WP(C) 3614/2009 BEFORE HON’BLE MR JUSTICE HN SARMA The subject matter of challenge in this writ petition is the approval of the imp ugned resolution No.4 dated 19.8.09 passed by the respondent college authority for appointment of the private respondent No.5 to the post of UD Asstt. in the Pub Kamrup College that fallen vacant due to retirement of one Dharmeswar Kalita . I have heard Mr. KP Sarma, learned Sr. counsel assisted by Mr. H. Das, learned c ounsel for the petitioner, Mr. B. Kalita, learned Sr. counsel appearing for the respondents No. 3 and 4, Mr. P. Mahanta, learned counsel appearing on behalf of the respondent No.5 and Mr. S. Das, learned Standing counsel, Education Departm ent. The case of the petitioner interalia is that he is presently serving as L.D. Ass tt. in the Pub Kamrup College, Baihata Chariali. The respondent No.5 is also ser ving in the said college in the aforesaid grade as LD Asstt. The petitioner was initially appointed as Chowkidar vide order dated 29.9.75. Thereafter, he was pr omoted to the rank of Library bearer vide order dated 24.8.82. Subsequently, th e petitioner was further promoted as LD Asstt. vide order dated 30.9.88. The res pondent No.5, however, was appointed as LD Asstt. on 5.1.81 and since then he i s serving in the said capacity. From the date of holding of the post as LD Asstt . admittedly the respondent No.5 is senior to the petitioner. When the post of UD Asstt. fallen vacant the respondent No.5 by writing a letter dated 3.12.05 in timated the Principal of the College that he is not willing to accept the post o f UD Asstt. and he shall not claim the post in future. By another letter dated 5 .1.06 again the respondent No.5 re-iterated his stand stating that he would not claim the post of UD Asstt. which will fall vacant due to retirement of Sri Pras anna Kumar Talukdar on 31.12.05. Accordingly, on being surrendered the post of U D Asstt. by the respondent No.5, Mr. Madan Ch. Deka who was the next senior most person was promoted and appointed as UD Asstt of the College. It would also be not out of record here to state that one Mr. Minar Hussai Khandakar was the im mediate senior after the respondent No.5 who also expressed his unwillingness to accept the higher responsibility i.e., the post of UD Asstt. of the college. Wh ile the matter rested at that stage, another post of UD Asstt. fell vacant in th e college due to retirement of Sri Dharmeswar Kalita w.e.f. 28.2.09. This time, however, the respondent No.5 by filing an application dated 1.3.09 claimed for c onsideration of his case for the post of UD Asstt. In the said application, the respondent No.5 indicated that on earlier occasion, he was not willing to acce pt the higher responsibility due to certain domestic reason but this time he is ready and willing to accept the higher responsibility i.e., the post of UD Asstt . In such a situation, the college authority wrote to the Director Higher Educat ion vide letter dated 2.6.09 seeking their guidance and the Director Higher Educ ation vide communication dated 2.7.09 directed the Governing body of the college to take appropriate action keeping in mind that the seniority of the candidate should not be ignored if the concern incumbent does not submit his unwillingness to accept the higher responsibility. Upon receipt of the said communication, th e Managing committee of the college vide impugned Resolution No.4 dated 19.8.09 resolved to promote the respondent No.5 to the rank of UD Asstt. in the post in the vacancy fallen due to retirement of Sri Dharmeswar Kalita. Mr. KP Sarma, learned Sr. counsel challenging the aforesaid resolution has submi tted that the respondent No.5 having expressed his unwillingness vide expressed form by writing a letter to the Principal of the college on 3.12.05 and further re-iterating his stand vide letter dated 5.1.06, has deprived the petitioner fr om consideration of his case to be promoted t the post of UD Asstt. of the colle ge and since the respondent No.5 has already expressed his mind not to accept th e higher responsibility, his case ought not to have been considered by the colle ge authority for promotion to the post of UD Asstt. that fallen vacant due to re tirement of Mr. Dharmeswar Kalita and accordingly, the said resolution is null and void. Mr. Kalita, learned Sr. counsel appearing for the college authority, however, su bmits that though the respondent No.5 signifies his unwillingness to accept the higher responsibility after retirement of Mr. Prasanna Kr. Talukdar but this tim e when another post of UD Asstt. fallen vacant after the retirement of Mr. Dharm eswar Kalita, the petitioner claimed for the post by filing necessary applicatio n on 1.3.09 and since the petitioner has claimed for the post, his case should h ave been considered for promotion to the rank of UDA. On such circumstances, the respondent No. 5 having been senior to to the petitioner, the case of the respo ndent No.5 was recommended and approved for promotion to the rank of UD Asstt. Mr. Mahanta, learned counsel appearing for the respondent No.5 referring to the averments made in paragraphs 5 and 12 of the counter affidavit, has submitted th at the respondent No. 5 was not willing to accept the higher responsibility duri ng the relevant time and accordingly he expressed his unwillingness vide applica tion dated 3.12.05 to that effect due to some domestic problem. However, he hav ing tied over at present, the respondent No.5 vide application dated 1.3.09 expr essed his willingness and claimed the post of UD Asstt. and accordingly, the col lege authority has not committed any irregularity in recommending his case for p romotion to the post of UD Asstt. It is contended by Mr. Mahanta that the respon dent No. 5 has not surrendered his claim for appointment to the post of UD Asstt . for all time but it was surrendered once in the year 2005 due to his domestic problem. I have considered the rival submissions made by the parties. From the communication dated 3.12.05 and 5.1.06 it cannot be said that the respo ndent No.5 surrendered his right for promotion to the rank of UD Asstt. The afor esaid facts only confirms that by subsequent application dated 1.3.09 the respo ndent No.5 expressed his willingness to accept the post of UD Asstt. of the col lege that fallen vacant after the retirement of Dharmeswar Kalita. That apart, the promotion is not a matter of right. A person may not at certain point of ti me accept higher responsibility and it does not indicate that such promotion sh all remain for all time to go and on such consideration I do not find any illega lity and/or irregularity has been committed by the college authority for recomme nding the case of the respondent No.5, rather I am not inclined to interfere wi th the resolution dated 19.8.09 under Article 226 of the Constitution of India. The aforesaid resolution resolved to promote the respondent No.5 in the post of UD Asstt is subject to confirmation and/or approval by the Director, Higher Educ ation and he is the authority to consider this aspect of the matter. Inasmuch as there is the restrain order passed by the High Court on 28.8.09 the college au thority has not yet forwarded the said resolution for necessary approval to the Director of Higher Education as yet. In view of the above discussions, this writ petition stands disposed of with the direction that the college authority i.e., the respondent No. 3 and 4 shall for twith forward the aforesaid resolution No.4 dated 19.8.09 to the Director of Higher Education, Assam and after receipt of the same, the Director, Higher Educ ation shall pass appropriate order after due application of mind in accordance w ith the provisions of Rules, as early as possible. Mr. Sarma, learned Sr. counsel has contended that while passing the impugned r esolution, the authority has not considered the case of the petitioner at all. A dmittedly, the petitioner is junior to the respondent No.5 in the rank of LD As stt. However, this aspect of the matter is left for consideration by the Directo r of Higher Education while considering the resolution for approval so adopted b y the Managing Committee of the college on 19.8.09. With this observation, this writ petition stands finally closed. Interim order passed earlier stands merged with this order.