Madhukar Gaikwad And Vijayanand ... vs General Insurance Corpn. Of India ...
2004 Latest Caselaw 468 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition the petitioners have claimed direction that the respondents be directed to grant promotion to the petitioners with retrospective effect as they were wrongly shown in the seniority list.

2. The petitioners had earlier approached this Court for similar relief by way of writ petitioner No. 4400/85. This petitioner was allowed by the Court partly. The operative part of this order is as follows:

"7. Accordingly petition partly succeeds and respondent No. 3 are directed to give each of the petitioner a deem date of November 21, 1984 as the date of promotion to the cadre of Assistant Administrative Officer for western region and in the seniority list of that cadre place each of the petitioners in accordance with their inter-se-seniority over and above respondent Nos. 5 to 7. The petitioners will be entitled on the basis of deem date to be considered for future promotion. In the circumstances of the case, respondent No. 3 shall pay costs. Deem date shall be given within a period of two weeks."

It was therefore directed by this Court that the petitioners be given deem date on 21.11.1984 as date of promotion to the cadre of Assistant Administrative Officer and to consider them for further promotions on the basis of the deem date.

3. The complaint of the petitioners in this petition is that inspite of this direction it is not done. Petitioners have not been considered for promotion from deem date and promotion to the respondent is wrong.

4. It is undisputed position in law that what is conferred by Article 16 of the Constitution of India is right to be considered for promotion. It therefore gives right to the petitioners to be considered for promotion in post. It is their fundamental right. It is also undisputable position in law that once such legally valid consideration is given no further right to appointment springs out of it and even a selected person is not entitled to claim appointment as a matter of face.

5. Affidavit in reply has been filed by the employer New India Assurance Company Limited and the affidavit in details explains the circumstances in which the petitioner were considered. In para 3 of the reply the Corporation has categorically points out that in view of the judgment of this Court dated 17.11.1992 in Writ Petition No. 4400/85 each of the petitioner has been given deem date of promotion as 21.11.1984 in the cadre of Assistant Administrative Officer. Then the affidavit proceeds to state that they were also placed higher in the seniority list over the respondents 5 to 7 in that petition. The petitioners thereafter were considered on the basis of their deem date of promotion for future promotions. Then in para 5 there is categoric statement by the respondent-Corporation that petitioners were also considered for further promotions with effect from February, 1988 and in order to carry this exercise the Lower Management Services Committee took into account the minimum qualifying grading of remarks for promotion in the promotional exercise held in February, 1988. After evaluating the remarks of the petitioners as per administrative guidelines promotion was given to one Shri Londhe because he had secured grades higher than the minimum qualifying regarding. The affidavit explains in great details how each of the petitioner was considered and was not selected though he had passed the bench remarks. According to respondents the number of seats available were given to the persons who qualified the bench remarks and secured highest marks. The petitioners not having secured highest marks than the persons who having better marks and finally each of them having qualified bench remarks promotion was not given to the petitioners. This affidavit therefore demonstrates with clarity that detailed consideration as required by law was given by the respondents to the petitioners. There is therefore no substance in their contention that they were not considered for promotional post or their deem date as directed by this Court in the earlier petition.

6. It was then contended that petitioners have never been communicated any adverse remarks, they were liable to be communicated adverse remarks or liable to be communicated marks which put them below the bench remarks. This point also does not arise in this case because admittedly petitioners cleared the bench remarks but were not promoted because persons clearing the higher bench remarks than the petitioners were selected. There is therefore no substance in the second submission also. In the result therefore this petition fails and is dismissed with costs quantified at Rs. 750/-.