Page No.# 1/7 GAHC010058222025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/113/2025 ZIAUDDIN MUNWARUL HOQUE S/O LATE JILLUL HOQUE, R/O BONKOWAR PATH, HOUSE NO 1 KHARGHULI, GUWAHATI 781004, P.S. LATASIL, DIST. KAMRUP (M), ASSAM. VERSUS THE STATE OF ASSAM AND 2 ORS REPRESENTED BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR, GUWHATI 781006 2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM PERSONNEL (A) DEPTT. DISPUR GUWAHATI 781006 3:SELECTION BOARD CONSTITUTED FOR SELECTION F ACS OFFICERS FROM SENIOR GRADE II TO SENIOR GRADE I REPRESENTED BY ITS CHAIRMAN THE CHIEF SECY. TO THE GOVT. OF ASSAM DISPUR GUWAHATI 0 For the Appellant : Mr. M. Khan, Advocate Page No.# 2/7 For the Respondent(s) : Mr. D.K. Sarmah, Additional Senior Government Advocate, Assam.. - BEFORE - HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON’BLE MR. JUSTICE KARDAK ETE 19.05.2025. (Vijay Bishnoi, CJ) This writ appeal is filed by the appellant being aggrieved with the judgment and order dated 17.02.2025 passed by the learned Single Judge in WP(C) No. 6318/2019. 2. Before the writ Court, the appellant prayed for following reliefs: “In the premises aforesaid it is prayed that Your Lordships may be pleased to admit this petition, call for the records and be pleased to issue notice calling upon the respondents to show cause as to why a writ of certiorari be not issued by setting aside and quashing the impugned order dated 13.08.2019 (Annexure-12) issued by the Respondent No.1 and/or a writ of mandamus be not issued directing the respondents to consider the promotion of the petitioner from Senior Grade-II of ACS to Senior Grade-I of ACS for the year of 2010 or 2011 as per his entitlement in an appropriate place and to provide him all consequential service benefits including pensionary benefits as admissible as per law and/or cause or caused being shown, after hearing the parties and on perusal of records be pleased to make the rule absolute and/or pass such other order/orders as your Lordships may deem fit and proper in the Interest of justice.” 3. The brief facts of the case are that the appellant was recruited to the Assam Civil Service in (ACS) (Class-II) cadre in the year 1977. Later on, he was promoted to ACS (Class-I) and thereafter, promoted to the post of ACS Senior Page No.# 3/7 Grade-II in the year 1997. The next promotional post on which the appellant could have been promoted was ACS Senior Grade-I cadre. 4. The case of the appellant before the learned Single Judge was that the action of the respondents of assessing the vacancies of ACS Senior Grade-I for the year 2010 was erroneous. The appellant before the learned Single Judge contended that the respondents assessed 17(seventeen) numbers of vacancies for the year 2010 for the cadre of ACS Senior Grade-I, whereas, 7(seven) additional vacancies had not been taken into consideration which would have arisen during 01.06.2010 to 31.12.2010. 5. The appellant projected that he was placed at serial no.26 by the Selection Committee in order of reference in the select list prepared by them for the purpose of granting promotion to the cadre of ACS Senior Grade-I. However, there were persons whose cases were not considered for want of A.C.Rs and in that case, the appellant would have been placed at serial No.22. It was further projected by the appellant that if those additional 7(seven) posts falling vacant to the cadre of ACS Senior Grade during the calendar year 2010 were included, the appellant would have been promoted to the cadre of ACS Senior Grade-1 but the respondents had not undertaken that exercise and therefore, the appellant was denied the benefit of promotion, which is illegal. 6. The learned Single Judge, after having heard the learned counsel for the parties and also taking into consideration the fact that appellant had superannuated from the services on 31.12.2011, whereas, the exercise for filling the promotional posts of ACS Grade-I were carried out by the Selection Committee on 27.03.2012, the relief claimed for by the appellant in the writ petition could not have been granted. Page No.# 4/7 The relevant portion of the impugned order passed by the learned Single Judge is reproduced herein below:- “12. I have heard the learned counsel appearing for the parties and perused the materials available on record. 13. The contention of the petitioner with regard to the preparation of the select list for the year 2010 for promotion to the cadre of ACS Sr. Grade-I is primarily that the assessment of 17 vacancies so made for the Calendar year 2010 in the cadre of ACS Sr. Grade-I was erroneous. The petitioner has contended that in addition to the 17 numbers of vacancies so assessed for the year 2010, further 07 vacancies had arisen during the period 01.06.2010 to 31.12.2010, which, however, were not included for the purpose of preparation of the select list for the year 2010. The petitioner was placed at Serial No. 26 by the Selection Committee in order of preference in the said select list. The petitioner has contended that the said position of the petitioner in view of the fact that there were persons whose cases were not considered, for want of ACRs, would now be so placed at Serial No. 22. The petitioner’s projection is to the effect that in the event the 07 posts falling vacant in the cadre of ACS Sr. Grade-I during the Calendar year 2010; if was so included for the purpose of preparation of the select list for the year 2010, the petitioner would have been promoted to the cadre of ACS Sr. Grade-I against the vacancies so identified w.e.f. 01.06.2010 as was so extended to the persons included in the select list. It is the further contention of the petitioner that while preparing the select list for the year 2011, the Selection Committee had included therein the 07 vacancies which ought to have been included for the purpose of preparation of the select list of 2011. However, the respondent authorities by contending that the petitioner had superannuated from his services before the Selection Committee meeting would be convened on 27.03.2012, his case for such promotion was not considered. It is an admitted position that there seems to be some error in assessment made of the vacancies for preparation of the select list for the year 2010. Further, the petitioner being in service till 31.12.2011, he was entitled to have his case considered for promotion to the cadre of ACS Sr. Grade-I against the vacancies so identified for the purpose for the Calendar year 2011. 14. Given the facts as noticed herein above, this Court is now required to examine as to whether the petitioner, pursuant to his superannuation from his services w.e.f. 31.12.2011, can be granted retrospective promotion to the ACS Sr. Grade-I even with notional benefits. 15. It is a settled position of law that a promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or a post is created. While there is no fundamental right for being promoted, however, the right to consideration for promotion has been recognized as a fundamental right. The Hon’ble Supreme Court, in the case of State of Bihar and Ors. Vs Akhouri Sachindra Nath, reported in 1991 Suppl (1) SCC 334; had held that 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 said view Page No.# 5/7 was reiterated by the Hon’ble Supreme Court in its decision in the case of Uttaranchal Forest Ranger’s Association (Direct Recruit) Vs State of Uttar Pradesh, reported in (2006) 10 SCC 346. The conclusions so drawn by the Hon’ble Supreme Court in the said case, being relevant is extracted herein below:- “38. This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. In State of Bihar v. Akhouri Sachindra Nath 11 this Court observed that: (SCC pp. 342-43, para 12) "12. In the instant case, the promotee Respondents 6 to 23 were not borne in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when Respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over Respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not borne in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law Respondents 6 to 23 cannot be made senior to Respondents 1 to 5 by the impugned government orders as they entered into the said service by promotion after Respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned government orders made in Annexures 8, 9 and 10 is unexceptionable." 16. Having noticed the above position, this Court takes note of a decision of the Hon’ble Supreme Court, rendered in the case of Govt. of West Bengal and Ors. Vs Dr. Amal Satpathi & Ors., reported in (2024) SCC Online SC 3512. The Hon’ble Supreme Court in the said decision had considered the issue as to whether the respondent no. 1 therein, who was recommended for promotion before his retirement but, did not receive actual promotion to the higher post due to administrative delays, is entitled to notional benefits of the promotion after his retirement. The Hon’ble Supreme Court, thereafter, upon considering its earlier decisions including the decisions noticed herein above, having relevance to the issue, had proceeded to draw the following conclusions:- “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 Page No.# 6/7 associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.” 17. Applying the decision of the Hon’ble Supreme Court noticed herein above, to the facts of the present case, the petitioner not having been so promoted to the cadre of ACS Sr. Grade-I prior to the date of his superannuation, he not being in a position to take charge of the promotional post, even if he is now directed to be so promoted, this Court is of the considered view that the relief claimed by the petitioner in the present proceeding would not be mandated to be so granted. 18. The contention of the learned counsel for the petitioner that the petitioner had held the charge of the post figuring in the ACS Sr. Grade-I prior to his superannuation, would not mandate a consideration in view of the fact that the petitioner was not promoted to the post of ACS Sr. Grade-I on regular basis during his service tenure and after his superannuation, he would not be called upon to be directed to be promoted to the said post along with notional benefits. 19. The learned counsel for the petitioner has submitted that in the Speaking Order dated 13.08.2019, a finding was recorded to the effect that vacancies arising during the Calendar Year 2010 i.e., 01.01.2010 to 31.10.2010 can be filled up only in the subsequent year i.e. in the year 2011; in view of the provisions of Rule 12(i) of the said Rules of 1998, which is contended to be erroneous. In view of the conclusions reached herein above, with regard to the prayer of the petitioner for being granted promotion with retrospective effect being not accepted by this Court, the above contention of the learned counsel for the petitioner is not being examined in the present proceeding and the same is kept open to be so examined in an appropriate proceeding. 20. In view of the above discussions, this Court is of the considered view that the claim of the petitioner for being promoted to the cadre of ACS Sr. Grade-I either against the vacancies arising during the Calendar Year 2010 and/or during the Calendar Year 2011, would not merit acceptance. Accordingly, the writ petition is held to be devoid of any merit and the same stands dismissed. However, there would be no order as to costs.” 7. The learned counsel for the appellant, while assailing the impugned order dated 17.02.2025 has placed reliance upon the decisions of the Hon’ble Supreme Court rendered in Ajit Singh & Ors. Vs. State of Punjab & Ors., reported in (1999) 7 SCC 209, State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai, reported in (2007) 6 SCC 524 and Ramesh Kumar Vs. Union of Page No.# 7/7 India & Ors., reported in (2015) 14 SCC 335. 8. Having gone through the above referred rulings, we are of the view that the same has no application in the case of the present appellant as the case of Ajit Singh (supra) is in relation to the reservation in the employment, whereas the other two judgments, E.K. Bhaskaran Pillai (supra) and Ramesh Kumar (supra) are on the points of principle of no work no pay. We are of the view that the learned Single Judge has not committed any illegality in passing the impugned order. 9. In the facts and circumstances of the case, no case for interference is made out. Hence, the instant writ appeal stands dismissed. JUDGE CHIEF JUSTICE Comparing Assistant