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2004 DIGILAW 476 (GAU)

Hem Chandra Bhuyan v. State of Assam

2004-08-20

B.BISWAS

body2004
Judgment : D. Biswas, J. 1. During the year 2000, the writ petitioner was holding the post of Superintending Engineer, P.W.D. In addition, he was also holding the office of the Additional Chief Engineer (C) temporarily. A select list was prepared on 13.9.2000 for promotion to the post of Additional Chief Engineer. The petitioner was placed at Serial No. 2 of that list dated 13.9.2000. The said select list dated 13.9.2000 was prepared on the basis of criteria adopted in the meeting held on 13.5.1994 where Secretaries of various technical Departments were present. 2. One Shri Bhabani Choudhury filed Writ Petition (C) No. 5756/2000 challenging the select list dated 13.9.2000. The said writ petition was dismissed by the learned Single Judge on 12.4.2001. A Division Bench of this Court allowed the appeal preferred against the judgment and the learned Single Judge, quashed the select list dated 13.9.2000 for not having been prepared in accordance with Rule 13 of the Assam Engineering (P.W.D.) Service Rules, 1978 and directed the authorities to hold fresh selection. 3. In pursuance of the direction of the Division Bench, the select list dated 13.9.2000 (Annexure-B) was cancelled. Thereafter the Secretaries of the Public Works Department, Irrigation Department, Public Health Department and Flood Control Department in a meeting held on 14.2.2001 evolved and adopted new criteria for promotion. The criteria is annexed as Annexure-F to the writ petition. The selection process was initiated on 28.8.2001 for recommendation for filling up nine vacancies that arose in the year 2000. Eventually, the select list dated 1.9.2001 was published wherein the petitioner has been placed at serial No. 9. Challenging his downgrading in the select list from serial No.2 to serial No. 9, the petitioner filed the representation dated 1.9.2001 on the ground that the list is illegal since it was prepared on the basis of amended criteria. Petitioner's plea is that selection for the vacancies of the year 2000 has to be made on the basis of the criteria in force at that time and not on the basis of the subsequent policy evolved on 14.2.2001. Besides, the petitioner's claim is that even otherwise he was entitled to promotion to one of the nine vacant post of Additional Chief Engineer on the basis of his placement in the select list dated 1.9.2001. Besides, the petitioner's claim is that even otherwise he was entitled to promotion to one of the nine vacant post of Additional Chief Engineer on the basis of his placement in the select list dated 1.9.2001. But the authorities concerned arbitrarily promoted persons below him from the said select list prepared in order of preference. 4. The writ petitioner, in view of the judgment of the Division Bench cannot claim promotion on the basis of his selection as per select list dated 13.9.2000. The Division Bench directed the respondent authority to go for fresh selection in accordance with Rule 13 of the Rules of 1978. Therefore, it has to be examined whether the petitioner was vested with indefeasible right for consideration for promotion as per criteria laid down in the unamended policy dated 13.5.1994. For better appreciation, Rule 13 is quoted below: 13. (1) Before the end of each year the Government, shall make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre. (2) The Appointing Authority shall then furnish to the Selection Board the following documents and information with regard to as many officers in order of seniority as 4 times the number of vacancies as assessed under Sub-rule (1). ... (5) The Selection Board, after examination of the documents and information furnished by the Appointing Authority shall recommend to the Appointing Authority a select list of officers about double the probable number of vacancies in order of preference found suitable for promotion. In case this Board does not consider an officer suitable for promotion according to seniority, it shall record the reasons thereof in writing and forward to the Appointing Authority together with the select list. 5. It would appear from the provisions of Rule 13 that assessment has to be made after examination of documents and information furnished by the Appointing Authority. It does not lay down any criteria for selection. It was in thus context the Secretaries of the concerned Departments formulated criteria by way of policy for consideration for promotion initially on 13.5.1994. The criteria laid down on 13.5.1994 was amended subsequently as per decision in the meeting dated 14.2.2001. By this amendment, the eligibility criteria prescribed earlier was changed. The amendment prescribes higher marks as eligibility criteria for promotion to the rank of Additional Chief Engineer. The criteria laid down on 13.5.1994 was amended subsequently as per decision in the meeting dated 14.2.2001. By this amendment, the eligibility criteria prescribed earlier was changed. The amendment prescribes higher marks as eligibility criteria for promotion to the rank of Additional Chief Engineer. Earlier the minimum prescribed mark was 16 and it has been substituted by 18. Therefore, there is an increase in the minimum marks to be secured by an officer for the purpose of promotion to the post of Additional Chief Engineer. The policies embodied in these documents (Annexures-A and F) have not been evolved in exercise of the provisions of Article 309 of the Constitution. However, the State was competent, in the absence of any direction in the Rules of 1978, to evolve a procedure/formulae for the purpose of selection and recommendation. The instructions contained in these two documents are apparently not in derogation of Rule 13 of the Rules of 1978. The policies evolved are relatable to the executive powers of the State under Article 162. There is no dispute that the executive power of the State is co-extensive with that of the State Legislature. The State Executive may make rules regulating any matter within the legislative competence of the State Legislature even without prior legislative authority (Pratibha v. State of Karnataka, AIR 1991 Kant 205). The Hon'ble Supreme Court in Shri Sitaram Sugar Co. Ltd. v. Union of India, [1990] 1 SCR 909 held that a Court would not exercise its power of judicial review to interfere with a policy made by the Government in exercise of its power under Article 162, particularly where it involves technical, scientific or economic expertise. Therefore, the policies (Annexures - A and F) not being inconsistent with any provision of the Constitution and the Rules framed under Article 309 need no interference by this Court. Situated thus, it becomes imperative for this Court to consider whether the criteria prescribed by the subsequent policy dated 14.2.2001 could be applied in respect of vacancies that arose in the year 2000. The criteria evolved in the meeting dated 14.2.2001 was by way of amendment of the policy dated 13.5.1994. There is no mention in this policy that it would take effect retrospectively. The criteria evolved in the meeting dated 14.2.2001 was by way of amendment of the policy dated 13.5.1994. There is no mention in this policy that it would take effect retrospectively. Going by the normal rule of interpretation and, in the absence of any express provision with regard to retrospectively, it has to be held that the amendment made by the subsequent policy dated 14.2.2001 were meant to take effect prospectively. Therefore, the amended provisions could not be applied in respect of the vacancies which arose prior to 14.2.2001. 6. In Y.V. Rangaiah and Ors., Appellants v. J. Sreenivasa Rao and Ors., Respondents, (1983) II LLJ 23 SC, the Hon'ble Supreme Court was of the view that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. In N. T. Devin Katti and Ors., Appellants v. Karnataka Public Service Commission and Ors., Respondents, (1990) II LLJ 456 SC, the Hon'ble Supreme Court relying upon the aforesaid decision observed that all statutory rules or Government order is prospective in nature unless expressly or by statutory order made to have retrospective effect. Again in the State of Rajasthan, Appellant v. R. Dayal and Ors., Respondents, [1997] 2 SCR 108 , the Hon'ble Supreme Court relying upon the judgment in Y.V. Rangaiah (supra) reiterated the same view. The ratio available in the above judgments are applicable in the instant case as well. The policy in force when the vacancies arose would have been the criteria for selection. This was in fact done while preparing the select list dated 13th September, 2000. But this list was set aside by the Division Bench in Writ Appeal No. 129 of 2001 and other writ petitions disposed of together on the ground that the list was prepared in violation of Sub-rule (2) of Rule 13. Sub-rule (2) of Rule 13 provides that the appointing authority shall furnish to the Selection Board documents and information with regard to as many officers in order of seniority as 4 times the number of vacancies. Admittedly there were 9 vacancies in the rank of Additional Chief Engineer (C) in the year 2000 and the Selection Board was required to consider 36 officers and recommend 18 out of them in order of preference for promotion. Admittedly there were 9 vacancies in the rank of Additional Chief Engineer (C) in the year 2000 and the Selection Board was required to consider 36 officers and recommend 18 out of them in order of preference for promotion. But the Government decided to fill up 4 vacancies and, in consequence thereof, the Selection Board recommended only 8 officers. This was contrary to the rules and on this consideration the Division Bench quashed the aforesaid select list dated 13.9.2000. The respondent authority was directed to prepare a fresh select list in accordance with the provisions of Rule 13. The select list prepared thereafter on 1st September, 2001 (Annexure-G) contains 17 names and not 18. However, the Selection Board prepared the select list, as it appears from the official records produced, on the basis of amended criteria evolved on 14.2.2001. The Division Bench was not seized with the question as to whether the petitioner's case along with other similarly situated officers was required to be considered in accordance with the amended or unamended criteria. No direction to this effect was also given. Therefore, it was incumbent upon the respondent authority to consider 36 numbers of officers for 9 vacancies available in 2000 in accordance with the criteria which were in force in the year 2000. Considerations and recommendations made by the impugned select list dated 1st September, 2001 on the basis of amended criteria for 9 vacancies available in 2000 is obviously contrary to the provisions of law as enunciated by the Hon'ble Supreme Court in various judgments referred to above. 7. The petitioner has already retired from service and, therefore, reconsideration of his case at this stage as per unamended criteria will not adversely affect the interest of the officers already promoted. This Court is of the view that the promotion already made by the impugned order dated 4.9.2001 may not be interfered at this belated stage. It would, therefore, suffice, if the petitioner is given notional promotion for the purpose of pensionary benefits only. 8. The writ petition is accordingly disposed of with the direction that the petitioner be given notional promotion to the post of Additional Chief Engineer (C) for the purpose of pensionary benefits only. This relief is given after taking due care of the ratio available in State of Maharashtra and Ors., Appellants v. Pratapsingh Dayalsingh, [1998] 1 SCR 109. No order as to costs.