Calcutta High Court (Appellete Side)
(Sukumar Jana vs State Of West Bengal & Ors.) on 1 May, 2023
jdt.
01.05.2023
jb.
W.P.A. 28154 of 2016
(Sukumar Jana vs. State of West Bengal & Ors.)
Mr. Krishnendu Bera
Ms. Debolina Chakraborty
.... For the Petitioner
Mr. Kishore Dutta
Ms. Nandini Mitra
.... For the University
The petitioner was appointed as a Junior
Assistant at the University of Calcutta on October 15,
1990. Subsequently he was promoted to the post of
Senior Assistant on March 30, 2004. After serving in
the said post for more than seven years, the petitioner
became entitled to be promoted to the post of Junior
Superintendent for which an interview was conducted
on July 12, 2012. Following the interview a list of
successful candidates was published by the University.
The name of the petitioner figured in the merit list along
with other candidates.
The petitioner was, however, not given any
promotion to the said post of Junior Superintendent
following his empanelment and ultimately he retired on
September 30, 2012 as a Senior Assistant.
Interestingly, after retirement of the petitioner,
the panel for promotion was given effect to by the
University by an order dated November 1, 2012 with
effect from January 1, 2011.
The petitioner was not given any promotion
following the said order dated November 1, 2012. The
petitioner approached this Court seeking his notional
promotion with effect from January 1, 2011 by filing a
writ petition.
The said writ petition was disposed of by a co-
ordinate Bench of this Court by order dated April 5,
2016 with a direction upon the State to consider his
prayer.
Following the said direction of this Court, by an
order dated August 1, 2016 the State rejected the case
of the petitioner. In this writ petition the petitioner has
impugned the said order dated August 1, 2016.
It appears that the case of the petitioner was
rejected on the ground that for promotion to a higher
post, assumption of charge is necessary and for drawal
of the pay in the same begins from the date of
assumption or joining. The petitioner could not assume
the charge of the post to which he was promoted.
Mr. Krishnendu Bera, learned advocate
appearing for the petitioner places reliance upon the
judgment reported at (2014) 3 SCC 670( Major
General H. M. Singh vs. Union of India) to argue that
even after retirement an order of promotion can be
effected.
I am of the view that the order dated 1st August,
2016 cannot be sustained. The promotion order dated
November 1, 2012 was given a retrospective operation
with effect from January 1, 2011, meaning thereby the
employees were given promotional benefits from
January 1, 2011 to November 1, 2012 though they did
not function or discharge their duty in the promotional
post for the said period.
The petitioner's promotional benefit cannot be
denied on the ground that he did not assume the
charge of the post. When the authority granted
promotional benefit for the aforesaid period to the other
employees, without assumption of the charges, the
petitioner cannot be discriminated against.
It has been pointed out by Mr. Bera, learned
advocate appearing for the petitioner that pursuant to
the order passed by a Co-ordinate Bench of this Court,
a similarly circumstanced employee namely,
Biswaranjan Samanta has been given his promotion
even after his retirement. The syndicate of the
University by a resolution dated August 5, 2022 granted
him promotion with financial benefit for promotion from
Senior Assistant to Junior Superintendent with
retrospective effect from November 30, 2012.
There is no dispute that the petitioner is
similarly circumstanced with Sri Biswaranjan Samanta
and there cannot be any ground to deny the similar
benefit to the petitioner.
Accordingly, this writ petition is allowed with a
direction upon the University to give consequential
financial benefits in favour of the petitioner treating him
to be promoted from Senior Assistant to Junior
Superintendent with effect from 1st January, 2011,
within a period of two months from the date of
communication of this order.
W.P.A. 28154 of 2016 is allowed.
Urgent Photostat certified copy of this order, if
applied for, be supplied to the parties upon compliance
with the requisite formalities.
(Kausik Chanda, J.)
