Habibar Rahman vs State Of Assam And 5 Ors
2022 Latest Caselaw 5076 Gua

                                                                    Page No.# 1/7

GAHC010134752022




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

                          Case No. : WA/338/2022

         HABIBAR RAHMAN
         S/O LATE HAZED ALI, VILL. AND P.O- BARALABARI , P.S.- CHANGSARI,
         DIST- KAMRUP (R), ASSAM.



         VERSUS

         STATE OF ASSAM AND 5 ORS.
         REP. BY THE ADDITIONAL CHIEF SECRETARY, TO THE GOVERNMENT OF
         ASSAM, DEPARTMENT OF ENVIRONMENT AND FORESTS, DISPUR,
         GUWAHATI-06.

         2:THE PRINCIPAL SECRETARY
         TO THE GOVT OF ASSAM
          DEPARTMENT OF ENVIRONMENT AND FORESTS
          DISPUR
          GUWAHATI- 06.

         3:THE COMMISSIONER AND SECRETARY
         TO THE GOVT OF ASSAM
          DEPARTMENT OF ENVIRONMENT AND FORESTS
          DISPUR
          GUWAHATI- 06.

         4:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS
         AND HEAD OF FOREST FORCE
         ASSAM
          PANJABARI
          GUWAHATI- 37.

         5:THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR
          OF FOREST (ADMIN. AND VIG)
          OFFICE OF THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD
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            OF FOREST FORCE
            ASSAM
            PANJABARI
            GUWAHATI- 37.

            6:THE CHIEF CONSERVATOR OF FOREST (H.Q.)
             OFFICE OF THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD
            OF FOREST FORCE
            ASSAM
             PANJABARI
             GUWAHATI- 37

Advocate for the Petitioner   : MR. S P CHOUDHURY

Advocate for the Respondent : SC, FOREST

PRESENT HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the appellant : Mr. S.P. Choudhury, Advocate For the respondents : Mr. K.P. Pathak, Standing Counsel, Department of Environment & Forests

Date of judgment : 20.12.2022

JUDGMENT & ORDER R.M. Chhaya, CJ

Feeling aggrieved and dissatisfied with the judgment and order dated 01.06.2022 passed by the learned Single Judge in WP(C) No. 7192 of 2021, the original petitioner has preferred this appeal.

2. We have heard Mr. S.P. Choudhury, learned counsel for the appellant and Mr. K.P. Pathak, learned Standing Counsel, Department of Environment & Forest, Government Page No.# 3/7

of Assam for the respondents.

3. The following facts emerge from the record of the appeal:

The appellant was initially appointed as a Lower Division Assistant in the office of the Chief Conservator of Forests, Social Forestry, Guwahati on 17.12.1987. Thereafter, the appellant came to be promoted to the post of Senior Assistant (Directorate Level) on 03.09.2014. It is the case of the appellant that by virtue of the provisions of Rule 8 of the Assam Directorate Establishment (Ministerial) Service Rules, 1973 (hereinafter referred to as 'the 1973 Rules'), the appellant ought to have been promoted to the post of Superintendent as he had completed 7(seven) years of service in the feeder post, which is the eligibility criteria. It is also a matter of fact that the appellant has retired from service on attaining the age of superannuation in the month of February, 2022. It is the further case of the appellant that after retirement some other similarly situated persons have been promoted to the post of Superintendent and, therefore, the case of the appellant should have been considered. The learned Single Judge by the judgment impugned was pleased to dismiss the writ petition against which the present appeal has been filed.

4. Mr. S.P. Choudhury, learned counsel for the appellant has taken this Court through the factual matrix arising in this appeal and has contended that the learned Single Judge has committed an error in coming to the conclusion that there was no pleading in the writ petition as regards the eligibility criteria. Mr. Choudhury has contended that the appellant specifically pleaded that he is entitled to promotion to the post of Superintendent on completion of 7 years of service in the cadre of Senior Assistant and more particularly when vacancy was existing. It was contended by Mr. S.P. Choudhury that the eligibility criteria has not been properly considered by the learned Single Judge and even though the criteria is seniority-cum-merit, as per the 1973 Rules appellant would otherwise also be entitled to promotion. Mr. Choudhury further contended that the appellant had filed a representation to the respondent Page No.# 4/7

authority which has not been considered. It was also contended by Mr. Choudhury that the writ petition was filed before his retirement and, therefore, the appellant would be entitled to notional promotion with all benefits including pecuniary benefits. Mr. Choudhury further contended that the criteria for promotion has also not been appreciated by the learned Single Judge and that no affidavit-in-opposition was filed by the respondents in the writ petition and on the aforesaid grounds it was contended that the appeal requires consideration and the same be allowed. Mr. Choudhury has relied upon the judgment of the Hon'ble Apex Court in the case of Ajit Singh & Ors. (II) -vs- State of Punjab & Ors., reported in (1997) 7 SCC 209 to buttress his argument.

5. Per contra, Mr. K.P. Pathak, learned counsel for the respondents has opposed the appeal. Mr. Pathak submitted that the criteria for promotion was seniority-cum-merit and, admittedly, the appellant did not fulfill the same. Referring to the 1973 Rules, Mr. Pathak submitted that the appellant has made an attempt to misread the Rule. He contended that as per Rule 8 of the 1973 Rules, appointment to the post of Superintendent shall be made by the appointing authority by promotion on the basis of seniority-cum-merit from amongst Senior Assistants of the service who have

rendered not less than 7 years of service as Senior Assistant on the 1 st day of the year in which the selection for promotion is made. Referring to the gradation list, it was submitted by Mr. Pathak that in the year 2021 the appellant had not completed 7 years on the first day of the year i.e. 01.01.2021 and, therefore, the appellant did not qualify for promotion on the said date. Mr. Pathak contended that the other persons have been promoted to the post of Superintendent by strictly adhering to Rule 8 of the 1973 Rules. Referring to the representation filed by the appellant on 09.09.2021 and the communication dated 25.10.2021 written by the appellant, Mr. Pathak contended that the appellant himself has admitted that he had not completed 7 years of service in the cadre of Senior Assistant and, therefore, now the appellant cannot be permitted to plead that he had achieved the eligibility for promotion. Mr. Pathak Page No.# 5/7

contended that the letter dated 03.11.2021 relied upon by the appellant is not only an internal correspondence between two officers of the Forest Department of the State, but even by operation of Rule 8 of the Rules as the appellant did not fulfill the requirement of seniority-cum-merit, the appellant was not promoted.

6. Having considered the submissions made, it would be appropriate to refer to Rule 8 of the 1973 Rules, which reads as under:

"8. Superintendent--Appointment shall be made by the appointing authority by promotion on the basis of seniority-cum- merit from amongst Senior Assistant of the service who have rendered not less than 7 years of service as Senior Assistant on the 1st day of the year in which the selection for promotion is made."

7. A bare reading of Rule 8 clearly stipulates that promotion to the post of Superintendent from amongst Senior Assistants would be based on seniority-cum- merit and those Senior Assistants who have rendered not less than 7 years of service

as Senior Assistant on the 1st day of the year in which the selection for promotion is made, would be entitled to promotion. It is a matter of fact that the appellant joined the cadre of Senior Assistant on 04.09.2014 and therefore, the appellant would complete 7 years on 03.09.2021. As per Rule 8 of the 1973 Rules, a Senior Assistant who would be eligible for promotion to the post of Superintendent on the basis of seniority-cum-merit, should have rendered not less than 7 years of service as Senior

Assistant on the 1st day of the year in which the selection for promotion is made. Therefore, for being considered for promotion in the year 2021, a Senior Assistant

should have rendered not less than 7 years on the 1 st day of the year i.e., on 01.01.2021.

8. The record clearly indicates that those who were promoted to the post of Superintendent from the cadre of Senior Assistant were so promoted as per Rule 8 of the 1973 Rules. The fact remains that the appellant was promoted to the post of Page No.# 6/7

Senior Assistant only on 03.09.2014 and even according to the appellant, he had not completed 7 years of service as Senior Assistant on 01.01.2021. Therefore, in terms of Rule 8 of the 1973 Rules he would be eligible for promotion to the post of Superintendent only in the year 2022. It is nobody's case that before the appellant attained the age of superannuation in the month of February, 2022, any DPC was held or anybody has been promoted to the post of Superintendent from the cadre of Senior Assistant.

9. In light of the aforesaid facts, as the appellant has already retired in the month of February, 2022, the authorities have rightly interpreted Rule 8 of the 1973 Rules and have not considered the appellant to be eligible for promotion to the post of Superintendent as he had not completed 7 years in the cadre of Senior Assistant on

01.01.2021 i.e. on the 1st day of the year in which the selection for promotion is made i.e., in the year 2021.

10. Rules are to be interpreted as it is and Rule 8 of the 1973 Rules is clear. The eligibility is not only seniority-cum-merit but the other requirement which is provided is that a person to be eligible for promotion to the post of Superintendent from the cadre of Senior Assistant, should have rendered service of not less than 7 years as Senior

Assistant on the 1st day of the year in which the selection for promotion is made. Hence, in our opinion, the learned Single Judge has not committed any error in arriving at the conclusion that the appellant is not entitled to be promoted to the post of Superintendent as per Rule 8 of the 1973 Rules. In the facts of the case, the ratio laid down by the Apex Court in the case of Ajit Singh & Ors.(II) (supra) would not be applicable as what has been predominantly considered by the Apex Court is the seniority of the reserved category candidates promoted as per roster points. In the facts of the present case, it cannot be said that the appellant was not given proper opportunity. On the contrary, the facts reveal that the appellant was not qualified to be considered for promotion in the year 2021 as he had not rendered 7 years of service Page No.# 7/7

in the cadre of Senior Assistant on 01.01.2021 as per Rule 8 of the 1973 Rules.

11. We are in total agreement with the conclusion arrived at by the learned Single Judge. None of the contentions raised by the learned counsel for the appellant warrants interference by this Court in exercise of its appellate jurisdiction. The appeal being bereft of any merit deserves to be dismissed and is hereby dismissed. No costs.

                      JUDGE                                 CHIEF JUSTICE




Comparing Assistant