WP(C) 3666/2005 BEFORE HON’BLR MR. JUSTICE B.K. SHARMA. JUDGMENT AND ORDER (ORAL) Heard Mr. R.K. Talukdar, learned counsel for the petitioner as well as Mr. B. Go goi, learned counsel led by Mr. D. Saikia, learned Standing Counsel, G.M.C. I ha ve also heard Ms R. Chakraborty, learned Addl. Sr. Govt. Advocate, Assam represe nting the State of Assam. 2. By means of this writ petition, the petitioner has prayed for a directio n to the respondents to consider his case for promotion at par with his batch ma te. The petitioner was not promoted along with his batch mate in view of the pe ndency of the departmental proceeding. However, the said proceeding has come t o an end in favour of the petitioner. 3. The petitioner was first appointed as Lower Division Assistant (LDA) in the year 1974 along with the Respondent No.4. Up-to 1996, the Respondent No.4 an d the petitioner worked in the capacity of Deputy License Officer on being so p romoted after the initial appointment as L.D.A. However, in the year 1997, the Respondent No.4 was promoted to the next higher grade to the deprivation of the petitioner. Such deprivation was on the ground that a departmental proceeding w as initiated against the petitioner and at the time of promotion, same was pen ding against him. The departmental proceeding was initiated by Annexure-5 memor andum of chargesheet dated 5.1.1995. The petitioner was also placed under suspe nsion, which was subsequently revoked by order dated 6.6.1996. Thereafter on co nclusion of the departmental enquiry, the petitioner was exonerated from the cha rges levelled against him and consequently, the departmental proceeding was dro pped. The order to that effect was passed on 23.3.1999 (Annexure-7 to the wri t petition) 4. During the pendency of the aforesaid departmental proceeding against the petitioner, the Respondent No.4 was promoted as Senior License Officer vide ord er dated 28.8.1997. Thereafter, he was further promoted as Deputy Commissioner b y order dated 4.5.2002. 5. After the departmental proceeding against the petitioner was dropped, h e made time to time representations urging for his promotion at par with his ba tch mate i.e. the Respondent No.4. The said representations having not yielded a ny result, the petitioner filed the instant writ petition. Be it stated here th at in the meantime, the petitioner was promoted as Enforcement Officer by order dated 27.8.2003. It is the grievance of the petitioner that the respondents ou ght to have considered the case of the petitioner for promotion firstly, as Se nior License Officer and secondly, as Deputy Commissioner at par with the Respo ndent No.4. 6. The departmental proceeding initiated against the petitioner came to an end in 1999 when the Annexure-7 order dated 23.3.1999 was passed by the Commiss ioner, GMC holding that the charges levelled against the petitioner had not bee n proved. Accordingly, the departmental proceeding initiated against the petiti oner was dropped. In paragraphs 14 and 16 of the writ petition, the petitioner h as shown the comparison with the Respondent No.4, his batch mate and other priva te respondents, his juniors, as to how, even after his promotion as Enforcement Officer he is discriminated in the matter of pay and allowances. 7. The respondents, both official as well as the private respondents have n ot denied the contentions raised in the writ petition, by filing any counter aff idavit and thus, the same go unrefuted and stand admitted. 8. In view of the above, applying the test of next below rule , it was in cumbent on the part of the respondents to consider the case of the petitioner fo r promotion firstly, to the post of Senior License Officer and then, to the pos t of Deputy Commissioner at par with the Respondent No.4 and/or the private res pondents, who were also promoted to higher grades, ignoring the petitioner altho ugh senior to them. According to the petitioner, his promotion to the post of E nforcement Officer vide order dated 27.8.2003 is not at par with the Respondent No.4 and other private respondents. 9. The Apex Court in R.K. Sethi and another v. Oil & Natural Gas Commission and others reported in (1997) 10 SCC 616, has observed thus :- The ’next below rule’ in service jurisprudence seeks to ensure that if a junior employee is given promotion without considering his senior then the senior emp loyee can claim the right to be considered for such promotion with effect from t he date on which the junior was so promoted. 10. In the decision on which Mr. Talukdar, learned counsel for the petitione r has placed reliance i.e. AIR 2000 SC 2767 (Delhi Jal Board v. Mahinder Singh), it has been held by the Apex Court that in the event of disciplinary proceeding ending in favour of the employee, he will be entitled to be considered for pro motion from the due date as the right of consideration for promotion is a funda mental right. 11. In view of the above, this writ petition is disposed of directing the re spondents to consider the case of the petitioner for promotion firstly, to the p ost of Senior License Officer and then, to the post of Deputy Commissioner at pa r with his batch mate i.e. the Respondent No.4 and also the other private respon dents junior to him. The entire exercise shall be carried out as expeditiously as possible, preferably within 3 (three) months from today. The case of the pet itioner shall be considered applying the same parameters and yardsticks, as was applied to the private respondents. In the event of promotion of the petitioner to the aforesaid grades at par with the Respondent No.4 and other private respon dents, the petitioner will not be entitled to arrear salary, but his pay shall b e fixed notionally. 12. Writ petition is allowed to the extent indicated above, leaving the par ties to bear their own costs.