WP(C) 263/2009 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. N.C. Phukan, learned counsel for the petitioner as wel l as Mr. R. Tanti, learned Standing Counsel, Inland Water Transport Department. The petitioner, who has since retired from service on attaining the age of superannuation on 31.1.2009 has prayed for a direction to the respond ents to promote him to the post of Executive Engineer retrospectively. From the materials on record, it appears that the petitioner whi le was holding the post of Assistant Engineer was transferred to IWT Department and was allowed to hold the charge of the Assistant Executive Engineer in additi on to his own duty. Thereafter, he was transferred from the particular Division to another Division of IWT on the same post with the substantive grade of Assist ant Engineer and i/c Assistant Executive Engineer. Nothing has been disclosed in the writ petition as to the date of regular promotion of the petitioner to the rank of Assistant Executive Engineer. According to the petitioner, he was deprived of his promotion to the post of Executive Engineer in view of pendency of the vigilance P.S. case N o. 1/96. It is the asscertion of the petiitoenr that pendency of such a vigilanc e case could not have led to the decision of the authority to deny promotion to the petitioner to the rank of Executive Engineer. In this connection, the learne d counsel for the petitioner has placed reliance on the decision of the Apex Cou rt in Union of India Vs. K.V. Janaki Raman reported in 1991 4 SCC 109, in which, it was held by the Apex Court that sealed cover proceeding could be adopted onl y in case of issuance of charge sheet in the departmental proceeding and not on the basis of a vigilance case. The respondents have filed their counter affidavit, in which the aforesaid contention of the petitioner has been denied. It has been stated that the petitioner was regularly promoted to the post of Assistant Executive Engine er only on 30.8.2007. Prior to that while holding the substantive post of Assist ant Executive Engineer, the petitioner was allowed to hold the charge of the pos t of Assistant Executive Engineer and also at times the post of Executive Engine er. As stated above, the aforesaid facts of regular promotion to the post of Assistant Executive Engineer only on 30.8.2007 has not been disclosed i n the writ petition. As per the own showing of the petitioner as per Rule 5 of the As sam Inland Water Transport Service Rules, 1992, recruitment to the cadre of Exec utive Engineer can be made on seniority-cum-merit basis from amongst the Assista nt Executive Engineers having 5 years of continuous service. The petitioner lac ked 5 years of continuous service in the cadre of Assistant Executive Engineer e ntitling him to get promotion to the post of Executive Engineer. At the time of retirement from service, he had only 2 years of service in the cadre of Assistan t Executive Engineer. Mr. Phukan, learned counsel for the petitioner submits that the petitioner having held the charge of the post of Assistant Executive Engineer fr om 2001 and thereafter again the charge of Executive Engineer, his regular promo tion as Assistant Executive Engineer as per recommendation of the APSC is requir ed to be antidated entitling the petitioner to get promotion to the rank of Exec utive Engineer. There is no such prayer in the writ petition. What has been proj ected is that the petitioner having held the charge of Assistant executive Engin eer is entitled to get regular promotion to the post of Executive Engineer. The petitioner was promoted to the post of Assistant Executive E ngineer on the basis of the recommendation made by the APSC and he having not co mpleted 5 years of regular service in the cadre of Assistant Executive Engineer, his case could not be considered for promotion to the rank of Executive Enginee r. This Court cannot issue any direction for granting notional promotion to the petitioner to the rank of Executive Engineer as has been prayed for. However, it will be open for the respondents to examine the matter as to whether the petiti oner was entitled to get his promotion to the rank of Assistant Executive Engine er at an earlier date than 30.8.2007 and consequentially to the rank of Executiv e Engineer. No opinion is expressed in this regard. It will entirely upto the so und discretion of the respondents to deal that aspect of the matter. With the above observation, the writ petition is disposed of.