High Court · 2012

While in the contempt petition the petitioner has alleged violation of t he order dated 24.11.2009 passed by this Court in W.P.(C) No. 1391/2005, in the writ petitions claim made by the petitioners is for a direction for promotion to the post of Assistant Executive Engineer and Executive Engineer. By the aforesaid order dated 24.11.2009 passed in 1391/2005, a direction was iss ued to fill up the vacant posts of Assistant Executive Engineer on regular basis in terms of the service rules. In the writ petitions, the grievance raised is t hat while preparing the case for promotion of Assistant Executive Engineer and E xecutive Engineer, there is apparent violation of the provisions of Gauhati Mun icipal Corporation Engineering Services Rules, 2004. Rules 11 and 12 read as f ollows: (cid:28)11. Appointment by Promotion: (a) The Appointing Authority shall make recruitment to the cadre by promotion in following manner:- Superintending Engineer Executive Engineer Asstt. Executive Engineer 100% 100% 100% (b) The vacancies shall be filled by Appointing Authority out of select list rec ommended by the Selection Board. (c) The Selection Board shall consists of the following: 1. Chairman, GMC, Service Commission -

2. Commissioner, GMC - Member Secy.

3. Addl. Deputy Commissioner, Kamrup -

4. Chief Engineer, PWD 5. Chief Engineer, PHE - - Member Member Chairman Member (d) The promotion shall be on seniority-cum-merit basis and experience. (e) Eligibility for promotion to different cadre shall be as specified in Schedu le-IV of those rules.

12. General Procedure for Promotion: (1) Before the end of each year the Appointing Authority shall make an assessmen t of the likely number of vacancies to be filled up by promotion in the next yea r in each cadre. (2) The Appointing Authority shall then furnish to Selection Board the following documents and information with regard to as many persons in order of seniority as 4 times the number of vacancies. (a) Information about number of vacancies. (b) List of officers in order of seniority eligible for promotion: (Separate list for promotion to different cadres shall be furnished) indicating the cadre to which the case of promotion is to be considered. (c) Character roll and personal files of the officers listed. (d) Any other documents which Appointing Authority or Committee consider necessa ry. (cid:29) As per the said provisions, the vacancies are required to be filled up o n the basis of the select list to be prepared by the Selection Board. The promot ion is required to be made on seniority-cum-merit and experience. Eligibility fo r promotion to different cadre is specified in Schedule 4 of the Rules. Some of the petitioners have contended that while considering their cas e for promotion to the rank of Assistant Executive Engineer, the post being occu pied by them Assistant Executive Engineer on ad hoc basis should also be taken i nto consideration. It is their plea that since the said Assistant Executive Engi neers are working as such, thought on ad hoc back basis, but considering their l ong period of service as such, they are required to be considered for next promo tion. Opposing the said stand, it is submitted that it cannot be said that they have been regularly promoted to the post of Assistant Executive Engineer. The a d hoc Assistant Executive Engineers as noted above, have contended that since th ey were promoted about 9 years back, they can no longer be regarded as ad hoc ap pointees and consequently their cases are required to be considered for promotio n as Executive Engineer. It appears that the GMC authority has proposed to conduct the selection through interview which is not permissible as per Rules referred to above. The R ules having prescribed a particular mode of selection, the GMC cannot deviate fr om the same so as to introduce another mode of selection through interview. In t he matter of promotion on the basis of seniority-cum-merit, normally the senior persons are required to be promoted subject to fitness. Seniority will prevail o ver the merit unlike in the matter of promotion on the basis of merit-cum-senior ity or merit-cum-suitability. At the very outset, Mr. D. Saikia, learned Addl. Advocate General has fa irly submitted that although merit of the officers is required to be assessed o n the basis of ACRs, but the GMC did not regularly maintain the same making it difficult for the GMC authority to assess the merit on the basis of the availabl e ACRs. ACRs being basic foundation to assess the merit or suitability of the of ficers for promotion, it is expected that the GMC authority will do well to effe ct the proper system of maintaining the ACRs of its officers and employees. Mr. D. Saikia, learned Addl. Advocate General has expressed the difficul ty in assessing the merit of the officer for promotion in absence of complete AC Rs. This is precisely the reason as to why the GMC authority has decided to go a head with the selection on the basis of interview. Mr. B.D. Das, learned counsel for the petitioner on the other hand submi ts that if the ACRs of the officers are not available, on that ground alone the GMC authority cannot deviate from the rules so as to conduct the selection throu gh interview. I have considered the submissions made by the learned counsel for the pa rties. As noted above, promotion is to be effected on seniority-cum-merit and e xperience. So far as the seniority and experience are concerned, it may not be d ifficult for the GMC authority to determine the same. As regards the merit, mini mum merit is required to be assessed by the controlling officers to decide the f itness of the persons. Their performances can always be assessed by the controll ing officers and upon such assessment a report may be submitted as to whether th ey fit in the minimum merit required for promotion on seniority cum merit basis. Accordingly, the contempt petition and the writ petitions are disposed o f directing the authority in the GMC to consider the promotion of the eligible incumbents to the rank of Assistant Executive Engineers and Executive Engineers in the above manner. However, while doing so they will consider only the eligibl e officers in the zone of consideration as per seniority. Since the promotion i s required to be effected on the basis of seniority-cum-merit and experience, be fore selection, the authority should publish a seniority list so that in case of any grievance, objection can be raised. Now the GMC authority shall take fresh steps as expeditiously as possibl e, preferably within three months from today. In view of this order, the earlier exercise adopted by the GMC authority stands interfered with and shall not be g iven effect to. There shall be no order as to costs.