WP(C)/256/2021 of OMINGCHAEL KHARDEWSAW Vs STATE OF MEGHALAYA AND 2 ORS. on 22 August 2024

J U D G M E N T

1. The petitioner, working as a Gram Sevak having beenappointed on 09.03.1988 on Adhoc basis and later being regularised inthe same post vide office order dated 27.07.1990, his service thereafterwas confirmed against the permanent post of Gram Sevak on thestrength of the order dated 07.03.2000, has now approached this Courtwith this instant writ petition seeking promotion to the higher post ofSenior Gram Sevak w.e.f. the year 2019.

2. According to Mr. H.L. Shangreiso, learned Sr. counselappearing for the petitioner, the case of the petitioner is that he wasappointed as Gram Sevak in the then united District of West Khasi Hillshaving gone through the regular process of appointment.

3. In the year 2013, the Deputy Commissioner, West Khasi HillsDistrict had published a draft inter se seniority list in respect of GramSevaks and the name of the petitioner figured at serial number 15 ofsuch gradation list.

4. However, in the meantime, a new District, named as SouthWest Khasi Hills District was carved out of the West Khasi HillsDistrict and those employees, including the petitioner herein who wereholding the post of Gram Sevak in the undivided West Khasi HillsDistrict were shifted to the new district and continued to work as GramSevak in the said district.

5. There being no promotional avenue available to the petitioner and others holding the post of Gram Sevak, the Assured CareerProgression Scheme (ACPS) was extended to the petitioner which wasconveyed to him and others vide Office Order dated 30.07.2015,wherein he was granted the 1[st] financial upgradation w.e.f. 22.02.2010.

6. It is also the submission of the learned Sr. counsel that thepetitioner in course of his service had also officiated as Senior GramSevak w.e.f. 01.11.2017 on retirement of Shri. G.J. Sangma as SeniorGram Sevak, Ranikor C&RD Block. Again, on Shri. W. Shylla beingappointed as Senior Gram Sevak, Ranikor in 2019, whereupon heretired from service in the year 2019 itself the petitioner was once againdirected to officiate as Senior Gram Sevak, Ranikor.

7. The learned Sr. counsel went on to submit that within theSouth West Khasi Hills District as on November and December 2019,on the retirement of Shri. Brassly Thabah as Senior Gram Sevak ofMawkyrwat C&RD Block on 30.11.2019 two posts of Senior GramSevak that is one for Mawkyrwat and another for Ranikor C&RD Blockare lying vacant and the petitioner being No. 2 in the inter se senioritylist of Gram Sevak of South West Khasi Hills District had anticipatedthat he would be promoted to the post of Senior Gram Sevak but wasnever promoted as such in spite of having served as Gram Sevak for 33years.

8. The learned Sr. counsel has submitted that as per Rule No. 7Sub-Rule 3 of “The Meghalaya Community and Rural DevelopmentGram Sevaks/Gram Sevikas Services Rules, 2008” it is provided thatappointment to the post in the category (iii) under A & B of Sub-Rule

(1) of Rule 4 shall be made by promotion from the select list approvedunder Sub-Rule (4) of Rule 10 from amongst the members of theservice holding the post of Gram Sevak/Gram Sevika who haverendered not less than 5(five) years of continuous service in the post onthe first day of the year in which the selection is made. The petitioner inspite of serving for almost 33 years in the same post has not beenconsidered for promotion, reiterates the learned Sr. counsel.

9. The petitioner has then made a representation dated17.05.2021 before the relevant authority that is the DeputyCommissioner, South West Khasi Hills District with a prayer forconsideration of his promotion on the ground that a vacancy in the postof Senior Gram Sevak is lying vacant in the Ranikor C&RD Block aswell as another in Mawkyrwat C&RD Block. In the said representationhe has also pointed out that till date no updated gradation list as per therules has been brought out and the only gradation list that was issuedwas dated 06.06.2008 applicable to the then parental district of WestKhasi Hills and since the bifurcation of South West Khasi Hills Districtwas made, no separate gradation list for the new district has beenbrought out to the detriment of all the serving Gram Sevaks includingthe petitioner.

10. The petitioner has however admitted that vide office orderdated 12.07.2021 a draft of seniority list as on 12.07.2021 in respect ofthe Gram Sevaks and Gram Sevikas under the office of the BlockDevelopment Officer, Mawkyrwat and Block Development Officer,Ranikor within the South West Khasi Hills District was published withthe name of the petitioner figuring at Sl. No. 1 of the said list.

11. It is also the submission of the learned Sr. counsel that therespondent/Deputy Commissioner, South West Khasi Hills District videoffice memorandum dated 15.07.2021 has granted the 3[rd] FinancialUpgradation under the Modified Assured Career Progression (MACP)Scheme to some employees including the petitioner, who apparentlyhave not been promoted till then. However, the petitioner being entitledto promotion under the Rules has not yet availed such financialupgradation.

12. The learned Sr. counsel has contended that the relevantrespondent authorities have not considered the fact that in order ofseniority, when Shri. G.J. Sangma retired on 29.02.2016 as the SeniorGram Sevak the second senior most person, that is, Shri. W. Shylla whowas already working as Gram Sevak Grade-I since 2011 should havebeen promoted as Senior Gram Sevak and in that order, the petitionerwould have been promoted as Gram Sevak (Grade-I) in the year 2016itself and accordingly, in due course as per the provision of the relevantrules in the later part of 2021 on completion of 5(five) years of serviceand on two posts of Senior Gram Sevak being vacant, the petitionerwould have been promoted as Senior Gram Sevak. This chain of eventshowever did not occur solely on the ground that no DepartmentalPromotion Committee (DPC) was held at the relevant point of time, andalthough as contended by the respondent that the DPC was held on31.01.2019 but the same could not be concluded due to non-receipt ofACRs of the eligible Gram Sevaks including the petitioner, thepetitioner and other eligible employees not being responsible for suchstate of affairs, non-consideration of promotion to the petitioner at the relevant point of time is a denial of his fundamental and legal rights.

13. The learned Sr. counsel has accordingly prayed that thispetition may be allowed and the petitioner who has since retired fromservice in the month of September 2023 may be granted notionalpromotion with all consequential financial benefits.

14. In support of his case the learned Sr. counsel has cited thefollowing authorities:

i.Ajit Singh v. State of Punjab, (1999) 7 SCC 209, para22;22;

ii.State of Mysore v. C.R. Sheshadri, (1974) 4 SCC 308,para 1 & 2;para 1 & 2;

iii.P.N. Premachandran v. State of Kerela, (2004) 1 SCC245, para 9;245, para 9;

iv.Union of India v. Hemraj Singh Chauhan, (2010) 4 SCC290, para 37 & 38.290, para 37 & 38.

15. Per contra, Mr. H. Abraham, learned GA appearing for theState respondent in his submission has not contradicted the statement offacts made as regard the appointment of the petitioner to the post ofGram Sevak in the year 1988 and that his services against thepermanent post of Gram Sevak was confirmed vide relevant order dated07.03.2000. There is also no denial of the fact that on the bifurcation ofthe erstwhile West Khasi Hills District into two districts that is, thepresent West Khasi Hills District and South West Khasi Hills District the petitioner was relocated to serve as Gram Sevak in the office ofBlock Development Officer, Ranikor C&RD Block.

16. The learned GA has also submitted that the petitioner has beenallowed to officiate as Senior Gram Sevak in the Ranikor C&RD Blockin the first instance on the post being left vacant upon the thenincumbent having retired. Again, for the second time the petitioner wasallowed to officiate in the post of Gram Sevak in view of the retirementof the then Senior Gram Sevak, Shri. W. Shylla.

17. As to the contention of the petitioner that he was notconsidered for promotion at the relevant period, that is in the year 2019when there are two vacant posts of Senior Gram Sevak, being eligibleto the same by virtue of his seniority, the learned GA has submitted thatin fact the DPC to consider the promotion of the eligible candidatesfrom amongst the Gram Sevak was conducted on 31.01.2019, howeverthe same could not be completed as some of the Annual ConfidentialReports of the candidates for the year 2016-17 are found to beinadequate and as such any move for promotion was put on hold till theprocess is complete.

18. Eventually, on 27.09.2021 the DPC was once again convenedto consider the promotion of Gram Sevak and in compliance with therelevant rules of “The Meghalaya Community and Rural DevelopmentGram Sevaks/Gram Sevikas Services Rules, 2008”, the petitioner waspromoted to the post of Gram Sevak (Grade-I) from the post of GramSevak. As per the said Service Rules, Rule 7(3) provides for the modeof promotion of those members of the service holding the post of Gram Sevak/Gram Sevika and such Rules stipulates that an eligible candidatewould be considered for selection only if he/she has rendered not lessthan 5(five) years of continuous service in the post on the first day ofthe year in which the selection is made.

19. It is the contention of the learned GA that the petitioner waspromoted as Gram Sevak (Grade-I) by virtue of the office orderNo.SWK/ESTT-27/2012/Vol-II/41 dated 28.09.2021 and as such hecould not have been promoted to the post of Senior Gram Sevak sincehe has not completed 5(five) years of continuous service in that posthaving retired from service in the month of September 2023.

20. Another contention raised by the learned GA is that there is nodiscrimination made by the Department or the Government for thatmatter since in course of his tenure of service he was also grantedfinancial upgradation under the ACP Scheme vide relevant orderNo.SWK/ESTT/50/2013/66 dated 30.07.2015 when in fact by the saidorder the petitioner was granted two financial upgradations that is thefirst and second ACP. Again, vide office order dated 15.07.2021, theDeputy Commissioner, South West Khasi Hills District had conveyedthe grant of the 3[rd] Financial Upgradation under the Modified AssuredCareer Progression (MACP) Scheme.

21. The learned GA has finally submitted that the claim of thepetitioner is without any basis and this petition being devoid of meritmay be dismissed as such.

22. From the facts and circumstances which have emerged fromthe argument advanced by the learned counsels of the respective parties, what can be understood is that the petitioner having been inservice for about 33 years or so, he is entitled to be promoted in thenormal course of his employment, but the same was denied to him.

23. According to the service rules applicable to the petitioner, thatis, “The Meghalaya Community and Rural Development GramSevaks/Gram Sevikas Services Rules, 2008”, at Rule 4 is found thehierarchy of posts within the service, the categories of post starts withGram Sevaks/Sevikas, the next higher post being Gram Sevaks (Grade-I) and the next being Senior Gram Sevak and at the top of this hierarchyis the post of Extension Officers (General).

24. As has been pointed out by the learned counsels, the relevantrule which deals with the issue of promotion is Rule 7 under theheading “Method of Recruitment”. It is pertinent to note that theeligibility condition for promotion from one stage to the next higherstage is continuous service of 5(five) years in a particular post. Forexample, for a Gram Sevak to be promoted to the next higher post ofGram Sevak (Grade-I), he has to be in continuous service as a GramSevak for the preceding five years. Nothing in the rules is found that aGram Sevak even by dint of his prolonged stagnation in that postexceeding the stipulated five years period, he can be considered forpromotion to the next higher post than the one he ought to have beenpromoted, again as an illustration, one can imagine a situation where aGram Sevak who was not given promotion after being in the said postfor five year or more, perhaps even for ten years or so, if consideredfor promotion at a later period of time, be eligible to get doublepromotion on this ground alone as the rules does not provide for the same.

25. What is also noticed is that the petitioner throughout hassought for promotion to the post of Senior Gram Sevak when at therelevant period he was still holding the post of Gram Sevak, the nextpromotional post being that of Gram Sevak (Grade-I). It is also theprayer of the petitioner that since the District Departmental PromotionCommittee has not been constituted the same ought to be constitutedwithin a period of three months.

26. Again, on perusal of this petition it is seen that the same wasfiled on 22.09.2021. The State respondent in its affidavit-in-oppositionfiled through the respondent No. 2 at para 14 of the same has stated thatthe earlier DPC could not be convened due to unavailability of adequateACRs of the petitioner however on 27.09.2021, the DPC was convenedfor promotion of Gram Sevak and accordingly the petitioner beingfound qualified was promoted to the post of Gram Sevak (Grade-I) thesame being confirmed vide order No.SWK/ESTT-27/2012/Vol-II/41dated 28.09.2021. Such promotion being a subsequent event after thefiling of this petition, the same was not challenged by the petitioner tothe extent that a prayer for amendment of the petition to incorporatesuch challenge was never made by the petitioner. At most, the petitionerat para 8 of his rejoinder affidavit has only indicated that his promotionas Gram Sevak (Grade-I) is highly belated which ought to have takenplace in the year 2016. This however, would not dilute the fact that ason 28.09.2021, the petitioner has been promoted to the post of GramSevak (Grade-I). According to the 2008 Rules (supra) he could only beconsidered for promotion to the post of Senior Gram Sevak after a period of continuous service of 5(five) years in the post of Gram Sevak(Grade-I).

27. It may also be pointed out that during the tenure of his servicewhen the petitioner was stagnated in the post of Gram Sevak, he wasaccorded two financial upgradations under the ACP Scheme and againon 15.07.2021 he was granted the 3[rd] Financial Upgradation under theModified Assured Career Progression (MACP) Scheme. Therefore, itcannot be said that the petitioner was put at a disadvantaged situation inhis service career as far as adequate financial benefits are concerned.

28. In the case of Hemraj Singh Chauhan (supra) cited by thelearned Sr. counsel for the petitioner at para 38 of the same theobservation of the Hon’ble Supreme Court is that the legitimateexpectation of the respondents therein to be considered for promotionhas been defeated by the unreasonable inaction on the part of theGovernment which stood in the way of the respondents’ chances ofpromotion. In this instant case as has been observed herein above, theGovernment in spite of delay in the constitution of the DPC (that too,not without reasons), has granted regular financial upgradations to thepetitioner and as such, the issue of legitimate expectation would not beapplicable to his case.

29. Again, in the case of P.N. Premachandran (supra) the petitionerhas raised the issue of retrospective promotion being applicable to himas is noticed in the observation made by the Hon’ble Supreme Court atpara 7 of this case under the facts and circumstances of that case, whichin view of the factual situation in the case of the petitioner the same ratio would not apply. Even reliance of the petitioner in the case of C.R.Sheshadri (supra), the proposition propounded by the Hon’ble SupremeCourt at para 1 and 2 of the same, speaking of notional promotion, thesaid principle would not be applicable to the petitioner under the factsand circumstances of his case.

Ratio decidendi

30. In the case of Ravikumar Dhansukhlal Maheta & Anr. v. Stateof Gujarat & Ors., reported in 2024 SCC Online 972, para 81, theHon’ble Supreme Court has observed that “…no government servantcan claim promotion as their right because the Constitution does notprescribe criteria for filling seats in promotional posts…”. A coordinatebench of this Court in the case of Andrew Shabong & Ors. v. State ofMeghalaya & Ors. reported in 2023 SCC Online Meg 12 at para 10 hasalso observed as follows:

“10. Promotion to a higher post in the instant case is not a caseof functional promotion, but as can be seen involves a processof selection and recommendation by a duly constituted DPC. Amere existence of a vacancy therefore, will not create a vestedright for an eligible employee to claim for appointment onpromotion to the said post, especially when the same has to befinalized through a selection process. A case that is relevantand has a bearing on the point in issue wherein leading caseshave been digested is the case of Union of India v. K.L. Tanejaand other similar cases [WP(C) No. 8102/2012] decided by theDelhi High Court on 12.04.2013. In this judgment which hasgreat persuasive value, after analyzing many cases on thispoint, at Para-21, it has been held as follows:- “21. The cornucopia of case law above noted brings outthe position:-the position:-

(i) Service Jurisprudence does not recognizeretrospective promotion i.e. a promotion from aback date.retrospective promotion i.e. a promotion from aback date.

(ii) If there exists a rule authorizing the Executive toaccord promotion from a retrospective date, adecision to grant promotion from a retrospectivedate would be valid because of a power existing todo so.accord promotion from a retrospective date, adecision to grant promotion from a retrospectivedate would be valid because of a power existing todo so.

(iii) Since mala fides taints any exercise of power or anact done, requiring the person wronged to be placedin the position the person would find himself butfor the mala fide and tainted exercise of power orthe act, promotion from a retrospective date can begranted if delay in promotion is found attributableto a mala fide act i.e. deliberately delaying holdingDPC, depriving eligible candidates the right to bepromoted causing prejudice.act done, requiring the person wronged to be placedin the position the person would find himself butfor the mala fide and tainted exercise of power orthe act, promotion from a retrospective date can begranted if delay in promotion is found attributableto a mala fide act i.e. deliberately delaying holdingDPC, depriving eligible candidates the right to bepromoted causing prejudice.

(iv) If due to administrative reasons DPC cannot beheld in a year and there is no taint of malice, noretrospective promotion can be made.”held in a year and there is no taint of malice, noretrospective promotion can be made.”

31. In the light of the authorities cited above which is foundacceptable, this Court is of the considered opinion that the petitionerhas not been able to make out a case as prayed for in this petition. Thesame is hereby rejected.

32. Petition disposed of. No costs.

Judge