If the petitioner is considered for promotion to the next higher post of, the promotion cannot be given with retrospective effect: High Court of Meghalaya

Serial No. 03 Regular List WA No. 517 HIGH COURT OF MEGHALAYA AT SHILLONG Date of order: 01.10.2021 Kumar Keshab Kalita The Union of India & Ors. Hon’ble Mr. Justice Biswanath Somadder Chief Justice Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) : Mr. R. Debnath CGC For the Respondent(s) Mr. Philemon Nongbri Adv. Whether approved for reporting in Law journals etc.: Whether approved for publication in press: JUDGMENT:(Oral) This appeal arises in respect of a judgment and order passed by a learned Single Judge on 20th May 2014 in WP(C) 358 of 2010 and thereafter remustered to the post of Havildar Store Keeper Technicalin the month of August 1997. The next promotional post of Havildar Store Keeper Technical is Naib Subedar SKT to Naib Subedar SKTis a cent per cent promotional post and the Havildar Store Keeper Technical having minimum service of 5 years as Havildar Store Keeper Technical Engineer) together with a total of 18years of service and passed Map Reading Standard II and Technical Trade Test I is eligible for promotion. It is stated that the respondent writ petitioner had successfully completed Map Reading Standard II and also successfully completed the Technical Trade Test II. It is further case of the respondent writ petitioner that inspite of successfully completed the Technical Trade Test III as early as 2003 he was not sent for undergoing Technical Trade Test II. It may be pertinent to mention that for undergoing Technical Trade Test I the concerned Havildar Store Keeper Technicalshould have successfully completed firstly the Technical Trade Test III and secondly Technical Trade Test II. The respondent writ petitioner had successfully completed the Technical Trade Test II on 22nd March 2010 and also completed the Technical Trade Test I on 22nd June It is the further case of the respondent writ petitioner that he was denied the opportunity of undergoing Technical Trade Test II while his juniors had been deputed for undergoing Technical Trade Test I and as a result further promotion to the post of Naib Subedar SKT Engineer) was denied to him. The respondent writ petitioner had filed many representations to the concerned authority for sending him to undergo Technical Trade Test II and I. In support of this fact the respondent writ petitioner also annexed the copies of representations. It is a fact that at the time of holding the DPC on 15th July 2009 the respondent writ petitioner was not eligible for promotion to the post of Naib Subedar SKTas spelt out in the impugned judgment and order reads thus “5. The respondents filed joint affidavit in opposition wherein had clearly stated that the petitioner was not eligible for promotion to the pot of Naib Subedar SKTat the time of holding the DPC on 15.07.2009. The respondents in their affidavit in opposition further stated that the petitioner will be promoted to the next higher rank of Naib Subedar SKT in his turns subject to availability of vacancy. This Court vide order dated 18.03.2014 directed the respondents to file additional affidavit mentioning the particulars of the vacancies in the post of Naib Subedar SKT Engineer) arising after the last DPC i.e. 15.07.2009. 6. The respondents filed joint additional affidavit dated 01.05.2014 wherein it is stated “that the writ petitioner had acquired the Qualitative Requirementfor promotion in March 2010 but could not be promoted to the rank of Naib Subedar Store Keeper Technicaldue to the non availability of vacancy in the said rank. That from September 2011 till date 02vacancies had occurred 01in the unreserved category and 01in the reserved category meant for Scheduled Tribecandidates and 02 two) Hav SKT viz Hav SKT Mathai PC from the unreserved category and Hav SKT L Seimang from Scheduled Tribecategory had been promoted with effect from 01 September 2011 and 01 November 2011 respectively.” It appears from the additional affidavit filed by the respondents that there was only one vacancy in the post of Naib Subedar SKTin the unreserved category and against that unreserved category one Shri. Mathai PC i.e. Havildar Store Keeper Technical had already been promoted”. The learned Single Judge in the impugned judgment and order at the very outset observed inter alia to the effect that the Court had full sympathy for the respondent writ petitioner in the given case but because of hard fact that he was not eligible at the time of consideration for promotion to the post of Naib Subedar SKTby the duly constituted DPC held on 15th July 2009 the relief sought for in the writ petition could not be granted in The operative portion of the impugned judgment and order reads as follows: “7. It is very clear from the inter se seniority lists of the Havildars Store Keeper Technical the said Shri. Mathai PC Havildar Store Keeper Technical is senior to the petitioner inasmuch as his seniority position is at Srl.No.11 while the seniority position of the petitioner is at Srl.No.17. In the additional affidavit filed by the respondents it is also stated that for the one vacancy in the post of Naib Subedar SKTarisen after the last DPC i.e. 15.07.2009 the petitioner is not in the zone of consideration. It is very clear in the given case that the petitioner had been denied for consideration to the next higher post of Naib Subedar SKTbecause of the failure on the part of the respondents to send him to undergo the training for Technical Trade Test I. But at the same time the Court cannot direct the respondents to promote the ineligible persons to the next higher post. In the given case this writ petition is disposed of by directing the respondents to consider the case of the petitioner definitely for promotion to the next higher post of Naib Subedar SKTas soon as vacancy arises in the post of Naib Subedar SKThis promotion should be w.e.f. Shri. Mathai PC Havildar Store Keeper Technicalwas promoted to the post of Naib Subedar SKThis promotion cannot be given to him with retrospective effect. The wrongdoing if any on the part of the concerned authority cannot be compensated in such a manner. At first it has to be translated into damages and is thereafter required to be quantified by a competent Civil Court. The writ Court which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent writ petitioner on account of wrongdoing if any on the part of the concerned authority. We therefore modify the impugned judgment and order only to the extent that in the event the respondent writ petitioner is promoted to the next higher post of Naib Subedar SKT he will be at liberty to approach a competent Civil Court claiming damages against the concerned authority for its wrongdoing if any the fate of which shall be decided strictly in accordance with law and not based on any observation made herein. We further observe that in the event the respondent writ petitioner has entered the zone of consideration for the next higher post of Naib Subedar SKT the concerned authority shall take a decision thereon without any further delay taking into consideration the fact that he has a judgment and order passed partly in his favour way back in May 2014 i.e. more than seven years ago. The writ appeal stands disposed of accordingly. W. Diengdoh) Biswanath Somadder) Chief Justice “Sylvana PS” 

Summary: The writ Court, which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent/writ petitioner on account of wrongdoing, if any, on the part of the concerned authority as held by the Hon’ble High Court of Meghalaya through a learned bench of Hon’ble Mr. Justice Biswanath Somadder, Chief Justice, and  Hon’ble Mr. Justice W. Diengdoh, Judge in the case of The Union of India &amp; Ors Vs Kumar Keshab Kalita. [WA No. 58 of 2017] Brief facts of the case are that, he respondent/writ petitioner was enrolled as Rifleman General Duty and thereafter, remustered to the post of Havildar Store Keeper Technical. The next promotional post of Havildar Store Keeper Technical is Naib Subedar SKT. It is an admitted case of the parties that as per the Assam Rifles Recruitment Amendment Rules, 2009, a new recruitment process has been implemented for promotion from the post of Havildar Store Keeper Technical to Naib Subedar SKT. It is the case of the respondent/writ petitioner that he was denied the opportunity of undergoing Technical Trade Test II while his juniors had been deputed for undergoing Technical Trade Test I and as a result, further promotion to the post of Naib Subedar SKT was denied to him. The respondent/writ petitioner had filed many representations to the concerned authority for sending him to undergo Technical Trade Test II and I. In support of this fact, the respondent/writ petitioner also annexed the copies of the representations. It is a fact that at the time of holding the DPC on 15th July, 2009, the respondent/writ petitioner was not eligible for promotion to the post of Naib Subedar SKT. The learned Single Judge in the impugned judgment and order at the very outset observed, inter alia, to the effect that the Court had full sympathy for the respondent/writ petitioner in the given case but because of hard fact that he was not eligible at the time of consideration for promotion to the post of Naib Subedar SKT (Engineer), by the duly constituted DPC held on 15th July, 2009, the relief sought for in the writ petition could not be granted in full. The Hon’ble court, after a perusal of the facts on record, was of the view that “If the respondent/writ petitioner is considered for promotion to the next higher post of Naib Subedar SKT (Engineer), his promotion cannot be given to him with retrospective effect. The wrongdoing, if any, on the part of the concerned authority cannot be compensated in such a manner. At first, it has to be translated into damages and is thereafter required to be quantified by a competent Civil Court. The writ Court, which exercises its high prerogative jurisdiction under Article 226 of the Constitution of India is not so readily equipped for the purpose of quantification of damages which is required to be awarded in favour of the respondent/writ petitioner on account of wrongdoing, if any, on the part of the concerned authority.”