All these writ applications raise the same question of law and facts and as such they are taken up for hearing together. 2. I have heard Mr. Sarma, learned Advocate for the petitioners in Civil Rule No. 1958 of 1998, Mr. Saikia, teamed Standing Counsel, ASEB for the respondent No. l and Mr. P. Khataniar, learned Advocate for the respondent Nos. 5/6, 7, 9 and 10.1 have also heard Mr. JM Choudhury, learned Senior Advocate assisted by Mr P. Kataky for the petitioners, in Civil Rule Nos. 1648 of 1998,2023 of 1998 and 2327 of 1999 and Sri P. Khataniar learned Advocate for the respondent No. 4 in Civil Rule No. 2023 of 1998 and Civil Rule No. 2327 of 1998 for respondent Nos. 6 and 7 and Sri NN Saikia, learned Standing Counsel ASEB for respondent Nos. 1, 2 and 3. 3. Civil Rule No. 1958 of 1998 has been filed by three persons and all the petitioners were appointed on 8.4,71 as Assistant Engineer (Elect) under Assam State Electricity Board (for short ASEB). On 28.5.82 the petitioner No. l was promoted as Executive Engineer (Elect). On 7.12.82 the petitioner Nos. 2 and 3 were promoted as Executive Engineer (Elect). From 1993 the petitioner No. l has been working under the ACE (Com) at Headquarter office at Guwahati. The petitioner No. 2 also has been working in the office of ACE RE since 1993. The petitioner No. 3 had Worked in the office of the ACE (Com). Diphu Elect Division, T & T Division, Nagaon, CE (D) 1993 to 1998. On 4.7.73 the Engineering Service Regulations, 1973 were framed and published by the ASEB. Regulation 2(a) deals with the method of promotion which is seniority with due regard to merit and suitability as may be assessed from the ACRs. On 27.5.83 there was amendment to the said Regulation making the method of promotion as merit-cum-seniority. On 27.8.92 a new method was adopted for selection based on performance appraisals and suitability for inclusion in the panel on the basis, of ACR. On 1.9.95 by a notification amendment to the orders dated 27.8.92 was made: The basic feature of the amendment was that judging suitability for inclusion in the promotion panel on specific grading was deleted. On 17.12.92 the performance appraisal formats were introduced. That is Annexures 3A and 38 to the writ application. On 1.9.95 by a notification amendment to the orders dated 27.8.92 was made: The basic feature of the amendment was that judging suitability for inclusion in the promotion panel on specific grading was deleted. On 17.12.92 the performance appraisal formats were introduced. That is Annexures 3A and 38 to the writ application. Section B of that ACR requires as follows: “1. Comment specifically in detail on the officer's performance of task assigned to him. In the case of 7 (a) and (b) your comments must include his capacity to supervise and get work from his subordinates. Refer to your own inspections of the officer's establishment If he was deficient and you had to bring that to his notice, mention is in your report. If any warning of caution was issued, please mention this in detail. 2. Integrity: Your comments must be specific and not vague. 3. On the basis of your assessment, would you recommend him for any specific task ? If so, give reasons.” The reviewing officer is to give his assessment specifically on portion A and B. If he does not agree, he is to give reasons to this portion. Now, grade the officer on the basis of your assessment. The grades are Outstanding/Very Good/ Good/Below Average. 7 (a) and (b) in para 1 read as follows : “(a) In the case of Field Officers involving revenue, target assigned and how much achieved. (b) In the case of other field/staff officers indicate the assigned task and describe your achievement.” This performance was introduced on 17.11.92 by an office order. That office order is quoted below: “Office orders: For proper evaluation and assessment of the performance of officers employees of the Board, it is imperative that guidelines of authorities for recording, reviewing and acceptance of Annual Confidential Report are clearly spelt out. It is, therefore, decided that henceforth the authorities shown at Col (2) (3) and (4) in proforma will record, review and accept respective ACRs of the officers/ employees shown .at Col (1). While this order replaces all earlier orders relating to recording, reviewing and accepting, officers/employees not specifically mentioned below will, however, continue to be governed by the previous orders. It is, therefore, decided that henceforth the authorities shown at Col (2) (3) and (4) in proforma will record, review and accept respective ACRs of the officers/ employees shown .at Col (1). While this order replaces all earlier orders relating to recording, reviewing and accepting, officers/employees not specifically mentioned below will, however, continue to be governed by the previous orders. Annual Confidential Reports of all officers should be recorded, reviewed and accepted and where necessary, sent to the Head Quarters office complete in all respect, latest by 2nd week of January of the year following the year of recording. In case of default, the next higher authority should record the same in the Annual Confidential Report of the defaulting officer. A new format for recording, reviewing and acceptance of ACRs of officers of the Board is enclosed herewith for necessary action in strict compliance therewith. This order takes effect immediately and shall remain in force until further orders.” On 26. 12.97 for grading an officer 'Outstanding' and 'Below Average' specific instances were required to be given by the grader. That is Annexure 3B to the writ application. As Executive Engineer the seniority of the petitioner No. 1 was at SI No. 21, the petitioner No. 2 was at SI No. 22 and the petitioner No.3 was at SI No. 24. The respondent Nos 2 to 10 found their seniority at SI Nos 32,33,5,24,50,12,26,27 and 16 respectively. Namely one C. Khound was at SI No. 4, one PJ Borkotoky was at SI No. 5, one PN Hazarika wife at SI No. 6, one UC Sarma was at SI No.7, one PK Sarma was at SI No,9. These persons at the top of the petitioners were not made parties in the writ applications and the respondents are AB Roy Choudhury whose name appeared at Sl No.32, Siddique Rahman at SI No.35. Bhabani Kumar Sarma at SI No.41, Arindam Nath at SI No.43, DB Sengupta at S1 No 44. Dibakar Borgoham at SI No. 47, Baneswar Khound at SI No.48 and Swapan Kr Handique at Sl No. 56. The selection was held on 27.2.98 and the following persons have been promoted (1) Bhupen Ch Khound promoted as Superintending Engineer at SI No. 4, Sri Prasanta Borkotoky promoted as SE at SI No. 8. Dibakar Borgoham at SI No. 47, Baneswar Khound at SI No.48 and Swapan Kr Handique at Sl No. 56. The selection was held on 27.2.98 and the following persons have been promoted (1) Bhupen Ch Khound promoted as Superintending Engineer at SI No. 4, Sri Prasanta Borkotoky promoted as SE at SI No. 8. It may be stated herein that against the remark column in the records produced it is seen mat as against an officer there were two enquiries on different time and in one enquiry there was reduction of pay and in the other it was censure. It is not known when these punishments were issued/given. It will appear that reduction of pay was on 17.5.94 and censure was on 7.2.95. That ACR entries were not; made adhering to rules/guidelines will be evident from me fact that in ACR of 1994 the is a gradation of him as very good and in 1995 also it is very good though during these two years departmental proceeding was initiated against him and he was given punishment as indicated above. This is I am pointing out only to show mat the whole thrust of argument of the learned Advocate for the petitioners were that these ACRs were maintained in a most tipsy turkey manner. It did not reflect the real performance of the officers and that were made in a most mechanical manner. On the basis of the entries made in the ACRs of the Executive Engineers they were promoted to the rank of Superintending Engineer. 4. m all the civil rules the promotion order dated 16.3.98 promoting nine officers who are junior to the petitioners from the rank of Executive Engineer (Elect) to that of Superintending Engineer (Elect) are challenged by all the e petitioners. That order of promotion is at Annexure 1 to the writ application. The persons promoted are as follows: (1) Dibakar Bofgohain, (2) Banes Svar Khound, (3) Upen Gh Sarma; (4) Debendra .Nafayan Dekia, (5) Bhabani Sharma, (6) Prasanta Borkotoky, (7) Prannan Sharma, (8) Bhupen Chandra Khound, (9) Swapan Kumar Handique, (10) Amaresh Basu Roi Choudhury, (11) Arindom Nath, (12) Debabrata Sengupta, (13) Ajnananda Hazarika and (14) Siddique Rahman. They were put on promotion for a period of one year. It was stated in the order that these promotion have been made on the recommendation of the Departmental Promotion Committee. They were put on promotion for a period of one year. It was stated in the order that these promotion have been made on the recommendation of the Departmental Promotion Committee. The prayers made in the writ application are to quash the following: (i) order dated 27.8.92 (Annexure 4), order dated 1.9.95 (Annexure 5) and promotion order dated 16.3.98 (Annexure 1). 5. An affidavit-in-opposition has been filed on behalf of the respondents where in paragraph 4 it is stated as follows: “That the Board made some addition and alternation in the Regulation 12A and 12B of the aforesaid Engineering Service Regulations, 1973 and substituted the same by an amendment of the Regulations during 1992. This amendment inter alia provides at Regulation 1.2A (b) (i) that the Executive Engineer should have put a minimum of 5 (five) years service as Executive Engineer to become eligible for promotion to the rank of Superintending Engineer.The Regulation 12B (iii) provides that promotion from Executive Engineer to Superintending Engineer shall be made on the basis of selection by the Departmental Promotion Committee I (DPC) I to be chair manned by the Chairman ASEB, The Regulation 12B (vi) provides that the Board in selecting an officer for promotion to the higher rank shall take into account the performance of the officer for a consecutive period of 5 (five) years immediately proceeding the date of selection. The Regulation 12B (vii) provides that while evaluating the suitability of an officer on the basis of ACRs and preparing a panel for promotion to the next higher post, the inter-se seniority of each of the officers included in the panel shall be determined by the Departmental Promotion Committee.” There was a further amendment of the Regulation in the year 1995 and by that the Board changed the earlier requirement of considering at least 5 officers by the Selection Committee against the vacant posts for promotion to the next higher grade as per Regulation 12B (v). It was reduced to 4. In 1992 Amendment it has been reduced to four officers in order of seniority to consider the promotion against said vacancies. Paragraph 6 of the affidavit-in-opposition is quoted below to appreciate the controversy in this particular case. It was reduced to 4. In 1992 Amendment it has been reduced to four officers in order of seniority to consider the promotion against said vacancies. Paragraph 6 of the affidavit-in-opposition is quoted below to appreciate the controversy in this particular case. “That according to the provision of sub-clause (a) (b) (c) (d) and (e) under the Regulation 12B (vii) of the amendment of Engineering Service Regulations during 1992 the assessment of merit for selection of an officer for promotion was done on the basis of the number of outstanding grading received by an officer in his ACR for five years before the selection. The "Board considering the inconvenience in such mode of assessment, removed those clauses by an amendment of the Regulation in 1995 and the matter t)f assessment of the comparative merit of the officers for selection left at the discretion of the DPC I. As such die DPC I could evolve its procedure considered appropriate for assessment of the comparative merits of the officers on the basis of their ACR for five years preceding the date of selection and recommended for promotion.” In 1983 by notification dated 27.5.83 the Regulation of 1973 was amended and numbering it as Regulation No. 14 reads asunder: “14. Appointment by promotion to the rank of Superintending Engineer Additional Chief / Chief Engineer, (a) Appointment by promotion to the rank of Superintending Engineer, Add] Chief Engineer and Chief Engineer from the ranks below as hereinafter mentioned shall be on the basis of merit-cum-seniority.” Earlier to 1992 the ACRs were to be graded as Outstanding, Very Good. Good, Average and Below Average. They were based on knowledge of rules, technical ability, personality, conduct, intelligence and other personal qualities. The said system was replaced by performance appraisal system in November, 1992. On 27.8.92 by an administrative order the promotion principles prevailing earlier was basically altered. In so far as promotion of an Executive Engineer to the rank of Superintending Engineer is concerned, the changed principle was as follows: “(i) promotion from the rank of Executive Engineer to that of the Superintending (ii) The Board in selecting an officer for promotion to the higher rank shall take into account the performance of the officer for a consecutive period of 5 years immediately preceding the date of selection. (iii) While evaluating the suitability on the basis of ACR and preparing a panel for promotion to the next higher post inter-se seniority of each of the officers included in the panel shall be determined in the following manner: (a) officers with 5 (five) outstanding grades will move to the top of the panel with their seniority inter-se intact. (b) officers with 4 (four) outstanding grades will move over those with 3 (three) outstanding grades. (c) officers with 3 (three) outstanding grades will move over officers with 2 (two) outstanding grades but will rank inter-se below officers with 4 (four) outstanding grades. (d) officers with 2 (two) outstanding grades in the span of 5 (five) years immedia­tely preceding the date of selection will be considered to be the same as very good. (e) The weight age for the very good grade in the ACRs will be considered in the same manner as for outstanding as prescribed in the above regulations. From the proceeding of the meeting of the DPC held on 27.2.98 which is quoted below it appears, that the DPC in making the promotion relied on the Amendment Rules of 1992 and 1995. The proceeding of the DPC is quoted below to appreciate this contention. The committee noted the followings: (a) 14 (fourteen) nos. of the vacancies in the cadre of Superintending Engineer (E 1) are to be filled up. (i) 3 (three) existing. (ii) 11 (eleven) are likely to occur in view of promotion of 11 (eleven) Superintending Engineers to the rank of Additional Chief Engineers. (b) Regulation 12B provided that promotion from the rank of Executive Engineer to the rank of Superintending Engineer shall be made on the basis of selection made by the DPC I to be shared by the Chairman. (c) Minimum qualifying service required for promotion from Executive Engineer to Superintending Engineer 5 years. (d) Zone of consideration between determined at four times to nos. of vacancies to be filled up as required under clause (v) of the Regulation 12B. (e) There are no officers from the Scheduled Caste/Scheduled Tribe communities within the zone of consideration. (f) Clause (vi) of Regulation 12B provides that the Board for selecting an officer for promotion to the higher rank shall take into account the performance of the officer for consecutive five years preceding the date of selection. (e) There are no officers from the Scheduled Caste/Scheduled Tribe communities within the zone of consideration. (f) Clause (vi) of Regulation 12B provides that the Board for selecting an officer for promotion to the higher rank shall take into account the performance of the officer for consecutive five years preceding the date of selection. (g) An Executive Engineer shall not be eligible for promotion to the rank of Superintending Engineer unless he possess the minimum qualification prescribed in Regulation 8A (i.e. Engineering degree or its equivalent). (2) The committee decided to evaluate the 5 years (from 1993 to 1997) ACRs of the 56 nos. of Executive Engineer on the basis of rating as shown below : Grading Rating Grading Rating Average 1 Good 2 Very good 3 Outstanding 4” In paragraph 17 of the writ application it has been stated that the orders dated 27.8.92 and 1.9.95 cannot have statutory power as they have failed to a conform to the mandatory requirements of section 79 and 79A of the Electricity (Supply) Act, 1948. Further, there is nothing to show that amendments were made by the Board adhering to requirements of amendments. No doubt the matter came as agenda No. 18 before the Board on 22.5.92 and the Board passed the following resolution. “Resolution No.13. The Board considered and approved the proposal for amendment to the Regulation 12 (a) and 12 (b) of the existing Regulation.” 6. The same is the contention in the other civil rules and it is on this back ground the challenge is made to these promotion orders stating that the process of decision making was vitiated by application of certain rules which cannot be deemed to have statutory character as they were not rules in the eye of law. It is c further argued that by an administrative order, the earlier rates of promotion could not have been superseded. The promotions having not been made by adhering to rules applicable are liable to be struck down. Seniority is alleged to have been given a complete go by. 7. Before we proceed further, let us take up the first preliminary objection raised by Mr. Saikia, learned Standing Counsel for ASEB. Mr. Saikia urges two points: (i) that there is .no prayer to declare the amended rules as invalid or unconstitutional and as such, they cannot be quashed as prayed for! 7. Before we proceed further, let us take up the first preliminary objection raised by Mr. Saikia, learned Standing Counsel for ASEB. Mr. Saikia urges two points: (i) that there is .no prayer to declare the amended rules as invalid or unconstitutional and as such, they cannot be quashed as prayed for! (ii) that the scope of judicial review is limited. This Court cannot exercise the appellate power in the garb of judicial review to set at naught the selection made by DPC. But Sri Saikia failed to consider that the concern of the constitutional Court is the legitimacy of the decision making process and not the merit of the decision. If it can be established that the promotions were given by considering the amended Rules of 1992 and 1995 which if are found not to be valid rules certainly the decision making process shall stand vitiated inasmuch as certain norms not available to the DPC has been exercised by the DPC. In this connection Sri Saikia places reliance in 1998 (3) GLT 167 (Y. Sashimohan Singh & others vs. Gurumayam Satyabati Devi & others), 1998.(3) GLJ 428) where principle has-been enunciated by a Division Bench of this Court relying on a decision of the Apex Court in (1990) 1 SCC 305 (Dalpat Abasaheb Solunke & others vs. Dr. BS Mahajan & others) and (1997) 4 SCC 575 (Durga Devi & another vs. State of Himachal Pradesh & others). As these two decisions have been relied in that Division Bench judgment of this Court, it is not necessary to independently consider these two decisions: The Division Bench has pointed out that in the field of promotion the role of the Court is marginal. It can touch it only when relevant things are left out or irrelevant things are taken into consideration or there is mala fide exercise of power. There is no quarrel with this proposition of law. But I have indicated above that if the decision making itself is a bad one, that will make the decision also bad and the decision itself will have to be quashed. Regarding the plea that the validity of the rules .have not been challenged, that is not the correct contention in as much as in paragraph 17 of the writ application in Civil Rule No. 1958 of 1998 that has been challenged, though no doubt not in an elaborate manner.” 8. Regarding the plea that the validity of the rules .have not been challenged, that is not the correct contention in as much as in paragraph 17 of the writ application in Civil Rule No. 1958 of 1998 that has been challenged, though no doubt not in an elaborate manner.” 8. Let us take up the first-contention of Sri BN Sharma learned Advocate for the petitioners in Civil Rule No, 1958 of 1998. The first contention is that from the affidavit-in-opposition filed by the ASEB, it will be seen that they have accepted it as amendment to the rules and it was on the basis of that DPC acted upon. He draws my attention to section 79 of the Electricity (Supply) Act, 1948. Section 79 was amended in the year 1984 and as such, rules which were amended in 1992 and 1995 must comply with the requirement of section 79 of the Act of 1948. Section 79 (c) gives the power to the Board to frame rules with regard to the duties of officers and other employees of the Board and their salaries, allowances and other conditions of service. Promotion certainly is the condition of service and if there is any rules or amendment with regard to this, that must conform to section 79 as amended in 1984. The amendment provides that the Board by notification in the Official Gazette may make regulations. The contention of Sri Sharma is that these amended rules of 1992 and 1995 were never notified in the Official Gazette. I asked Mr. Saikia to produce the copy of the Gazette notification where it has been notified. But Mr. Saikia failed to do so. Rather he admitted that these rules have not been notified in the Official Gazette. Sri Saikia further submits that as the Board does not have any Official Gazette, the question of noticing it in the Official Gazette does not arise. But the Official Gazette has been defined in the General Clauses Act and section 3 (39) of that Act defines what is Official Gazette. Official Gazette or Gazette shall mean the Gazette of India CT Official Gazette of State. So, it does not lie in the mouth of the counsel to say that as Electricity Board does not have Official Gazette, the Add matter 140 9. Official Gazette or Gazette shall mean the Gazette of India CT Official Gazette of State. So, it does not lie in the mouth of the counsel to say that as Electricity Board does not have Official Gazette, the Add matter 140 9. In DB Raju vs. HJ Kantharaj, (1990) 4 SCC 178 (see also AIR 1952 SC 167 , AIR 1987 SC 658) the Supreme Court observed that where a law demanded compliance, those who were governed must be notified directly and reliably of the law and all the changes and additions to it by various process. The Court observed that unlike parliamentary legislation which is publicly made, delegated or subordinate is often made un-abstractedly in the chambers of a Minister, a Secretary to the Govt. . or other official dignitary and it was therefore necessary that subordinate legislation in order must be published in some suitable manner whether such publication or promulgation was prescribed by the parent statute or not. The subordinate legislation would take effect from the date of such publication or promulgation. In M/s Pankaj Jain Agencies vs. Union of India (1994) 5 SCC 198 and Ravinder Kumar vs. State of Punjab, 1995 (Suppl) 1 SCC 594 it was held that where the mode of publication is prescribed, the notification will come into effect from the date of publication. So where a mode is prescribed it must be adhered to otherwise it will not be effective (see also AIR 1958 SC 296 , AIR 1960 SC 439). Further delegates legislation should not be manifestly arbitrary, such as could not be reasonably expected from the authority (See Khodey vs. State of Karnataka, AIR 1996 SC 911 ). The amendment rules are found to be quite arbitrary giving sweeping powers to the authority leaving the employees at the mercy of employer in the field of promotion without reasonable basis. 10: There is also an argument that some of the persons who have been promoted being not made parties, all promotions cannot be set aside. The selection persons parties (see (1996) 10 SCC 42 , Hanuman Prasad v. Union of India). Even if (he promotions of these persons are not touched this Court certainly look to the infirmity/illegality and can mould the relief 11. Right to be promoted is not vested right. The selection persons parties (see (1996) 10 SCC 42 , Hanuman Prasad v. Union of India). Even if (he promotions of these persons are not touched this Court certainly look to the infirmity/illegality and can mould the relief 11. Right to be promoted is not vested right. But the right to be considered for promotion is a vested right and also a fundamental right as held in Ajit Singh's case, (1999) 7 SCC 209 . If the principles of promotion laid down by regulations are altered and/or changed it must be done by due amendment and not by administrative order. It was further contended by Mr. Sharma that the amended rules were not laid before the Legislative Assembly as required under section 19 (a) of the Electricity (Supply) Act, 1948. Sri Saikia by producing a letter submits .that this contention is not correct as it was laid before the State Assembly. As the Regulation falls under the category an having the efficiency of law, this would become valid regulation only if promulgated published in such prescribed manner. Once the Board framed regulation without noticing in the Official Gazette it must be held that it cannot be as it was not properly promulgated and published. The add matter 141Regulation is made laying down certain things it cannot be superseded by an administrative order of the Board. The administrative order of the Board cannot be allowed to be over ride the statutory regulation made by the Board earlier. If any authority is required for this proposition of law one may have a look at 1987 Lab 1C 262 (The Comptroller and Auditor General of India, Gian Prakash, New Delhi & another vs. KS Jagannathan & another). 13. Accordingly, I find that Annexures 4 and 5 cannot be deemed to be Regulation framed by the Board in exercise of power under Section 79 of the Electricity (Supply) Act, 1948 and as such they cannot override the earlier provisions with regard to promotion made in 1973 and 1983. A bare perusal of the DPC proceeding will show that it acted on the basis of these Rules of 1992 and 1995 and did not consider the earlier Rules of 1983 and 1973. So, the whole decision making process was bad having taken into consideration irrelevant matters. A bare perusal of the DPC proceeding will show that it acted on the basis of these Rules of 1992 and 1995 and did not consider the earlier Rules of 1983 and 1973. So, the whole decision making process was bad having taken into consideration irrelevant matters. Accordingly, without going to anything else, the whole DPC proceeding and the promotions made on the recommendation of it is to be quashed which I hereby do Now fresh steps shall be taken to promote the officers on the basis of 1973 and 1983 Regulations and not on the basis of 1992 and 1995 Amendments as these have not been framed in accordance with law. Fresh steps for promotion shall be taken by strictly adhering to 1973 and 1983 Rules by taking into consideration all the candidates who come within the zone of consideration, as pointed out by the Supreme, Court that consideration for promotion is a fundamental right and that also has been denied in this particular ease as earlier five persons were to be considered for promotion to each post, but that was reduced to four without authority of law. The further proceeding for promotion shall be completed within a period of three (3) months from the date of receipt of this order. For this period of three (3) months, persons already promoted may not be demoted. But if within the period of three months the proceeding for promotion is not completed, the persons promoted shall be demoted as they cannot be allowed to enjoy a wrongful state of things. 14. All the civil rules are allowed by quashing the orders dated 27.8.92 (Annexure 4) and dated 1 .9.95 (Annexure 5), dated 17.7.92, the amended Rules of 1 992 and the amended Rules of 1 995 and the promotion made on 1 6.3 .98 vide Annexure 1 on the basis of DPC proceeding dated 27.2.98. The proceeding of the DPC also shall stand quashed. The period of three months shall run from the date of receipt of the copy of the order by the ASEB. The petitioners shall obtain the certified copy of this order and shall produce the same before the authority to do the needful in terms of the order. I make no order as to costs.