Bhabanidhar Choudhury vs State of Assam and Others

A.K. Patnaik, J.—These cases were heard together, and are being disposed of by a common judgment as they arise out of the same set of facts and [HN/BKS] involve the same questions of law.

The facts briefly are that for the year 2000, 9 vacancies in the post of Additional Chief Engineer (Civil), (hereinafter referred to as "Addl. CE(C)"), were assessed by the Government. But the State Level Empowered Committee, (for short "SLEC") constituted by Office Memorandum dated 6.12.1999 of the Government of Assam, Finance (Budget) Department with a view to optimising the utilisation of the services of the existing Government employees cleared the filling up of a total of 9 vacancies in the post of Addl. CE(C) upto 31.12.2000. Since 5 vacancies out of the 9 vacancies had been filled up from the select list dated 11.10.1999 for the year 1999, the Selection Board considered Superintending Engineers, Public Works Department, for promotion to 4 remaining posts of Addl. CE(C), Public Works Department and made its recommendation accordingly, and on the basis of the said recommendation a select list dated 13.9.2000 of 8 Superintending Engineers, (for short "SE(C)") for promotion to the rank of Addl. CE(C), Public Works Department, (for short "PWD") was notified by the Government of Assam, PWD. Aggrieved by the said notification dated 13.9.2000 notifying the list of 8 SE(C) for promotion to the rank of Addl. CE(C), PWD, the Appellant in Writ Appeal No. 129/2001 filed Writ Petition (Civil) No. 5756/2000. By judgment and order dated 12.4.2001, the learned Single Judge dismissed the writ petition. Writ Appeal No. 129/2001 is against the said judgment and order dated 12.4.2001 of the learned Single Judge in Writ Petition (Civil) No. 5756/2000.

The Petitioners in Writ Petition (Civil) Nos. 4482/2000 and 4462/2000 have prayed for a direction on the State-Respondents to promote them to rank of Addl. CE(C) on the basis of the earlier select list dated 11.10.1999 for the year 1999. The two Petitioners, who are Scheduled Caste and Scheduled Tribe. candidates, in Writ Petition (Civil) 6196/2000 have challenged the notification dated 13.9.2000 notifying the select list of candidates for promotion to the rank of Addl. CE(C) on the ground that the said select list has not been prepared in accordance with the provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 and the rules made thereunder.

Mr P.K. Goswami, learned senior Counsel appearing for the Appellant in Writ Appeal No. 129/2001, submitted that it would be clear from the proceedings of the Selection Board held on 9.8.2000 that the total probable vacancies in the post of Addl. CE(C), PWD, during the year ending 31.12.2000 were 9. Thus, the likely number of vacancies assessed under Rule 13(1) of the Assam Engineering (Public Works Department) Service Rules, 1978, (for short, "the Rules, 1978), to be filled up by promotion from amongst SE were 9. Accordingly, in accordance with Rule 13(2) of the Rules, 1978, 4 times the number of vacancies, i.e. 9x4 = 36 officers in order of seniority in the rank of SE(C), PWD, were to be considered for such promotion and in accordance with Rule 13(5) of the Rules, 1978, the Selection Board was required to recommend to the Appointing Authority a select list of officers double the number of probable vacancies in order of preference found suitable for promotion, i.e., 9x2 = 18 selected candidates. But contrary to the said provisions of the Rules, 1978, the Selection Board took note of the fact that the SLEC have cleared for filing up of 9 vacancies in the rank of Addl. CE(C) by promotion from SE(C) upto 31.12.2000 out of which 5 vacancies had already been filled up from amongst the candidates selected by select list dated 11.10.1999 and thereafter undertook the exercise for considering promotion to the remaining 4 vacancies. Mr Goswami vehemently argued that under Article 16 of the Constitution, the Appellant had the right to be considered and recommended in accordance with the Rules, 1978, for promotion to the post of Addl. CE(C) and it was thereafter for the Government to decide as to how many vacancies in the rank of Addl. CE(C) should be filled up from amongst the candidates recommended by the Selection Board. He submitted that the learned Single Judge in the impugned judgment dated 12.4.2001 in Writ Petition (Civil) No. 5756/2000 fell into an error of law in coming to the conclusion that the Selection Board had rightly considered and recommended the candidates for promotion to the 4 remaining posts of Addl. CE(C) in view of the fact that only 4 vacancies could be filled upto 31.12.2000 as per the decision of the SLEC. Mr Goswami next submitted that Anr. reason given by the learned Single Judge in the aforesaid impugned judgment in dismissing the writ petition of the Appellant was that the Appellant had been duly considered by the Selection Board for promotion to the 4 vacancies in the post of Addl. CE(C) and, therefore, could have no grievance before the Court. Mr Goswami explained that had the Selection Board undertaken the exercise for considering and recommending candidates for the 9 vacancies in the rank of Addl. CE(C) in accordance with Rule 13 of the Rules, 1978, then the Selection Board required to recommend 18 selected candidates in order of merit instead of 8 candidates in order of merit, and the Appellant would have every chance of having been included in the list of 18 selected candidates. Mr Goswami next stated that still Anr. reason given by the learned Single Judge in refusing relief to the Appellant in the writ petition was that while the first two candidates in the impugned notified select list dated 13.9.2000, namely, Khagendra Chandra Choudhury and Hem Chandra Bhuyan had been impleaded as private-Respondents in the writ petition, the third and fourth candidates in the said select list dated 13.9.2000, namely, Karunabhiram Rajkhowa and Sri Kabi Chandra Bezbarua who were likely to be promoted to the other two vacancies out of the total of 4 vacancies in the rank of Addl. CE(C) had not been impleaded as private Respondents in the writ petition. The said two selected candidates Sri Karunabhiram Rajkhowa and Sri Kabi Chandra Bezbarua have themselves filed separate writ petitions, namely. Writ Petition (Civil) Nos. 4482/2000 and 4622/2000 challenging the said select list dated 13.9.2000 and are thus parties before this Court.

Mr Bhargav Choudhury, learned Additional Senior Government Advocate, Assam, relied on the affidavit-in-opposition filed on behalf of the State-Respondents in Writ Petition (Civil) No. 5756/2000 and in particular paragraph-11 thereof in which it has been stated that the select list dated 13.9.2000 could not be given effect to as there was a lot of resentment amongst the eligible officers who would have come within the zone of consideration if all the 9 including 5 vacancies which were filled up were taken into consideration. He also referred to paragraph-19 of the said affidavit-in-opposition in which it has been reiterated that the selection made for 4 vacancies did not reflect the actual vacancy position of Addl. CE(C) inasmuch as there were 9 clear vacancies in the year 2000 as recorded in the minutes of the Selection Board meeting held on 9.2.2000.

Mr A. Roy, learned senior Counsel appearing for private-Respondent Nos. 3 and 4 in Writ Appeal No. 129/2001, on the other hand, sought to sustain the select list notified by notification dated 13.9.2000. He submitted that since the SLEC had cleared the filling up of only 9 vacancies upto 31.12.2000 and 5 out of the said vacancies had been filled up by the candidates selected by the select list dated 11.10.1999 when the said select list was still valid and operative, promotion could be considered by the Selection Board for the year 2000 only for 4 vacancies and not for 9 vacancies and, therefore, the Selection Bogrd rightly undertook the exercise for considering and recommending candidates for 4 vacancies in the rank of Addl. CE(C) for the year 2000.

Mr A. Thakur, learned Counsel appearing for the Petitioners in Writ Petition (Civil) Nos. 4482/2000 and 4622/2000, on the other hand, submitted that since the Petitioners had been selected by the earlier select list dated 11.10.1999 for promotion to the rank of Addl. CE(C), until the earlier select list dated 11.10.1999 was exhausted and the Petitioners were appointed on the basis of the earlier select list, no fresh selection could have been held for considering promotion to the rank of Addl. CE(C), PWD.

Mr A.K. Sarkar, learned Counsel appearing for the two Petitioners in Writ Petition (Civil) Nos. 6196/2000 who are Scheduled Caste and Scheduled Tribe(P) candidates, submitted that the provisions for reservation for Scheduled Castes and Scheduled Tribes have not been followed by the Selection Board while making recommendation for promotion to the vacancies in the rank of Addl. CE(C). PWD, for the year 2000.

Promotions from the rank of SE(C) to the rank of Addl. CE(C) in PWD are made in accordance with Rule 13 of the Rules, 1978. Relevant portions of Rule 13 of the Rules, 1978 are quoted hereinbelow:

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 the 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.

It would be clear from the aforesaid portions of Rule 13 that an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre is to be made by the Govermnent. The word ''likely'' means ''probable'' (Black''s Law Dictionary, Fifth Edition, Page-834). The minutes of the Selection Board meeting held on 9.8.2000 indicates that the Department had informed the Selection Board that there were 9 numbers of probable vacancies in the rank of Addl. CE(C) during the calendar year ending 2000 and the Selection Board itself had come to the conclusion that the total probable vacancies would be 9 during the year ending 31.12.2000. The portion of Sub-rule (2) of Rule 13 of the Act, 1978, quoted above, clearly provides that as many officers in order of seniority as 4 times the number of vacancies assessed under Sub-rule (1) are to be considered by the Selection Board. Thus, 36 (9x4) offices in order of seniority in the rank of SE(C) were to be considered for promotion by the Selection Board to the vacancies in the rank of SE(C) for the year 2000. Sub-rule (5) of Rule 13, quoted above, further provides that the Selection Board 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. For the 9 vacancies in the rank of Addl. CE(C) for the year 2000 therefore the Selection Board was required to recommend 18 officers in order of preference for promotion. The Rules, 1978 are the Rules framed by the Governor of Assam under the proviso to Article 309 of the Constitution of India. The aforesaid provisions of Rule 13 are therefore statutory provisions. Thus, officers have a legal right for consideration and recommendation by the Selection Board in accordance with the said statutory provisions. After such consideration and recommendation by the Selection Board in accordance with the said statutory provisions in Rule 13 of the Rules, 1978, however, the Government may decide to fill up only 4 vacancies out of 9 vacancies of the year 2000 in View of the decision of the SLEC clearing filling up of a total of 9 vacancies upto 31.12.2000 in the rank of Addl. CE(C). In our considered opinion, the Selection Board could not have by passed the statutory provisions in Rule 13 of the Rules, 1978 and considered and recommended candidates for promotion to only 4 vacancies in the rank of Addl. CE(C) in the year 2000 in view of the decision of the SLEC to fill up a total of 9 vacancies in the rank of Addl. CE(C) upto 31.12.2000. The position appears to have been realised by the State Government inasmuch as the State-Respondents, namely, the State of Assam, the Commissioner and Special Secretary to the Govt. of Assam, PWD have in their affidavit-in-opposition in Writ Petition (Civil) No. 5756/2000 stated that the select list dated 13.9.2000 could not be given effect to as there was a lot of resentment amongst the eligible officers who would have come within the zone of consideration if all the 9 including 5 vacancies which were filled up were taken into consideration.

It is true as has been held by the learned Single Judge in the impugned judgment that the Appellant in Writ Appeal No. 129/2001 had been considered for promotion by the Selection Board in its meeting held on 9.8.2000, but the Appellant had not been found by the Selection Board to be unsuitable for promotion to the post of Addl. CE(C). While recommending the officers in order of preference, however, the Selection Board did not recommend the Appellant as on consideration of his merit compared to the selected candidates, the selected candidates were better. But for the 4 vacancies only 8 officers were recommended in order of preference, whereas for 9 vacancies 18 officers were required to be recommended in order of preference. The Court cannot rule out the possibility of the Selection Board recommending the Appellant as one put of the said 18 officers in order of preference for promotion to the rank of Addl. CE(C) in the vacancies of 2000. Hence, the fact that the Appellant was considered by the Selection Board is not enough to dismiss the writ appeal.

It is true again, as has been held by the learned single Judge that the third and fourth selected candidates in the notification dated 13.9.2000. namely, Sri Karunabhiram Rajkhowa and Sri Kabi Chandra Bezbarua. were not impleaded as private-Respondents in Writ Petition (Civil) No. 5756/2000, but the said Sri Karunabhiram Rajkhowa and Sri Kabi Chanidra Bezbarua were/are before this Court in Writ Petition (Civil) Nos. 4482/2000 and 4622/2000, and we have heard Mr. A. Thakur, learned Counsel appearing for the said two Petitioners. We are however not impressed by the argument advanced by Mr. A. Thakur that the select list dated 11.10.1999 notifying the selected candidates for promotion to the rank of Addl. CE(C) including the said two Petitioners, Sri Karunabhiram Rajkhowa and Sri Kabi Chandra Bezbarua, was to be first exhausted by the Government before fresh selection was made. As indicated in Rule 13 of the Rule, 1978, quoted above, an assessment has to be made of likely vacancies in the cadre for every calendar year and a fresh selection has to be made for such vacancies out of officers 4 times the number of vacancies by the Selection Board.

For the foregoing reasons, we set aside the impugned judgment and order dated 12.4.2001 passed by the learned Single Judge in W.R(C) No. 5756/2000, quash the select list dated 13.9.2000 of the Government of Assam, Public Works Department, notifying the list of 8 selected candidates for promotion to the rank of Addl. CE(C) in PWD, and allow the writ appeal. We direct that a fresh selection be held by the Selection Board in accordance with Rule 13 of the Rules, 1978, for the 9 vacancies in the rank of Addl. CE(C) for the year 2000 and in such selection 36 officers in order of seniority in the rank of SE(C), PWD, be considered and 18 candidates if found suitable be recommended by the Selection Board in accordance with the said Rule 13 of the Rules, 1978. The provisions for reservation in the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978, and the Rules made thereunder be followed while making selection and recommendation by the Selection Board. It will however be open for the Government to decide as to how many officers selected and recommended for such promotion would actually be promoted to the rank of Addl. CE(C) taking into account the decision of the State Level Empowered Committee and all other relevant factors.

With the aforesaid direction, the writ appeal and writ petitions are disposed of. Considering however the entire facts and circumstances of the case, the parties shall bear their own costs.