Gauhati High Court
WA/110/2018 on 28 August, 2023
GAHC010040552018
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Writ Appeal No. 110/2018
1. Sri Hiranya Kumar Sarma,
S/o Late Debendra Ch. Sarma,
Permanent resident of Majorhati, Barpeta,
Assam.
1(i). Smt. Anupama Devi,
W/o Late Hiranya Kumar Sarma, Resident of
House No.10, Debadaru Path, Ambikagiri
Nagar, Zoo Road, Guwahati-781024, District -
Kamrup (Metro), Assam.
1(ii). Smt. Pratyasha Sarma,
Daughter of Late Hiranya Kumar Sarma.
Resident of House No.10, Debadaru Path,
Ambikagiri Nagar, Zoo Road, Guwahati-
781024, District - Kamrup (Metro), Assam.
1(iii). Sri Bhabarnav Sarma,
Son of Late Hiranya Kumar Sarma.
Resident of House No.10, Debadaru Path,
Ambikagiri Nagar, Zoo Road, Guwahati-
781024, District - Kamrup (Metro), Assam.
[Appellant Nos. 1(i), 1(ii) and 1(iii) are legal
heirs of appellant No.1]
-
- Appellants
- Versus-
1. The State of Assam, represented by the
Commissioner & Secretary to the Govt. of
Assam, Industries & Commerce Department,
Dispur, Guwahati-781006.
2. The Commissioner, Industries &
Commerce, Assam, Bamunimaidan,
Guwahati-21.
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3. The Secretary, Assam Public Service
Commission, Khanapara, Guwahati-22.
4. The Principal Secretary to the Govt. of
Personnel (B) Department, Dispur, Guwahati-
5. The Commissioner & Secretary to the Govt.
of Assam, Welfare of Plains Tribes and Other
Backward Classes (WPT & BC), Dispur,
Guwahati-6.
6. The Legal Remembrancer, Assam, Dispur,
Guwahati-6.
- Respondents
For the Appellant(s) : Ms. M. Buzarbaruah, Advocate
For the respondent(s) : Mr. A. Kalita, SC, Industries &
Commerce Department, Assam
Mr. D. K. Sarmah, Addl. Sr. GA, Assam
- BEFORE -
HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of Hearing : 14.08.2023
Date of Judgment : 28.08.2023.
JUDGMENT & ORDER
(Sandeep Mehta, CJ)
1. Heard Ms. M. Buzarbaruah, learned counsel
representing the appellants. Also heard Mr. A. Kalita,
learned Standing Counsel, Industries and Commerce
Department, Assam as well as Mr. D. K. Sarmah, Additional
Senior Government Advocate, Assam, representing the
respondents.
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2. The instant intra-court writ appeal lays challenge
to the final judgment and order dated 01.02.2018 passed
by the learned Single Judge, whereby WP(C) No.
2121/2010 preferred by Late government employee Sri
Hiranya Kumar Sarma claiming the relief of seniority and
retrospective promotion in the cadre of General Manager,
Industries & Commerce, Government of Assam, was
rejected. Though the appeal came to be preferred by Sri
Hiranya Kumar Sarma, but during pendency thereof he
passed away and has been substituted by appellant Nos.
1(i), 1(ii) and 1(iii) being the legal heirs of Sri Hiranya
Kumar Sarma.
3. The only grievance which the appellants now seek
to ventilate through this appeal is to the extent of the claim
for promotion with retrospective effect made by the
original appellant/writ petitioner Sri Hiranya Kumar Sarma
and the consequential monetary benefits.
4. Learned counsel Ms. A. Buzarbaruah, representing
the appellants vehemently and fervently urged that the
DPC was convened in the year 04.11.2000 to consider the
case of the Late employee Sri Hiranya Kumar Sarma but
despite his entitlement, promotion was granted to him
belatedly on 09.08.2005. Thus, grave financial loss was
caused to the Late employee and the continuing effect
thereof is being suffered by the appellants in the matter of
grant of terminal benefits. She placed reliance on the
Hon'ble Supreme Court judgment in the case of P.N.
Premachandran vs. State Of Kerala, reported in AIR
W.A. No. 110/2018 3|Page
2004 SC 255 and urged that the ratio of the said judgment
clearly applies to the case at hand and as a consequence
the appellants are entitled to the relief of consequential
financial benefits by declaring that the Late employee Sri
Hiranya Kumar Sarma stood promoted w.e.f. 04.11.2000.
5. On the other hand, learned counsel representing
the respondents Mr. A. Kalita and Mr. D.K. Sarmah
vehemently and fervently opposed the submissions
advanced by the appellants' counsel. They urged that no
employee serving in State service has a right to be
promoted. The only right which an employee can claim is
to be considered for promotion. In the present case, the
case of Sri Hiranya Kumar Sarma was taken up for
promotion by the DPC convened in the year 2000, but on
account of pending litigation instituted by other employees
and injunctions granted by the Court, the exercise of
promotion got stalled and, hence, Sri Hiranya Kumar
Sarma could be promoted only on 09.08.2005. In support
of their contentions, learned counsel for the respondents
have placed reliance on the judgments rendered by
Hon'ble Supreme Court in the cases of State of Uttar
Pradesh & Others vs. Ashok Kumar Srivastava & Anr.,
reported in 2013 (Suppl) SC 513 and Nirmal Chandra
Sinha vs. Union of India and Others, reported in (2008)
14 SCC 29. On these grounds they implored the Court to
dismiss the appeal.
6. We have given our thoughtful consideration to the
submissions advanced at the Bar and have gone through
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the impugned judgment and the judgments cited at the
Bar.
7. At the outset we may note that the case of P.N.
Premachandran (supra) relied upon by the appellants'
counsel traverses on an entirely different set of facts
because in the said case the employees concerned were
working on the promotional post since a long period of
time and as a consequence they were given advantage of
retrospective promotion by the authorities. The
retrospective promotion granted to a section of employees
was challenged by the appellant P.N. Premachandran,
which challenge was repelled in the peculiar facts and
circumstances of the case. Hon'ble the Supreme Court held
that looking to the stand of the State of Kerala that there
was an administrative delay in conducting the DPC, Rule
31(a)(i) was resorted to for giving ad hoc promotions to
the departmental candidates and subsequently upon the
DPC being convened, the promotions made earlier were
regularised with retrospective effect. Hon'ble the Supreme
Court, after examining the provisions of the rules
applicable, did not find any irregularity in the orders
granting promotion with retrospective effect and observed
that the respondents could not be made to suffer owing to
the administrative lapses on the part of the State of Kerala.
Thus, it is clear that in the said case, the administrative
lapses on the part of the State were the reason behind the
delay in promoting the employees concerned. In the
present case, no such situation prevails. The delay in
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promoting the appellant Hiranya Kumar Sarma was on
account of the process of promotion being stalled due to
pending litigation wherein, injunction operated on the
promotion and, hence, the delay was not on account of the
administrative lapses. That apart, the ratio of the
judgments relied upon by the respondents' counsel in the
case of Ashok Kumar Srivastava (supra) and Nirmal
Chandra Sinha (supra) clearly postulates that the date of
occurrence of vacancy is not relevant for the purpose of
grant of promotion and that promotion can only be
effective from the date the same is granted.
8. In the wake of the discussion made hereinabove,
we find no infirmity in the order passed by the learned
Single Judge and, hence, the writ appeal fails and the
same is dismissed as being devoid of merit.
No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
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