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2002 DIGILAW 444 (GAU)

Janardhan Dutta v. Tapas Pratim Saikia

2002-10-11

AMITAVA ROY, P.P.NAOLEKAR

body2002
AMITAVA ROY, J.— The above writ appeals have been presented assailing the common judgment and order dated 20.6.2000 passed by the learned Single Judge allowing the two writ petitions being Civil Rule No. 2773 of 1998 and Civil Rule No. 3184 of 1998 wherein the present appellant was impleaded as respondent No. 4. The Writ Appeal No. 312/2000 corresponds to Civil Rule No. 3184 of 1998 and the Writ Appeal No. 313/2000 corresponds to Civil Rule No. 2773 of 1998. The respondent No. 1 in both the appeals, was the writ petitioner in the respective writ petitions. 2. As the appeals involve common questions of facts and law, we propose to dispose of the same by this common judgment and order. 3. We have heard Mr B.K. Sharma, learned senior counsel assisted by Mr D.K. Sharma, advocate for the appellant and Mr N.N. Saikia, learned senior counsel assisted by Ms G. Deka, advocate for the respondent No. 1. Mrs. A. Hazarika, learned Additional Senior Govt. Advocate, Assam has appeared on behalf of the State-respondents. 4. It would be necessary to have a stock of the relevant facts to comprehend the issues involved. The primary facts appears to be not in dispute. However, the rival versions have to be placed in seriatim. 5. The case of the writ petitioner/ respondent No. 1 in Civil Rule No. 2773 of 1998 is that after obtaining the Graduate Degree in Mechanical Engineering, he joined the Guwahati Mechanical Division of the Irrigation Department, Government of Assam as Assistant Engineer being appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1955 (hereinafter referred to as the Regulations) on 19.2.1981 and his said appointment was subsequently regularised with effect from 11.1.82. The Government of Assam framed the Assam Engineering (Irrigation Department Service Rules, 1978 (hereinafter referred to as the Rules) for regulating the recruitment and conditions of service of the persons appointed to the Assam Engineering (Irrigation Department) Service (hereinafter referred to as the service). In the year 1981, the Government having made assessment of the requirement of filling up of the vacancies in the cadre of Assistant Engineer (Mechanical) by direct recruitment, appointed the petitioner as a direct recruit as above. In the year 1981, the Government having made assessment of the requirement of filling up of the vacancies in the cadre of Assistant Engineer (Mechanical) by direct recruitment, appointed the petitioner as a direct recruit as above. The regularisation of the appointment of the petitioner was also made on the recommendation of the Assam Public Service Commission (hereinafter referred to as the Commission) in terms of the rules with effect from 11.1.82. The appellant/respondent No. 4 joined as Oversear (Mechanical) in the then Engineering Wing of the Agricultural Department, Government of Assam on 3.11.72. The said wing of the Agricultural Department after having been merged with the Irrigation Department in the year 1973, the appellant/respondent No. 4 became an employee of the Irrigation Department. At the relevant time, as there was no service rules in the Irrigation Department, promotion from Subordinate Engineering Service to the post of Assistant Engineer in the department was in terms of the Revision of Pay Rules, 1973 and the promotional quota for such promotion to the cadre of Assistant Engineer from that of the Sub-Engineer was 20% of the annual intake of the Assistant Engineers. After the framing of the Rules, Rule 11 provided for such promotion to the rank of Assistant Engineer. Under Rule 11(3), vacancies to be filled up by promotion of Sub-Engineers, were to be so fixed that the promoted Asstt. Engineers would not exceed 30% of the total corresponding cadre strength of permanent and temporary Asstt. Engineers. Under Rule 11(4), a member of the Assam Subordinate Engineering (Irrigation Department) Service would become eligible for promotion as Asstt. Engineer on rendering 8(eight) years of service as a Subordinate Engineer on the 1st January of the year of promotion and if he had successfully undergone the training and had passed the departmental examination as prescribed by the Government from time to time. According to the petitioner/respondent No. 1, the rules were prospective in nature and the qualifying service of 8 years as prescribed by Rule 11 (4) of the rules would have to be computed from the date of notification of the rules i.e. on 8.8.1979. On 29.3.1988, the Department published the inter se seniority list of Junior Engineers (Mechanical) wherein the appellant/respondent No. 4 was placed at SI. No. 18. However, the incumbents at SI. On 29.3.1988, the Department published the inter se seniority list of Junior Engineers (Mechanical) wherein the appellant/respondent No. 4 was placed at SI. No. 18. However, the incumbents at SI. No. 1 to 9 had, in the meantime, in the year 1979, been promoted to the post of Assistant Engineers. For all practical purposes, according to the petitioner, at the relevant time, the appellant/respondent No. 4 occupied 9th position in the seniority list of Junior Engineers in the Department for promotion. 6. Following the procedure prescribed by Rule 13 for promotion, the selection board had two sittings on 23.10.86 and 15.12.86 wherein it considered the candidature of eligible Subordinate Engineers/Junior Engineers and recommended a list of 17 such officers to be promoted as Assistant Engineer (Mechanical). In terms of the rules, the Commission approved a list of 10 (ten) candidates for the said purpose. The name of the appellant/respondent No. 4 was at SI. No. 8 in the said list. However, only 5 candidates from SI. Nos. 1 to 5 were promoted in the year 1987. In its next meeting held on 28.6.88, the Selection Board again recommended names of 26 Junior Engineers for promotion to the post of Asstt. Engineer (Mechanical). The name of the appellant/respondent No. 4 was at SI. No. 3 in the said list and the Commission having accorded its approval to the said list, the appellant/respondent No. 4 along with 8 other Junior Engineers were promoted as Assistant Engineers (Mechanical). 7. The appellant/respondent No. 4 being aggrieved by his delayed promotion, filed an application under Article 226 of the Constitution of India before this Court contending inter alia, that he ought to have been promoted in 1982. The writ petition which was registered as Civil Rule No. 1348 of 1989 was disposed of by this Court on 28.1.94 directing the appellant/ respondent No. 4 to file a fresh representation before the concerned authority of the Government ventilating his grievances, and further directed that if he was still aggrieved by the order that would be passed on the said representation, he should approach the Assam Administrative Tribunal, Guwahati for necessary reliefs under the law. Accordingly, the appellant/ respondent No. 4 filed a representation before the Secretary, Government of Assam, Irrigation Department but, as the same was not disposed of within the stipulated period of 2 (two) months as fixed by this Court, he preferred an appeal before the learned Assam Administrative Tribunal, Guwahati being Case No. 78ATA/94. The learned Tribunal by order dated 30.6.94 directed the Government to dispose of the representation by a speaking order. Eventually, by order dated 21.9.94, the said representation was disposed of holding that though the appellant/ respondent No. 4 had fulfilled the conditions for promotion to the post of Asstt. Engineer (Mechanical) in the year 1981, he could not be promoted for want of vacancies. 8. The appellant/respondent No. 4 in terms of the directions of this Court contained in the judgment and order dated 1.2.94 in the earlier writ petition, thereafter, preferred an appeal before the learned Assam Administrative Tribunal, Guwahati challenging the order dated 21.9.94 passed on his representation. The appeal was registered as Appeal Case No. 124 AT A/94. The learned Tribunal by judgment and order dated 22.2.96 allowed the appeal, setting aside the order dated 21.9.94 and directed the Irrigation Department to notify the promotion of the appellant/respondent No. 4 from the date on which his promotion was due i.e. 11.1.82 in terms of the rules. This judgment and order of the learned Tribunal was challenged in Civil Rule No. 2773 of 1998. 9. The case of the writ petitioner in Civil Rule No. 3184 of 1998 is identical on facts as in the Civil Rule No. 2773 of 1998. The only difference is that he was a direct recruit as well, having joined the Guwahati Mechanical Division of Irrigation Department, Government of Assam as Assistant Engineer on 25.2.1981 being appointed under Regulation 3(f) of the regulations and further, his said appointment was regularised with effect from 11.1.82. The additional fact stated in his writ petition is that pursuant to the judgment and order dated 22.2.96 passed by the Assam Administrative Tribunal, the Irrigation Department had issued a letter dated 8.6.98 conveying the decision of the Government sanctioning creation of supernumerary post of Assistant Engineer (Mechanical) for the period from 11.1.1982 to 20.5.89. 10. The additional fact stated in his writ petition is that pursuant to the judgment and order dated 22.2.96 passed by the Assam Administrative Tribunal, the Irrigation Department had issued a letter dated 8.6.98 conveying the decision of the Government sanctioning creation of supernumerary post of Assistant Engineer (Mechanical) for the period from 11.1.1982 to 20.5.89. 10. The contentions raised in the writ petition are that as admittedly the appellant/respondent No. 4 had passed the departmental examinations required under Rule 11(4) on 24.9.81 and 26.9.81 whereas, the process for appointment of the petitioner as Asstt. Engineer under the rules had been initiated on 25.2.1981, at a point of time when the appellant/ respondent No. 4 was not eligible to be considered for such promotion, the learned Tribunal erred in law in directing to notify the promotion of the appellant/respondent No. 4 from 1982, by overlooking the fact that the Irrigation Department had initiated, the process of making direct recruitment on 25.2.1981 being satisfied that at that point of time, there was no eligible departmental Sub-Engineer/Junior Engineer for promotion. It was further contended that there was no backlog in the promotional quota of 30% prescribed by the rules as on 25.2.1981 and, therefore, the finding of the learned Tribunal that the promotional quota under the rules had been breached is without any factual basis. They, therefore, maintained that the impugned judgment and order dated 22.2.96 and the consequential order dated 8.6.98 were illegal and not sustainable in law and on facts and were liable to be set aside and quashed. 11. The appellant/respondent No. 4 in his affidavit in the above writ petitions, stated that in the year 1981, he had completed 8 years of qualifying service as Subordinate Engineer (later designated as Junior Engineer) as provided under Rule 11(4) of the Rules and also having cleared the departmental examination prescribed therein, was qualified and eligible for promotion to the post of Assistant Engineer and the department in not considering and promoting him as such, and instead making direct recruitments in excess of the quota prescribed by the rules acted in contravention thereof thus, denying him his due promotion in service. The appellant/respondent No. 4 referred to a chart submitted by the then Commissioner and Secretary, Government of Assam, Irrigation Department before the learned Tribunal and stated that the cadre strength of Asstt. The appellant/respondent No. 4 referred to a chart submitted by the then Commissioner and Secretary, Government of Assam, Irrigation Department before the learned Tribunal and stated that the cadre strength of Asstt. Engineers in 1982 were 65 out of which 58 were direct recruits and 7 were promotees. According to him, if 58 direct recruits can be taken to be 70% of the cadre strength, then 30% thereof would come to 25 and, therefore, following the mandate of the rules, there ought to have been 25 promotee Assistant Engineers in the said cadre. As according to the chart, only 7 promotee Engineers were in the cadre, there was a backlog/deficiency of 18 (25-7) promotee Assistant Engineers in the cadre in the year 1982. He contended that it was thus apparent from the chart which was produced on behalf of the Government that the department had made appointments by direct recruitment in excess of the quota fixed by the rules and, therefore, the direct recruits appointed in breach of the rules, could not be assigned seniority on the basis thereof. The appellant/respondent No. 4 maintained that as he was qualified and eligible under the rules to be promoted as Assistant Engineer in the year 1981, he ought to have been considered for the said purpose in the same year and, therefore, the findings and conclusions of the learned Tribunal were unexceptionable and thus, not liable to be interfered with by this Court. He further stated that out of the Junior Engineers whose name appeared in the inter se seniority list dated 29.3.88, Annexure-6 to the writ petition, those at SI. Nos. 2, 3, 4, 6,. 7, 8 and 9, were promoted in the year 1979. Those at SI. Nos. 1 and 5 were not eligible for promotion upto 1988. Again referring to the chart, the appellant/ respondent No. 4 contended that according to the Government, admittedly in the year 1982, considering the cadre strength, there was a backlog of 13 vacancies for the promotees in the rank of Assistant Engineer and, therefore, the department ought to have promoted 13 nos. of Junior Engineer to the post of Assistant Engineer in the year 1982 from SI. No. 10 onwards and as the appellant/respondent No. 4 was at SI. No. 18, he was well within the zone of consideration for such promotion. However, that was not done. of Junior Engineer to the post of Assistant Engineer in the year 1982 from SI. No. 10 onwards and as the appellant/respondent No. 4 was at SI. No. 18, he was well within the zone of consideration for such promotion. However, that was not done. With regard to the contention relating to 20% promotional quota, the appellant-respondent No. 4 contended that after the framing of the rules which had come into effect on 5.4.79, the same was not relevant and the appointments/promotions to the post of Assistant Engineer were required to be strictly in terms thereof. According to him, the learned Tribunal had examined in details all relevant aspects of the matter and had recorded its findings on a close scrutiny of the materials on record and, therefore, the impugned judgment and order passed by it was unassailable in law and on facts. 12. The learned Single Judge after hearing the learned counsel for the parties, by impugned judgment and order set aside the judgment and order of the learned Tribunal as well as the consequential order dated 8.6.98 and allowed the writ petitions. It would be appropriate to notice at this stage the considerations which had weighed with the learned Single Judge in passing the judgment and order impugned before us. 13. While dealing with the contention raised on behalf of the appellant/ respondent No. 4 that his promotion was unduly delayed, the learned Single Judge observed that though it was factually correct, he was guilty of delay and laches inasmuch as, though he claimed that he ought to have been promoted in the year 1982, he had approached the Court only after his promotion in the year 1988 and that, therefore^ on the ground of delay, his claim was not entertainable as the same would, if allowed, upset the settled things of the past. The learned Single Judge further held that assuming that the number of promotees in the year 1982 ought to have been 24 and only 7 were promoted and that, therefore, 17 Junior Engineers were further entitled for promotion, as the position of the appellant/respondent No. 4 in the inter-se seniority list dated 29.3.88 was at SI. No. 18, in any case, he could not have been accommodated against the available vacancies in the year 1982. No. 18, in any case, he could not have been accommodated against the available vacancies in the year 1982. It was further held that seniority alone would not have made the appellant/respondent No. 4 suitable for promotion as the criteria therefore was merit-cum-seniority. The learned Single Judge further upheld the contention of the learned counsel for the petitioner that as admittedly the appellant/ respondent No. 4 was not promoted in the year 1982 in terms of the rules, he after being promoted in the year 1988 could not have been bestowed with the said benefit from an earlier date. 14. At the hearing, Mr Sharma, learned senior counsel for the appellant argued that as it is apparent on the face of the records that the appellant/respondent No. 4 was eligible for promotion as Assistant Engineer in terms of Rule 11(4) in the year 1981, the action of the State authorities in ignoring him for being considered for the said purpose was besides being incontravention of the rules, illegal, arbitrary and discriminatory. He contended that it was evident from the chart produced on behalf of the Department that there had been encroachment of the promotion quota and in 1982 there was a backlog of 17 vacancies for the promotees and, therefore, the inaction on the part of the State authorities in considering the appellant/ respondent No. 4 for promotion in the same year, was without any justification and amounted to mala fide exercise of power. He therefore submitted that the findings and conclusions of the learned Tribunal were perfectly justified in the facts and circumstances of the case and, that the learned Single Judge had erroneously interfered therewith. Inviting the attention of this Court to the inter-se seniority list dated 29.3.88 and the related statements made in the writ petitions that the incumbents at SI. No. 1 to 9 in the said list had already been promoted in the year 1979, the learned senior counsel argued that the conclusion of the learned Single Judge that even if 17 vacancies were available in the promotion quota in the year 1982, the appellant/respondent No. 4 being at SI. No. 18 in the seniority list could not have been considered for promotion, was factually incorrect and, therefore, perverse. According to the learned senior counsel, as admittedly the officers at SI. Nos. No. 18 in the seniority list could not have been considered for promotion, was factually incorrect and, therefore, perverse. According to the learned senior counsel, as admittedly the officers at SI. Nos. 1 to 9 in the said seniority list had been promoted in the year 1979 and the appellant/ respondent No. 4 being qualified under the rules to be promoted, was at SI. No. 18 and the backlog vacancies admittedly available were 17, there was no earthly reason why the appellant/respondent No. 4 was not considered for promotion by the State authorities against one of such vacancies in the year 1982. The learned senior counsel maintained that the learned Single Judge had totally missed that aspect of the matter which rendered the impugned judgment and order illegal and unsustainable. While dealing with the aspect of delay, Mr Sharma urged that immediately after he was granted the delayed promotion in the year 1988, he submitted a representation before the concerned authority and as the same was not disposed of, he approached this Court for redress. This Court in the earlier proceeding, disposed of the same with a direction to the appellant/respondent No. 4 to submit a fresh representation before the concerned authorities with a direction to the latter to dispose of the same within a period of 2 (two) months and if still aggrieved, to approach the learned • Assam Administrative Tribunal. As the representation filed by him was not disposed of within the time fixed by this Court, the appellant/respondent had approached the learned Tribunal which directed the authority concerned to dispose of the representation. The same having been disposed of thereafter, the appellant/ respondent being aggrieved, again approached the learned tribunal in terms of the directions of this Court. This time, the writ petitioner approached this Court being aggrieved by the judgment and order passed by the learned tribunal upholding the contentions of the appellant/respondent No. 4. The learned senior counsel in the above conspectus of facts, thus argued that the appellant/respondent No. 4 was not guilty of any negligence or laches and that there has not been any deliberate delay on his part in the matter. The learned senior counsel in the above conspectus of facts, thus argued that the appellant/respondent No. 4 was not guilty of any negligence or laches and that there has not been any deliberate delay on his part in the matter. He further argued, in any case, the writ petitions having been admitted in the year 1998, the learned Single Judge after having heard the parties on merits ought not to have rejected the claim of the appellant/respondent No. 4 on the ground of delay. 15. The learned senior counsel while assailing the impugned judgment and order further submitted that the appellant/ respondent No. 4 was eligible and qualified for being considered for promotion as Asstt. Engineer in the year 1981 itself and the delayed consideration for his promotion was not for his fault. He was eventually considered for promotion in the year 1988 and having been found fit, was promoted as Assistant Engineer. He was thus wrongly passed over from being considered in 1981 and, therefore, he cannot be penalised for no fault of his. The learned senior counsel, therefore, argued that in the facts and circumstances of the case, the suitability of the appellant/ respondent No. 4 having been tested before his promotion in the year 1988, in all fairness, his promotion, in the facts and circumstances of the case, should relate back to the year 1982. He contended that the direction in this regard as issued by the learned tribunal, was perfectly justified not warranting any interference by this Court and, therefore, the learned Single Judge went wrong while passing the impugned judgment and order. In support of his submissions, the learned senior counsel placed reliance on a decision of the Apex Court reported in AIR 1996 SC 2165 , Ashok V. David, appellant-Vs-Union of India and others, respondents. 16. As against this, Mr Saikia, the learned senior counsel for the respondent No. 1 had rested his submissions on the following counts. 17. Firstly, as the rule had come into force on 8.8.79 (date of publication in the official gazette), 30% quota for the promotees was not available for considering the appellant/respondent No. 4 for promotion in the year 1981-82. As against this, Mr Saikia, the learned senior counsel for the respondent No. 1 had rested his submissions on the following counts. 17. Firstly, as the rule had come into force on 8.8.79 (date of publication in the official gazette), 30% quota for the promotees was not available for considering the appellant/respondent No. 4 for promotion in the year 1981-82. Secondly, during 1981-82, 41 persons were available as direct recruits and, therefore, 30% thereof (assuming the said quota was available to the promotees at that point of time) would be only 12.3 and, therefore, the learned Tribunal had committed an error in assessing the same to be 24. Thirdly, in any case, the appellant/ respondent No. 4 was not entitled to be promoted in the year 1982 only on the basis of seniority and as there was admittedly no selection in the said year, the appellant/ respondent No. 4 could not have been directed to be promoted as in the year 1982. 18. Some admitted facts cannot be ignored. The rules had come into force on 5.4.79 (Rule 11(3) lays down that the vacancy to be filled up by promotion by Sub-Engineers shall be so fixed that the promoted Assistant Engineers do not exceed 30% of the total corresponding cadre strength of permanent and temporary Assistant Engineers. The criteria for promotion to the post of Assistant Engineer is merit-cum-seniority. Under Rule 13, the Government before the end of each year has to make an assessment of the likely number of vacancies to be filled up by promotion in the next year of each cadre. Admittedly, the appellant/respondent No. 4 had completed 8 years of service as Subordinate Engineer (redesignated as Junior Engineer) and had passed the departmental examinations before the end of 1981. He was thus eligible to be considered for promotion in the year 1982 in terms of the rules. The chart, Annexure-1 to the affidavit filed by the appellant/ respondent No. 4, the authenticity and genuineness whereof has not been disputed, inter alia, reflects, that in the year 1982, the cadre strength of Asstt. Engineer was 65 and the number of promotees in the said cadre were 7. The chart, Annexure-1 to the affidavit filed by the appellant/ respondent No. 4, the authenticity and genuineness whereof has not been disputed, inter alia, reflects, that in the year 1982, the cadre strength of Asstt. Engineer was 65 and the number of promotees in the said cadre were 7. The chart which had been prepared by the Department of Irrigation and signed by the Commissioner and Secretary of the said department and admittedly placed before the learned Tribunal shows that in 1982, there were 13 backlog vacancies for the promotees. As noticed above, in the year 1982, the appellant/respondent No. 4 was at SI. No. 9 in the list of Junior Engineers of the department awaiting promotion to the rank of Assistant Engiiieer. therefore, he was well within the zone of consideration for such promotion having regard to the number of backlog vacancies for promotion in the said year. We are, therefore, unable to concur with the findings of the learned Single Judge that even if the backlog vacancies were available, the appellant/respondent No. 4 was not within the zone of consideration. The above aspect of the matter had been elaborately dealt with by the learned Tribunal. After noticing from the above chart produced before it that in 1982, the sanctioned cadre strength of Assistant Engineer (Mechanical) was 65, it observed on the basis of the materials on record that only 7 were promotee Asstt. Engineers. The explanation forwarded by the department that the Graduate Engineers were given preference in the matter of appointment keeping in view the unemployment problem did not find favour with the learned Tribunal and we think, rightly. The rules having prescribed a quota for appointment and promotion, the relevant provisions thereof cannot be allowed to be breached with impugnity on such flippant excuses. It is significant to mention here that it had never been the stand of the Government or the department that it did not wish to stick to 30% promotion quota as prescribed by the rules. One has to therefore, keeping in view the precepts of the rules, proceed on the basis that in terms of the rules. 30% quota was available to the promotees for the post of Asstt. Engineer. One has to therefore, keeping in view the precepts of the rules, proceed on the basis that in terms of the rules. 30% quota was available to the promotees for the post of Asstt. Engineer. The learned Tribunal while dealing with the order dated 1.2.94 passed by the department while disposing of the representation of the appellant/ respondent No. 4, noticed that it was acknowledged by the department that the appellant had fulfilled the conditions of eligibility prescribed by the rules in the year 1981 but he could not be promoted in the same year for want of vacancies. It was further noticed by the learned Tribunal that from the year 1981 to 1986 not a single Subordinate Engineer/Junior Engineer was promoted to the post of Assistant Engineer though the cadre strength was raised successively from 40 in 1981 to 65 in 1982 and further, to 70 in the year 1983. Though the department continued to make direct recruitments during 1981,1982,1983 and 1984, no Junior Engineer was promoted in the cadre. In the said premises, the learned Tribunal directed to notify the appellant's promotion from the date on which it was, according to it, due i.e. 1982 under the rules. 19. On a consideration of the reasonings recorded by the learned tribunal, we do not find that those are not based on materials on record so as to brand them as perverse and without any factual basis, more particularly, so far as those relate to the entitlement of the appellant/respondent No. 4 for being considered for promotion in the year 1982. 20. The ground of delay on which substantially emphasis has been laid by the learned Single Judge, in the facts and circumstances of the case, does not appeal to us. The appellant/respondent No. 4 has provided sufficient explanation for the time taken in approaching the learned Tribunal. The writ petitions assailing the judgment and order of the learned tribunal had been filed by the respondent No. 1. Having regard to the materials on record, we do not consider it fit and proper to reject the contentions raised on behalf of the appellant/respondent No. 4 on the ground of delay at this distant point of time. 21. The writ petitions assailing the judgment and order of the learned tribunal had been filed by the respondent No. 1. Having regard to the materials on record, we do not consider it fit and proper to reject the contentions raised on behalf of the appellant/respondent No. 4 on the ground of delay at this distant point of time. 21. In the light of the above discussions, we are of the considered opinion that the appellant/respondent No. 4 was entitled under the rules to be considered for promotion to the rank of Assistant Engineer in the year 1982. The fact remains that it was not done and he was considered for the first time in the year 1987 and then in the year 1988 and eventually, promoted on 5.12.88. We find from the rules that the criteria for promotion is merit-cum-seniority and, therefore, on the ground of seniority alone, the appellant/respondent No. 4 cannot claim promotion to the higher post. As the materials on record indicate that there was no selection in the year 1982, there was no scope for making any comparative assessment of the appellant/respondent No. 4 with other eligible candidates for promotion. However, nothing has been brought to our notice to suggest that the officers along with the appellant/ respondent No. 4 who are similarly eligible to be considered for promotion in the year page no 593 be issued to the State authorities to constitute a review DPC/Selection Board under the rules to consider the merit and suitability of the appellant/respondent N6. 4 for promotion to the post of Assistant Engineer in the year 1982 on the basis of the relevant character rolls, personal files and other relevant records of the said officer. It is ordered accordingly. It is needless to say that if the appellant/ respondent No. 4 is found fit to be so promoted, he would be awarded such promotion from the year 1982, and on such promotion, if made, the appellant/ respondent No. 4 would be entitled to have only the notional benefits of pay during the interregnum i.e., from 1982 to 1988 but, would be entitled to other consequential benefits like, seniority etc. As the grievance of the appellant/respondent No. 4 is a long standing one, it is further ordered that the State authorities should take necessary steps to complete the exercise within a period of 6 (six) months from the date of receipt of the certified copy of this judgment and order. In the result, the appeals are allowed and the impugned judgment and order is set aside. The judgment and order of the learned tribunal stands modified to the above extent. However, in the facts and circumstances of the case, there would be no order as to costs.