Gauhati High Court
Satyajit Paul vs The State Of Assam And 4 Ors on 10 April, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/20
GAHC010105972024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2789/2024
SATYAJIT PAUL
S/O- LATE PRASANTA KUMAR PAUL, R/O- HOUSE NO. 16, H/ S. ROAD,
CHATRIBARI, GUWAHATI-781008.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, EDUCATION (TECHNICAL) DEPARTMENT,
DISPUR, GUWAHATI-781006.
2:THE PRINCIPAL SECRETARY
HIGHER EDUCATION (TECHNICAL) DEPARTMENT GOVERNMENT OF
ASSAM DISPUR GHY-781006.
3:THE DIRECTOR
EDUCATION (TECHNICAL) DEPARTMENT
GOVERNMENT OF ASSAM
KAHILIPARA GUWAHATI-781022.
4:THE PRINCIPAL ACCOUNTANT GENERAL
MAIDAMGAON BELTOLA GUWAHATI.
5:THE PRINCIPAL
JORHAT ENGINEERING COLLEGE JORHAT
------------
Linked Case : WP(C)/5804/2022
DR. SATYAJIT PAUL
SON OF LATE PRASANTA KUMAR PAUL
RESIDENT OF HOUSE NO. 16
H.S. ROAD CHATRIBARI
GUWAHATI- 781008.
Page No.# 2/20
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
EDUCATION (TECHNICAL) DEPARTMENT
DISPUR GUWAHATI- 781006.
2:THE PRINCIPAL SECRETARY
HIGHER EDUCATION (TECHNICAL) DEPARTMENT
GOVERNMENT OF ASSAM
DISPUR GUWAHATI- 781006.
3:THE DIRECTOR
EDUCATION (TECHNICAL) DEPARTMENT
GOVERNMENT OF ASSAM
KAHILIPARA GUWAHATI- 781022.
4:THE PRINCIPAL ACCOUNTANT GENERAL
MAIDAMGAON BELTOLA GUWAHATI.
5:THE PRINCIPAL
JORHAT ENGINEERING COLLEGEJORHAT.
————
Linked Case : WP(C)/295/2023
DR. SATYAJIT PAUL
S/O- LATE PRASANTA KUMAR PAUL
R/O- H NO. 16 H S ROAD
CHATRIBARI GHY- 781008
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
EDUCATION (TECHNICAL) DEPTT
DISPUR GHY- 781006
2:THE PRINCIPAL SECRETARY
HIGHER (TECHNICAL) DEPTT
GOVT OF ASSAM DISPUR GHY- 06
3:THE JOINT SECRETARY
TO THE GOVT OF ASSAM
HIGHER EDUCATION (TECHNICAL) DEPTT
DISPUR GHY- 06
Page No.# 3/20
4:THE DIRECTOR
HIGHER EDUCATION (TECHNICAL) DEPTT
GOVT OF ASSAM KAHILIPARA GHY- 22
5:DR. RUPANJALI NATH
PROF. AND HOD MECHANICAL ENGG DEPTT
JORHAT ENGINEERING COLLEGE
JORHAT ASSAM
6:PRINCIPAL ACCOUNTANT GENERAL(A AND E)
ASSAMMAIDAMGAON BELTOLA GUWAHATI-29.
BEFORE
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
For the petitioner : Mr. K.N. Choudhury … Sr. Advocate.
Mr. R.M. Deka …. Advocate.
For the Higher Education Deptt. : Mr. S. Das … SC
For the Accountant General : Mr. D. Bhattacharjee, … Advocate
in WP(C) 5804/2022 &
WP(C) 295/2023
For the Accountant General : Mr. R.K. Talukdar … Advocate
in WP(C) 2789/2024.
Date of hearing : 17.02.2025
Date of Judgment : 10.04.2025
JUDGMENT AND ORDER (CAV)
Heard Mr. K. N. Choudhury, learned senior counsel, assisted by Mr. R. M.
Deka, learned counsel for the petitioner and Mr. S. Das, learned Standing
Counsel, Higher Education Department. Also heard Mr. D. Bhattacharjee, learned
counsel for the office of the Accountant General in WP(C) Nos. 5804/2022 and
295/2023 and Mr. R. K. Talukdar, learned counsel for the office of the
Accountant General in WP(C) No. 2789/2024.
Page No.# 4/20
2. The petitioner has prayed for setting aside the impugned statement made
in para 3 of the additional affidavit filed by the Secretary to the Government of
Assam, Higher (Technical) Education Department on 10.04.2024 in WP(C)
5804/2022, which is to the effect that due to withdrawal of the OM dated
28.03.2022, the promotion of the petitioner to the post of Professor, vide
notification dated 05.04.2022, ceased to have any effect. The petitioner has also
prayed for setting aside the OM dated 19.05.2023, by which the earlier OM
dated 28.03.2022, has been withdrawn by the State respondents.
3. The impugned paragraph 3 of the additional affidavit filed by the Secretary
to the Government of Assam, Higher (Technical) Education Department in
WP(C) 5804/2022 is reproduced herein below as follows:-
“3. That the Deponent begs to state that consequence upon withdrawal of
the O.M dated 28/03/2022, the Notification No. ATE.06/2022/32 dated
05/04/2022 has also ceased to have any effect and as such the case of
the Petitioner cannot be considered in respect of the said O.M. No.
ATE.06/2022/27 dated 28/03/2022.”
4. The petitioner’s case is that he was initially working as an Associate
Professor in Jorhat Engineering College and at the relevant point of time, he
was working as Principal (in-charge) in Golaghat Engineering College. In terms
of the relevant Rules, an Associate Professor is to retire at the age of 60 years
and the petitioner’s retirement date was 31.03.2022. However, in terms of the
OM dated 29.07.2021, issued by the Government of Assam, Higher (Technical)
Education Department, the superannuation age of a Professor, who has been
promoted through Career Advancement Schemes (CAS), had been raised from
60 years to 65 years.
Page No.# 5/20
5. The petitioner’s counsel submits that the Departmental Promotion
Committee had considered the petitioner for promotion from the post of
Associate Professor to Professor under CAS, one day before the retirement date
of the petitioner, i.e., 30.03.2022. The petitioner was thereafter released from
service as Associate Professor on 31.03.2022. However, the petitioner was
subsequently promoted to the post of Professor, vide order dated 05.04.2022,
w.e.f., 17.05.2018, pursuant to the O.M dated 28.03.2022, which had partially
modified the O.M dated 17.01.2018.
6. The OM dated 28.03.2022 adopting the AICTE public notice, extended the
date for completion of short term training programs, orientation, refreshers
course, for promotion of faculty members of engineering college and
polytechnics under Career Advancement Schemes, from 07.11.2015 to
31.12.2018. The O.M dated 28.03.2022 states as follows:-
“No.ATF 68/2013/27
Dated Dispur, the 28th March, 2022
OFFICE MEMORANDUM
Adoption of AICTE Public Notice regarding requirement/Extension of date
for completing Short Term Training Programs Orientation Refreshers
Course for promotion of Faculty members of Engineering College and
Polytechnics under Career Advancement Schemes.
Partial modification and addition of OM No. ATE-68/2013/780 dated
17/01/2018, regarding Career Advancement Scheme (CAS) for teachers
eligible for promotion under CAS for the period 01/01/2006 to 7th
November 2015 shall be extended upto 31/12/2018 for
participation/completion in Orientation/ Refresher Courses/ Short Term
Training Programmes/ Continuous Education Programmes for promotion
Page No.# 6/20under CAS upto 31/12/2018 with respect to 6th CPC for faculty members/
Librarians/ PTIs in Degree/ Diploma Level Institutions as per Public Notice
by UGC vide Public Notice 2-16/2002(PS)/Pt.FI.II dated 16th October
2018 and by vide F. NO.P7AP/Public Notice/CAS/571/2021 dated
05/08/2021.”
7. The petitioner’s counsel submits that in view of the petitioner having been
promoted to the post of Professor w.e.f., 17.05.2018, the petitioner’s retirement
age had to be extended to 65 years i.e., till 31.03.2027. However, the State
respondents cancelled the O.M dated 28.03.2022 vide O.M dated 19.05.2023.
As the OM dated 28.03.2022 had been cancelled, pursuant to a subsequent OM
dated 19.05.2023, the petitioner’s promotion order dated 05.04.2022 ceased to
have any effect. As such, the petitioner was deemed to have retired w.e.f.,
31.03.2022.
8. The petitioner’s counsel submits that a reading of the O.Ms dated
17.01.2018, 28.03.2022 and the O.M dated 19.05.2023 goes to show that the
O.Ms dated 28.03.2022 and 19.05.2023 only relate to the extension of time for
completing short term training programs/ orientation/refreshers courses for
promotion of Faculty Members under the CAS from 07.11.2015 (as provided in
the O.M dated 17.01.2018) to 31.12.2018. The petitioner’s promotion however
having been made w.e.f. 17.05.2018, the same clearly goes to show that the
petitioner had completed the required short term training program etc., as on
17.05.2018, i.e., prior to 31.12.2018, in terms of the O.M dated 28.03.2022. As
such, the two O.Ms dated 28.03.2022 and 19.05.2023 being similar in content
they were applicable to the petitioner’s case for promotion under the CAS, from
Page No.# 7/20
the post of Associate Professor to Professor.
9. The petitioner’s counsel submits that as the petitioner had been given a
promotion order after his retirement w.e.f. 17.05.2018, the petitioner would
have the right to draw the salary of Professor only from 05.04.2022, i.e., from
the date he actually did the work of Professor. In this respect, he has relied
upon the analogy that can be drawn from Fundamental Rules 17 applicable to
the employees under the Government of Assam and submits that the provision
therein can be made applicable to the petitioner’s case.
10. The petitioner’s counsel further submits that though the time period for
participating/completing the orientation/ refresher course/short term training
programmes/continuous education programmes for promotion under the CAS
had been extended up to 31.12.2018, in terms of the earlier O.M. dated
28.03.2022, which had been cancelled, the extension period up to 31.12.2018
vide the subsequent O.M. dated 19.05.2023, has been approved by the Finance
(PRU) Department. He submits, in the alternative, that when there has been an
ex post facto approval, for completion of the various training programmes,
orientation and refresher courses up to 31.12.2018, the same would
automatically apply to the petitioner.
11. The learned Sr. Counsel for the petitioner submits that an approval to an
act on a decision can be made prior to or subsequent to the act or decision. As
such, even though the approval of the Finance (PRU) Department may not have
been taken when the earlier O.M. dated 28.03.2022 had been made, the same
was made with the approval of the government. As such, the earlier O.M. dated
Page No.# 8/20
28.03.2022 being made with the approval of the State government, sans the
Finance Department, they had the power to determine the terms and conditions
of service of the petitioner and obtain the approval of the Finance Department
subsequently. If the Finance Department did not give it’s approval subsequently,
then the action of the State respondents could be deemed to be invalid.
However, as the earlier decision to adopt the last date for completing the
training programmes etc., as reflected in the O.M. dated 28.03.2022, has been
approved by the Finance Department in the O.M. dated 19.05.2023, the
subsequent determination of the terms and conditions of service of the
petitioner by the State government, which resulted in the promotion of the
petitioner to Professor, had been validated by the subsequent O.M. dated
19.05.2023. In this regard, he has relied upon the judgment of the Supreme
Court in the case of Ashok Kumar Das & Ors. Vs. University of Burdwan
& Ors., reported in (2010) 3 SCC 616.
12. The learned Sr. Counsel for the petitioner has also relied upon the
judgment of the Supreme Court in the case of Lalaram & Ors. Vs. Jaipur
Development Authority & Anr., reported in (2016) 11 SCC 31, in support
of his submission that the Rules of Executive Business are directory and not
mandatory.
13. The petitioner’s counsel thus prays for setting aside the impugned
statement made in Para 3 of the additional affidavit filed by the respondent No.1
on 10.04.2024 in WP(C) No.5804/2022 and for setting aside the impugned O.M.
dated 19.05.2023.
Page No.# 9/20
14. Mr. S. Das, learned counsel for the Higher Education Department, on the
other hand, submits that the recommendation for promotion of the petitioner by
the DPC is only a recommendation and the petitioner cannot be said to be
promoted to the post of Professor on the date of the recommendation made by
the DPC. He submits that the petitioner can be said to be promoted as
Professor, only from the date the petitioner assumes the duties of the
promotional post. He further submits that as the promotion of the petitioner had
been made after his retirement, on the basis of the OMs dated 17.01.2018 and
28.03.2022, the subsequent withdrawal of the OM dated 28.03.2022 by the OM
dated 19.05.2023, rendered the promotion order of the petitioner void.
15. The counsel for the respondents further submits that the AICTE, vide letter
dated 09.08.2021, had taken a decision to extend the date for completing the
short term training programs/orientation/refreshers courses/ continuing
education programme, for promotion of Faculty Members under the CAS up to
31.12.2018, as the UGC, vide public notice dated 16.10.2018, had extended the
same up to 31.12.2018. Prior to the AICTE letter dated 09.08.2021, the date of
completion of the short term training programs etc., as per Serial No. 11 of the
AICTE Gazette Notification dated 21.05.2020, was 07.11.2015. The Director of
Education (Technical), Assam had thereafter forwarded the proposal to extend
the time limit as per the AICTE letter dated 09.08.2021, by which it was decided
to extend the date for completing short term training
programs/orientation/refreshers courses/ continuing education programme, for
promotion under the CAS to 31.12.2018, to the Principal Secretary, Government
of Assam, Department of Education, so that the Government of Assam could
adopt the AICTE recommendation.
Page No.# 10/20
16. The respondents’ counsel submits that it was only by way of OM dated
28.03.2022 that the recommendation of the AICTE, for extension of the date for
completing short term training programs/orientation/refreshers courses/
continuing education programme, for promotion under the CAS till 31.12.2018
was approved by the Government of Assam. However, the OM dated 28.03.2022
had to be approved by the Finance Department (PRU) as financial expenditure
was involved. As the same was not done in terms of Rule 10 of the Assam Rules
of Executive Business, 1968, which had been amended up to 27.07.1995. The
OM dated 28.03.2022 could not be applied and be given effect to. The
petitioner, who had completed his short term training
program/orientation/refresher course only on 17.05.2018, had been given the
benefit of being considered for promotion from Associate Professor to Professor,
only in view of the extension of time for completing the short term training
programs etc. being given in terms of the OM dated 28.03.2022. However, when
the OM dated 28.03.2022 was cancelled and became invalid, the very basis to
consider the petitioner for promotion disappeared, as the earlier OM dated
17.01.2018 was revived, which allowed for consideration of promotion under
CAS, only to those persons who had completed their orientation/refresher
courses/short term training programmes between 01.01.2006 and 07.11.2015.
17. The respondents’ counsel further submits that the OM dated 19.05.2023,
has subsequently adopted the AICTE resolution, wherein the time limit for
completing short term training programs/orientation/refreshers
courses/continuing education programme has been extended up to 31.12.2018.
The same was also approved by the Finance Department. As such only the OM
dated 19.05.2023 is valid and not the earlier OM dated 28.03.2022.
Page No.# 11/20
18. The extension of time for completion of the short term training
program/continuing education programme etc., was made applicable under the
Government of Assam, only by way of subsequent OM dated 19.05.2023, after
getting the approval of the Finance Department. As the petitioner’s promotion
has been made prior to 19.05.2023, the promotion order of the petitioner was
bad in law, in view of the fact that the petitioner had completed short term
training programs/orientation/refreshers courses/continuing education
programmes, for promotion of Faculty Members under the Career Advancement
Scheme only on 17.05.2018, during which time, the relevant notification under
All India Council for Technical Education, vide serial No. 11 of AICTE Gazette
notification dated 21.05.2020, had clarified that one time extension for
completion of the above programs had been given until 07.11.2015 only. As the
petitioner had not completed his short term training
programs/orientation/refreshers courses/continuing education programme, for
promotion under the CAS prior to or on 07.11.2015, the petitioner could not
have been promoted to the post of Professor, on the ground that he had
completed the above programmes before 31.12.2018, inasmuch as, the
extended period of time for completing the above programmes beyond
07.11.2015 was made applicable, only in terms of the OM dated 19.05.2023.
19. The counsel for the Higher Education Department submits that in terms of
the judgment of the Supreme Court in the case of Government of West
Bengal and Ors. Vs. Dr. Amal Satpathi and Ors., reported in 2024 SCC
OnLine SC 3512, promotion only becomes effective upon assumption of duties
on the promotional posts and not on the date of occurrence of vacancy or the
date of recommendation. Promotion cannot be retrospectively granted after
Page No.# 12/20
retirement, as it requires actual assumption of duties and responsibilities of the
promotional posts prior to retirement.
20. The counsel for the respondents submits that the petitioner having
completed his training only on 17.05.2018, the basis for the petitioner’s
promotion is lost by the cancellation of the O.M. dated 28.03.2022. Just because
the O.M. dated 19.05.2023 had also adopted the extension period for training to
31.12.2018 in terms of the earlier cancelled/withdrawn O.M. dated 28.03.2022,
did not mean that the benefit of extension could be given to the petitioner, as
the petitioner had retired on 31.03.2022, while the adoption of the extended
period of time had been validly made only by way of the OM dated 19.05.2023,
i.e., after his retirement. He accordingly prays that the writ petition should be
dismissed.
21. I have heard the learned counsels for the parties.
22. Rule 10 of the Assam Rules of Executive Business, 1968 (hereinafter
referred to as ‘the Executive Rules’) provides as follows:-
“(1) No department shall, without previous consultation with the Finance
Department, authorise any orders (other than orders issued under any Act
or Rules made thereunder, or pursuant to any general or specific
delegation made by the Finance Department) which –
(a) either immediately or by their repercussion, will affect the
finances of the State, or which, in particular –
(i) involve any grant of land or assessment of revenue or
concession, grant, lease or privilege in respect of such concession;
(ii) in any way involve any relinquishment of revenue; oг
Page No.# 13/20
(b) relate to the number or grading of cadre of posts or the
emoluments or other conditions of services of posts;
(c) involve the addition of a post in the Public Service or the
variation of emoluments of any posts;
(d) involve the sanction of an allowance or special or personal pay
for any posts or class of posts or to any employee of the
Government of Assam;
(e) involve an expenditure for which no provision has been made in
the Appropriation Act or which is in excess of the provision made in
the Act.
(2) No proposal, which requires the previous consultation with the Finance
Department under this Rule, but in which the Finance Department has not
concurred, may be proceeded with unless a decision to that effect has
been taken by the Cabinet.
(3) No re-appropriation shall be made by any department other than the
Finance Department, except in accordance with such general delegation
as the Finance Department may have made.
(4) Except to the extent that power may have been delegated to the
Department under rules approved by the Finance Department, every order
of an administrative Department conveying a sanction to be enforced in
audit shall be communicated to the audit authorities by the Finance
Department.
(5) Nothing in this Rule shall be construed as authorising any Department
including the Finance Department, to make re-appropriations from one
grant specified in the Appropriation Act to another such grant or from a
charged Appropriation to a votable Appropriation.”
23. The notification dated 05.04.2022 promoting the petitioner from the post
Page No.# 14/20
of Assistant Professor to Professor states as follows:-
“NOTIFICATION No.ATE.06/2022/32:
Dated Dispur, the 5th April 2022
On recommendation of the Departmental Promotion Committee Meeting
held on 30-03-2022, the following Associate Professor (Stage 4) to
Professor (Stage 5) from (G.P Rs.9000/- to G.P Rs.10,000/-) for promotion
to Teacher (Technical) of State Engineering Colleges under Career
Advancement Scheme as per provision of Govt. O.Μ Νο.ΑΤΕ.68/2013/780
dated 17/01/2018 and O.M No.ATE.06/2022/27 dated 28/03/2022 w.e.f
from the date mentioned against their names.
Promotion of Associate Professor (Stage 4) to Professor (Stage
5) Rs.9000/- to Rs.10,000/- G.P of State Engineering College
under CAS.
Name and Designation Date of Eligibility
Dr. Satyajit Paul, Associate 17/05/2018
Professor, JEC, Jorhat, i/c
Principal, Golaghat Engineering
College, GolaghatSd/- Anjali Saikia Baruah, ACS
Joint Secretary to the Government ofAssam
Higher Education (Technical) Department.”
24. The OM dated 19.05.2023 cancelling the earlier OM dated 28.03.2022 and
at the same time adopting the AICTE public notice regarding the extension of
date for completing short term training programs orientation refreshers course
for promotion of faculty members of engineering college and polytechnics under
Page No.# 15/20career advancement schemes to 31.12.2018 states as follows:-
"eFile No197594/1 Dated Dispur, the 19 May, 2023
OFFICE MEMORANDUM
Sub: Adoption of AICTE Public Notice regarding requirement/Extension of
date for completing Short Term Training Programs/ Orientation/
Refreshers Course for promotion of Faculty Members of Engineering
Colleges and Polytechnics under Career Advancement Schemes.
In cancellation of earller Govt. O.M. No. ATE.06/2022/27 dated 28/3/2022
and in partial modification of the OM No. ATE-68/2013/780 dated
17/01/2018, regarding the Career Advancement Scheme (CAS) for
teachers eligible for promotion under CAS for the period 01/01/2006 to
07/11/2015, the date of requirement for participation/ completion in
Orientation/ Refresher Courses/ Short Term Training Programmes/
Continuous Education Programmes for promotion under CAS is hereby
extended up to 31/12/2018 with respect to the 6 CPC for faculty
members/ Librarians/ PTIs in Degree/ Diploma Level Institutions as per
Public Notice Issued by UGC vide Public Notice 2-16/2002(PS)/Pt.F1.II
dated 16* October 2018 and by AICTE vide F. NO. P&AP/Public
Notice/CAS/571/2021 dated 05/08/2021.
This has the approval of the Finance (PRU) Department vide their e-
File No.153735.”
25. As can be seen from the submissions made by the counsels for the parties
and the pleadings, the petitioner had retired on 31.02.2022. The petitioner
could be considered for promotion to the post of Professor under the CAS one
day prior to his retirement date, only due to the OM dated 28.03.2022, which
had extended the date of participation/completion in Orientation/Refresher
Page No.# 16/20
Courses/Short Term Training Programmes etc. upto 31.12.2018 and as the
petitioner had completed the same on 17.05.2018. Thus, if the cancellation of
the OM dated 28.03.2022 is held to be valid by this Court, the petitioner could
not have been considered for promotion, as the eligibility criteria for
consideration would have disappeared.
26. Thus, the question that has to be decided is whether there was any
infirmity in the cancellation of the OM dated 28.03.2022, on the basis of which
the petitioner could be considered for promotion to the post of Professor. It is
the case of the respondents that the OM dated 28.03.2022 was not approved by
the Finance (PRU) Department even though financial expenditure was involved.
In terms of Rule 10 of the Executive Rules, no department can authorise any
orders without the previous consultation of the Finance Department, which
affects the finances of the State or involves relinquishment of revenue. This is
however subject to the condition that the Cabinet has taken a decision for
authorising any order which involves expenditure, when the Finance Department
has not concurred with such decision. In the present case, there is nothing to
show that the Finance Department has been consulted with the contents of the
OM dated 28.03.2022. There is no approval given to the same by the Finance
Department and there is also nothing to show that a Cabinet decision has been
made for notifying the OM dated 28.03.2022. The “Executive Rules” having
been made in exercise of the powers conferred by Clauses 2 & 3 of Article 166
of the Constitution of India, the State respondents were bound to give effect to
the provisions of the “Executive Rules”. As the OM dated 28.03.2022 had not
been approved by the Finance Department prior to it’s Notification as per Rule
10 of the “Executive Rules”, there is no infirmity found in the cancellation of the
OM dated 28.03.2022 by the subsequent OM dated 19.05.2023, as a proper
Page No.# 17/20
meaning and implementation of the “Executive Rules” has to be given/done.
However, the fact remains that the petitioner had been promoted on 05.04.2022
to the post of Professor w.e.f 17.05.2018, vide order dated 05.04.2022, due to
being recommended for promotion, pursuant to the OM dated 28.03.2022.
Thus, when the petitioner could not have been considered for promotion due to
the OM dated 28.03.2022 having been cancelled and which revived the earlier
OM dated 17.01.2018, the promotion made on the basis of the cancelled/invalid
OM cannot stand on it’s own legs.
27. In the case of Union of India & Another vs. Tulsiram Patel , reported
in (1985) 3 SCC 398, the Supreme Court has held that the source of power
must exist for it’s exercise. As the O.M dated 28.03.2022 has been held to be
invalid as the same was not made in terms of the “Executive Rules”, the
eligibility criteria provided therein which led to the petitioner becoming eligible
for consideration for promotion, had been made in the absence of a source of
power. As such, the assumption of office/post of Professor by the petitioner on
the basis of the cancelled O.M dated 28.03.2022 after his retirement, cannot
give any sanctity to the promotion order dated 05.04.2022.
Though the contents of the OM dated 28.03.2022 and 19.05.2023 are
basically same, any action taken under the OM dated 28.03.2022 has to be
considered to be invalid as the same was not made in terms of the “Executive
Rules”. Further, as the petitioner had retired on 31.03.2022, the OM dated
19.05.2023 is not attracted to the petitioner’s case.
28. The next question that arises for consideration is as to whether it can be
said that the petitioner was validly promoted after his retirement date and
whether the petitioner could be promoted retrospectively.
Page No.# 18/20
29. The facts of the case in Government of West Bengal & Others vs. Dr.
Amal Satpathi & Others, reported in 2024 SCC OnLine SC 3512, was that
Public Service Commission recommended the respondent no.1 therein for
promotion on 29.12.2016. The respondent no.1 retired on superannuation on
31.12.2016. The Government Department received the final approval for
promotion of the respondent no.1 on 04.01.2017, i.e. after the retirement of the
respondent no.1 therein. Respondent no.1 made a representation to give effect
to his promotion. The same was rejected by the Finance Department,
Government of West Bengal as follows:
“In terms of rule 54(1)(a) of W.B.S.R. Part-I, a Govt. employee shall
not draw pay higher than that of his permanent post unless the officiating
appointment involves the assumption of duties and responsibilities of
greater importance.
In the instant case Dr. Amal Satpathi could not join to the
promotional post within his service tenure. He retired on superannuation
on 31.12.2016. As a result officiation to the higher post with greater
responsibilities and importance does not arise.
As such appointment on promotion after retirement with
retrospective effect cannot be awarded for Gr. -‘A’ posts.
We are, therefore, of the same opinion stated by F.A., dated
16.2.2017.”
30. Aggrieved by the denial of the benefits flowing from promotion, the
respondent no.1 Dr. Amal Satpathi approached the Tribunal. Though the
Tribunal acknowledged the fact that the respondent no.1 had been duly
recommended for promotion prior to his superannuation, the promotion order
was delayed due to procedural obstruction beyond his control. Thus while the
actual promotion of the petitioner was not acceded to by the Tribunal, it
Page No.# 19/20
directed that the respondent no.1 should be granted notional financial benefits
of the promotional post w.e.f. the last date of his service, that was 31.12.2016.
The challenge made to the High Court by the Government of West Bengal was
dismissed. The Government of West Bengal then approached the Supreme
Court. The Supreme Court in the above case of Dr. Amal Satpathi (supra)
held that it is a well settled principle that promotion becomes effective from the
date it is granted, rather than from the date a vacancy arises or the post is
created. While the Courts have recognized the right to be considered for
promotion is not only a statutory right but also a fundamental right, there is no
fundamental right to the promotion itself. It further held that promotion only
becomes effective upon the assumption of duties on the promotional post and
not on the date of occurrence of the vacancy or the date of recommendation. It
thus held that as the respondent no.1 in the above case had superannuated
before his promotion was effectuated, the respondent no.1 was not entitled to
retrospective financial benefits associated to the promotional post, as he did not
serve in that capacity.
31. In the case of State of Bihar vs Akhouri Sachindra Nath , reported in
1991 Supp (1) SCC 334, the Supreme Court has held that retrospective
seniority cannot be given to an employee from a date when he was not even
borne in the cadre.
32. In the case of State of Uttaranchal Forest Rangers’ Association
(Direct Recruit) vs. State of U.P, reported in (2006) 10 SCC 346, the
Supreme Court has held that no retrospective promotion or seniority can be
granted from a date when an employee has not even been borne in the cadre
so as to adversely affect the direct recruits appointed validly in the meantime.
Page No.# 20/20
33. In the present case, the petitioner having retired from service as an
Assistant Professor, there is no enabling provision shown to this Court, by either
of the parties, that a person who has retired can be promoted after his
retirement date and that too with retrospective effect. When a person has left
the service on retirement, he would have to be considered to have severed ties
with the service, except for grant of pensionary and other service benefits and
unless there is a Departmental Proceeding or criminal case pending against him.
No Rules have been shown where promotion can be given to retired employees.
Though the petitioner may have been recommended for promotion prior to his
retirement, on the basis of the OM dated 28.03.2022 which was subsequently
cancelled, vide OM dated 19.05.2023, the promotion order was issued after his
retirement. As such, keeping in view the facts and circumstances of this case,
the promotion of the petitioner after his retirement is held to be invalid.
However, in view of the petitioner having been promoted and allowed to serve
as Professor by the State respondents, the petitioner would have to be paid his
salary for services rendered by him, in terms of the principle of quantum meruit.
The petitioner’s pension would however have to be calculated in terms of his
salary payable at the time of his retirement, i.e. 31.03.2022.
34. In view of the above reasons, this Court does not find any infirmity with
the impugned statement made in paragraph 3 of the additional affidavit filed by
the Secretary to the Government of Assam, Higher (Technical) Education
Department on 10.04.2024 and the cancellation of the OM dated 28.03.2022.
35. All the writ petitions are accordingly dismissed.
JUDGE
Comparing Assistant