Back
2022 Supreme(Gau) 337
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, J.
Balwant Singh Son Of Late Brijlal Singh – Appellant
Versus
The State Of Assam And 18 Ors. – Respondents
WP(C) 2969 OF 2019
Decided on : 03-06-2022
Advocate Appeared:
For the Appellant : MR. H. BURAGOHAIN
For the Respondent: MR. D. NATH, ADV
Point of Law : Rule 13(1) of the 1978 Rules states that 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.
Headnote:
Assam Service (Confidential Rolls) Rules, 1990 – Rule 5 – Confidential reports – Petitioner’s grievance is with regard to consideration of petitioner’s case by the DPC held, for promotion from post of Assistant Executive Engineer to the post of Executive Engineer, PWD (Roads), Government of Assam - Rule 13(1) of the 1978 Rules states that 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 (Para 9).
Findings of the Court :
Court, words reflected in extract of Notification, would have to relate back to vacancy year and not to actual year of promotion - Court held that ACRs for five preceding years must be held to mean five preceding years of ACRs which have attained finality - This Court is of view that decision of Apex Court supports the case of State respondents, as ACRs which had attained finality, for a period of five years preceding date of vacancy, would entail that the ACRs of the candidates would have to be considered for the 2016 vacancies.
Result : Writ petition is dismissed.
ORDER :
1. Heard Mr. H. Buragohain, learned counsel for the petitioner. Also heard Mr. D. Nath, learned senior Government Advocate, Assam for the State respondents. No one appears for the private respondents, though notice is served upon them as per order dated 20.11.2020.
2. Petitioner’s grievance is with regard to the consideration of the petitioner’s case by the DPC held on 21.09.2017, for promotion from the post of Assistant Executive Engineer to the post of Executive Engineer, PWD (Roads), Government of Assam. The grievance of the petitioner is that the DPC did not consider the 2015-2016 ACR of the petitioner and other eligible candidates, in respect of the vacancies that occurred in the post of Executive Engineer (EE) in the year 2016. The DPC considered the ACRs of the petitioner and other eligible candidates for the years 2010-2011 to 2014-2015. The stand of the petitioner is that if the respondents/DPC had considered the petitioner’s 2015-2016 ACR (in which he was graded “Outstanding”) for the 2016 vacancies, the petitioner would have secured the benchmark for promotion to the post of EE and consequently, would have retained his seniority over the private respondents.
3. Petitioner’s case in brief is that the petitioner had always been senior to the private respondents in the Grade of Assistant Engineer (AE) and Assistant Executive Engineer (AEE). The State respondents, while considering promotion of the petitioner and the private respondents from the post of AEE to EE, had promoted the petitioner against a 2017 vacancy, while the private respondents were promoted against 2016 vacancies. In view of the petitioner being promoted against a later vacancy, the petitioner’s seniority position in the inter-se seniority list/gradation list was placed below the private respondents. Accordingly, the petitioner has made a challenge to the inter-se seniority lists dated 01.09.2018 and 11.04.2019.
4. Petitioner’s counsel submits that in terms of Rule 13(1) of the Assam Engineering (PWD) Service Rules, 1978 (hereinafter referred to as the 1978 Rules), the Government, before the end of each year, is to make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre. Rule 2(j) of the 1978 Rules defines ‘year’ to mean a ‘calendar year’. In terms of the Notification No. CON-5/2003/50 dated 28.04.2003 issued by the Government of Assam, Public Works Department, promotion to the rank of Executive Engineer has to be made on the basis of ‘merit and suitability with due regard to seniority’. He submits that in terms of the Notification dated 28.04.2003, the total points against each officer in the zone of consideration is to be calculated on the basis of the guidelines stipulated in the said Notification, while considering the ACRs for a period of 5 years on 1st January of the year of promotion. As the petitioner was considered for promotion by the DPC in the year 2017, the ACRs upto the year 2016, i.e. 2015-2016 ACR should have been considered. He submits that in terms of the said Notification dated 28.04.2003, persons who secure 21.3 marks and above, on the basis of the ACRs, are to be classified as Class-A category, while the persons who secure between 11.3 to below 21.3 marks are to be classified as Class-B category. Further, Class-A category would get preference over Class-B for promotion. However, as all the vacancies for the year 2016 were filled up by the private respondents who were categorized as Class-A, while the petitioner was classified as Class-B, the private respondents stole a march over the petitioner. Thereafter, while considering the case of the petitioner for promotion against a vacancy that occurred in the year 2017, the petitioner was categorized as Class-A, in view of the fact that the marks secured by the petitioner had risen to 21.3 due to the petitioner being grad
