High Court · 2012

These appeals have been preferred against order of learned Single Judge dismissing the writ petitions of the appellants and other similarly placed perso ns against cancellation of their promotion to the post of Gaon Panchayat Secreta ry. The appellants were working as Tax Collector/Road Mohhrer in the Panchay at and Rural Development Department of the State of Assam. They were promoted to the post of Gaon Panchayat Secretary on 22.6.2009. However, they were issued sh ow cause notice and the said promotion was cancelled vide order dated 31.10.2011 on the ground that no selection committee was constituted for selection of elig ible candidates nor any list of persons in the zone of consideration was prepare d. Aggrieved thereby, the appellants and other affected persons moved this Court under Article 226 of the Constitution asserting that proper procedure had been followed as per Draft Service Order, 2003. After due consideration, learned Single Judge did not find any merit in the claim of the appellants. It was observed :- To quell any doubt, I have verified the records produced by Mr. N. Upadh (cid:28)18. ya, learned State counsel. The file produced by him bears the number PDDE(II)45/ 08 on the subject of promotion of Provincialised Panchayat Employees. Page-7 of the file contains the office order dated 03.01.2009 issued by the Commissioner o f the Department by which a Selection Board comprising of the members indicated in the order was constituted to examine the ACRs for 1 (one) year received from the Chief Executive Officers of the Zila Parishads. Such a course of action was adopted towards consideration of the cases of promotion of Provincialised Panch ayat Employees from the post of LDA to UDA; Tax Collector/ Road Mohhrer to Gaon Panchayat Secretary and the qualified Grade -IV employees to the post of Tax Col lector/ Road Mohhrer. Altogether 5 members were there including the Commissioner of the Department Shri B. Gogoi. Other members were the two Joint Director, one Deputy Director and one Finance & Accounts Officer. The file also contains inte ralia seniority list of the incumbents who were required to be considered. In ma ny cases as reflected in the remark column, their ACRs were not received.

19. At page 52 of the file, there is a proceeding of the aforesaid Selection Board towards consideration of the ACRs received from the Chief Executive Offic er of the Zila Parishads. In respect of TC/RM total ACRs called for were of 35 2 incumbents out of which only 275 had been received. The only task that was un dertaken by the Committee was to see the ACRs of the incumbents with the remarks of recording and reviewing the officers. In consideration of the same, the said Committee recommended the ACRs to the Accepting Authority for acceptance or oth erwise. The Chairman of the Committee accepted the ACRs of 275 others. However, in the process ACRs of 67 incumbents were not before him.

20. After the aforesaid exercise, promotion order dated 26.02.2009 was issue d promoting the incumbents. Thus, there is absolutely no doubt that neither any Selection Committee was constituted nor any selection process was initiated and completed. It was solely on the basis of the recording made in the ACRs of the i ncumbents as per the reporting officer and the reviewing officer, the Committee placed the ACRs before the accepting Authority for acceptance or otherwise. The accepting Authority had simply given the endorsement (cid:28)accepted (cid:29) on 17.02.2009. I t is not understood as to how the accepting Authority could have accepted the re marks of the recording and the reviewing officers in that manner. The file did n ot contain the ACRs of the incumbents. After the above exercise and without any process of selection, the promo 21. tion order was effected on 26.02.2009. Needless to say that in the matter of pro motion Selection Committee is required to be constituted and even in the princip le of seniority-cum-merit, merit will have to be ascertained by the said Commi ttee to ascertain the minimum merit of the incumbents. But in the instant case, the Committee that was constituted for the purpose of evaluation of the ACRs of the incumbents considered itself to be the Selection Committee for promotion and on the basis of the evaluation of the ACRs, promotion was effected by order dat ed 26.02.2009. However, in the process no deliberation was made by a duly consti tuted Selection Committee.

22. As noted above, only task that was entrusted to the particular Committee was to evaluate the ACRs and not to make recommendation for promotion. When the aforesaid promotion was made by order dated 26.02.2009, some of the deprived ca ndidates had approached this Court by filing writ petitions. When the Govt. did not show any response to the said proceeding, the Chief Executive Officer, Cacha r Zila Parishad, Silchar filed a counter affidavit depicting the vacancy positio n. It was only that basis, order was passed for considering those cases which by no means can be said to be the orders towards acceptance of the promotion order dated 26.02.2009. The real state of affairs was not made known to the Court. Th at apart only direction was to consider the cases which naturally must be in ac cordance with law.

23. The authority in the department took a conscious decision to cancel the appointment/promotion in view of the above irregularities/ illegalities. Althoug h the petitioner have placed reliance on the aforesaid (cid:28)Draft Service Order, 200 3 (cid:29), but there is no denial that same is yet to be approved. Thus, the promotion could not have been effected on the basis of the said order. However, this aspec t of the matter need not detain us in view of the above findings.

24. The particular committee entrusted with the task of evaluation of the AC Rs had before it only one year ACRs of the incumbents. In the normal circumstanc es, the promotions are effected on the basis of the ACRs at least for three year s. As reflected in the impugned order, no Selection Committee was constituted an d thus, there is no question of there being any minutes of the Selection Committ ee. There is some controversy regarding educational qualification required for t he post of Secretary. The file has revealed that B.Com is the recognised degree for appointment to the post of Gaon Panchayat Secretary.

25. h the impugned orders and accordingly, the writ petitions are dismissed. For all the aforesaid reasons, I do not find any ground to interfere wit

26. At this stage, learned counsel for the parties submit that irrespective of upholding the impugned orders of cancellation of promotion, the petitioners m ay be allowed to continue in the promotional posts till they are filled up by r egular selection following due procedure. The very foundation of the promotion h aving been found to be illegal, this Court exercising the power of judicial revi ew under Article 226 of the Constitution of India, cannot issue any direction fo r continuation of the petitioners in the promotional posts based on the aforesa id illegalities. It will be entirely upto the Govt. to consider in the exigencie s of service as to whether the petitioners can be allowed to continue till such time a regular selection is conducted and finalised. However, such a course of a ction, if adopted must not be at the cost of the services. It is always advisabl e to go for regular promotion instead of taking recourse to adhocism for which p rocess may be initiated and finalised at the earliest possible time. (cid:29) We have heard learned counsel for the parties. It is clear from the findings recorded by learned Single Judge, which ar e not shown to be erroneous, that out of 352 incumbents, ACRs of 275 incumbents were received and no selection committee was constituted nor any selection proce ss was initiated or completed. Individual merit of the incumbents was also not a ssessed. The Committee was constituted only to evaluate the ACRs and not to make recommendation for promotion. The Department found irregularities/ illegalities in the promotions. In view of these findings, no case was found to have been ma de out to interfere with the order of cancellation of promotions. Only submission which has been now put forward is that the appellants ma y be allowed to continue in service till regular selection is made and requireme nt of B.Com qualification may not be insisted upon. We are unable to accept the submission. Learned Single Judge has left th e matter to the State and has not directed laying down of any qualification. It has also been observed that it is advisable that course of regular promotion be adopted instead of adhocism. We are not persuaded to take a different view except to direct that the matter may be finalized, if possible, within three months from the date of recei pt of a copy of this order. Writ appeals stand disposed of accordingly.