Page No.# 1/12 vs The State Of Assam And 2 Ors
2025 Latest Caselaw 7237 Gua

Gauhati High Court

Page No.# 1/12 vs The State Of Assam And 2 Ors on 11 September, 2025

                                                                     Page No.# 1/12

GAHC010123612014




                                                               2025:GAU-AS:12382

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

                             Case No. : WP(C)/1775/2014

           SMTI JURI BORTHAKUR
           W/O- NILA SHARMA, R/O- SUPER MARKET, DISPUR, GHY- 6, KAMRUP M,
           ASSAM.

           VERSUS

           THE STATE OF ASSAM AND 2 ORS
           REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR, GHY- 6,
           ASSAM.

           2:THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
            SECRETARIAT ADMINISTRATION DEPTT.
            DISPUR
            GHY- 6
           ASSAM.

           3:THE DY. SECY. TO THE GOVT. OF ASSAM
            SECRETARIAT ADMINISTRATIVE DEPTT.
            DISPUR
            GHY- 6
           ASSAM


Advocate for the Petitioner : MR.U K NAIR, MR. D GOGOI,MR S BORTHAKUR,MRA
CHANDRAN,MR.A CHETRY

Advocate for the Respondent : GA, ASSAM, SC, GAD,,

Page No.# 2/12

BEFORE HONOURABLE MR. JUSTICE KARDAK ETE

JUDGMENT & ORDER Date : 11-09-2025

Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. P. Nayak, learned Additional Government Advocate assisted by Mr. A. Phukan, learned Standing Counsel, GAD, appearing for the respondents.

2. By filing this writ petition, the petitioner has challenged the action of non-consideration of promotion to the post of Joint Secretary, Assam Secretariat Service w.e.f. 01.02.2014 and prayed for a direction to promote w.e.f. 01.02.2014 till her retirement, i.e., 31.03.2014 with all consequential benefits of pay and allowances.

3. Briefly put, the petitioner who was initially appointed as Lower Divisional Assistant (LDA) in the Secretariat Administration Department, Government of Assam, was promoted to the higher posts from time to time and finally was promoted to the post of Deputy Secretary vide order dated 31.07.2012 and has retired from service as Deputy Secretary on attaining the age of superannuation on 31.03.2014.

4. The final Gradation List of Deputy Secretary of the Secretariat Service as on 31.01.2014, was published on 19.02.2014, where the name of the petitioner appeared at Serial No. 1. On 19.02.2014, she was the senior most Deputy Secretary of the Secretariat Administration Department. The next higher cadre to which an incumbent in the cadre of Deputy Secretary is to be promoted is the cadre of Joint Secretary. It is Page No.# 3/12

the contention of the petitioner that the cadre of Joint Secretary consist of 4 (four) posts and one of the post had fallen vacant on 31.01.2014 on the retirement of one Shri Bhupendra Goswami.

5. The service conditions of the members of Assam Secretariat Service are governed by the provisions of the Assam Secretariat Service Rules, 1963 (hereinafter referred to as The Rules of 1963). Although the post of Joint Secretary was not initially included, the said Rule was later made applicable for promotion to the post of Joint Secretary. Vide notification dated 14.02.1995, the authorities laid down that for the purpose of promotion to the cadre of Joint Secretary, there shall be no prescription as regards the eligibility criteria of length of service for the purpose of preparing the selection list from amongst the Deputy Secretaries for promotion to the post of Joint Secretary, which indicates that next promotional post for the post of Deputy Secretary shall be the post of Joint Secretary. The procedure provides that the appointing authorities are required to assess the vacancies that are likely to arise in each cadre every year and thereafter, to take appropriate steps for holding of the selections so as to ensure filling up of the post.

6. It is contended that the vacancy which arose in the post of Joint Secretary on superannuation of one Shri Bhupendra Goswami w.e.f. 31.01.2014, was an anticipated vacancy and the respondent authorities ought to have held the selection for the purpose of filling up of the said post. However, no steps were taken, consequently, the petitioner who is the senior most Deputy Secretary and eligible for promotion to the post of Joint Secretary w.e.f. 01.02.2014 has been deprived of her due promotion on account of the laches on the part of the respondent authorities.

Page No.# 4/12

7. It is contended that despite repeated representations, the respondent authorities have failed to hold the selection for filling up the post of Joint Secretary. The petitioner being eligible in all respect and having no adverse records in her entire service career, the non- consideration for promotion to the post of Joint Secretary despite existence of vacancy at the appropriate time is arbitrary and illegal. Had the selection been held at the appropriate time, the petitioner would have been considered for promotion to the post of Joint Secretary before her retirement on 31.03.2014. It is contended that the respondent authorities have deliberately withheld the process of convening of the selection committee so as to ensure that the petitioner is deprived of her promotion and as such, the delay in holding the selection is without any justifiable cause or reason.

8. Mr. S. Borthakur, learned counsel for the petitioner while referring to the relevant provisions of the Rules of 1963, submits that since the Rules provide for yearly assessment and holding of selection, the authorities were incumbent upon to hold the selection process for promotion to the post of Joint Secretary as the post of Joint Secretary clearly fell vacant by 31.01.2014. Having not done so, the petitioner has been deprived of her fundamental rights to be considered for promotion as the petitioner had retired on 31.03.2014 as a Deputy Secretary. He submits that in view of the non-convening of selection for promotion to the post of Joint Secretary, without there being any justifiable cause or reason when there existed a vacancy during the service period of the petitioner and petitioner having been allowed to retire without consideration for the promotion, a direction may be issued to the respondent authorities to promote the Page No.# 5/12

petitioner w.e.f. 31.01.2014, so as to enable the petitioner to at least receive the status and other financial benefits.

9. Mr. Borthakur, in support of his submission has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Nirmal Chandra Bhattacharjee & Ors. vs. Union of India and Ors., reported in 1991 Supp (2) SCC 363 and Union of India & Anr. vs. Hemraj Singh Chauhan & Ors., reported in (2010) 4 SCC 290 to project that an employee cannot be made to suffer on account of intervening events as the right to be considered for promotion is a fundamental right.

10. The relevant paragraphs of the case of Hemraj Singh Chauhan (supra) are quoted hereunder:

"...35. The Court must keep in mind the Constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a Welfare State.

36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.

42. Concurring with the aforesaid interpretative exercise, we hold that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely, lethargy, in- action, an absence of a sense of responsibility cannot fall within category of just exceptions.

43. In the facts of this case neither the appellants nor the State of U.P. has justified its action of not undertaking the exercise within the Page No.# 6/12

statutory time frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of 'ordinarily' in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review."

11. On the other hand, Mr. Nayak, learned Additional Advocate General for the respondents, submits that the process of promotion takes time as the criteria/procedures are to be followed properly like publication of Gradation List of each cadres, assessment of vacancies, eligibility, collection of ACRs and other relevant records with supporting documents of all the candidates eligible for promotion from different Departments are required to be done. Thereafter, Selection Committee is constituted annually as per Rules and then the meeting of the Committee is held for recommendation of candidates for promotion in each cadre. The recommendation for promotion to all the five cadres are made by the Selection Committee. He submits that no employee can be promoted to a higher post without following the due procedure/due recommendation of the Selection Committee. If the authority had to promote the petitioner w.e.f. 01.02.2014, the meeting of the Selection Committee had to be held in the month of January, 2014, which was not possible at all. The petitioner herself admitted that the Gradation List for the post of the Deputy Secretaries was published on 19.02.2014 and therefore, consideration for promotion had arisen only after 19.02.2014. The meeting of the Selection Committee could not be held in the month of January, 2014 by following all the formalities and procedures as normally Selection Committee meeting is held in the month of April/May/June for a particular year after assessing all the vacancies. The petitioner by then had retired Page No.# 7/12

from service on 31.03.2014.

12. Mr. Nayak, learned Additional Advocate General submits that the Minutes of the Selection Committee meeting dated 13.03.2013 indicates that against four numbers of vacant posts of Joint Secretary, eight senior persons were recommended. The recommended candidate Shri Koilyan Bormedhi at Serial No. 1, was promoted against a clear vacancy on 30.03.2013, who had retired on 31.03.2013. Thereafter, three numbers of vacancies arose on 01.04.2013 due to promotion of Kanak Sen Deka to the cadre of Additional Secretary, retirement of Shri Koilyan Bormedhi and Shri Prafulla Chandra Das. These three vacancies were filled vide Notification dated 12.04.2013 by promoting three more persons in the recommended list who were in Serial Nos. 2, 3 & 4. The Selection Committee in its meeting held on 27.06.2013, recommended one Shri Samik Senchowa and the petitioner for promotion to the post of Joint Secretary in addition to the already recommended incumbents in its meeting held on 13.03.2013. Shri Samik Senchowa was at Serial No. 1, who was recommended along with the petitioner, who being the senior most Deputy Secretary was promoted vide Notification dated 20.07.2013. He submits that all the vacant posts of Joint Secretary for the year 2013 were filled up accordingly.

13. Mr. Nayak, learned Additional Advocate General submits that even the two recommended candidates could not be promoted as the vacant posts of Joint Secretary for the year 2013 were already filled up and since there was no vacancy, the petitioner could not be promoted. The subsequent, vacancy arose only on 31.01.2014 following the retirement of one Shri Bhupendara Goswami and it could have only been filled up on the Page No.# 8/12

recommendation of the Selection Committee for the year 2013 but due to procedural/administrative exigencies, no selection committee could be constituted immediately as the process for selection normally is conducted in the month of April/May/June, by the time the petitioner had retired from her service. Under such circumstances, the petitioner could not be promoted and merely because there was a vacancy, the petitioner has no right to be promoted in the vacancy as for consideration of the promotion; required procedures have to be followed. Therefore, writ petition is liable to be dismissed.

14. In support of his submission, Mr. Nayak, learned Additional Advocate General has relied upon the judgment of the Hon'ble Supreme Court in the case of Bihar State Electricity Board and Ors. Vs. Dharamdeo Das, reported in 2024 INSC 549, to show that mere existence of vacancy is not sufficient for an employee to claim for seniority and actual appointment as the appointment or promotion has to be in accordance with proper procedure. Merely because the employee is eligible for promotion, it would not necessarily entitle the employee for appointment/promotion from the date the post fell vacant.

15. I have considered the submissions of the learned counsel for the parties and also perused the materials on record.

16. Petitioner who was initially appointed as LDA in the Secretariat Administration Department, Government of Assam, after availing promotion to different higher posts from time to time finally was promoted to the post of Deputy Secretary. The claim of the petitioner is to the effect that since the post of Joint Secretary fell vacant on 31.01.2014, she ought to have been promoted to the said vacant post and the respondent Page No.# 9/12

authorities not having been convened the selection, violating her fundamental right for consideration for promotion and allowing the petitioner to retire on 31.03.2014, be directed to promote the petitioner from the date of vacancy, so as to enable her to avail the status and other financial benefits even after her retirement.

17. The Rule of 1963, which has been made applicable for promotion to the post of Joint Secretary, provides that the Selection Committee shall meet once in a year and review the select list every year. It also provides that a select list shall ordinarily be in-force until it is reviewed or revised under Rule 12, provided that in the event of any great lapse in the conduct or performance of duties on the part of any candidate in the Select-List, the Appointing Authority may if it so thinks fit, remove any such candidates from the select-list. It also provides that the Appointing Authority shall refer to the Committee, the approximate number of vacancies likely to occur during the year in each of the categories and furnish the Committee with the Character Rolls and Personal Files of all the eligible candidates. The Committee shall examine the Character Rolls and Personal Files of the candidates, take into consideration the seniority and merit of the candidates and prepare Select-List of names in order of preference for recruitment and this list shall be forwarded by the Committee to the Appointing Authority.

18. Records reveal that in the year 2013 vide its meeting dated 13.03.2013 the Selection Committee recommended eight persons against four numbers of vacant post of Joint Secretary from the post of Deputy Secretary. In addition to the eight persons recommended for promotion in the four posts of Joint Secretary, one Shri Samik Senchowa and the Page No.# 10/12

petitioner were also recommended vide Notification dated 27.06.2013. Shri Samik Senchowa who was at Serial No. 1, above the petitioner was promoted to the post of Joint Secretary considering his seniority. It is also noticed that out of eight recommended Deputy Secretaries before the said Shri Samik Senchowa and the petitioner were recommended, two Deputy Secretaries could not be promoted due to lack of vacancy. Thus, the vacant posts for the year 2013 were filled up.

19. It is further noticed that as per records, the subsequent vacancy arose only on 31.01.2014 and the same could not be filled up in view of the fact that no selection was conducted due to certain procedural and administrative exigencies. The Gradation List of Deputy Secretary admittedly was published on 19.02.2014. The Rules require that the Selection Committee has to examine the Character Rolls and Personal Files of the candidates and thereafter, recommendation has to be sent to the appointing authority. Obviously, such an exercise would take considerable time and therefore, it appears that the selection could not be conducted for the year 2014, which is stated to be normally held in the month of April/May/June, which this Court finds reasonable and acceptable. In the meantime, it is seen that the petitioner had retired from her service on 31.03.2014. Therefore, the authorities cannot be expected or insisted to conduct the selection in a hurried manner, which would not be a possible course of action as the same would be in violation of the procedures.

20. So far as the contention of the learned counsel for the petitioner that Rules provide that the select list shall be in-force until it is reviewed or revised and accordingly, since the petitioner was recommended by the Selection Committee vide meeting dated 27.06.2013, the petitioner would Page No.# 11/12

have been promoted to the post of Joint Secretary as the post fell vacant on 31.01.2024, the contention appears to be misplaced as the Rules provides that a select list shall ordinarily be in force, which indicates that the same would not be mandatory. Moreover, in view of the provisions that the appointing authority shall refer to the Committee the approximate number of vacancies likely to occur during the year in each of the categories and furnish the Committee with all the relevant files of all the eligible candidates for its examination, which reflects that the authority has to refer year wise vacancy to the Selection Committee. In the present case, as the vacancy admittedly arose in the year 2014 and no selection process was undertaken, the contention of the learned counsel for the petitioner fails.

21. The case laws referred and relied by the learned counsel for the petitioner is a settled principle of law, which in my view would not in any manner advance the case of the petitioner.

22. It is well settled proposition of law that employees are entitled to be considered for promotion if they meet the eligibility criteria although this doesn't guarantee promotion itself. While the right to be considered for promotion is a fundamental right, there is no inherent right to promotion itself. Simply having a vacancy does not create an automatic entitlement to promotion. Instead, promotion is contingent upon the availability of a position and the completion of the prescribed process and procedure.

23. In view of what has been discussed hereinabove, I am of the considered view that in the facts and circumstances narrated hereinabove, the petitioner has failed to make out any case for a direction to the respondent authorities to grant promotion to the post of Joint Secretary in Page No.# 12/12

Assam Secretariat Service w.e.f. 01.02.2014 till her retirement, i.e., 31.03.2014, with all consequential benefits of pay and allowances. Thus, relief sought for is rejected.

24. Consequently, writ petition stands dismissed being devoid of merit. Cost(s) made easy.

JUDGE

Comparing Assistant