Consideration For Promotion Facet Of Fundamental Right, Can't Deny Promotion To Eligible Candidates If Vacancies Available: Gauhati High Court

The Gauhati High Court has directed the Department of Fishery, Government of Assam to consider the representation of a retired In-Charge District Fisheries Development Officer (DFDO) for promotion to the post of DFDO on merit regarding the position obtaining on the date of his retirement from service and pass an appropriate order within 3 months.

The single-judge bench of Justice Suman Shyam observed:

“Law is well settled that the right to be considered for promotion is a facet of a fundamental right. If there are vacancies available for being filled up by way of promotion and there are eligible departmental candidates who have a right to be considered for promotion to such posts, the authorities cannot deny such candidates, coming within the zone of consideration, an opportunity of being promoted and thereby deprive them not only of the satisfaction of career progression but also the consequential pecuniary benefits.”

The case of the petitioner was that he was originally appointed as Fisheries Extension Officer and joined the department in the year 1982. In the year 1992, the petitioner submitted that he was promoted to the post of Sub-Divisional Fisheries Development Officer (SDFDO), and in 2005 was entrusted with the charge of DFDO, although he was not promoted to the said post on a regular basis. The petitioner retired from service as In-Charge DFDO w.e.f. December 31, 2013.

The contention of the petitioner was that there were vacancies available in the cadre of DFDO for being filled up by way of promotion on a regular basis. Notwithstanding the same and despite the fact that the date of superannuation of the petitioner was approaching fast, no steps were being taken by the authorities to consider his case for promotion.

While in service, the petitioner had earlier approached the High Court with the above-mentioned grievance. The Court in its order dated October 4, 2013 directed the respondents to consider the case of the petitioner and pass appropriate order, as expeditiously as possible but at any date ahead of his retirement.

In the meantime, by notification dated October 10, 2013, the petitioner, who was holding the post of SDFDO and was the In-Charge, DFDO, Sivasagar, was transferred and posted as Superintendent, Fisheries Training, Joysagar.

Also, by the order dated December 12, 2013 the claim of the petitioner for promotion to the post of DFDO was declined by the respondents due to the anomaly in the Fishery services.

The Counsel appearing for the petitioner argued that there was no justifiable ground for the authorities to deny regular promotion to the petitioner to the substantive post of DFDO prior to his retirement.

On the other hand, the Senior Government Advocate, Assam submitted that the petitioner was not eligible for being considered for promotion to the post of DFDO since he had failed to complete the mandatory requirement of Post Graduate Training in Fishery Science in CIFRI/ CIFE or any other equivalent training recognized by the ICAR.

The Court noted that the impugned order dated December 30, 2013 was passed just a day before the retirement of the petitioner, primarily on two grounds.

“Firstly, after re-designation/ bifurcation of the post of District Fisheries Development Officers by creation of posts of Addl. District Fisheries Development Officers, there were certain anomalies coming in the way of consideration of candidates for promotion to the post of Sub-Divisional Fisheries Development Officers (SDFDO), as a result of which, no regular promotion could be given to the eligible candidates. Secondly, there was delay in regularization of the promotion given to the petitioner in the post of SDFDO. The reasons cited in the order dated 30-12-2013, in the considered opinion of this Court, cannot be treated as valid grounds to deny promotion to the petitioner,” the Court said.

It was highlighted by the Court that if the petitioner was eligible under the Rules/ Orders for being considered for promotion and if there were vacant posts of DFDO available in the department, the respondents could not have denied promotion to him merely by citing the reason of anomalies.

The Court observed:

“In the present case, there is no doubt or dispute about the fact that the Service Rule is yet to be framed and therefore, the condition of service of the departmental candidates are being governed by the previsions of the Assam Fisheries Service (Recruitment and Promotion) Orders, 1989. However, it appears that as per the provisions of the Orders of 1989, the writ petitioner was eligible for being considered for promotion. Yet, he was not promoted while in service.”

The Court relied upon the judgment of Gauhati High Court in Krishna Kumar Sharma v. State of Assam & Ors. 2017 (1) GLT 686 in which in a similar circumstance, the Court had remanded back the matter to the departmental authorities with appropriate directions.

Accordingly, the Court directed the petitioner to submit a fresh representation to the respondents within 6 weeks and for the respondents to consider and dispose of the matter within three months. 

Citation: 2024 LiveLaw (Gau) 2

Case Title: Syed Habibur Rahman v. The State of Assam & 2 Ors.

Case No.: WP(C)/688/2014

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