WP(C) 182/2009 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. NC Barooah, learned counsel appearing for the petitioner. The departme nt of Health is represented by its Standing Counsel Mr. B Gogoi. The private res pondent No.4 is represented by Mr. DK Sharmah, learned counsel. 2. The petitioners who was inducted as a Health Officer on recommen dation of the Assam Public Service Commission by Notification dated 2.2.1977 (An nexure-II) in the Health & Family Planning (A) Department has approached this Co urt seeking proforma promotion to the rank of Chief Medical & Health Officer, wi th effect from the date of promotion of respondent No.4 to the said post. The pe titioner claims to be senior to the respondent No.4 and she contends that althou gh her service was transferred and placed at the disposal of Labour and Employme nt Department by Notification dated 13th March 1986, when promotions were made i n her parent department, she ought to have been given notional promotion, along with her contemporaries by application of the next below Rule 3.1 Mr. Barooah, the learned counsel appearing for the petitioner co ntends that right to be considered for promotion is a Fundamental Right and thi s right of the petitioner was infringed at the time of making promotion(s) in th e parent department, since the petitioner whose services were placed in some oth er establishment was not considered at that time for promotion. 3.2 The learned counsel relies upon the decision of this Court in t he case of Prafulla Chandra Saikia vs. State of Assam reported in 2007 (4) GLT 267 to contend that the department was under an legal obligation to process th e petitioner’s case for promotion at the time of promotion of her contemporaries in the Health department and the Court should now give the necessary direction for considering the petitioner’s promotion w.e.f the date, when respondent No.4 was promoted. 4.1 Mr. B Gogoi, learned Standing Counsel for the Health Department in reply submits that for the last 25 years the petitioner has been serving away from her parent department in pursuant to the Notification dated 17.3.1986 and considering the duration of her service in the Labour & Employment Department, s he should be deemed to be permanently absorbed in the said department. The learn ed counsel refers to the Office Memorandum dated 19.7.1997 of the Finance (Estab lishment-A) Department to contend that maximum deputation of only 5 years is per missible and unless the employee returns to the parent department within 5 years , he/she shall be deemed to be permanently absorbed in the deputed organization. 4.2 The departmental counsel further submits that the petitioner is seeking direction for her promotion to the rank of Chief Medical and Health Offi cer w.e.f. the date of promotion of respondent No.4, which cannot be granted sin ce promotion to the said rank is possible only from the cadre of Sub-Divisional Medical & Health Officer to be preceded by promotion to the Sr. Health Officer a nd since the petitioner never served either as a Sr. Health Officer or as Sub-Di visional Medical & Health Officer, she cannot claim any right for being consider ed for promotion to the post of Chief Medical & Health Officer. 5.1 Appearing for the private respondent No.4, it is submitted by Mr . DK Sharmah, the learned counsel that while serving in the Health Department, t he respondent No.4 was posted at different stations i.e. rural areas, terrorists affected areas, riverine areas in various capacities and only on the basis of such service rendered in the Health Department, the respondent No.4 was promote d on 12.4.1994 to the higher post of Sr. Medical & Health Officer; then on 6.9.1 997 to the post of Sub-Divisional Medical & Health Officer; and thereafter on 12 .11.2007 to the post of Chief Medical & Health Officer. Mr. Sharmah, further con tends that never during these earlier promotions of respondent No.4, the petitio ner had made a claim for her own promotion. 5.2 The counsel points out that the petitioner did not make any clai m in response to the Draft Gradation List of the Sub-Divisional Medical & Health Officer published in the newspaper, where the name of the petitioner was not me ntioned. By citing those lapses, Mr. Sharmah submits that this case should be di smissed on the ground of laches as the petitioner has slept over her perceived g rievances for all these years and has rushed to the Court at the fag end of her career, after enjoying posting(s) only at Guwahati for last 25 years as a Medica l Officer in the Labour & Employment Department. The learned counsel relies upon the decision of the Supreme Court reported in AIR 1970 SC 470 (Rabindra Nath Bose vs. Union of India), where the Apex Court discouraged granting of relief i n cases where approach was made after inordinate delay. 6. The petitioner at no stage prior to 18.10.2008 had made any repr esentation for her promotion although several promotions were effected to differ ent grades between 1994 to 1997. Only when the respondent No.4 was promoted to t he post of Chief Medical & Health Officer on 12.11.2007, the petitioner filed a representation on 18.10.2008 praying for promotion to the post of Chief Medical & Health Officer. Therefore earlier when respondent No.4 was considered for prom otion on 12.4.1994 to the post of Sr. Medical & Health Officer and on 6.9.1997 t o the post of Sub-Divisional Medical & Health Officer, the petitioner chose to r emain silent without voicing any claim for her promotion. One of the possible re asons for the petitioner’s reluctance to raise the issue could be that as in tha t event, there might be an order for her repatriation to the Health department w ith consequential transfers and posting in stations, away from the capital city. Although the petitioner claim that she was unaware of the promotions given to h er colleagues in the parent department, the Court does not consider it to be rea sonable or condonable, the unusual laches in approaching this Court or the autho rities. 7. In the case of Prafulla Chandra Saikia (Supra) cited by Mr. Baro oah, where the Court directed consideration of promotion of the deputed officer, it is on record that the said petitioner had submitted representation(s) from t ime to time and only when those representations remain unresponded, the petition er moved the Court for securing relief. In the present case however no such effo rt is seen from the side of the petitioner to claim promotion under the next be low Rule and from such inaction, the only inference that can be drawn is that t he petitioner had no grievance to the promotion given to her contemporaries in t he Health department and she was happy to continue in the Labour Department whic h enabled her to stay at Guwahati for practically her entire service tenure. 8. Even in a case where a right of promotion is claimed by contendi ng that this is a Fundamental Right, this court cannot be oblivious of relevant issues like laches, before considering any equitable relief for the petitioner w ho had slept over her right for years together. 9. In the considered view of the Court, the petitioner not having s erved in either of the feeder cadres, she cannot be considered straightway for p romotion to the post of Chief Medical & Health Officer and not having raised her voice against the promotion(s) given to respondent No.4 in the 2 feeder posts o f Sr. Medical Health Officer and Sub-Divisional Medical & Health Officer in the year 1994 and 1997 respectively, this Court feels that no direction should be gi ven at this belated stage, for considering promotion of the petitioner to the p ost of Chief Medical & Health Officer. The right of the petitioner cannot be adj udicated in the same manner as was done in the case of Prafulla Chandra Saikia ( Supra) who constantly agitated his grievances, before he was constrained to mov e the Court. The facts here are distinguishable from the said case. 10. For the foregoing reasons, I see no merit in this case and the s ame is accordingly dismissed.