Assam Co-op. Marketing and Consumers Federation Ltd. vs Bipin Ram Prasad and Others

M. Ramakrishna, C.J.—This appeal is presented by the Assam Cooperative Marketing and Consumers'' Federation Ltd. (STATEFED) being aggrieved by the order of the learned Single Judge made in Civil Rule No. 205/92 dt. 9.9.96 by which the learned Single Judge allowed the writ petition of the Petitioner Sri Bipin Ram Prasad and issued a writ of mandamus to the Respondents herein to promote the writ Petitioner to the post of Deputy Manager retrospectively from the date from which Respondents 5 and 6 had been promoted to the higher post. Hence this appeal.

We have heard Mr. PC Deka, learned Senior Advocate appearing for the Appellant and Mr. B.M. Goswami, learned Senior Advocate appearing for the Respondents.

A few facts which are necessary for disposal of the appeal are as follows:

The case of the writ Petitioner was that while serving as Inspector of Societies there was a departmental enquiry with a view to enquire about the conduct of the writ Petitioner at the relevant point of time based upon some allegations made against him. However, on completion of the departmental enquiry, finding was recorded exonerating him from the charges levelled against him and thereby acquitted him from all the allegations/charges. However, further case, of the writ Petitioner was that Respondents 5 and 6 though junior to him were promoted to the post of Deputy Manager by the Respondents. The writ Petitioner being senior to them, his case ought to have been considered with a view to promote him to the higher post retrospectively from the date from which his juniors i.e. Respondent 5 and 6 had been promoted.''

It is stated by the learned Counsel for the writ Petitioner that he had been promoted to the post of Deputy Manager by virtue of the order made on 6.3.91 and the relief sought for in the writ petition was that a direction should be issued to the Respondents to consider and promote the writ Petitioner retrospectively from the date from which his juniors (Respondents 5 and 6) had been promoted to the higher post. The writ Petitioner took number of grounds in the writ petition. On behalf of the Respondents detailed objection has been presented by way of counter.

The learned Single Judge, however, by an order dated 9.9.96 without referring to the defence taken by the Respondents in the counter and without hearing the counsel for the Respondents allowed the writ petition.

Mr. Deka, learned Senior Counsel appearing for the Appellant having taken us through the grounds of appeal, the order of the learned Single Judge under appeal, argued that this is a fit case for setting aside the order of the learned Single Judge and remit the matter for re-consideration by the writ Court.

We have perused the order of the learned Single Judge and also the grounds taken in the appeal. We could have disposed of this appeal by one sentence order by setting aside the order under appeal and remit the matter for reconsideration by the writ Court, but we are of the view that this will not serve the purpose of both the parties.

By a reference to the defence taken by the 1st Respondent in the writ petition in their counter, it is seen from paragraphs 12 and 13 thereof that the department admits the fact that after the closure of the departmental case and exonerating the writ Petitioner in the case, his case was considered on 6.3.91 and promoted to the post of Deputy Manager. However, thereafter regard being had to the defence taken by the Respondents in the subsequent paragraph, Mr. Deka wanted to maintain that action was taken to promote the writ Petitioner regard being had to the provisions of the statutory requirement as found in the Assam Cooperative Societies Act, 1949, hereinafter referred to as ''the Act''.

The submission of Mr. Deka, learned Counsel for the Appellant is that, the writ Petitioner, the first Respondent herein, became eligible for being considered for promotion to the post of Deputy Manager. Applying the provisions of the Act the department promoted the writ Petitioner to the higher post of Deputy Manager on 6.3.91. That being so, action was further taken to consider his case for promotion to the post of Joint Manager when the writ Petitioner fulfilled the condition as contemplated under the Act.

By a consideration of the defence taken by the Respondents in the writ petition where the department admits the facts that the case of the writ Petitioner was considered and promoted to the post of Deputy Manager clearly goes to show that on 6.3.91 the case of the writ Petitioner had been considered and found him eligible to the post of Deputy Manager. The Courts wants to find out as to whether as on that day i.e. 6.3.91 if the writ Petitioner was found eligible for Being considered for promotion to the post of Deputy Manager, whether as on that day any of his juniors was considered for promotion to the post of Deputy Manager. Mr. Deka fairly submits that as on that day the case of Respondents 5 and 6 had been considered and they were promoted to the post of Deputy Manager, though they were, juniors to the writ Petitioner. This submission of Mr. Deka is sufficient to allow this appeal.

We have examined the matter instead of remitting the same for consideration by the writ Court. At the outset we found that the defence taken by the Respondent-department in paragraphs 12 and 13 of their counter that this is an admitted fact that on 6.3.91 the case of the writ Petitioner was considered after he was exonerated from the departmental enquiry and that he was found eligible for consideration to the higher post, namely, Deputy Manager. Accordingly, he was promoted to that post by an order made on 6.3.91. Admittedly, Respondents 5 and 6 in the writ petition who were juniors to the writ Petitioner had been promoted to the post of Deputy Manager before promotion of the writ Petitioner.

Now, the Court will have to examine regarding the finding as to whether the contention of the writ Petitioner that his case ought to have been considered retrospectively from the date of his juniors promotion to the higher post of Deputy Manager. Mr. Deka submits that in view of the requirements of the Act, the case of the writ Petitioner ought to have been considered as and when he fulfilled the requirement of the Act. This is not an answer to the question put by the Court, inasmuch as, if on 6.3.91 the case of the writ Petitioner-Respondent No. 1 herein had been considered and he was promoted to the post of Deputy Manager on that day, the fact remains that if as on that day the writ Petitioner was found to be eligible regard being had to the provisions of the Act, the case of the writ Petitioner was bound to have been considered retrospectively with a view to give financial benefit including the promotion from the date when his juniors had been promoted.

Admittedly, Respondents 5 and 6 in the writ petition had been promoted to the post of Deputy Manager before the promotion of the writ Petitioner. The writ Petitioner has not been able to make out a case clearly that his case ought to have been considered for promotion to the post of Deputy Manager from the date of his juniors promotion.

From the view taken by the Supreme Court on the real question in Sulekh Chand & Salek Chand v. Commissioner of Police and Ors. as reported in 1994 Supp. (3) SCC 674 it is clear that in any departmental proceedings including criminal prosecution or suspension as and when the Petitioner who had been charged with departmental enquiry or criminal prosecution found to be acquitted or exonerated on merits, in such cases the promotion of such person to a higher post must be considered and granted with effect from the date of the promotion of his immediate junior. It is stated therein paragraph 2 which is as follows:

The material on the basis of which his promotion was denied was the sole ground of the prosecution u/s 5(2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. We are informed that the departmental enquiry itself was dropped by the Respondents. Under these circumstances, the vary foundation on which the DPC had proceeded is clearly illegal. The applicant is entitled to the promotion with effect from the date his immediate junior was promoted with all consequential benefits.

The same view is taken by the Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc.,

Therefore, even though the learned Single Judge did not refer to the defence taken by the department in the counter nor has considered all these questions of law for recording appropriate finding with a view to give relief to the writ Petitioner, but still we find that this is a fit case for upholding the view taken by the learned Single Judge.

One more submission made by Mr. Deka, learned Counsel for the Appellant was that presuming for the purpose of argument that a case was made out seeking a writ of mandamus under Article 226 of the Constitution, but still the writ Court should have issued a writ of mandamus to consider the case of the writ Petitioner instead of issuing a writ of mandamus to promote the writ Petitioner is incorrect. As a matter of fact, the writ Petitioner sought for a writ of mandamus to be issued to consider his case for promotion. Be that as it may, this error found in the course of the order made by the learned Single Judge will not come in the way of giving relief to the writ Petitioner in the instant case because on merits we find that the writ Petitioner-Respondent No. 1 herein is entitled for the relief as sought for.

Under the circumstances and for the reasons stated above, we uphold the view taken by the learned Single Judge though we modify the writ of mandamus issued by the writ Court and the appeal deserves to be dismissed.

In the result, the appeal stands dismissed and the writ petition stands allowed in terms of the following order:

Respondent No. 1 in the writ petition shall consider the case of the writ Petitioner, the Respondent No. 1 herein for the purpose of promoting him to the post of Deputy Manager and Joint Manager retrospectively from the date when his immediate juniors, namely, Respondents 5 and 6 had been promoted to these posts including all consequential benefit.

Ordered accordingly. Parties to bear their own costs.