High Court
Case Details
WP(C) 354/2008 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R(ORAL) The issue raised in both the writ petitions being interrelated, W.P.(C) Nos. 884 /2008 and 354/2008 were heard together and are being disposed of by this common order. 2. Though 03-06-2013 was fixed for delivery of judgment, judgment c ould not be delivered on that day as this Bench was not available. Accordingly, judgment is being delivered today. 3. The matter relates to assignment of seniority position in the in ter-se-seniority list of Executive Engineers (Civil) in the Public Works Departm ent (PWD), Government of Assam and consideration for promotion to the next highe r post of Superintending Engineer (Civil). 4. 4/2008 are referred to. For the sake of convenience, the facts narrated in W.P.(C) No.88 5. Case of the petitioner is that after obtaining graduation in Eng ineering (BE) and on being selected, he joined as Assistant Engineer (Civil) in the PWD on 04-01-1984. In the course of his service career, he was promoted to t he rank of Assistant Executive Engineer (Civil) on 10-01-1994 and thereafter to the rank of Executive Engineer (Civil) on 02-06-2004. The service conditions of the members of the Assam Engineering ( 6. PWD) Service are governed by a set of rules called the Assam Engineering (PWD) S ervice Rules, 1978 (1978 Rules), which has been amended from time to time. Rule 3 of the 1978 Rules provides for the classes and cadres which comprise the Assam Engineering (PWD) Service. Class-1 service includes the cadre of Executive Engi neer whereas Class-1 (Senior Grade) service includes the cadre of Superintending Engineer. As per Rule 5 (2), recruitment to Class-1 and Class-1 (Senior Grade) shall be made by promotion only in accordance with Rules 12 and 13. Rule 12 prov ides the manner of promotion which includes promotion from Executive Engineer to Superintending Engineer. 7. Rule 13 lays down the general procedure for promotion. As per su b-rule (1), before the end of each year, the Government is required to make an a ssessment of the likely number of vacancies in each cadre to be filled up by way of promotion in the next year. Thereafter, the appointing authority shall furni sh to the Selection Board a list of officers in order of seniority four times th e number of vacancies assessed alongwith the required documents and information including the character rolls of the officers. The Selection Board shall recomme nd a list of suitable officers for promotion in order of preference. Promotion u pto the rank of Superintending Engineer shall be on the basis of merit and suita bility with due regard to seniority and promotion above the rank of Superintendi ng Engineer is on the basis of merit cum seniority. The Selection Board shall fu rnish to the appointing authority a select list of officers about double the pro bable number of vacancies in order of preference found suitable for promotion. T hereafter, the appointing authority shall consider the select list and may appro ve the same unless it considers any change necessary. The select list shall rema in valid for twelve months.
Legal Reasoning
8. Following a judgment of this Court in Ramen Kalita and others -V s- State of Assam and others reported in 2003 (3) GLT 369, Government of Assam i n the PWD issued notification dated 28-04-2003 laying down the criteria and meth odology for promotion upto the rank of Superintending Engineer. As already notic ed above, the criteria for promotion upto the rank of Superintending Engineer is merit and suitability with due regard to seniority. The following points are al located for evaluation of merit based on the final accepted remarks in the Annua l Confidential Reports :- Below average Average Good Very Good Outstanding - - 0 point - - - 4 points 1 point 2 points 3 points The total points against each officer in the zone of consideration is to be calc ulated on the basis of the guidelines considering Annual Confidential Reports (A CRs) for a period of five years. For promotion from the rank of Executive Engine er to the rank of Superintending Engineer, there will be three categories - Category 1 Category 2 Category 3 - - - 18 and above 10 to below 18 Below 10 Category 3 shall not be eligible to be suitable for promotion. Category 1 and 2 shall be eligible to be suitable for promotion. The appointing authority shall a lso allocate points for seniority in addition to the points allocated for merit in the following proportion - 75% points shall be allocated for merit and remain ing 25% for seniority. An officer shall obtain a maximum of 20 points on merit w hich is equivalent to 75% and 6.66 points for seniority which will be 25%. Offic ers having completed 30 years of service or above shall be entitled to 6.66 poin ts and for each completed year of service 0.22 points shall be allocated. Accord ing to the total points secured, the officers shall be categorized into two clas ses :- Class A and Class B For promotion from Assistant Executive Engineer to Executive Engineer, to be cat egorized as Class A one will have to secure 21.3 points and above and to be cate gorized as Class B, one will have to secure between 11.3 to below 21.3 points. C lass A will get preference over Class B and inter-se seniority within Class A wi ll remain unchanged. Similarly, for promotion from Executive Engineer to Superin tending Engineer, the categorization is as follows :- Class A Class B - - 13.96 to below 21.96 21.96 and above Class A will get preference over Class B and inter-se seniority within Class A w ill remain unchanged. As per the said notification, the 1978 Rules alongwith the judgment of this Court in Ramen Kalita and the said notification dated 28-04-20 03 shall be binding on the appointing authority and the Selection Board for sele ction for promotion in the PWD. 9. For the year 2004, the appointing authority had assessed the pro bable number of vacancies in the rank of Executive Engineer (Civil) at 28. Servi ce records of 112 numbers of Assistant Executive Engineers (Civil), which is the feeder cadre for the post of Executive Engineer, were placed before the Selecti on Board for consideration, being four times the number of vacancies (28x4=112). Petitioner was placed at Serial No.110 in the gradation list of Assistant Execu tive Engineers (Civil). Petitioner and another officer, namely, Shri Jyotish Kum ar Sarmah were recommended for promotion to the rank of Executive Engineer (Civi l) under Class A category whereas the private respondents 8 to 33 were selected under Class B category. The selected candidates, including the petitioner, were thereafter promoted to the post of Executive Engineer (Civil) vide the notificat ion dated 02-06-2004 issued by the Commissioner and Special Secretary to the Gov ernment of Assam, PWD. While the petitioner and Shri Jyotish Kumar Sarmah were p romoted to the rank of Executive Engineer (Civil) on being placed in Class A cat egory, respondents 8 to 33 were also promoted to the rank of Executive Engineer (Civil) though they were placed in Class B. 10. Government of Assam in the PWD had issued a notification dated 0 6-09-2007 fixing the inter-se seniority of the Executive Engineers (Civil) of th e Department. In the said inter-se seniority list, respondent Nos. 8 to 33 were placed above the petitioner and Shri Jyotish Kumar Sarmah. While respondent Nos. 8 to 33 were placed at Serial Nos. 79 to 104, Shri Jyotish Kumar Sarmah and the petitioner were placed at Serial Nos. 105 and 106 respectively. 11. Petitioner submitted representation dated 15-10-2007 before the Secretary to the Government of Assam, PWD requesting the said authority to corre ctly fix his seniority position as he was promoted under Class A category and, t herefore, he should be placed above those who were promoted under Class B catego ry. This was followed by further representations dated 02-01-2008 and 22-02-2008 wherein petitioner contended that his position in the seniority list should be 79 below Shri Jyotish Kumar Sarmah and above respondent No.8 (since the incumben t at Serial No.32 of the seniority list dated 06-09-2007 Mosfic Ali had expired in the meanwhile). 12. In the meanwhile, for the year 2007, the appointing authority ha d assessed the probable number of vacancies in the rank of Superintending Engine er (Civil) at 27, which included 20 clear vacancies and the remaining anticipate d vacancies on account of retirement. For filling up the said vacancies, the app ointing authority furnished a list of 108 numbers of Executive Engineers in orde r of seniority for consideration, being four times the number of vacancies (27x4 = 108). Petitioner being placed at Serial No. 106 of the seniority list dated 0 6-09-2007 was also included within the zone of consideration. 13. Selection Board meeting was held on 19-11-2007 for selection of officers from Executive Engineer (Civil) to Superintending Engineer (Civil). The Selection Board recommended 59 officers for promotion to the rank of Superinten ding Engineer. The first four candidates were placed under Class A category as t hey had secured more than 21.96 points from merit and seniority. The rest of the 55 candidates recommended were placed in Class B category as they had secured b etween 13.96 points to below 21.96 points from merit and seniority. Petitioner w as placed under Class A category and he was selected at serial No.3 of the selec t list dated 19-11-2007. However, it appears that because of the Government decision date 14. d 30-11-2007 to enhance the retirement age of its employees and officers by one year, the officers who were to retire in the year 2007 continued in service for another year, thereby reducing the number of vacancies for the year 2007 from 27 to 20.
Decision
15. At that stage, the petitioner moved this Court by filing WP(C) N o.354/2008 with the prayer for re-fixation of his seniority position at Serial N o.79 in the gradation list of Executive Engineers (Civil) dated 06-09-2007. Peti tioner had contended that in view of reduction in the number of vacancies from 2 7 to 20, he would not come within the zone of consideration as per his present s eniority position which would be upto Serial No.80 (20 x 4 = 80) unless his seni ority position is corrected and he is placed at Serial No.79 in the seniority li st. This Court by order dated 30-01-2008 admitted the writ petition and directed in the interim that one post of Superintending Engineer for which selections we re stated to have been held in the month of November, 2007 be kept vacant to abi de by such further orders as may be passed in the writ petition. 16. Joint Legal Remembrancer, Assam had opined that selection for 27 vacancies had already being completed prior to the Government decision extendin g the age of retirement. Therefore, reduction in the number of vacancies would n ot vitiate the selection or the select list. However, ignoring the opinion of the Joint Legal Remembrancer an 17. d notwithstanding pendency of WP(C) No.354/2008, the authority constituted a new Selection Board to fill up 20 vacancies in the rank of Superintending Engineer (Civil). Accordingly, names of 80 Executive Engineers (Civil), being four times the number of vacancies, were placed before the Selection Board. As the petition er’s seniority position was not corrected and his position remained at Serial No .106, he did not come within the zone of consideration. Selection Board meeting was held on 19-02-2008 and recommendations were made accordingly. 18. Aggrieved, petitioner has filed the present writ petition for qu ashing of Selection Board proceedings dated 19-02-2008 for promotion to the rank of Superintending Engineer (Civil) and for a direction to the State respondents to correctly determine his seniority position in the cadre of Executive Enginee r (Civil) by placing him at Serial No.79 and thereafter to hold fresh selection for the 20 vacancies of Superintending Engineer (Civil) for the year 2007. 19. This Court by order dated 10-03-2008 admitted the writ petition and directed in the interim that one post of Superintending Engineer, PWD (Civil ) be kept vacant to abide by such further orders as may be passed by the Court. 20. Respondent Nos.1, 2 and 3 have filed a common affidavit. Stand t aken is that the department had assessed the number of vacancies in the post of Executive Engineer (Civil) for the year 2004 at 28. The zone of consideration wa s, therefore, upto serial No. 112 (28 x 4=112) in order of seniority in the seni ority list of Assistant Executive Engineers (Civil). Position of the petitioner in the inter-se seniority list of Assistant Executive Engineers (Civil) was 110. Selection Board had recommended 50 Assistant Executive Engineers for promotion to the rank of Executive Engineer in order of preference. Petitioner was not rec ommended. The ACR position of the petitioner indicated that though he had (cid:28)outst anding (cid:29) grading for the years 1999, 2002 and 2003, he remained absent during the years 2000 and 2001. Therefore, he could not be awarded any grading for the sai d two years. However, the Commissioner and Special Secretary, PWD included the n ame of the petitioner at Serial No.51 under Class A category in the select list and vide letter dated 15-05-2004 requested the Selection Board for opinion. In r esponse, Chairman of the Selection Board vide letter dated 17-05-2004 opined tha t placing of the petitioner at Serial No.51 in the selection list under Class A category would not be justified. However, notwithstanding such opinion, notifica tion dated 20-05-2004 was issued by the Commissioner and Special Secretary appro ving the select list of 51 officers for promotion to the rank of Executive Engin eer in order of preference. Petitioner was included at Serial No.51 under Class A category. Consequently, petitioner was promoted to the rank of Executive Engin eer alongwith the others vide the notification dated 02-06-2004. The said respon dents would therefore contend that the promotion of the petitioner from the rank of Assistant Executive Engineer to the rank of Executive Engineer is (cid:28)questiona ble (cid:29). As such, the said respondents have controverted the claim of the petitione r as not (cid:28)bonafide (cid:29). 21. A common counter affidavit has been filed on behalf of responden t Nos. 8 to 33. The said respondents have contended that petitioner was abroa d for two years and 196 days (total 926 days) w.e.f. 01-05-1998 to 28-12-1998 and from 21-03-1999 to 08-02-2001 by availing leave under various heads. Moreov er, there is no explanation in the record regarding the period from 28-12-1998 t o 21-03-1999. They have contended that for the two years the petitioner was abse nt, no assessment of his service could have been made. If no grading is given fo r the said two years, it is unlikely that the petitioner could have been placed in Class A category. As such, inclusion of the petitioner in the select list for promotion to the rank of Executive Engineer is faulty. Therefore, appointing au thority had rightly placed the petitioner at Serial No.106 in the gradation list dated 06-09-2007 below the respondent Nos. 8 to 33. Petitioner has filed separate reply affidavits to the counter af 22. fidavits filed by the state respondents as well as by the private respondents. I n the reply affidavit filed to the counter affidavit of the state respondents, p etitioner has stated that the Selection Board had not recommended the petitioner for promotion to the post of Executive Engineer without any good ground. Commis sioner and Special Secretary rightly acted under Rule 13(6) of the 1978 Rules an d modified the select list by including the name of the petitioner therein under Class A category by following the prescribed procedure. Consequently, petitione r was promoted to the post of Executive Engineer on 02-06-2004. The attempt now being made by the state respondents to describe the selection and promotion of t he petitioner to the post of Executive Engineer as questionable is not only impr oper but also beyond jurisdiction. The stand of the state respondents is irrelev ant for adjudication of the issue in question. Petitioner has asserted that his claim is bonafide and deserves consideration. 23. In his reply affidavit to the counter affidavit of the private r espondents, petitioner has contended that the said respondents have no right to question his selection and promotion to the post of Executive Engineer in the pr esent proceeding instituted by him, that too, at this belated stage. His selecti on and promotion to the post of Executive Engineer was made by following the due procedure. His said promotion was not questioned by any body and the matter had got settled. He has also stated that it is the prevailing practice in the depar tment that if for any reason grading in the ACRs of an officer for a particular period is not possible, the ACR gradings of the preceding and succeeding years o f the officer concerned are taken into consideration and an average grading is g iven for the particular period. For the two years when he was abroad, the author ity had followed the said principle and as his grading was (cid:28)outstanding (cid:29) for the other three years, he was given the grading (cid:28)very good (cid:29) for the said two years. Consequently, by allocating points as per notification dated 28-04-2003, petiti oner was placed in Class A category, which was rightly done. Since he was placed in Class A category, he is entitled to be placed above respondent Nos. 8 to 33 in the seniority list as they were placed under Class B category. Therefore, pla cement of the petitioner at Serial No.106 in the gradation list of Executiv e Engineers dated 06-09-2007 below respondent Nos. 8 to 33 is illegal. 24. Heard Mr. K.K. Mahanta, learned Senior Counsel for the petitione r and Mr. S. Saikia, learned Standing Counsel, PWD. Also heard Mr. U.K. Nair, le arned Counsel appearing for respondent Nos. 8 to 33. 25. Mr. Mahanta, learned Senior Counsel for the petitioner submits t hat petitioner’s promotion to the rank of Executive Engineer under Class A categ ory was made in the year 2004. The same was not challenged by any body. Conseque ntly, it has attained finality. In any case, it was rightly done by applying the correct procedure. As per the departmental norms laid down in the notification dated 28-04-2003, petitioner being promoted under Class A category is required t o be placed above those who were promoted under Class B category i.e. respondent s Nos. 8 to 33. Such seniority position cannot be denied to the petitioner by ta king the wholly untenable plea of his promotion from Assistant Executive Enginee r to Executive Engineer as questionable. Petitioner’s representations have also not been responded to by the authority. He contends that as per the binding guid elines contained in the notification dated 28-04-2003, petitioner should be plac ed at Serial No. 79 in the seniority list of Executive Engineers (Civil) which w ould bring him within the zone of consideration for selection for promotion to t he 20 vacancies in the rank of Superintending Engineer (Civil) for the year 2007 . He, therefore, submits that necessary direction in this regard may be issued b y this Court which will meet the ends of justice. 26. Mr. S. Saikia, learned Standing Counsel has placed before the Co urt a bunch of papers, including the minutes of the Selection Board’s meeting he ld on 19-02-2008 for selection of officers for promotion from Executive Engineer (Civil) to the rank of Superintending Engineer (Civil) for the year 2007. The S election Board recommended 39 officers in order of preference for promotion to t he rank of Superintending Engineer. Learned departmental Counsel submits that si nce there is doubt about the correctness of the decision taken by the appointing authority to include the petitioner in the selection list as a Class A category and thereafter promoting him to the rank of Executive Engineer, the authority i s justified in placing the petitioner at Serial No.106 in the seniority list of Executive Engineers (Civil) below the respondents 8 to 33. 27. Mr. U.K. Nair, learned Counsel appearing for respondent Nos. 8 t o 33 has taken a technical plea that when the first case is pending, petitioner could not have filed the second case seeking almost identical relief. He also ad opts the stand taken by the departmental counsel to contend that no gradings cou ld not have been given to the petitioner for the two consecutive years when he w as abroad as because to arrive at an average assessment, the gradings of the pre ceding and succeeding years are to be considered but in this case, if the gradin g of the preceding year is available, the same is not available for the succeedi ng year and vice versa for the two missing years. Therefore, petitioner could no t have been graded (cid:28)very good (cid:29) for those two years, which has influenced the tot al points secured by the petitioner resulting in his placement under Class A cat egory. Since petitioner was wrongly selected by the appointing authority against the opinion of the Selection Board by placing him in Class A category and there after promoting him to the rank of Executive Engineer, the state respondents are justified in not assigning him a higher position above respondent Nos. 8 to 33 in the seniority list of Executive Engineers (Civil). 28. Submissions made have been considered. 29. As has already been noticed above, the criteria for selection fo r promotion to the rank of Superintending Engineer is on the basis of merit and suitability with due regard to seniority. The aforesaid expression was examined by this Court in Ramen Chandra Kalita (supra). This Court held that the correct meaning of the expression (cid:28)merit and suitability with due regard to seniority (cid:29) h aving regard to the context of the 1978 Rules as amended would be that though th e criteria of merit and suitability with due regard to seniority is essentially a merit based criterion, seniority cannot altogether be ignored and has to be co nsidered parallely alongwith merit while determining the eligibility of a candid ate for his inclusion in the select list. This Court further held that though it would not be the duty of the Court to lay down the exact modalities to cover se lection by application of the said criteria, it may be apposite to observe that out of the total marks earmarked for assessment, a particular percentage can be assigned to merit and the remaining percentage to seniority, the percentage pres cribed for merit being necessarily higher than the percentage prescribed for sen iority since the expression in question convey primarily a merit based assessmen t. It was also observed that what marks should be given to seniority can also be worked out by taking into account each year of completed service and on that ba sis the necessary fusion between merit and seniority can be reached. 30. Following the aforesaid decision of this Court, Government notif ication dated 28-04-2003 was issued laying down the guidelines for application o f the aforesaid principle. 75% have been allocated for merit i.e. 20 points and 25% for seniority i.e. 6.66 points. Based on the overall points secured, the off icers are categorized into two classes, namely, Class A and Class B with Class A category officers getting preference over Class B category officers but inter-s e seniority within Class A category remaining unchanged. 31. It is also a settled proposition that the Selection Committee is not expected to endorse the ACR gradings of a particular officer mechanically. The Selection Committee has to arrive at its own conclusion on an overall consid eration of the service record of the officer concerned. There is a difference be tween the assessment of an officer for the purpose of grading him in his ACR by the statutorily prescribed authority and the assessment by the Selection Committ ee of the service profile of the particular officer for the purpose of selection . While the former is the assessment of the service of the officer for the parti cular period, the latter is an overall assessment of the service profile of the officer to consider his suitability for promotion. 32. In the instant case, from the bunch of papers produced by the le arned Standing Counsel, it is seen that initially in the selection for promotion to the rank of Executive Engineer, petitioner was not recommended by the Select ion Board. The appointing authority i.e. the Commissioner and Special Secretary in his note to the departmental Minister dated 15-05-2004 observed that though i n other Selection Board meetings, remarks of the preceding and succeeding years had been averaged for the missing year / years but in that particular Selection Board meeting, it was not done. Referring to the petitioner, the appointing auth ority observed that he had (cid:28)outstanding (cid:29) grading in three ACRs. According to him , petitioner is a meritorious officer and his services could be gainfully utiliz ed by the Government. Therefore, he applied the usual practice followed in the d epartment and averaging the (cid:28)outstanding (cid:29) remark for the three years, awarded hi m (cid:28)very good (cid:29) for the two missing ACRs for the years 2000 and 2001. By applicati on of the guidelines laid down in the notification dated 28-04-2003, petitioner was placed under Class A category and included in the select list for promotion to the rank of Executive Engineer. 33. Rule 13(6) of the 1978 Rules as amended empowers the appointing authority to make changes in the select list forwarded by the Selection Board. H owever, he has to inform the Board about the proposed changes and consider the c omments of the Selection Board, if any. Thereafter, he may approve the select li st with such modification which he may consider just and proper. The proposal of the appointing authority for selecting the petitioner under Class A category wa s approved by the departmental Minister. Comments of the Selection Board were ca lled for. Though the Selection Board did not concur with the views of the appointing authority, the latter nonetheless approved the select list of officer s for promotion to the rank of Executive Engineer wherein petitioner was include d under Class A category. This was by notification dated 20-05-2004, which was f ollowed by the subsequent notification dated 02-06-2004 whereby the petitioner a nd the others were promoted to the rank of Executive Engineer. 34. The above notifications dated 20-05-2004 and 02-06-2004 were not challenged by anybody before any adjudicatory forum. Consequently, the same has attained finality. The fact that petitioner was selected under Class A category for promotion to the rank of Executive Engineer and subsequently promoted canno t be questioned by the respondents in a proceeding instituted by the petitioner for assignment of his seniority position based on his selection under Class A ca tegory. It has already been noticed that the notification dated 28-04 35. -2003 which has been issued on the basis of the decision of this Court in Ramen Chandra Kalita (supra), clearly provides that Class A category will get preferen ce over Class B category but inter-se seniority within the Class A category will remain unchanged. It is an admitted position that the petitioner was selected u nder Class A category for promotion to the rank of Executive Engineer whereas re spondents 8 to 33 were selected under Class B category. Therefore, in terms of t he guidelines laid down in the notification dated 28-04-2003, petitioner has to get preference over respondents 8 to 33 in the promoted post. In such circumstan ces, placement of the petitioner at serial No.106 in the inter-se seniority list of Executive Engineers (Civil) dated 06-09-2007 below respondents 8 to 33, who have been placed at serial No.79 to 104, is not justified. Petitioner is require d to be placed above respondent No.8 in the said gradation list. Consequent upon assignment of higher seniority position above respondent No.8, petitioner would come within the zone of consideration for selection for promotion to the next h igher rank of Superintending Engineer (Civil) against the 20 vacancies for the y ear 2007. The objection of Mr. Nair, learned Counsel for respondents 8 to 36 33 as to the maintainability of the second writ petition does not appeal to the Court. While the first writ petition is for assignment of seniority position of the petitioner in the gradation list of Executive Engineers (Civil), in the seco nd writ petition, the additional prayer made is for quashing of the Selection Bo ard proceeding dated 19-02-2008 for promotion from the rank of Executive Enginee r (Civil) to the rank of Superintending Engineer (Civil). In any case, the secon d writ petition was admitted for hearing by this Court on 10-03-2008. Accordingly and in view of the discussions made above, the two w 37. rit petitions are allowed. State respondents are directed to correct the seniori ty position of the petitioner in the inter-se seniority list of Executive Engine ers (Civil) by placing him above respondent No.8. Since this Court while admitti ng the writ petitions had directed that one post of Superintending Engineer (Civ il) be kept vacant to abide by further orders of this Court, in view of the prec eding direction for upward revision of his seniority position which brings him i nto the zone of consideration for promotion to the rank of Superintending Engine er (Civil) for the year 2007, the State respondents shall constitute a Selection Board to consider promotion of the petitioner to the said vacancy in the rank o f Superintending Engineer (Civil) for the year 2007. The above exercise shall be completed within a period of three months from today. 38. 39. Both the writ petitions are disposed of. No cost.