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2010 DIGILAW 636 (GAU)

State of Meghalaya v. Ebanshanbor Roy Wanswett

2010-08-23

ANIMA HAZARIKA, I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. Heard Mr. K.S. Kynjing, learned Advocate General, Meghalaya, assisted by Mr. N.D. Chullai, learned senior GA, appearing on behalf of the appellants, and Mr. H.S. Thangkhiew, learned counsel, appearing on behalf of the respondents, who were writ petitioners in WP(C) No.40(SH)/2006. 2. As many as seven persons came, as petitioners in WP(C) No.40(SH)/2006, with the grievance that under the law, though, unless the authority concerned certifies that no vacancies have arisen in a given year and no suitable candidate is available, it is mandatory to prepare and finalize a yearly panel for promotion and consider the cases of persons, who fall within the zone of consideration for promotion during the year concerned, no exercise in this regard has been carried out by the appellants and in the consequence thereof, the petitioners promotion to the posts of Inspector of Excise stood denied. The writ petitioners, therefore, sought for directions to be issued to the respondents in the writ petition, who are appellants in this appeal, to make promotion on the basis of gradation list of Sub-Inspector of Excise published on 28.8.2003. During the pendency of the writ petition, since four of the said seven petitioners received promotion to the posts of Inspector of Excise, only three persons remained as petitioners in the said writ petition. 3. Having considered the case of the parties, concerned, a learned Single Judge of this court disposed of the writ petition by judgment and order, dated 26.11.2008. The relevant observations made and the directions given read as under : Mr. S. Sen, learned counsel for the State respondents is submits that there are 35 posts of Inspector, out of which 21 posts are being held by promotees and posts by direct recruitment and at present 7 posts are vacant. Considering this aspect of the matter, that there are 7 posts of Inspector of Excise are vacant, and since the petitioners were already eligible within the zone of promotion and stood in the year 2003 and that they had already passed the necessary departmental examination from 1999-2001 and for which their names have been placed in the gradation list published on 28.8.2003, and in view of the submission of Mr. S. Sen learned GA that there are 7 vacant posts. 7. S. Sen learned GA that there are 7 vacant posts. 7. This writ petition is disposed of with the following directions to the respondents : Since the State respondents have already made a gradation list as published on 28.8.2003, wherein, the petitioners are included for being eligible to be considered for promotion and since there are 7 vacancies as on today, the State respondents shall consider the case of the petitioners for promotion to the post of Inspector within a period of 60(sixty) days. The whole exercise for promotion of the petitioners shall be completed within a period of 60(sixty) days from the date of receipt a copy of this judgment and order. 8. Since the Draft Service Rules pertaining to the Meghalaya Excise (Subordinate) Service Rules has not been finalized and is under active consideration as stated by the respondents in the counter affidavit, it is expected that the respondents should finalize the same so, that the service condition of the employees are regulated in a proper manner. 9. Under the facts and circumstances of the case, no order as to costs is passed. 4. Aggrieved by the directions given to the present appellant to till up seven vacant posts by considering the cases of the writ petitioners/respondents herein within the specified period of sixty days this appeal has been preferred. In the meanwhile, the Draft Rubes, which the impugned judgment referred to, have been finalized and the same have been notified on 10th August, 2010, the Rules being called Meghalaya Excise (Subordinate) Service Rules, 2010. The provisions of these Rules are not under challenge before us. We are, therefore, concerned with the directions, which have been given by the learned Single Judge, on 26.11.2008, while disposing of the writ petition. 5. While considering the above directions given by the learned Single Judge, it needs to be pointed out that the learned Single Judge has noted that there are thirty five posts of Inspector of Excise and out of these thirty five posts, twenty one posts are being held by promotees and seven posts by direct recruitment. There is no dispute that the posts of Inspector of Excise are required to be filled up by promotion as well as by direct recruitment in the ratio of 60:40. There is no dispute that the posts of Inspector of Excise are required to be filled up by promotion as well as by direct recruitment in the ratio of 60:40. It is, therefore, clear that in the total cadre strength of thirty five posts, the quota of the promotees could not have been more than twenty one posts. When twenty one posts were already held by promotees in the total cadre strength of thirty five posts, the question of directing the present appellants to fill up the vacancies by considering the cases of the writ petitioners/the respondents herein for promotion could not have arisen. The learned Single Judge has fallen into error in directing the appellants to fill up the quota of the direct recruits by way of promotion. Such being the case, we find that the directions given to the appellants to consider the cases of the writ petitioners, (i.e., respondents herein) need to be interfered with. Situated, thus, we set aside the directions given in the impugned judgment and order, dated 26.11.2008, to the present appellants, to consider the cases of the respondents herein for promotion to the posts of Inspector of Excise against the said vacant posts. The appeal is accordingly allowed. We direct the appellants to undertake the exercise of preparing year-wise panel of vacancies as indicated above and do the needful in accordance with law. We also grant liberty to the respondents herein to approach this court writ appropriate application, in future, if so advised. 6. Before parting with this appeal, we must point out that though the Government is bound to prepare year-wise panel as indicated above, the Government shall have the discretion to fill up or not to fill up a vacant promotional post in a given year. The preparation of yearly panel would not take away the Government's power not to fill up the promotional post in a given year. 7. No order as to costs.