1 IN THE HIGH COURT OF BOMBAY AT GOA PANAJI WRIT PETITION NO. 605/2003 Shri K. M. Lingamurthy, Junior Engineer, Sub-Division XIV, Public Works Department, Old Goa Medical College Complex, Panaji, Goa. ......... Petitioner. V/s. 1. State of Goa, through Chief Secretary, having Office at Secretariat, Panaji, Goa. 2. The Principal Chief Engineer, Public Works Department, Altinho, Panaji, Goa. 3. The Goa Public Service Commission, through its Secretary, having its Office at EDC House, Panjai – Goa. ......... Respondents. Mr. V.D. Pangam, Advocate for the petitioner. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for the respondents no.1 and 2. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. H. D. Naik, Advocate for respondent No.3. 2 CORAM : SWATANTER KUMAR, CJ. & N.A. BRITTO, J. Date : 19th June, 2009. ORAL JUDGMENT : ( PER SWATANTER KUMAR, CJ.) In this petition under Article 226 of the Constitution of India, the petitioner prays for issuance of directions to the respondents for holding a Review Departmental Promotional Committee and promoting him to the post of Assistant Engineer/Assistant Surveyor of of Work/Engineer Assistant (Civil) in accordance with rules and granting him all consequential benefits. 2. The petitioner joined as Junior Engineer and was posted in Sub-Division at Bicholim, in Works Division XVIII, P.W.D. and again posted in Sub-Division III at dam site. In the year 1974, he was confirmed as Junior Engineer with effect from 17th January, 1986. He was granted Time Bond Promotion Scale on completion of 12 years and was accordingly granted higher pay scale under Assured Progression Scheme in the same rank. According to him, he was permitted to cross his Efficiency Bar from time to time. But he got another Assured Progression Scheme in the year 2001, but has not been promoted to the 3 post of Assistant Engineer and further promotions. Under relevant Rules, the petitioner submitted representation on 17.7.2003, but the same was not accepted and according to the petitioner, his representation has been rejected by the respondents vide letter dated 3.9.2003, without specifying any reason. The action of the respondents is, thus, violative of Articles 14 and 16 of the Constitution of India. From the above narrated facts, it is clear that the petitioner has not been considered and denied promotion without any justifiable reasons. However, this contention of the petitioner is based on an assumption which is factually incorrect. In the reply affidavit filed by the Commission, it has been stated that the Commission had called for the service record of the petitioner and the case of the petitioner was considered by the Departmental Promotion Committee (DPC) in accordance with the prescribed procedure. The DPC graded the Officers as “Good” “Average” and “Unfit”. The Officers who have superseded the petitioner were having grade “Outstanding” and “Very Good”. In paragraph 16 of the reply-affidavit, it is also stated that the candidature of the petitioner was considered by the respondent No.1 Commission for the post of Assistant Engineer, Public Works Department and he was found unfit for promotion and resultantly was 4 not promoted. There is no denial by way rejoinder to that effect. It is not the case of the petitioner in the writ petition that he had been denied the promotion for any malafide reasons. The service record of the petitioner was considered not only by the Department, but also by the Departmental Promotion Commission constituted by the Commission itself. Thus the petitioner had consideration not only by the Department, but even through the independent agency and was found unfit for promotion. It is also not disputed before us that in the meanwhile petitioner has already retired from service and has received pensionary benefits in accordance with the rules. 3. For these reasons, we are unable to accept the contention of the petitioner that right of the petitioner has been violated and there is infringement of Articles 14 and 16 of the Constitution of India inasmuch as of action of the respondents is neither arbitrary nor it is unjustifiable. The petition is disposed of as dismissed. Rule is discharged. There shall be no order as to costs. SWATANTER KUMAR, CJ. N.A. BRITTO, J.