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2015 DIGILAW 550 (GAU)

ZULFIKAR ALAM HAZARIKA v. STATE OF ASSAM

2015-05-12

UJJAL BHUYAN

body2015
Order : Heard Mr. N Dutta, learned Senior Counsel assisted by Mr. J Roy, learned counsel for the petitioner and Mr. G Rahul, learned Standing Counsel, PWD and Mr. RM Deka, learned Standing Cousnel, PWD (Roads). 02. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to re-consider his case for promotion from Executive Engineer (Civil) to Superintending Engineer (Civil) in the Public Works Department (PWD), Govt. of Assam. 03. At the outset, it is submitted by learned counsel for the petitioner that during the pendency of the present proceeding, petitioner has been promoted to the rank of Superintending Engineer. Therefore, the grievance of the petitioner would be confined to his claim for antedating his promotion with effect from the date when his juniors were promoted. 04. At the relevant point of time, petitioner was serving as Executive Engineer (Civil). 05. A meeting of the Selection Board for selection of officers for promotion from Executive Engineer to Superintending Engineer was held on 28.07.2006. The Selection Board was called upon to consider promotion to 20 vacancies in the rank of Superintending Engineer. As per the service rules i.e., Assam Engineering (PWD) Service Rules, 1978 (as amended), the zone of consideration comprised of 80 officers in the rank of Executive Engineer being four times the number of vacancies. The criteria for selection was merit and suitability with due regard to seniority. As per notification dated 28.04.2003, merit would be judged on the basis of marks allotted against gradings in the Annual Confidential Reports (ACRs) for the last preceding five years in the following manner: - i) Below average 0 Point ii) Average 1 Point iii) Good 2 Points iv) Very Good 3 Points v) Outstanding 4 Points 06. Based on ACRs points, there would be three categories of officers as follows: - i) Category -1 18 points and above ii) Category-2 between 10 points to 18 points iii) Category-3 below 10 points 07. By the said notification dated 28.04.2003, it was decided to allocate 75% points for merit and 25% points for seniority keeping in view the criteria of merit and suitability with due regard to seniority. For the purpose of seniority, 0.22 point would be allocated for each completed year of service. By the said notification dated 28.04.2003, it was decided to allocate 75% points for merit and 25% points for seniority keeping in view the criteria of merit and suitability with due regard to seniority. For the purpose of seniority, 0.22 point would be allocated for each completed year of service. After addition of points from merit as well as points from seniority, the officers within the zone of consideration were to be categorized into two classes, namely, Class-A and Class-B. It is stated that those officers who had secured 21.96 points and above were placed in Class-A category and those officers who secured between 13.96 to 21.96 points were placed in Class-B category. Class-A would get preference over Class-B in promotion. 08. Petitioner was included in the zone of consideration of 80 for 20 vacancies and his position was at Sl. No.61. 09. By application of the point system as per the notification dated 28.04.2003, petitioner secured 16 marks on merit and 4.84 points on the ground of seniority, total being 20.84 points. Thus, petitioner was placed in Class-B category and, therefore, could not make the grade in the said promotion exercise. 10. From the statement attached to the Selection Board proceedings, it is seen that for the five years under consideration, petitioner was graded “Outstanding” in respect of 2000-2001, “Very Good” for the year 2001-2002, “Very Good” for 2002-2003, “Good/ Outstanding” for the year 2003-2004 and “Very Good” for the year 2004-2005. 11. Mr. Dutta, learned Senior Counsel for the petitioner submits that there is no dispute as regards allocation of points in respect of seniority. The dispute centres around allocation of points relating to merit. He submits that even in respect of points for merit, there is no dispute regarding gradings and consequential allocation of points for the years 2000-2001, 2001-2002 and 2002-2003. The dispute relates to two years, viz, 2003-2004 and 2004-2005. For the year 2003-2004, the assessment was made for two periods, the first period being from 27.05.2003 to 13.10.2003 where he was graded “Good” and the second period was from 13.10.2003 to 31.03.2004 where he was graded “Outstanding”. The Selection Board added points allocated for “Good” and “Outstanding” gradings i.e. 2+4=6 and took the average of 3 for the year 2003-2004. He submits that this was not correct inasmuch as for the first period there was no grading of the reviewing officer. The Selection Board added points allocated for “Good” and “Outstanding” gradings i.e. 2+4=6 and took the average of 3 for the year 2003-2004. He submits that this was not correct inasmuch as for the first period there was no grading of the reviewing officer. Therefore, Selection Board ought to have taken the grading of the petitioner for the year 2003-2004 as “Outstanding” and allocated points accordingly, in which case, petitioner would have secured 4 points for that year instead of 3. Coming to the year 2004-2005, he submits that here also the petitioner was assessed for two periods. For the first period from 01.04.2004 to 30.06.2004, petitioner was graded “Outstanding” and for the period from 22.09.2004 to 01.01.2005, he was graded “Very Good”. The Selection Board omitted to consider the “Outstanding” grading and took the grading for the year as “Very Good” and accordingly he was allocated 3 points for this year. Actually petitioner ought to have been awarded 4 points for “Outstanding” + 3 points for “Very Good” = 7, the average being 3.5. There was thus shortfall of 1 point for the year 2003-2004 and .5 point for the year 2004-2005, total shortfall being 1.5, and if this 1.5 points were added to the points secured by the petitioner, his total points would come to 17.5 + 4.84 = 22.34, which would place him in Class-A category, thereby making him eligible for promotion. 12. Mr. Rahul, learned Standing Counsel has produced the record and has also made his submissions contending that in view of the promotion given to the petitioner, perhaps, the grievance raised by him, at this stage, is of academic interest only. He further submits that the officers who were selected and promoted have not been made parties and in their absence, no effective adjudication can take place. 13. Submissions made have been considered. Record produced by Mr. Rahul has been perused. 14. Facts are not in dispute and have already been stated above. Only thing that is to be additionally noted is that pursuant to the recommendation of the Selection Board meeting dated 28.07.2006, consequential notification was issued by the Commissioner & Special Secretary to the Govt. of Assam, PWD on 17.01.2007 conveying approval of the Government to the select list, whereafter promotions were effected vide notification dated 12.02.2007. 15. As succinctly put by Mr. of Assam, PWD on 17.01.2007 conveying approval of the Government to the select list, whereafter promotions were effected vide notification dated 12.02.2007. 15. As succinctly put by Mr. Dutta, learned counsel for the petitioner, the bone of contention in the case is the gradings given to the petitioner in his ACRs for the years 2003-2004 and 2004-2005 and consequential allocation of points. 16. It is seen that there were two recording authorities for the year 2003-2004, one for the period from 27.05.2003 to 13.10.2003 and the other for the period from 13.10.2003 to 31.03.2004. In so far the first period is concerned i.e., 27.05.2003 to 13.10.2003, though the reporting authority graded the petitioner as “Good”, no grading was given by the reviewing authority. There is also no signature of the reviewing authority and no date given. It is the grading given by the reviewing authority which is accepted or not accepted by the accepting authority. In the absence of any grading by the reviewing authority, there is nothing to be either accepted or not accepted by the accepting authority. In other words, for that period, petitioner was not graded. On the other hand, for the second period i.e., from 13.10.2003 to 31.03.2004, the reviewing authority (a different officer) vide his remark dated 03.08.2004 graded the petitioner as “Outstanding”. Therefore, for the first period, there was no grading of the petitioner, which means, that the only available grading for the year under consideration was for the second period, which was “Outstanding”. Therefore, the Selection Board fell in error by considering both the “Good” grading and “Outstanding” grading and thereby taking the average point i.e., 2 + 4 = 6 divided by 2 = 3. As there was no grading for the first period, the grading of the petitioner for the year 2003-2004 can only be “Outstanding”, which is the grading given for the second period. If that be so, petitioner would be entitled to 4 points for the year 2003-2004. 17. Coming to the year 2004-2005, here also petitioner was assessed for two periods by two different recording authorities. The first period was from 01.04.2004 to 30.06.2004, where he was graded “Outstanding” and the second period was from 22.09.2004 to 01.01.2005, where he was graded “Very Good”. 17. Coming to the year 2004-2005, here also petitioner was assessed for two periods by two different recording authorities. The first period was from 01.04.2004 to 30.06.2004, where he was graded “Outstanding” and the second period was from 22.09.2004 to 01.01.2005, where he was graded “Very Good”. The minutes of the Selection Board meeting indicate that the Selection Board considered the grading of the petitioner as “Very Good”, thereby overlooking the “Outstanding” grading given for one period of the said year. If the two gradings are considered, petitioner would secure 4 points for “Outstanding” grading and 3 points for “Very Good” grading, which would make the total grading 7 and the average would be 3.5. However, petitioner was allotted only 3 points by considering only the “Very Good” grading. 18. Thus for the five years under consideration, the points secured by the petitioner for merit would be as follows : - Year Gradings Points 2000-2001 Outstanding 4 2001-2002 Very Good 3 2002-2003 Very Good 3 2003-2004 Outstanding/ Very Good 4 2004-2005 3.5 Total 17.5 19. If 4.84 points due to the petitioner on account of seniority is added to the points secured on merit i.e., 17.5, the total points secured by the petitioner would be 17.5 + 4.84 = 22.34. This would place the petitioner in Class-A category entitling him to a recommendation for promotion. Thus, petitioner’s name ought to have been included in the select list dated 17.01.2007 and based thereon, he ought to have been given promotion to the rank of Superintending Engineering. 20. Therefore and in the light of the above discussions, petitioner would be entitled to the benefit of promotion to the rank of Superintending Engineer w.e.f. 12.02.2007 when the promotion notification was issued on the basis of the select list. However, such a promotion of the petitioner would only be treated as notional for the purpose of counting his seniority and other service benefits in the cadre of Superintending Engineer (Civil) and he would not be entitled for salary of Superintending Engineer from the said date. Ordered accordingly. However, such a promotion of the petitioner would only be treated as notional for the purpose of counting his seniority and other service benefits in the cadre of Superintending Engineer (Civil) and he would not be entitled for salary of Superintending Engineer from the said date. Ordered accordingly. In view of his notional promotion to the rank of Superintending Engineer w.e.f. 12.02.2007, petitioner’s seniority position in the gradation list of Superintending Engineer (Civil) shall be worked out and re-assigned by the PWD, and if this requires alteration of the seniority position of some members of the cadre, the same shall be carried out after giving due notice to the affected members. Let the above exercise be carried out within a period of four (4) months from the date of receipt of a certified copy of this order. 21. Writ petition is accordingly disposed of, but without any order as to costs.