Page No.# 1/13 GAHC010278252023 2025:GAU-AS:17381 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7251/2023 INDRAJIT TALUKDAR S/O- LATE BIDIT CHANDRA TALUKDAR, R/O- VILL.- BALIKARIA KHARJARA, P.O. GOPAL BAZAR, DIST. NALBARI, PIN- 781334, ASSAM VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF HOUSING AND URBAN AFFAIRS, ASSAM SECRETARIAT, BLOCK-D, DISPUR, GUWAHATI-6. 2:THE DIRECTOR TOWN AND COUNTRY PLANNING GOVT. OF ASSAM DISPUR GUWAHATI-06 ASSAM 3:THE DEPUTY DIRECTOR TOWN AND COUNTRY PLANNING NALBARI PIN- 781335 ASSAM 4:THE CHAIRMAN OF THE SELECTION COMMITTEE TOWN AND COUNTRY PLANNING GOVT. OF ASSAM DISPUR GUWAHATI-06 ASSA Advocate for the Petitioner : MS. A TALUKDAR, Advocate for the Respondent : GA, ASSAM, SC, FINANCE DEPTT. Page No.# 2/13 B E F O R E HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR For the petitioner :Ms. A. Talukdar For the Respondent :Mr. B. Gogoi Date of Hearing :25-09-2025 Date of Order :16.12.2025 Judgment and Order (CAV) Heard Ms. A. Talukdar, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned Standing Counsel, AG, Assam. 2. The petitioner by way of instituting the present petition has assailed a communication dated 11.07.2003, issued by the Director, Town & Country Planning, Assam, by which the prayer of the petitioner for being considered for promotion to the post of Research Assistant from the post of Investigator as held by him was rejected on the ground that the meeting of the selection committee was held on 04.03.2003, and the petitioner having retired on 28.02.2003, his case for promotion was not considered. 3. The facts requisite for adjudication of the issue arising in the present writ petition is noticed as under; The petitioner was initially recruited as a Investigator in the Office of the Deputy Director, Town and Country Planning, Nalbari, on adhoc basis. After extension of his period of service from time to time, the services of the petitioner was regularized w.e.f., 14.11.1991. The petitioner retired from his services on reaching the age of superannuation w.e.f, 31.03.2003. It is projected that although the date of superannuation of the petitioner fell on 28.02.2023, but by virtue of an Office Memorandum dated 31.10.2012 issued by the Finance (ESTD- Page No.# 3/13 A) Department, Government of Assam, the date of his superannuation now fell on 31.03.2023 instead of 28.02.2023. It is projected that the age of the petitioner was reflected in his HSLC certificate as 15 (fifteen) years as on 01.03.1978. Calculating his date of birth from the age as disclosed in the HSLC certificate, the date of birth of the petitioner is to be computed as 02.03.1963 and accordingly his date of superannuation would be 31.03.2023. The petitioner further projected that on 04.12.2021 a gradation list of Investigators working under the Directorate of Town & Country Planning, was published and, therein, the name of the petitioner figured at serial no.9, however his date of superannuation was denoted, therein, as 28.02.2023 instead of 31.03.2023. The petitioner had approached the respondent authorities for correction of his date of superannuation. The selection committee in its meeting held on 04.03.2023, for consideration of the case of the incumbents in the cadre of Investigator for promotion to the post of Research Assistant had not considered the case of the petitioner for such promotion by erroneously reckoning the date of retirement of the petitioner as 28.02.2023, instead of 31.03.2023. It is projected that the petitioner was continuing in his services as on 04.03.2023. The petitioner further projects that on 29-03-2023, in terms of the recommendations made by the selection committee, persons found eligible for promotion to the cadre of Research Assistant were promoted and therein, names of the persons junior to the petitioner was included. However, the petitioner was denied of his such promotion on the erroneous assumption that his date of superannuation fell on 28.02.2023. The prayers made by the petitioner for grant of retrospective promotion to him w.e.f., the date of his promotion of his juniors not being considered, the petitioner has instituted the present proceedings. 4. The learned counsel for the petitioner by reiterating the facts noticed hereinabove, by referring to the Office Memorandum dated 31-10-2012, has submitted that the said Office Memorandum stipulates the manner in which the Page No.# 4/13 date of birth of an employee is to be calculated from the age disclosed in the HSLC certificate as on 1st of March of year, when the employee concerned had appeared for his HSLC examination. She further submits that a Government servant whose date of birth falls on the first day of any month shall be deemed to have attained the age of superannuation on the afternoon of the last day of the preceding month and a Government servant whose date of birth falls on a day other than the first day of a month, shall attain the age of superannuation on the last day of the month. She submits that the age of the petitioner as on 01-03- 1978 having been recorded as 15 (fifteen) years in his HSLC certificate, his date of birth would be 02-03-1963 and accordingly the petitioner in terms of the said Office Memorandum dated 31-10-2012 would retire from his services w.e.f., 31-03- 2023. She submits that on account of a wrong recording of the date of birth of the petitioner in the gradation list published of the incumbents in the cadre of Investigator and his date of retirement having been recorded therein as 28-02- 2023, the case of the petitioner for promotion to the post of Research Assistant was not considered and accordingly the petitioner was deprived of his due promotion to the cadre of Research Assistant along with his juniors who were so promoted upon selection, vide order dated 29-03-2023. 5. Per contra, Mr. B. Gogoi, learned Additional Advocate General, appearing for the State respondents has submitted that the date of birth of the petitioner was recorded in his service records as 01-03-1963 and accordingly his date of retirement was computed as 28-02-2023. However, due to extension of the service tenure of a government servant from 58 to 60 years, the date of retirement of the petitioner was also extended to 28-02-2023. He submits that in the gradation list published on 17.04.2015, the date of retirement of the petitioner was recorded therein as 28-02-2023. He submits that after publication of the said provisional gradation list, no objection being raised by the petitioner, with regard to any aspect recorded in the said gradation list, including his date of superannuation, the Page No.# 5/13 same was finalized on 29.06.2016. 6. Mr. B. Gogoi, further submits that the respondent authorities proceeded to publish a further provisional gradation list on 01-09-2021 of the incumbents in the cadre of Investigator and, therein, also the date of retirement of the petitioner was recorded as 28-02-2023. No objection having been received even against the said provisional gradation list as published on 01-09-2021, the same was finalized vide notification dated 01-12-2021, with no change in the service particulars of the petitioner. He submits that the meeting of the departmental promotion committee for consideration of the cases of the eligible incumbents in the cadre of Investigator to the cadre of Research Assistant was held on 04-03-2023. The date of the petitioner being recorded in the gradation list as well as his service records as 28-02-2023, the departmental promotion committee did not proceed to consider the case of the petitioner for promotion to the cadre of Research Assistant. He submits that the petitioner not having raised any objection with regard to the wrong recording of his date of birth in the gradation list published of the incumbents in the cadre of Investigator, from time to time, the petitioner would not be eligible to assail the promotions as effected in the matter. He further submits that the petitioner having superannuated from his services on 31-03- 2023, it would not be permissible to grant retrospective effect to the promotion of the petitioner w.e.f, 29-03-2023, inasmuch as, it would not be permissible for the petitioner to assume the charge of the post of Research Assistant after his superannuation, on cessation of the employee employer relationship. 7. I have heard the learned counsel for the parties and perused the materials available on record. 8. The submissions made by the learned counsel for the parties as well as the materials available on record, the following two issues arise for consideration of this Court in the present proceedings. (i) First, as to whether the superannuation of the petitioner would fall on 28- Page No.# 6/13 02-2023 and/or on 31-03-2023. (ii) If the petitioner is held to have superannuated from his services on 31-03- 2023, as to whether the petitioner would be entitled for a consideration of his case for promotion to the cadre of Research Assistant w.e.f, the date the persons whose names figured in the order dated 29-03-2023 were so promoted. 9. The issue with regard to the date of retirement of the petitioner is to be ascertained by this Court by applying the provisions of the Office Memorandum dated 31-10-2012. 10. On a perusal of the provisions of the Office Memorandum dated 31-10-2012, this Court finds that the age of the petitioner being disclosed as 15(fifteen) years as of 01-03-1978 in his High School Leaving Certificate, the date of birth of the petitioner on computation works out to 02-03-1963. The date of birth of the petitioner having fallen on 2nd of March 1963, his date of superannuation would be 31-03-2023 and not 28-02-2023. An error had occasioned in recording of the date of birth of the petitioner in his service book. The date of birth of the petitioner as recorded in his service book as 01-03-1963, it ought to have been recorded as 02-03-1963. 11. The said conclusion having been drawn, this Court would now examine the second issue arising in the present proceeding as to whether a direction is permissible to be issued to the respondents for consideration of the case of the petitioner for promotion to the cadre of Research Assistant along with the date on which his juniors were so promoted by applying the principle of “NEXT BELOW RULE”. 12. This Court finds that the date of birth of the petitioner was initially recorded in the gradation lists published from time to time, of the incumbents in the cadre of Investigator as 28-02-2021.Thereafter, on the increase in the age of retirement of the government servants of the State, from 58 to 60 years, the date of birth of the petitioner was recorded in the gradation list published, Page No.# 7/13 thereafter, as 28-02-2023. In the event, the petitioner's date of birth is so recorded as 28-02-2023, there was no occasion for the selection committee to consider the case of the petitioner in its meeting held on 04-03-2023 for the purpose of promotion to the cadre of Research Assistant, inasmuch as, the petitioner had already superannuated from his services. However, this Court having already concluded that the date of birth of the petitioner was required to be computed as 02-03-1963 and accordingly his superannuation to fall on 31-03-2023, it is found that the petitioner was very much in service as of 04-03-2023 and accordingly he was eligible to be considered by the departmental promotion committee in its meeting held on 04-03-2023. However, this Court finds that the petitioner had at no point of time approached the respondent authorities for correction of his date of birth as recorded in the gradation list as 28-02-2023. 13. The petitioner having not approached the respondents at the relevant point of time for rectification of the date of birth as recorded in his service book as well as the date of superannuation recorded in the gradation list published from time to time of the incumbents in the cadre of Investigator, this Court finds that the departmental promotion committee had not committed any error in not considering the case of the petitioner in its meeting held on 04-03-2023, for the purpose of promotion to the cadre of Research Assistant. 14. The petitioner has not brought on record any material to show that the Rules and/or Executive Instruction, governing the manner of promotion to the cadre of Research Assistant would also mandate such consideration with a retrospective effect, to be extended to an employee who had retired from his services. 15. It is a settled position of law that on superannuation of an employee, it would not be permissible to effect promotion in his case with retrospective effect, inasmuch as, on attaining the age of superannuation, a cessation of service of the Page No.# 8/13 Government employee occasions. In support of this conclusion drawn by this Court, this Court relies upon the decisions of the Hon’ble Supreme Court in the case of State of West Bengal Vs. Dr Amal Satpathi reported in 2024 SSC online SC 3512. The Hon’ble Supreme Court in the said case had drawn the following conclusions; “18. Upon a bare perusal of Rule 54(1)(a) of the West Bengal Service Rules, it is clear that promotion cannot be retrospectively granted after retirement, as it requires the actual assumption of duties and responsibilities of the promotional post. In the present case, since respondent No. 1 superannuated before the final approval of his promotion, he could not have formally assume the charge of the promotional post of Chief Scientific Officer. Therefore, although respondent No. 1 was recommended for promotion, Rule 54(1)(a) of the West Bengal Service Rules precludes him from getting the financial benefits of the promotional post without having taken on the responsibilities of the said post i.e. Chief Scientific Officer. 19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board v. Dharamdeo Das 9 , wherein it was observed as follows: “18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we may profitably cite a recent decision in Ajay Kumar Shukla v. Arvind Page No.# 9/13 Rai10 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty11 and Ajit Singh v. State of Punjab12, a threeJudge Bench observed thus: 41. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below: ‘4……. There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.’ 42. A Constitution Bench in Ajit Singh v. State of Punjab, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27: ‘Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the ‘State shall not deny to any person equality before the law or the equal protection of the laws’. Article 16(1) issues a positive command that: ‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’. Page No.# 10/13 It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity” in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right. “Promotion” based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1). * * * 27. In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.13, and followed in Jagdish Lal [Jagdish Lal v. State of Haryana14 , and other cases, if it is intended to lay down that the right guaranteed to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.], right from 1950.’ “20. In State of Bihar v. Akhouri Sachindra Nath15, it was held that Page No.# 11/13 retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India16, where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P.17, in the following words: ‘37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits…… 38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime.” (emphasis supplied) 20. In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. Rule 54(1)(a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, Page No.# 12/13 preventing posthumous or retrospective promotions in the absence of an enabling provision. 21. While we recognize respondent No. 1's right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.” 16. Applying the decision of the Hon’ble Supreme Court in the case of Dr Amal Satpathi (supra) to the facts of this case, this Court finds that the petitioner was entitled for a consideration of his case for promotion which is a fundamental right, however no absolute right can be held to be vested upon the petitioner for being actually promoted. Further, the procedure laid down for promotion to the cadre of Research Assistant having not mandated effecting of such promotion with retrospective effect, in respect of a retired employee also; the promotion being effective only on assumption of charge of the promoted post, which is impermissible in respect of a retired employee, the respondents cannot be directed to promote the petitioner to the post of Research Assistant w.e.f., a date prior to the date of his actual superannuation from service. 17. 17. The present writ petition having been instituted after the superannuation of the petitioner from his services, also recognizing the fact that it is not permissible to grant retrospective promotion to a government servant after he has superannuated from his services, this Court rejects the prayer of the petitioner for being directed to be promoted to the cadre of Research Assistant with retrospective effect after his superannuation. However, it is held that the petitioner Page No.# 13/13 be deemed to have continued in his services till 31-03-2023 and his pension and pensionary benefits be so released to the petitioner, if not so released till date, by construing him to have retired from his services w.e.f., 31-03-2023 and not w.e.f., 28-02-2023. 18. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant