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2008 DIGILAW 340 (GAU)

Syed Md. Bakir v. State of Assam

2008-05-08

RANJAN GOGOI

body2008
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. B.D. Das, Learned Counsel for the petitioner, Mr. S.K. Medhi, learned Standing Counsel appearing for the North Cachar Hills Autonomous Council ('the Autonomous Council') and Ms. B. Bhuyan, learned Standing Counsel, PWD, Assam. Also heard Sri A.K. Phukan, learned Advocate General, Assam. 2. The petitioner is aggrieved by his non-selection for promotion to the post of Superintending Engineer in the Public Works Department of the State of Assam. The selection in question was held in the year 2006 for 20 vacant posts of Superintending Engineer and the consequential select list was published on 17.1.2007. The short case projected by the petitioner is that during the period 9.1.2002 till 8.6.2005 he was holding the post of Executive Engineer under the North Cachar Hills Autonomous Council, his service being placed at the disposal of the council by the State Government. According to the petitioner, in some of the Annual Confidential Reports (ACRs) during the aforesaid period he was assessed as outstanding. Such assessments were accented by the authorities of the council acting as the reviewing and accepting authorities. However, according to the petitioner, the ACRs in question were re-assessed by the departmental Secretary as the accepting authority and the assessments in question were downgraded. As a result of such downgrading the petitioner's name was not included in the select list dated 17.1.2007. In these facts the petitioner has contended that by virtue of the Government Notification dated 31.12.1996 (Annexure-6 to the writ petition), particularly Clause (G) thereof, the assessment made by the departmental secretary was unauthorized and the downgraded ACRs could not have formed the basis for consideration of the petitioner's case for promotion. The petitioner asserts that in terms of the Office Memorandum dated 31.12.1996 the assessment of his ACRs as made by the council authorities would prevail and it is the said assessment which should have been taken into consideration for the purpose of determining the entitlement of the petitioner for promotion to the next higher post of Superintending Engineer. 3. The contention of the petitioner, as noticed above, have been contested by the departmental secretary who has filed an affidavit claiming for himself a right to make an assessment of the ACRs of officers whose services have been placed at the disposal of the Autonomous Council. 3. The contention of the petitioner, as noticed above, have been contested by the departmental secretary who has filed an affidavit claiming for himself a right to make an assessment of the ACRs of officers whose services have been placed at the disposal of the Autonomous Council. This, according to the departmental secretary, is a power conferred on him, as the accepting authority, under the provisions of the Assam Services (Confidential Rolls) Rules, 1990. 4. The council authorities have also filed an affidavit taking a stand diametrically opposed to what has been adopted by the departmental secretary. According to the council authorities, under the provisions of the Office Memorandum dated 31.12.1996, particularly Clause (G) thereof, if is the council authorities who are to act as the reviewing and accepting authorities in respect of ACRs of officers whose services have been placed by the State Government at the disposal of the Autonomous Council. 5. The conflicting stands, as noticed above, and the potential that acceptance of either would have on the service conditions of a large number of officers, even beyond the Public Works Department had made it imperative for the court to have the stand of the State Government on record. Accordingly, the Chief Secretary of the State was directed to file an affidavit making the stand of the State known to the court. 6. A reading of the affidavit of the chief secretary indicates that the Office Memorandum dated 31.12.1996 is pursuant to a memorandum of understanding signed by the Government of Assam on the one hand and various representative bodies of the Autonomous Councils on the other in the presence of the Union Home Minister at New Delhi sometime in the year 1995. The Memorandum of Understanding ('MoU') in question visualized grant of greater autonomy to the Autonomous Councils within the framework of the Sixth Schedule to the Constitution of India which was sought to be achieved by grant of executive powers to the Autonomous Council in 30 subjects as enumerated in the list enclosed to the MoU in question. PWD is one of the enumerated subjects. The Chief Secretary, in the affidavit filed, has further stated that the MoU in question was approved by the State Assembly by a resolution. PWD is one of the enumerated subjects. The Chief Secretary, in the affidavit filed, has further stated that the MoU in question was approved by the State Assembly by a resolution. Pursuant thereto the Governor in exercise of powers under the provisions of paragraph 6(2) of the Sixth Schedule had delegated the executive power over the enumerated subjects, including the Public Works Department, to the Autonomous Councils. Thereafter, an amendment of the Sixth Schedule, particularly in paragraph 3 thereof was carried out. Paragraph 3A of the Sixth Schedule as applicable to the Autonomous Councils of Karbi Anglong and North Cachar Hills brought in by the aforesaid amendment conferred law making powers on the Autonomous Councils in respect of various subjects in addition to what was originally conferred by the provisions of the Sixth Schedule to the Constitution of India. Such law making powers conferred on the Autonomous Council by the amendment to paragraph 3 of the Sixth Schedule covers the 30 enumerated subjects mentioned in the MoU. In the affidavit filed, the Chief Secretary has further stated that having regard to the wide dimensions of the issue he had called a meeting on 19.4.2008 in which the Commissioner and Secretaries of the Hill Areas Department, Personnel Department and Public Works Department were present. In the said meeting, minutes of which have been enclosed to the affidavit of the Chief Secretary, a decision was arrived at that having regard to the provisions of the law and the practice followed insofar as the officers on deputation to the Autonomous Councils are concerned, the preparation of the ACRs of such officers are to be governed by Clause-G of the Office Memorandum dated 31.12,1996. In the said meeting a further decision was taken to the effect that the ACRs of the petitioner "written by the NC Hills Council is as per existing followed procedure and the downgrading of it by the Secretary, PWD will have no effect". 7. A consideration of the facts stated above indicate that the stand taken in the meeting dated 19.4.2008 to the effect that in cases of officers on deputation to the Autonomous Councils it is the council Authorities would be the competent authority to prepare the ACRs is well founded. The decision must, therefore, have the approval of the court. 7. A consideration of the facts stated above indicate that the stand taken in the meeting dated 19.4.2008 to the effect that in cases of officers on deputation to the Autonomous Councils it is the council Authorities would be the competent authority to prepare the ACRs is well founded. The decision must, therefore, have the approval of the court. What would also be worthwhile to notice at this stage is that under the provisions of the Assam Services (Confidential Rolls) Rules, 1990 an authority specifically empowered by the Government can also act as the accepting authority. The authorities of the Autonomous Councils can, therefore, legitimately be viewed as an authority which has been authorized by the State Government to act as the accepting authority under the aforesaid Rules. 8. In the present case, no dispute has been raised with regard to the assertion of the petitioner that the consideration of his case for promotion to the post of Superintending Engineer was made on the basis of the downgraded assessment of ACRs made by the departmental Secretary. In view of the discussions that have preceded such actions of the departmental Secretary have to be understood by the court to be unauthorized in law. If that be so, the court has to come to the inevitable conclusion that the consideration of the case of the petitioner for promotion to the post of Superintending Engineer has not been made as required by law. The respondent authorities in the Public Works Department, therefore, are directed to place the case of the petitioner before a review DPC for a de novo consideration on the basis of the assessments in his ACRs for the years in question as made by the council authorities and thereafter to include the name of the petitioner at the proper place in the select list dated 17.1.2007 if he is found to be otherwise suitable and eligible. Consequential action of promotion of the petitioner necessarily has to follow in such a situation. The aforesaid exercise will be completed by the authorities of the Public Works Department as expeditiously as possible and in any case within a period of two months from the date of receipt of a certified copy of this order. 9. The writ petition shall stand allowed as indicated above. Petition allowed.