Ujjwal Kanti Pandit vs The Union Of India And 6 Ors
2021 Latest Caselaw 2019 Gua

                                                              Page No.# 1/19

GAHC010100182018




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : WP(C)/3143/2018

         UJJWAL KANTI PANDIT
         SON OF DIGENDRA CHANDRA PANDIT, PLANNING OFFICER, TEA BOARD
         OF INDIA, HOUSEFED COMPLEX, 5TH AND 6TH FLOOR, CENTRAL BLOCK,
         BELTOLA BASISTHA ROAD, DISPUR, GUWAHATI-781006, ASSAM.



         VERSUS

         THE UNION OF INDIA AND 6 ORS.
         THROUGH THE SECRETARY TO THE MINISTRY OF COMMERCE AND
         INDUSTRY, UDYOG BHAWAN, NEW DELHI- 110011

         2:TEA BOARD OF INDIA
         THROUGH ITS SECRETARY
          14 BTM SARANI
          KOLKATA- 700001

         3:THE CHAIRMAN
         TEA BOARD OF INDIA
          14 BTM SARANI
          KOLKATA- 700001

         4:THE DEPUTY CHAIRMAN
         TEA BOARD OF INDIA
          14 BTM SARANI
          KOLKATA- 700001

         5:THE SECRETARY
         TEA BOARD OF INDIA
          14 BTM SARANI
          KOLKATA- 700001
                                                                            Page No.# 2/19


            6:THE ASSISTANT SECRETARY
            TEA BOARD OF INDIA
             14 BTM SARANI
             KOLKATA- 700001

            7:PRAMODA KUMAR DASH
             LAW OFFICER AND ASSISTANT SECRETARY (IN-CHARGE)
            TEA BOARD OF INDIA
             14 BTM SARANI
             KOLKATA- 70000

Advocate for the Petitioner     : MR. M CHANDA

Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA

For the petitioner : Mr. M. Chanda, S. Dutta, Mr. S. Choudhury.

For respondent nos. 2 to 6 : Mr. S.C. Keyal, Advocate.

           Date of hearing                   : 30.03.2021, 20.07.2021.
           Date of judgment                  : 01.09.2021.



                                 JUDGMENT AND ORDER
                                        (CAV)

Heard Mr. M. Chanda, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned counsel for the respondent nos.2 to 6. None appears on call for the respondent nos.1 and 7.

2. The petitioner is currently serving as a Supply Officer (re- designated as Planning Officer w.e.f. 13.01.2016) with the Tea Board Page No.# 3/19

(respondent no.2) and is aspiring for promotion to the post of 'Assistant Secretary' of the Tea Board for which 'Supply Officer' is one of the feeder cadre. The grievance of the petitioner in this writ petition filed under Article 226 of the Constitution of India is that the respondent no.7, who is holding the substantive post of Law Officer was given additional responsibility of the job of Assistant Secretary on 06.04.2017 and such ad hoc arrangement is continuing since then.

3. The case of the petitioner is that the cadre of Supply Officer/ Joint Controller of licensing/ Welfare Liaison Officer is the Feeder Cadre to the post of Assistant Secretary, as per the schedule of the Tea Board (Recruitment and Conditions of Services of Officers appointed by the Government) Rules, 1971. The learned counsel for the petitioner has submitted that the petitioner was initially appointed as Security Officer (re-designated as Estate Officer w.e.f. 13.01.2016). On the strength of recommendation of Departmental Promotion Committee (DPC for short) held on 07.06.2011, one P.C. Boro was promoted to the post of Supply Officer w.e.f. 14.06.2011 against which the aggrieved petitioner had moved the Calcutta High Court. The Calcutta High Court vide order dated 19.01.2015 in APO No.63/2014 in WP No.658/2011, disposed of the said appeal with the following observations:

"We have considered the rival contentions. It is true, unless the Central Government approves the by-laws, it cannot be put into operation. The learned Judge directed the Central Government to do so. We find no scope of interference. On the question of appellant's right to claim promotion, we clarify, an employee is always entitled to better his service condition strictly in accordance with the prevalent rules and promotion is one of the avenues available to him. If the Tea Board has made departure in the past, they may also consider the Page No.# 4/19

appellant at par with those employees including one Mr. Roychowdhury. However, they would be free to take a decision of their own. With these modifications, the appeal is disposed of without any order as to costs.

At this juncture, Mr. Chowdhury in his usual fairness, on instruction, assures this Court, in case such an application is made by the appellant, the authority definitely will consider the same within two weeks from the date of receipt of the said application."

4. Consequently, a review DPC was constituted by respondent no.6 for reviewing the recommendation of the earlier DPC held on 07.06.2011 in the matter of filling up the post of Supply Officer. The review DPC in its meeting held on 20.05.2016, recommended the name of the petitioner for promotion to the post of Supply Officer w.e.f. 20.05.2016. The petitioner was thereafter promoted to the post of Planning Officer (formerly Supply Officer) w.e.f. 20.05.2016. In course of time, 09.02.2017, the fixation of pay of the petitioner in the promoted post was notified. By the impugned office memorandum dated 06.04.2017 (Annexure-9) the respondent no.7 was allowed to look after the duties and responsibilities of the post of Assistant Secretary on ad hoc basis, till such time the said post is filled up on regular basis or until further orders, whichever is earlier and consequential orders were also passed to delegate financial and administrative powers of Assistant Secretary to the respondent no.7.

5. Thereafter, by an order dated 13.11.2017, the post of Planning Officer in which the petitioner was placed was transferred from the Head Office of respondent no.2 at Calcutta and was attached to the North-east Zonal Office Page No.# 5/19

of respondent no.2 at Guwahati. Consequently, by an order dated 20.11.2017, the petitioner was transferred to Guwahati. The petitioner submitted a representation dated 09.02.2018 for promoting to the post of Assistant Secretary which was forwarded on 13.02.2018 by respondent no.7. It is projected that the Director (Plantations) had written a letter dated 10.01.2018 to the respondent no.4 for filing up the post of Secretary, Tea Board, Kolkata.

6. The learned counsel for the petitioner has submitted that as a review DPC was constituted on 05.05.2016 to review the recommendation of the DPC dated 07.06.2011, it was illegal on part of the said DPC to have recommended selection of the said petitioner w.e.f. 20.05.2016, which given unfair advantage to others including P.C. Boro. It is also submitted that the petitioner is the senior most officer in the Feeder Cadre for consideration for being promoted to the post of Assistant Secretary. Therefore, by not holding any DPC for promotion to the next higher post of Assistant Secretary, the respondent authorities are depriving the petitioner from being promoted to the next higher post of Assistant Secretary. It is also submitted that the only reason assigned for not filling up the vacant post of Assistant Secretary is a plea of financial constraint. In the said context, it is submitted that the post of Assistant Secretary has not been abolished, but respondent no.7 who is holding the substantive post of Law Officer who is not even the Feeder Cadre to the post of Assistant Secretary is being allowed to discharge duty as Assistant Secretary on ad hoc basis. Accordingly, by referring to the following cases viz., (i) Ramesh Kumar Vs. Union of India & ors., (2015) 14 SCC 335 , (ii) P.N. Premachandran Vs. State of Kerala & ors., (2004) 1 SCC 245, (iii) Union of India & Ors. Vs. N.R.

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Banerjee & Ors., (1997) 9 SCC 287, (iv) Violet Barua, IPS Vs. Union of India & Ors., 2017 (2) GLT 126, (v) Taku Taya Vs. State of Arunachal Pradesh & Ors., 2015 (3) GLT 676, the learned counsel for the petitioner has submitted that this is a fit and proper case for directing the respondents for ante-dating the promotion of the petitioner in the post of Supply Officer w.e.f. 07.11.2016, the date when his immediate junior P.C. Bora, was promoted and for a further directing to the respondents to consider the case of the petitioner for promotion to the post of Assistant Secretary on regular basis w.e.f. 01.12.2015, the date on which the said post had fallen vacant. The learned counsel for the petitioner has also referred to the Office Memorandum dated 28.05.2014 issued by the Ministry of Personnel Public Grievances and Pensions, Department of Personnel and Training, Government of India, inter-alia, providing that the DPC should

consider eligibility as on 1st April of the vacancy year in case of financial year based vacancy year i.e. where being Annual Performance Appraisal Report (APARs for short) are returned financial year-wise and in case of calendar year based vacancy year, i.e. where APARs are returned calendar year-wise, the

crucial date of eligibility shall remain as 1 st January of the vacancy year. Accordingly, it is submitted that it was the responsibility of the respondent authorities to hold DPC on time in the year when the vacancy arose. Reference is also made to the Office Memorandum dated 23.04.2015 to show that the Ministry of Personnel Public Grievances and Pensions, Department of Personnel and Training, Government of India had directed that DPC be held timely.

7. Per contra, the learned counsel for the respondent nos. 2 to 6 has submitted that the petitioner approached the Calcutta High Court by filing Page No.# 7/19

WP No.658/2011, the learned Single Judge by order dated 01.08.2013 did not interfere and it was held that only in case the bye laws as framed were accepted by the Central government, the petitioner would have a real prospect of promotion, specifically holding that at present the Court did not see his having any light. The Calcutta High Court in its appellate side found no scope for interference in the observations made by the learned Single Judge. Accordingly, it is submitted that in the appellate side, the Calcutta High Court did not pass any direction to hold a DPC. Nonetheless, in view of the concession made upon instructions by the learned counsel for the Tea Board, the Division Bench of the Calcutta High Court recorded as follows;"At this juncture Mr. Chowdhury in his usual fairness, on instruction, assures this Court, in case such an application is made by the appellant, the authority definitely will consider the same within two weeks from the date of receipt of the said application." Accordingly, the review DPC in its wisdom recommended the petitioner to the post of Supply Officer (re- designated as Planning Officer w.e.f. 20.05.2016). It is also submitted that in supersession of the 1971 Rules, by a notification issued in the Gazette of India, Extraordinary, Part-III, Section-4, published on 17.11.2015, the Tea Board (Recruitment, Promotions and Conditions of Service of Officers and Staff) By- laws, 2015 had been brought to force.

8. By referring to the additional affidavit on behalf of respondent nos. 2 to 6, it is submitted that as per OM No.7(1)/E.Coord-I/2017 dated 12.04.2017 issued by the Deputy Secretary (E.C.I), Department of Expenditure, Ministry of Finance, Government of India, it is submitted that the same provides for deemed abolition of posts which had remained vacant for a period of more Page No.# 8/19

than 2 years and accordingly, such posts cannot be filled up prior to obtaining revival from the Department of Expenditure. Accordingly, there was justified reason for the respondent no.2 for not filling up the vacant post of Assistant Secretary and they were compelled to allow respondent no.7 to hold charge of the said post apart from his regular duties without any financial benefit. It is also submitted by the learned counsel for the respondent nos. 2 to 6 that the Tea Board (respondent no. 2) is facing severe fund crisis as the Tea Board now cannot collect cess and moreover, due to limited budgetary allocation, the respondent no. 2 has not been able to implement the recommendation made by

the 7th Pay Commission and they are also unable to pay dues to the pensioners. It is also submitted that due to fund crisis, the respondent no. 2, which has a sanctioned strength of staff of 756 is now working with 469 staff and around 287 posts were lying vacant as on the date the affidavit-in-opposition was filed. It is also submitted that in view of the letter dated 20.02.2017 by the Under Secretary to the Government of India, Ministry of Commerce and Industry, Department of Commerce, Plantation Division, prohibiting vacant post from being filled up, the respondent no. 2 and its authorities are compelled to undergo austerity measure and they are unable to fill up any of those "deemed abolished" post on promotion without prior approval of the Department of Expenditure.

9. Perused the writ petition, affidavit-in-opposition, affidavit-in- reply, additional affidavit by respondent nos. 2 to 6, and additional affidavit-in- reply. Also perused the record produced by the learned counsel for the respondent nos. 2 to 6.

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10. It is seen that the learned Single Judge of Calcutta High Court by order dated 01.08.2013, passed in WP No.658/2011, did not interfere in the challenge made by the petitioner and it was held that only in case the bye laws as framed were accepted by the Central government, the petitioner would have a real prospect of promotion, specifically holding that at present the Court did not see his having any right. In its appellate side, the Hon'ble Division Bench of the Calcutta High Court also found no scope for interference in the observations made by the learned Single Judge and accordingly, the said appeal was disposed of by order dated 19.01.2015 in APO No.63/2014 in WP No.658/2011, amongst others, with the following observations: -

"We have considered the rival contentions. It is true, unless the Central Government approves the by-laws, it cannot be put into operation. The learned Judge directed the Central Government to do so. We find no scope of interference.

On the question of appellant's right to claim promotion, we clarify, an employee is always entitled to better his service condition strictly in accordance with the prevalent rules and promotion is one of the avenues available to him. If the Tea Board has made departure in the past, they may also consider the appellant at par with those employees including one Mr. Roychowdhury. However, they would be free to take a decision of their own. With these modifications, the appeal is disposed of without any order as to costs.

At this juncture, Mr. Chowdhury in his usual fairness, on instruction, assures this Court, in case such an application is made by the appellant, the authority definitely will consider the same within two weeks from the date of receipt of the said application."

11. On a perusal of the statements made in paragraph 7 and 8 of Page No.# 10/19

the writ petition, it appears that being aggrieved by the promotion of one P.C. Boro, the petitioner had filed WP 658/2011 before the Calcutta High Court. However, the order passed by the Division Bench in APO 63/2014 (Annexure-3 of writ petition), contains reference to approval of the Central Government to the ad hoc promotion given to one Mr. Roychowdhury. The said name also appears in the order dated 01.08.2013, passed by the learned Single Judge while disposing of the writ petition (Annexure-R/7 of affidavit-in-opposition). Thus, when the case projected by the petitioner in this present writ petition is that he had challenged the promotion of P.C. Boro, but the promotion of P.C. Boro was not interfered with by the Calcutta High Court. Nonetheless, the Division Bench of Calcutta High Court had remarked that if the petitioner submits an application before the respondent no.2, his case would be considered and thus, on the application made by the petitioner, the competent authority of the respondent no.2 had constituted a Review DPC, which had recommended the promotion of the petitioner prospectively w.e.f. 20.05.2016.

12. In this regard, the Court does not find any illegality and/or irregularity having been committed by the DPC dated 20.05.2016, recommending the promotion of the petitioner w.e.f. 20.05.2016, as the Calcutta High Court had not set aside or quashed the promotion granted to the said P.C. Boro either in the writ petition or in the appeal. The Calcutta High Court had also not returned a finding to the effect that the petitioner was entitled to be considered for promotion from the date when P.C. Boro had been promoted. The Calcutta High Court had also not issued any direction upon the respondent authorities to determine as to whether the petitioner would be Page No.# 11/19

entitled to promotion from the date when P.C. Boro was promoted. Therefore, the inevitable presumption is that having allowed the judgment passed by the Calcutta High Court to attain finality, the petitioner is deemed to have waived and/or abandoned his claim to be considered for promotion w.e.f. 07.06.2011, when the herein before named person had been given promotion.

13. Moreover, it is seen that the petitioner had accepted the recommendation of the DPC held on 20.05.2016 and the present writ petition was filed on 15.05.2018. Moreover, it is seen that although the petitioner has made a prayer to ante-date his promotion to the post of Planning Officer from 07.06.2011, but neither there is any challenge to the DPC minutes of 20.05.2016, nor the petitioner has assailed (i) the OM No. 125/2016 dated 06.12.2016 (Annexure-5 of the writ petition) issued by the respondent no. 2, and (ii) the Memorandum dated 09.02.2017 (Annexure-6 of writ petition), fixing his pay on promotion from 20.05.2016 onwards.

14. In the distinguishable facts of the present case in hand, the cases cited by the learned counsel for the petitioner are not found to help the petitioner in any way. Therefore, there is no need to burden this order with discussion on the said cited cases.

15. Thus, in light of the two orders passed by the Calcutta High Court, viz., (i) order dated 01.08.2013, passed by the Single Bench in WP 658/2011 and GA 1661/2012 (Ujjwal Kanti Pandit Vs. Tea Board & Ors.); and (ii) order dated 19.01.2015, passed by the Division Bench in APO 63/2014 (arising out of WP 658/2011) (Ujjwal Kanti Pandit Vs. Tea Board & Ors.), the Court is Page No.# 12/19

unable to find any fault with the recommendation vide DPC minutes dated 20.05.2016, promoting the petitioner w.e.f. 20.05.2016. Consequently, the Court finds no merit in the prayer no. (B) of the writ petition to direct the respondents to ante-date the promotion of the petitioner to the post of Planning Officer, making it effective from 07.06.2011 instead of 20.05.2016 and to fix his seniority, etc. in the cadre of Planning Officer on that date and accordingly, the said prayer is rejected.

16. Moreover, it is also observed that although the petitioner has made prayer (B) for fixing his seniority in cadre of Planning Officer, but in this writ petition, the petitioner has not impleaded any other member of the said Cadre, who may be adversely affected by any re-determination of seniority. Therefore, the said prayer (B) of the writ petition also fails for the reason of non- joinder of proper and necessary parties, who might be adversely affected if such a prayer is allowed.

17. It is now examined as to whether the petitioner would be entitled to prayer (A) of the writ petition. In this regard, it would be relevant to extract herein below the relevant part of the two notifications dated 22.02.2017 and 12.04.2017, referred to by the learned counsel for the respondent nos. 2 to 6, which are as follows:-

F.No.5/1004/2015-Plant(Coord) Government of India Ministry of Commerce & Industry Department of Commerce Page No.# 13/19

(Plantation Division) Udyog Bhavan, New Delhi Dated: 22nd February, 2017 To The Chairman, Tea Board, Kolkata.

The Chairman, Coffee Board, Bengaluru.

The Executive Director, Rubber Board, Kottayam.

The Chairman, Spices Board, Kochi.

Subject: Austerity measures for effective economy in administrative expenditure- reg.

Sir, I am directed to refer to the above mentioned subject and to convey that after analyzing the mounting administrative expenditure details of the commodity boards especially in the context of declining budgetary appropriations, which is affecting release of resources for priority schemes, it has been decided that no vacant post should be filled up and no promotion should be made without prior approval of the Department.

2. This issues with the approval of Hon'ble Minister of State for Commerce & Industry.

Yours faithfully (M.S Banerjee) Under Secretary to the Govt. of India.

Tele:23061732 Copy to: Plant-A/Plant-B/Plant-C/Plant-D.

_____________________________

No.7(I)/E.Coord-I/2017 Page No.# 14/19

Government of India Ministry of Finance Department of Expenditure

North Block, New Delhi Dated, 12th April, 2017

OFFICE MEMORANDUM

Subject: Compendium of Instructions for Creation, Revival, Continuation and Transfer of posts.

This Department has issued instructions related to creation, deemed abolition, revival and continuation of posts from time to time. Therefore, in supersession of all previous instructions/ orders regarding creation, continuation, transfer and revival of posts, it has been decided, with the approval of Competent Authority, to issue a compendium of instructions covering all the aspects relating to these issues.

2.1 These instructions shall apply to creation/ continuation/ revival of posts in all Ministries/ Departments, their Attached offices, Subordinate offices, Statutory bodies etc. 2.2 *** *** *** 2.3 *** *** *** 2.4 *** *** *** 3.1 *** *** *** 3.2 *** *** *** 4.1 *** *** *** 5.1 Deemed Abolition & Revival of posts:

a. All posts, except newly created posts, kept in abeyance or remaining vacant for a period of more than 2 years in any Ministry/ Department/ Attached office/ Subordinate office/ Statutory body, would be considered as 'deemed Page No.# 15/19

abolished' unless an exemption has been given at the time of sanctioning the post. b. A post falling into the category of 'deemed abolished' cannot be filled up prior to obtaining its 'revival' from the Department of Expenditure.

                  ***          ***           ***
                                                                                  (Renu Sarin)
                                                                    Deputy Secretary (E.C.I.)
                                                                                Tel # 23092761
         ________________

18. It is seen that in the present case in hand, the petitioner was promoted from the post of Security Officer (Estate Officer) to the next higher promotional post of Supply Officer (Planning Officer) w.e.f. 20.05.2016. The respondent no. 7 was merely allowed to look after the duties and responsibilities of the post of Assistant Secretary without any financial benefit in addition to his own duties vide OM No. 46/2017 dated 06.04.2017. Thus, the respondent no.7 remains in his substantive post of Law Officer.

19. As per Schedule appended to the Tea Board (Recruitment, Promotions and Conditions of Service of Officers and Staff) By-laws, 2015, for filling up the post of Assistant Secretary, it is provided as follows:-

"Schedule [Schedule could not be typed-out in tabular form] Column Sl. No. 1: Name of the post: Assistant Secretary. Column Sl. No. 2: Number of Post: 1 (2015). Subject to variation dependent on workload.

Column Sl. No. 3: Classification: Equivalent in General Central Service, Group 'A', Non- Gazetted, Non- ministerial.

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Column Sl. No. 4: Pay band and grade pay or pay scale: Pay band-3 - Rs.15600- 39100 plus grade pay Rs.6,600.

Column Sl. No. 5: Whether Selection post or non-selection post: Selection. Column Sl. No. 6: Age limit for direct recruits: Not exceeding 35 years. relaxable for Government servants upto five years' in accordance with the instructions or orders issued by the Central Government from time to time). Note: The crucial date for ... (... ).

Column Sl. No. 7: Educational and other qualification for direct recruits. Essential: Master Degree from a recognized University or Institute. Desirable: Diploma in Management from a recognized University or Institute. Column Sl. No. 8: Whether age and educational qualifications prescribed for direct recruits will apply in the case of promotion. Age: No. Education: Bachelor Degree from a recognized University or Institute.

Column Sl. No. 9: Period of probation, if any: Two years. Column Sl. No. 10: Method of recruitment whether by direct recruitment or by promotion or by deputation or absorption and percentage of vacancies to be filled up by various methods: Promotion or Deputation failing which by Direct Recruitment.

Column Sl. No. 11: In case of recruitment by promotion or deputation or absorption, grades from which promotion, or deputation or absorption is to be made: Promotion: From the cadre of Joint Controller of Licensing or Planning Officer or Welfare Liaison Officer (North) with Pay band-3 and Grade pay of Rs.5400 with 4 years regular service.

Deputation: *** *** (not typed out) Column Sl. No. 12: If a Department Promotion Committee exists, what is its composition: *** *** (not typed out).

Column Sl. No. 13: Circumstances in which Union Public Service Commission to be consulted in making recruitment: Not applicable."

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20. Therefore, it is seen that the respondent no. 7 was only allowed to perform additional duty as Assistant Secretary, which cannot be said to confer promotion to the respondent no. 7 to the post of Assistant Secretary, as he continues to hold the substantive post of Law Officer. Secondly, on 06.04.2017, the respondent no. 7 was allowed to perform duty of Assistant Secretary without any financial benefit and in addition to his own duties, the petitioner had not acquired the qualifying experience of 04 (four) years in the feeder post of Planning Officer, to which the petitioner was appointed w.e.f. 20.05.2016. Hence, the decision of the respondent authorities to issue the impugned OM no. 46/2017 dated 06.04.2017 (Annexure-9 of writ petition), cannot be faulted with as the petitioner has not been able to show that on 06.04.2017, other eligible departmental candidates were available to be promoted to the said post. The four years' of qualifying service was achieved by the petitioner on or about 20.05.2020, i.e. during the pendency of this writ petition. Thirdly, the competent authorities had issued the herein before quoted letter dated 22.02.2017 (Annexure-R/3 of affidavit in opposition filed by respondent nos. 2 to 6) and OM dated 12.04.2017 (Annexure-R/4 of the additional affidavit filed by the respondent nos. 2 to 6). By letter dated 22.02.2017, the competent authority had informed, amongst others, to the respondent no. 3 that no vacant post should be filled up and no promotion was to be made without their prior approval. By OM dated 12.04.2017, all statutory bodies were directed that "All posts, except newly created posts, kept in abeyance or remaining vacant for a period of more than 2 years in any Ministry/ Department/ Attached office/ Subordinate office/ Statutory body, would be considered as 'deemed abolished' unless an exemption has been given at the time of sanctioning the post ." It was Page No.# 18/19

further provided that "A post falling into the category of 'deemed abolished' cannot be filled up prior to obtaining its 'revival' from the Department of Expenditure."

21. There is another view point in this case. As of now, the post of Assistant Secretary is "deemed to be abolished", but not actually abolished. Under such circumstances, the respondent authorities are allowing the respondent no. 7 to perform extra duty of Assistant Secretary while holding to his own substantive post. Therefore, if there is prohibition to fill up the said post by promotion, the petitioner can only be permitted to officiate in the said post on ad hoc basis, which would amount to dislodge the respondent no. 7, one ad hoc with the petitioner, another ad hoc, which is again neither desirable nor permissible.

22. Therefore, the Court is constrained to hold that unless the bar to fill up the promotional post of Assistant Secretary of Tea Board imposed vide letter dated 22.02.2017 and OM dated 12.04.2017 are removed, the respondent authorities would not have the competence to fill up the said post by way of regular promotion. Hence, the Court is unable to find fault with the inaction on part of the respondent authorities to constitute a DPC for the purpose of considering the candidature of the petitioner and other similarly situated persons for promotion to the next higher promotional post of Assistant Secretary of Tea Board from the date when the petitioner had otherwise become eligible for being considered for promotion cannot be faulted with. A direction by the Court to the respondents to consider the case of the petitioner for promotion to the next higher post of Assistant Secretary would run Page No.# 19/19

contradictory to the administrative decision of the Government of "deemed abolition" of the said post, which are not under challenge. Therefore, at this stage, the petitioner is not found entitled to relief as per prayer no. (A) of the writ petition.

23. Nonetheless, as the Division Bench of the Calcutta High Court has observed in its order dated 19.01.2015 in APO 63/2014 (arising out of WP 658/2011) to the effect that an employee is always entitled to better his service condition strictly in accordance with the prevalent rules and promotion is one of the avenues available to him, the Court is inclined to grant liberty to the petitioner to claim promotion once the bar created by the herein before quoted letter dated 22.02.2017 and OM dated 12.04.2017 are removed. Needless to mention that, if permissible in law, it would be also open to the petitioner to assail the said letter and OM, if so advised.

24. Thus, except for the liberty granted to the petitioner as indicated herein above, this writ petition is dismissed. The parties are left to bear their own cost.

25. The learned counsel for the respondent nos. 2 to 6 would collect the records from the Court Master.

JUDGE

Comparing Assistant