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Gauhati High Court · body

2001 DIGILAW 106 (GAU)

Bhabani Dhar Choudhury v. State of Assam and Ors.

2001-04-12

H.K.SEMA

body2001
By this application under Article 226 of the Constitution of India the petitioner prays for a writ in the nature of Mandamus and/or Certiorari to set aside and quash the Select List dated 13.9.2000 selecting the respondent Nos 3 and 4 for promotion to the post of Additional Chief Engineer, PWD (Civil) pursuant to the recommendation of the Selection Committee in its meeting held on 9.8.2000. 2. Facts in compendium are these. The petitioner entered into service as Assistant Engineer under the Public Works Department and joined the said post on 22.4.66. In 1976 he was promoted to the post of Sub Divisional Officer (re-designated as Assistant Executive Engineer). In 1988 the petitioner was promoted to the post of Executive Engineer and sometime in April, 1999 he was further promoted to the rank of Superintending Engineer. The petitioner is now holding the post of Deputy Secretary and in addition to his duties as Deputy Secretary, he is also holding the charge of Officer on Special Duty which is equivalent to Joint Secretary rank in the Public Works Department (herein after for short PWD). In the Seniority List issued by the Secretary to the Govt of Assam, PWD vide Notification No.Con. 12/94/Pt/94 dated 13.8.99 the name of the petitioner figured at SI No. 26 whereas the name of the respondent No figured at SI No. 32. Sometime in 1999 seven vacancies in the post of Additional Chief Engineer had occurred for promotion from the rank of Superintending Engineer. The Selection Board in its meeting held on 18.8.99 recommended a list of 14 officers. The said Select List was approved by the appropriate authority in its notification dated 11.10.99. In the said Selection Board the case of the petitioner was considered along with other eligible candidates falling within the zone of consideration. However, the petitioner was not found suitable in the selection held on 18.8.99. His name, therefore, does not figure in the notification dated 11.10.99 approving the Select List for promotion to the post of Additional Chief Engineer. In the notification dated 11.10.99 it has been specifically stated that the Select List will remain valid for 12 calendar months from the date of approval of the Selection Board. His name, therefore, does not figure in the notification dated 11.10.99 approving the Select List for promotion to the post of Additional Chief Engineer. In the notification dated 11.10.99 it has been specifically stated that the Select List will remain valid for 12 calendar months from the date of approval of the Selection Board. It may be mentioned that in the said Select List as many as 14 Superintending Engineers have been recommended for the vacant posts of 7 (seven) Additional Chief Engineer in accordance with the provisions of the rules and promoted. As already stated, the petitioner has not been selected along with others although his name was considered. Thereafter, consequent upon the recommendation of the Selection Board meeting held on 9.8.2000 the authority published Select List of 8 officers of Superintending Engineer rank for promotion to 4 vacancies of Additional Chief Engineer under PWD by notification dated 13.9.2000. In the Selection Board meeting held on 9.8.2000 for 4 vacancies of Additional Chief Engineer as many as 16 candidates including the petitioner were considered. However, the a petitioner was riot found suitable and consequently the respondent No and 4 have been recommended along with others and approved by the notification dated 13.9.2000 for promotion to the post of Additional Chief Engineer. It is the specific case of the petitioner that in the Seniority List published by the authority in the cadre of Superintending Engineer the respondent No. 3 figured at SI No. 32 whereas the name of the petitioner appeared at SI No. 26 and therefore the impugned recommendation dated 9.8.2000 and the notification dated 13.9.2000 approving the recommendation of the Select List has to be quashed. The petitioner also prayed for fresh selection for promotion to the rank of Additional Chief Engineer. 3. In the facts and circumstances recited above, the petitioner prayed for the following relief. The petitioner also prayed for fresh selection for promotion to the rank of Additional Chief Engineer. 3. In the facts and circumstances recited above, the petitioner prayed for the following relief. To set aside and quash the impugned Select List dated 13.9.2000 as arbitrary and illegal and direct the respondents not to give any appointment on the basis of the Select List dated 13.9.2000 and directing the respondent Nos 1 and 2 to hold fresh selection for promotion to the rank of Additional Chief Engineer (C) by taking up all the anticipated vacancies as per the rules and also for a direction to be issued to the respondents not to disturb the petitioner from the post till fresh selection is made by the respondent and also prayed for stay operation of the Select List dated 13.9.2000. 4.1 have heard Mr. AK Phookan, learned counsel appearing for the petitioner, Mr. B J Talukdar, learned Govt advocate for the respondent Nos 1 and 2 and Mr. A. Roy, learned counsel for the respondent Nos 3 and 4. 5. Before proceeding further, I am at this stage point out that by the impugned notification dated 13.9.2000 as many as 8 candidates has been recommended and approved for promotion to the rank of Additional Chief Engineer for the vacancy of 4 posts of Additional Chief Engineer. The recommendation was made in the order of merit. The name of the respondent No. 4 Shri Khagendra Choudhury appeared at Sl No. l and the name of the respondent No. 3 Shri Hem Chandra Bhuyan appeared at Sl No.2 of the Select List approved by the impugned notification. The other recommended candidates whose names appeared in the impugned Select List in serial Nos 3 and 4 and otherwise eligible for promotion within the vacancy of 4 posts has not been impleaded as party respondents in this writ proceedings. Since they are not impleaded as party respondent they are not before this Court. The prayer of the writ petitioner as quoted above, was for quashing of the approval of the Select List by the notification dated 13.9.2000. If the notification dated 13.9.2000 is quashed by this Court the selected candidates particularly whose name appeared at Sl. Nos 3 and 4 of the Select List who are eligible for promotion to the post of Additional Chief Engineer in the resultant vacancy of four posts would be condemned unheard. If the notification dated 13.9.2000 is quashed by this Court the selected candidates particularly whose name appeared at Sl. Nos 3 and 4 of the Select List who are eligible for promotion to the post of Additional Chief Engineer in the resultant vacancy of four posts would be condemned unheard. Since the petitioner prayed for quashing of the entire selection process, in the interest of justice, equity and h fair play the selected candidates whose name figured in the impugned notification dated 13.9.2000, particularly serial No.l to 4, ought to have been impleaded as party respondents which has not been done in the instant case. This would amount to denial of reasonable opportunity of being heard and violative of the principles of natural justice. Even on this score alone no effective relief can be granted to the petitioner. 6. Reverting to the facts of the case at hand, Mr. AK Phookan has raised the following contentions - (a) That the vacancies approved by the State Level Empowered Committee (in short SLEC) for promotion to the post of Additional Chief Engineer was 9 vacancies, but the selection has been held on 9.8.2000 for 4 vacancies by applying pick and choose policy. (b) That the Select List was published to favour the respondent No. 3 who superseded many officers senior to him and no reason has been assigned as to why the respondent No. 3 has been selected despite he being junior to the petitioner and many other officers; (c) That the grading of outstanding in the ACR of respondent No. 3 for the year 1999 considered by the Selection Committee was unwarranted as there was no development work initiated by the respondent No. 3 at the relevant time which can attribute outstanding in the ACR of the respondent No.3 and on this score alone the selection of respondent No.3 is liable to be interfered in exercise of judicial review. 7. In the instant case, apart from the allegations that the petitioner is senior to the respondent No.3 and the outstanding grading in the ACR of respondent No.3 for a particular year is unwarranted, the petitioner has not challenged the illegality or irregularity in the constitution of the Committee or its procedure vitiating the selection or proved malafide effecting the selection. 8. 8. By now it is sell settled principle of law that it is not a function of the Court to hear appeals over decision of the Selection Committee and scrutinize the relative merits of the candidates. Avoiding multiplicity, I may refer to the decision of the Supreme Court in Dalpat Abasaheb Solunke vs. BS Mahajan reported in AIR 1990 SC 434 . In that case, the Supreme Court while dealing with the case similarly situated with the case in hand pointed out in paragraph 9 of the judgment as under : "9. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on he same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the elative merits of the candidates. Whether a candidate is fit for a particular post or to has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the election Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved malafides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction." 9. Let me now deal with the points urged by the counsel for the petitioner. In sitting in appeal over the selection so made and in setting aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction." 9. Let me now deal with the points urged by the counsel for the petitioner. The contention of the counsel for the petitioner that although the State Level Empowered Committee has approved for filling up of 9 posts, only 4 posts has been considered by the Selection Committee by applying pick and chose policy in order to favour a few has no substance. Filling up of numbers of posts is clearly within the domain of the executive authority to be decided on the exigency of service. The circumstance leading to the filling up of 4 posts by the Selection Committee has been explained in details in the counter filed by the respondent No. 3, apart from the Govt's affidavit and the Minutes of the Selection Board held on 9.8.2000. From the Minutes of the selection held on 9.8.2000 it clearly appear that the appropriate Govt by Memo dated 6.12.99 constituted State Level Empowered Committee to optimize utilisation of service of Govt employees. The aforesaid Memo was issued with an eye to avoid wasteful employment and also to streamline financial discipline and to avoid expenses incurred in making surplus Govt employments. This Memo dated 6.12.99 added a rider which reads- "The existing vacant posts including those which may fell vacant in future will not be filled up either by direct recruitment or by promotion without the approval of the State Level Empowered Committee. This will come into force with immediate effect" 10. In the instant case the SLEC has given approval for 9 posts of Additional Chief Engineer upto 31.12.2000 by an order dated 3.4.2000 and thereafter the authority decided to promote officers from the Select List dated 11.10.99. Three officers were accordingly promoted to the post of Additional Chief Engineer on 5.4.2000 and another two officers were promoted on 28.6.2000 making total five posts filled up on the basis of the Select List published on 11.10.99. The aforesaid promotions have also been made prior to expiry of the Select List dated 11.10.99. Therefore, when the Selection Committee held its meeting on 9.8.2000 the remaining posts were only 4. The aforesaid promotions have also been made prior to expiry of the Select List dated 11.10.99. Therefore, when the Selection Committee held its meeting on 9.8.2000 the remaining posts were only 4. Constituting the State Level Empowered Committee, being a policy decision of the Govt to serve better interest of the public at large, the respondents are absolutely justified in making appointment pursuant to the clearance of the State Level Empowered Committee. The question of filling up of 9 posts or 4 posts insofar with regard to the petitioner makes no different. The entire record of the proceedings of Selection Committee held on 9.8.2000 has been placed before me and the same has been perused. In the minutes of the Selection Committee it appears that the Selection Committee considered as many as 16 candidates along with the petitioner for 4 vacancies of the post of Additional Chief Engineer. The name of the petitioner appeared in serial No. 12 in Category II of recommendation. Therefore, even if assuming that the selection was held for 9 posts, the petitioner cannot come within the purview of selection. 11. The next contention of Mr. Phookan that the respondent No. 3 is junior to the petitioner is not controverted. However, the Selection Committee considered the cases of candidates in terms of Rule 13 (4) of the Assam Engineering (Public Works Department) Service Rules, 1978 (for short the Rules) for promotion a from the rank of Superintendent Engineer to the rank of Additional Chief Engineer. For brevity, Rule 13 (4) of the Rules is extracted - "13. (4) Promotions upto the rank of Superintending Engineer on merit and suitability with due regard to the seniority and promotions above the rank of Superintending Engineer on merit-cum-seniority." (emphasis supplied) 12. A bare reading of the Rules as quoted above, would clearly show that for the promotion to the post of above the rank of Superintending Engineer shall be considered on merit-cum-seniority. Therefore, the merit would dominate the selection process and only, when in the event of merit being equal the question of seniority comes into play. The promotion to the post of Additional Chief Engineer being a matter of selection post, the merit of the respective candidates has to be c assessed on the basis of the ACR, dossier and other attending documents. The promotion to the post of Additional Chief Engineer being a matter of selection post, the merit of the respective candidates has to be c assessed on the basis of the ACR, dossier and other attending documents. The Committee after requisition from the Department that existing posts of 4 Additional Chief Engineer are to be filled up considered as many as 16 candidates including the petitioner. In the list of candidates to be considered, the name of the petitioner appears at serial No. 13. The Committee after threadbare discussion accepted the suggestion of Technical Secretary's advice dated 13.5.94 to form d an uniform policy for selection of officers for promotion to different cadres in Technical Department of Assam. The following marks are allocated for each remarks in the ACR of Officers - "Below Average Average Good Very good Outstanding The Board has categorization of the officers into the following three categories on the basis of total points obtained by them. Category 1-16 points and above. Category II - 11 points to below 16 points Category III - 0 points to 11 points." On the basis of the ACRs placed before the Board and after verification and examination of ACRs and other documents the Board evaluated the ACRs of the Officers as under accepted the 1. Shri KarunabhiramRajkhowa 2+3+3+3+4 = 15 points 2. Shri Kabi Chandra Bezbarua 2+3+3+3+2.5 = 13.5 points 3. Shri Jitendra Kumar Saikia 2+3+2.5+2+2 = 11.5points 4. Shri Khagendra Choudhury 3+3+3+3+4 = 16 points 5. Shri Aftab Hussain 3+3+2+3+3.5= 14.5 points 6. Shri Hareswar Deka 2+2+2+3+3 = 12 points 7. Shri Prabhash Ranjan Chakraborty 2+2+3+3+3 = 13 points 8. Shri Birendra Kumar Das 3+2+3+3+3 = 14 points 9. Shri Abedur Rahman 2+2+3+3+3 = 13 points l0. Shri Abhoy Chandra Hazarika 2+3+2+2.5+3 = 12.5 points 11. Shri Bipul Chakraborty 3+3+3+3+3 = 15 points 12. Shri Rasendra KumarDey 3+2.5+2+3+2 = 12.5 points 13. Shri Bhabani Dhar Choudhury 3+3+3+3+3 = 15 points 2001(2) F-42 14. Shri Sachindra Kalita 3+3+2+2+2 = 12 points 15 Shri Ghanendra Kumar Nath 3+3+3+3+3 = 15 points 16.Shri Hem Chandra Bhuyan 3+3+3+3+4 =16 points 13. The Board after having evaluated the officers on the basis of ACRs and other attending documents categorised the officers as below : Category I: Sl. No. 1 Shri Khagendra Choudhury (SI No. 4) Sl. No. 2 Shri Hem Chandra Bhuyan (SI No. 16) Category SI. No. 1 Shri Kanmabhiram Rajkhowa SI. The Board after having evaluated the officers on the basis of ACRs and other attending documents categorised the officers as below : Category I: Sl. No. 1 Shri Khagendra Choudhury (SI No. 4) Sl. No. 2 Shri Hem Chandra Bhuyan (SI No. 16) Category SI. No. 1 Shri Kanmabhiram Rajkhowa SI. No.2 Shri Kabi Chandra Bezbarua SI. No. 3 Shri Jitendra Kumar Saikia SI. No.4 Shri Aftab Hussain SI. No. 5 Shri Hareswar Deka SI. No. 6 Shri Prabhash Ranjan Chakraborty SI. No. 7 Shri Birendra Kumar Das SI. No. 8 Shri Abedur Rahman SI. No. 9 Shri Abhoy Chandra Hazarika SI. No. 10 Shri Bipul Chakraborty SI. No. 11 Shri Rasendra Kumar Dey SI. No. 12 Shri Bhabanidhar Choudhury SI. No. 13 Shri Sachindra Kalita, SI. No. 14 Shri Ghanendra Kumar Nath. 14. From the evaluation of marks allotted to each candidates on the basis of ACR and other documents it will clearly appear that the petitioner Shri Bhabani Dhar Choudhury, whose name appeared at serial No. 13 has secured 15 marks. The respondent No.3 Shri Bhuyan whose name appeared at serial No. 16 of the list secured 16 marks and the respondent No.4 Shri Khagendra Choudhury, whose name appeared at serial No.4 of the list secured 16 marks. Therefore, the respondent No. 3 and 4 has been correctly categorized in Category I with serial Nos 1 and 2. In the final list the name of the petitioner Shri Bhabani Dhar Choudhury has figured in Category II and at serial No. 12.1 am of the clear view that the petitioner and the respondent Nos 3 and 4 have been rightly categorized as per the marks obtained by them on the basis of their ACRs. 15. The contention of Mr. Phookan that the petitioner is senior to the respondent No.3 and when the respondent No.3 is selected in preference to the petitioner, the Selection Board must record reasons in writing as envisaged under Rule 13 (5) has no substance. In this connection Mr. Phookan has referred to the decision of a Division Bench of this Court in Abdul Fazal vs. Assam Administrative Tribunal, (1990) 2 GLR 292 (1990 (1) GLJ 108). In the instant case I have already quoted Rule 13 (4) which say that promotion above the rank of Superintending Engineer shall be on merit-cum-seniority. In this connection Mr. Phookan has referred to the decision of a Division Bench of this Court in Abdul Fazal vs. Assam Administrative Tribunal, (1990) 2 GLR 292 (1990 (1) GLJ 108). In the instant case I have already quoted Rule 13 (4) which say that promotion above the rank of Superintending Engineer shall be on merit-cum-seniority. I have already quoted the evaluation of marks of all the candidates including the petitioner. When the rule says that promotion shall be considered on merit-cum-seniority, the suitability of the respective candidates are assessed on the basis of ACR and merit, in such a situation merit alone would dominate the process of selection and not seniority. The question of seniority comes in the event of merit being equal. In such case evaluation of marks on the basis of ACR would be sufficient compliance of Rule 13 (5) of the Rules. 16. The last submission of the counsel for the petitioner also deserves disposal. Mr. Phookan has strenuously target that the Rule 13 of the Rules postulates that before end of each year the Govt shall make assessment of likely number of vacancies to be filled up by promotion in the next year in each cadre. According to Mr. Phookan this provision has been violated, inasmuch as, the procedure laid down in Rule 13 has not been followed by the appropriate authority indicating the number of vacancies to be filled up by promotion in the next year in each cadre before the end of each year. According to Mr. Phookan the authority has clubbed together with the post to be filled up in each year which is not permissible under the law. How the petitioner is aggrieved by this. First of all it is not a case of the petitioner that his case was not considered in the existing vacancy. In fact his case was considered in the selection held on 18.8.99 and on 11.10.99 when he was not found fit. Even in the selection held on 9.8.2000, he was not found fit. The vacancy position, whether it was 9 or 4 has already been explained in the foregoing paragraphs. I do not find any irregularity or illegality in the selection process in the background of position as explained above. Even in the selection held on 9.8.2000, he was not found fit. The vacancy position, whether it was 9 or 4 has already been explained in the foregoing paragraphs. I do not find any irregularity or illegality in the selection process in the background of position as explained above. However, if there is anything it was purely a question of overlapping created by constituting the State Level Empowered Committee and approval of select list by the Committee on 3.4.2000 upto 31.12.2000. Such overlapping occurred in the aforesaid circumstance does not amount to clubbing of posts. On the other hand, on perusal of the entire proceedings of the Selection Committee no patent illegality or irregularity which vitiates the proceedings and selection has been noticed. 17. In the facts and circumstances as discussed above, there is no merit in this writ petition and the same is accordingly dismissed. Parties are asked to bear their own costs. The interim order dated 10.10.2000 stands vacated.