present petition with a prayer for grant of such promotion with retrospective effect from the year 2010.

The department opposed the petition pointing out that no person junior to the petitioner in his category of Scheduled Tribe(ST) has been promoted to the said post. Two persons who were junior to the petitioner and who were promoted both belonged to Scheduled Caste(SC) category and were promoted on their reserved posts. Ignoring these averments of the department, the learned Single Judge allowed the writ petition making following observations :

“ ………………..

[9] In my opinion, this cannot be the ground to deprive a person for consideration of his right to be promoted and more particularly when his junior was promoted. Further, respondents are duty bound to enforce the order of the Court.

[10] Having held so, the respondents are directed to enforce the order of this Court as reproduced in para-6 of this judgment. Consequently, the petitioner is entitled to be considered for promotion to the next higher post/posts. Needless to say, that the petitioner is entitled to get all pecuniary benefits notionally. In furtherance thereof, the petitioner would be entitled to get benefit of next promotion as per Recruitment Rules from the date when his juniors were promoted i.e. with effect from 2010. If there is no vacancy at present, the respondents shall create supernumerary post for a period which may be required to adjust new situation. It is made clear that entire exercise shall be completed within 2(two) months from the date of receipt of the copy of this order.”

This judgment, the State has challenged in the present appeal.

Learned counsel Mrs. Sarama Deb for the State, drew our attention to a recent judgment, dated 26th July 2021, passed in case of State of Tripura and Ors. v. Sri Monoranjan Majumder in WA No.140/2021 filed by the State Government in which under similar circumstances the judgment of the learned Single Judge was set aside.

Learned senior counsel Mr. S