JUDGMENT 1. This writ petition has been filed by the petitioners to set aside the impugned Departmental Promotion Committee held on 12.01.2022 against the 8 anticipated vacancies for the post of Executive Engineer and promotion order dated 13.4.2022 and to direct the first respondent to recommend the petitioners for promotion to the post of Executive Engineer against the remaining two anticipated vacancies which the Manipur Public Service Commission (MPSC) failed to recommend the eligible candidates in the DPC held on 12.01.2022. 2. The case of the petitioners is that they are now serving in the substantive post of Assistant Engineer, but holding the feeder post for promotion to the post of regular Executive Engineer in the Public Works Department, Manipur and discharging as in-charge Executive Engineer. The Works Department furnished eligible candidates and its integrity certificate along with seniority to the MPSC for holding DPC for appointment by promotion to the post of Executive Engineer for 34 clear vacancies and 8 anticipated vacancies of the Executive Engineer. The MPSC held the DPC on 12.01.2022 by recommending 32 Assistant Engineers by promotion to the post of Executive Engineer in Works Department against clear vacancies keeping two post as vacant for Sominthang Singson and Munindro Mangang as both are kept in sealed cover as their integrity are withheld. 3. In the DPC held on 5.2.2022, it is clearly stated that the year of vacancy for the year 2021-22 is 8 anticipated vacancies, whereas in the recommendation made by the MPSC for appointment of promotion to the post of Executive Engineer is 6 against 8 anticipated vacancies and the MPSC has not recommended the petitioners for promotion to the post of Executive Engineer as both of them are eligible and within the zone of consideration, which is arbitrary, malafide and discrimination to the petitioners for violation of Articles 14 and 16(1) of the Constitution of India by leaving the petitioners against the two unfilled vacancies of the anticipated. 4. Resisting the writ petition, the first respondent filed affidavit-in- opposition stating that the petitioners were considered, but could not be recommended for promotion to the post of Executive Engineer, as they were not in the zone of consideration. It is stated that there is no direct provision for 34 clear vacancies and as such in regard to 34 vacancies the DPC had considered upto Serial Nos.62 under the normal zone of consideration. It is stated that there is no direct provision for 34 clear vacancies and as such in regard to 34 vacancies the DPC had considered upto Serial Nos.62 under the normal zone of consideration. The names of the petitioners appeared at Serial Nos.63 and 65 in the inter-se seniority list of Assistant Engineer (Civil) for which they could not be recommended for promotion to the post of Executive Engineer (PWD). Hence, prayed for dismissal of the writ petition. 5. Assailing the impugned order, Mr. M. Devananda, the learned counsel for the petitioners submitted that the MPSC failed to recommend the petitioners against the anticipated vacancies as both the petitioners are above the bench marks in the ACRS and there was no adverse remarks against them. Thus, the non-consideration of the petitioners by the MPSC is totally in violation of the fundamental rights. 6. The learned counsel further submitted that the MPSC acted by pick and choose without applying its mind. Hence, the recommendation of the private respondents against the 8 anticipated vacancies is illegal and arbitrary. He submits that the proceedings of the DPC held on 12.01.2022 failed to exercise its jurisdiction and duty assigned to it to consider the material facts. As such, the same is illegal and arbitrary and not maintainable in regard to the filling up of 8 anticipated vacancies for the year 2021-22. 7. The learned counsel urged that a post is filled by promotion where the recruitment rules provide and in making promotions, it should be ensured that suitability of the candidates for promotion is considered in an objective and impartial manner. In the recommendation, the MPSC acted arbitrarily and discriminating the petitioners for not recommending against the 8 anticipated vacancies instead recommended only 6 leaving two posts as vacant without any reason. Hence, the DPC held on 12.1.2022 for the anticipated vacancies for promotion to the post of Executive Engineer is illegal. Thus, a prayer is made to set aside the DPC held on 12.01.2022 and the promotion order dated 13.4.2022 and consequently, direct the first respondent to recommend the petitioners for promotion to the post of Executive Engineer against the remaining two anticipated vacancies. 8. Per contra, Mr. Thus, a prayer is made to set aside the DPC held on 12.01.2022 and the promotion order dated 13.4.2022 and consequently, direct the first respondent to recommend the petitioners for promotion to the post of Executive Engineer against the remaining two anticipated vacancies. 8. Per contra, Mr. R.S. Reisang, the learned senior counsel for the MPSC submitted that though the petitioners were considered, they could not be recommended for promotion to the post of Executive Engineer (PWD), as they were not in the zone of consideration. He submits that the first respondent conducted the DPC for filling up of Executive Engineer by promotion against 34 clear vacancies plus 8 anticipated vacancies in accordance with Office Memorandum dated 15.05.2014, wherein the provisions for normal size of zone of consideration for number of vacancies are laid down. 9. The learned counsel further submitted that there is no direct provisions for 34 clear vacancies and as such in regard to 34 vacancies, the DPC had considered upto Serial No.62 under the normal size of zone of consideration and that the names of the petitioners appeared at Serial Nos.63 and 65 of the inter-se seniority list of Assistant Engineer (Civil) could not be recommended for promotion to the post of Executive Engineer (PWD). Thus, a prayer is made to dismiss the writ petition. 10. Heard the submissions of Mr. H. Samarjit, learned Government Advocate appearing for the second respondent and he is adopting the arguments of the Learned counsel for the MPSC. 11. This Court considered the rival submissions and also perused the materials available on record. 12. There is no dispute that the petitioners are Diploma holders in Civil Engineer and joined the service to the post of Section Officers in the Public Works Department and subsequently promoted to the post of Assistant Engineers and now holding the feeder post for promotion to the post of Executive Engineers in the Department regularly and while holding the post of Executive Engineers, the petitioners have faced two transfer and posting orders. In the final inter-se seniority list of Assistant Engineer (Civil) in PWD, Manipur, the names of the petitioners appeared at Serial Nos.63 and 65 respectively just after the 8th respondent. 13. In the final inter-se seniority list of Assistant Engineer (Civil) in PWD, Manipur, the names of the petitioners appeared at Serial Nos.63 and 65 respectively just after the 8th respondent. 13. The factum of conduction of DPC by the MPSC for filling up of the post of Executive Engineer by promotion against the 34 clear vacancies plus 8 anticipated vacancies pursuant to the Office Memorandum dated 15.05.2014 has not been disputed by the respondent authorities. The only objection raised by the first respondent MPSC is that the petitioners are not under the normal size of zone of consideration and, therefore, they could not be recommended for promotion to the post of Executive Engineer. 14. As far as 34 clear vacancies, the DPC by its meeting held on 12.1.2022 recommended 32 Assistant Engineers by promotion to the post of Executive Engineer in Works Department against the clear vacancies of year wise vacancies of 34, keeping two post as vacant for Sominthang Singson and Munindro Mangang and kept in a sealed cover as their integrity are withheld. Whereas, by the same DPC, the MPSC recommended only 6 against the 8 anticipated vacancies which is stated in paragraph 12 of the impugned order. 15. At this juncture, the learned counsel for the petitioners submitted that though the petitioners are eligible and are within the zone of consideration, they have been omitted to recommend for the post of Executive Engineer and such an act of the first respondent is arbitrary and in violation of Article 14 and 16(1) of the Constitution of India. 16. In reply, the learned counsel for the MPSC submitted that the petitioners are not within the zone of consideration and they were not recommended. To prove the said plea, nothing has been produced by the first respondent. The fact remains that no adverse remarks against the petitioners have been produced by the respondent authorities. 17. As rightly argued by the learned counsel for the petitioners, in making promotions, it should be ensured that suitability of the candidates for promotion is to be considered that too in an impartial manner. The fact remains that no adverse remarks against the petitioners have been produced by the respondent authorities. 17. As rightly argued by the learned counsel for the petitioners, in making promotions, it should be ensured that suitability of the candidates for promotion is to be considered that too in an impartial manner. Moreover, the DPC's constituted shall judge the suitability of officers for (a) promotions to Selection-cum-Seniority and Section by Merit as well as non-selection posts; (b) confirmation in their respective grades/posts; (c) assessment of the work and conduct of probationers for the purpose of determining their suitability for retention in service or their discharge from it extending their probation; and (d) consideration of cases of Government servants for crossing the efficiency bar. 18. Admittedly, the petitioners are in Serial Nos.63 and 65 in the inter-se seniority list. It is essential that the number of vacancies in respect of which a panel is to be prepared by a DPC should be estimated as accurately as possible. For the said purpose, the vacancies to be taken into account should be the clear vacancies arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional post on a long term. 19. In Union of India and others v. N.R. Banerjee and others, (1997) 9 SCC 287 , the Hon'ble Supreme Court held thus: '9. It would, thus, be seen that the authorities are required to anticipate in advance the vacancies for promotion on regular basis including long-term deputation posts and additional posts created and then to take the action plan in finalising the ACRs, preparation of the select list and place necessary material before the DPC for consideration of the candidates within the zone of consideration, as are found eligible for the relevant year/years.' 20. For preparation of a select panel, the Departments may calculate the vacancies for reporting to DPC on financial year wise where ACRs are written financial year wise and calendar year wise and the promotion for the post has to be filled as a year wise vacancy. But in the recommendation, the first respondent has not recommended 8 anticipated vacancies instead it has recommended 6 leaving two post as vacant without any reason. But in the recommendation, the first respondent has not recommended 8 anticipated vacancies instead it has recommended 6 leaving two post as vacant without any reason. When in the DPC provided by the first respondent, it is clearly mentioned that the year of vacancy for the year 2021-22 is 8 anticipated vacancies, leaving two posts as vacant without any reason is not acceptable. Further, the non-recommendation of the petitioners who are the next persons eligible to be considered by the MPSC is totally in violation of the fundamental right for consideration of promotion and discrimination when no adverse remarks against the petitioners. 21. At this juncture, it would be appropriate to quote paragraph 11 of the judgment in the case of N.R. Banerjee, supra, wherein the Hon'ble Supreme Court held as under: '11. It would thus be seen that the claims of the candidates eligible have to be considered for promotion objectively and dispassionately, with a sense of achieving manifold purpose - (1) affording an opportunity to the incumbent to improve excellence, honesty, integrity, devotion to public duty; (2) inculcating discipline in service; (3) afford opportunity to every eligible officer within the zone of consideration for promotion to a higher post or office; and (4) ensuring that the committee regularly meets and considers their claim objectively, impartially with a high sense of responsibility in accordance with the procedure and finalisation of the list in advance so as to fill up vacancies arising in the year from the approved panel without any undue delay. They are salutary principles and form the purpose of the policy behind the above rules and the Government should follow them.' 22. This Court is of the view that the non-recommendation of the petitioners against the 8 anticipated vacancies is discriminatory, as the petitioners have served more than 17 years as regular service and 3 years in the post of Assistant Engineer (Civil) and also in the report issued by the Director of Vigilance and Anti Corruption for 66 Assistant Engineers, the names of the petitioners appeared at Serial Nos.53 and 55 for promotion to the post of Executive Engineer to the effect that no vigilance case is pending. When there is no adverse remarks against the petitioners and the petitioners are entitled to be considered for promotion, the non-consideration of them necessitated the petitioners in filing the writ petition. When there is no adverse remarks against the petitioners and the petitioners are entitled to be considered for promotion, the non-consideration of them necessitated the petitioners in filing the writ petition. For the foregoing discussions and finding merits in the writ petition, this Court is inclined to pass the following order. 23. In the result, (i) The writ petition is allowed. (ii) The impugned DPC dated 12.01.2022 in not considering the names of the petitioners for promotion to the post of Executive Engineer is set aside in respect of the petitioners. (iii) The first respondent is directed to hold review DPC for considering to recommend the names of the petitioners for the promotion to the post of Executive Engineer against the remaining 2 anticipated vacancies arose in the year 2021-22 and pass orders accordingly. (iv) The aforesaid exercise is directed to be completed within a period of two months from the date of receipt of a copy of this order. (v) No costs.