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Judgment
Ashim Kumar Banerjee, J.—The writ petitions was appointed as receptionist in Industrial Reconstruction Corporation of India Limited (now known as Industrial Investments Bank of India Ltd.) on April 29, 1981. She joined that post on May 2, 1981 and she was confirmed on May 3, 1983. According to her, she was entitled to be promoted to the post of Clerk Grade-I on the completion of three years service period i.e. on May 2, 1984. Petitioner was ultimately promoted to the post of Clerk Grade-I on May. 1988. According to her, 4 employees junior to the petitioner superseded her on February 2, 1987 in the matter of promotion. However, she did not raise any objection contemporaneously. For next promotional avenue in the post of staff officer which was latterly known as Assistant Manager the respondent authority framed a guide line which would show that 75% of the vacancies would be filed up by promotion in the following manner :
i. 10% by automatic promotion.
ii. 40% through seniority-cum merit.
iii. 25% merit.
iv. The balance 25% was to filled through direct recruitment.
On April 26. 1989 the seniority list was published wherein the concerned four employees who were given promotion on February 2, 1987 were placed before the writ petitioner. The appellant''s objection was rejected by the concerned authority with regard to the seniority list by its letter dated April 27. 1989.
In 1989-90 13 direct recruitments were made in the post of staff officers. When the respondent authority wanted to fill up the post of staff officer through promotion, the appellant approached this court by way of an earlier writ petition being Matter No. 2927 of 1992 inter alia claiming that she should be considered for such promotion in 40% vacancy being seniority-cum-merit. On the said application being moved, this court passed an interim order inter alia directing the respondent authority to allow the writ petitioner to sit for the interview in 40% category. The respondent authority however allowed the writ petitioner to sit for the interview in 25% category i.e. on merit. The appellant accepted such position and sat for the selection test and became unsuccessful in the interview. The appellant did not file any application for contempt alleging that she was not allowed to participate in promotional process in 40% category and opted to avail the other avenue wherein she was unsuccessful. The writ petitioner made several representations and after being dissatisfied ultimately filed the present writ petition in 1995 alleging that she was entitled to be considered in 40% category at the appropriate time and alternatively since there had been 13 direct recruitments in 1989-90 and 4 direct recruitments in 1992-93 corresponding avenues should have been made in 40% category by giving wider scope to the concerned employees for competing in 40% category. In short since 5 posts were filled up in 40% category in 1992 the appellant was not allowed to compete in -such category in view of her position in the seniority list. Had there been further posts being tilled up in such category the appellant could have come within the zone of consideration in such category.
The writ petition was heard and disposed of by the learned single judge by an order dated December 16, 1999 wherein His Lordship held that the writ petition was grossly delayed and no relief could be given to the appellant on the ground of inordinate delay caused by her. It was observed by His Lordship that the writ petitioner was not entitled to challenge the Office Order No. 1/93 and 44/93 in a writ petition of 1995 as those employees who were given promotion by the said impugned office orders could be prejudiced. Hence this appeal.
During the pendency of the appeal the appellant was ultimately given the promotion in 40% category and she is now working as the Assistant Manager of the respondent No. 1.
It is well settled principle of law that the promotion is not a matter of right. We have carefully perused the wilt petition and the grounds of appeal. We do not find any definite allegation as to malafide. The writ petitioner was not given proper seniority in the post of Clerk Grade-I in 1987. She accepted such position and did not challenge such situation before the court of law. When the seniority list was prepared in 1989 and the appellant''s objection was rejected by the authority by their letter dated July 27, 1989 the appellant accepted such position and did not approach this court. In 1992 when the promotional process for the post of staff officer was being conducted the appellant approached this court, obtained interim order in her favour and did not file any contempt proceeding for implementation of the said interim order. On the other hand the appellant accepted the decision of the respondent authority to allow her to participate in the promotional process in 25% category and unfortunately became unsuccessful in such process. The appellant kept the said writ petition alive and instead, proceeded to approach the concerned authority by making representations. When her representations were rejected the appellant further approached this court in 1995 by a fresh writ petition. It is significant to mention that the earlier writ petition was then pending. The appellant got her second writ petition disposed of by the impugned judgment and order by keeping her first writ petition then pending. This conduct of the appellant cannot be conceived of.
On merits we find that the appellant was rightly denied any relief. In 1989-90 the concerned authority made direct recruitments. In 1992 the concerned authorities declared the vacancies and filled up the said vacancies through promotional process in accordance with the guidelines framed in 1989. The appellant was not entitled to participate in 40% category as we found from the list that she did not come within the zone of consideration. Since 5 posts were allotted in 40% category twice the number of vacancies being 10 persons were considered in such category. The writ petitioner was quite below in the seniority list. Hence she was rightly not considered in such category. However, she was considered in 25% category where she became unsuccessful. Hence, her contention that she was entitled to be considered in 40% category in 1992 itself can not be conceived of. Her objection with regard to the 4 persons who were placed above her in 1987, at this distance of time can not be examined at this stage.
The second contention of the appellant to the extent that since 13 posts were filled up through regular recruitment process 39 posts should have been filled up through promotion being 75% and in such event the writ petitioner''s should have been considered in 40% category where the scope could have been wider. We are not concerned with the number of recruitment made directly in 1992- This aspect was not the subject matter of the writ proceeding. Hence we are unable to examine such issue at appellate stage. Moreover, there was no contemporaneous representation on such issue by the appellants (at least not shown to us). Hence, such issue now raised at the appellate stage can not be permitted. In any event, that could have been an issue in the first writ petition which the appellant did not proceed and kept it pending for reason, best known to her. Even at the time of hearing of the second writ petition the appellant could have prayed for analogous hearing before the learned judge. Instead, the appellant look a chance at the time of healing of the second writ petition and alter becoming unsuccessful got the second writ petition disposed of by judgment and order dated July 25, 2002 during the pendency of the appeal The appellant has now been promoted to her desired post. Her prayer for giving such promotional benefit retrospectively from 1992 in absence of proper legal right and in view of inordinate delay was not tenable and the learned judge correctly held as such. In the result, the appeal fails and is hereby dismissed.
There would be no order as to costs.
Urgent xerox certified copy would be given to the parties, if applied for.
Ashok, Kumar Mathur, C.J.
I agree.