K. Fairlett Shabong vs State of Meghalaya and Others

J. Sangma, J.—The Petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution for quashing the Notification dated 28th December, 1990, Annexure-F, in so far as Respondent Nos. 3 and 4 were concerned and for directing the Respondent Nos. 1 and 2 to promote him with respective effect from that date.

The Petitioner''s case is as follows:

Respondents No. 1 and 2 appointed the Petitioner in the post of Sub Inspector of Supply. He joined that appointment on 29.1.72 and served well. On 9.8.77 Respondent No. 1 and 2 issued a list of Sub Inspectors (Annexure-B) showing the Petitioner at serial No. 10 in order of merit and inter se seniority. None of the incumbents who were shown below him raised objection to that list. In due course the Petitioner was promoted to the post of Inspector of Supply with effect from 16.6.80. He joined as Inspector at Shillong on 16.6.80 itself and served well in that post also.

The Deputy Secretary, Government of Meghalaya in Food and civil Supply published a Gradation List under Memo No. SUP. 145/90/7-A dated 30.11.90 with respect to the cadre of Joint Director of Supply, Superintend of Supply and Inspector of Supply. In the gradation list of Inspectors the Petitioner was placed at 12th position. No one objected to this gradation list also. There was no adverse remark in his ACR. The Respondent Nos. 3 and 4 were shown in the said gradation list of Inspectors at serial Nos. 13 and 15 respectively.

Regular vacancies to the post of Superintendent of Supply occurred towards the end of December, 1990. The Petitioner being senior to Respondent Nos. 3 and 4 in the gradation list of Inspectors naturally expected promotion in those vacancies. But in purported exercise of power under Regulation 4(d) of MPSC the, Respondent No. 2 issued the impugned notification promoting Respondent Nos. 3 and 4 by superseding him. Hence the Petitioner has questioned this notification as being arbitrary and violative of Article 14 and 16 of the Constitution, this Court gave him the rule on 24.5.91.

The Deputy Secretary to the Government of Meghalaya Food and Civil Supplies Department filed counter affidavit on 5th October 1993. In his affidavit he did not deny: (1) that in the gradation list of Inspectors the Petitioner senior to Respondent Nos. 3 and 4, (2) that there was no adverse remark in his ACR and (3) that the vacancies which occurred were regular vacancies. However, he supported the impugned notification by saying that ''Respondent Nos. 3 and 4 were promoted to the post of Superintendent under Regulation 4(d) of the Meghalaya Public Service Commission Limitation of Functions) Regulations, 1972; hereinafter "the Regulation", on recommendation by the DPC who considered all the relevant service records of the Inspector including the Petitioners He stated that the Meghalaya Public Service Commission (MPSG) also approved the promotion of Respondent Nos. 3 and 4, but produced no record-to supper this.

Secondly he stated that the Petitioner not having alleged bias or malafide on the part of DPC, the petition is not maintainable. On this ground he prayed for dismissing the petition. Respondent Nos. 3 and 4 have not made appearance to contest the petition. Respondent No. 5 also did not make appearance to support the plea of Respondent Nos. 1 and 2 that they (MPS) approved the promotion of Respondent Nos. 3 and 4.

Mr. B.K. Das, learned Counsel for the Petitioner stated that Respondent No 3 retired during the pendency of tins case, but his post is yet to be filled up. He therefore stated that the Petitioner would now pray for relief only against Respondent No. 4. He argues that the Petitioner being senior the impugned notification is arbitrary find violative of Article 14 and 16 of the Constitution, Mrs. B. Dutta, the learned Govt. Advocate, Meghalaya in reply submitted that merely because the Petitioner was senior in gradation list and his ACR did not have adverse remark he can not claim the promotion, She submitted that the Government promoted Respondent Nos. 3 and A on recommendation of the DPC it can not be said that the notification was arbitrary and violative of Article 14 and 16 of the Constitution.

Rule 4 of the Regulation provides as follows:

Promotion - It shall not be necessary to consult the Commission on the principle to be followed in making promotions or on the suitability of candidates for promotion In the following cases:

....

(d) officiating promotion for a period which is not likely to last for more than one year.

The rule does not say that the Govt. could give officiating promotion to a junior by bypassing the senior.

2nd para of Rule 13 of the Assam Supply Services Rules, 1970 provides:

In every case where - a junior member in a cadre is selected in preference to his senior in that cadre, the committee shall record In writing the reasons of such supersession.

This rule and 4(d) of the Regulation must be read together. So if a junior is to be promoted even under provision of Rule 4(d), reasons must be given to justify the supersession.

In Sushil Kumar v. the State of Assam (1990) 2 GLR 95 a Division Bench of this Court held that where the Selection Board did not recommend a senior most officer her amongst the candidates for promotion, the appointment of his junior without giving reasons was not tenable in law. In Abdul Fazal v. Assam Administrative Tribunal 1990 (1) GLJ 108 a Division Bench of this Court to which 1 was a party, held that as seniority docs play its pan in the process of selection, the Selection Board has to give its reasons when an officer suitable for promotion is not promoted.

In the instant case the Respondent Nos. 3 and 4 were promoted to the post of Superintendent of Supply by superseding the Petitioner without giving reasons. The action of the Respondent Nos. 1 and 2, therefore, is clearly arbitrary and it has violated Article 14 and 15 of the Constitution.

The petition therefore is allowed and as the Petitioner now prays for relief only against Respondent No. 4 the impugned notification (Annexure-F) is quashed in regard to Respondent No. 4 (Shri A. Lyngrah). It is declared that the Petitioner, who is senior to him and has admittedly a good record in ACR, is eligible to be promoted to the post of Superintendent of Supply before Respondent No. 4, Respondent Nos. 1 and 2 are, therefore, directed to lake steps to that effect within a period of 3 months from today. No costs.