Balwant Singh vs The State Of Assam And 18 Ors
2022 Latest Caselaw 1952 Gua

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GAHC010098462019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/2969/2019

         BALWANT SINGH
         SON OF LATE BRIJLAL SINGH, R/O. FLAT NO. 3B, PRAKASH ENCLAVE, 9TH
         HARABALA ROAD, ULUBARI, GHY.- 781001.
         PRESENTLY SERVING AS EXECUTIVE ENGINEER (C), PWD (BUILDING)
         NORMAL BRANCH, IN THE OFFICE OF THE CHIEF ENGINEER, PWD
         (BUILDING), ASSAM, CHANDMARI, GHY.-3.



         VERSUS

         THE STATE OF ASSAM AND 18 ORS.
         REP. BY THE ADDL. CHIEF SECRETARY, PUBLIC WORK DEPTT. (ROADS)
         AND PWD (B AND NH), DISPUR, GHY.- 781006. (CHAIRMAN OF THE
         SELECTION COMMITTEE).

         2:THE COMMISSIONER AND SPL. SECRETARY TO THE GOVT. OF ASSAM

          PUBLIC WORKS (ROAD) DEPTT.
          DISPUR
          GHY.- 781006.

         3:THE COMMISSIONER AND SPL. SECRETARY
          PUBLIC WORKS ( BUILDING AND NH ) DEPTT.
          DISPUR
          GHY.- 781006.

         4:THE DY. SECRETARY TO THE GOVT. OF ASSAM
          PUBLIC WORKS ( ROAD) DEPTT.
          CONFIDENTIAL CELL
          BLOCK-B
          DISPUR
          GHY.- 781006.
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5:THE SECRETARY

PUBLIC WORKS (ROAD) DEPTT.
DISPUR
GHY.-6.

6:SRI BHUPENDRA CHANDRA SARMA
 SUPERINTENDENT ENGINEER
 PW(R)D
 GUWAHATI ROADS CIRCLE
 FANCY BAZAR
 GUWAHATI.- 781001
ASSAM.

7:PRAKHIT BARUAH
 EXECUTIVE ENGINEER
TRAFFIC ENGINEERING CELL
 O/O. THE SUPERINTENDING ENGINEER (C)
TRAFFIC ENGINEERING CELL
 CHANDMARI
 GHY.-3.

8:PRANAB KUMAR CHOUDHURY
 EXECUTIVE ENGINEER
 UDALGURI (RURAL) DIVISION
 UDALGURI- 784509
ASSAM.

9:DEBESH CHAKRABORTY
 EXECUTIVE ENGINEER
 NALBARI RURAL ROADS DIVISION
 NALBARI- 781335
ASSAM.

10:PRANAB KUMAR ADHIKARI
 EXECUTIVE ENGINEER
 PUBLIC WORKS ROADS DEPTT.
 SARUPATHAR RURAL ROAD DIVISION
 SARUPATHAR
 GOLAGHAT- 785601
ASSAM.

11:JOGESH CHANDRA SARMA
 EXECUTIVE ENGINEER
 PWD
 NAGAON BUILDING DIVISION
 NAGAON- 782001
ASSAM.
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12:DWIJEN HAZARIKA
 EXECUTIVE ENGINEER
 PWD
 DIBRUGARH NH DIVISION
 DIBRUGARH- 786001
ASSAM.

13:BISHNU PRASAD DAS
 EXECUTIVE ENGINEER
 PWD
 KARIMGANJ NH DIVISION
 KARIMGANJ- 788710
ASSAM.

14:TARUN CHANDRA HAZARIKA
 CHARAIDEO RURAL ROAD DIVISION
 CHARAIDEO
ASSAM- 782445
ASSAM.

15:PARESH CHANDRA DEKA
 EXECUTIVE ENGINEER
 PWD
 GUWAHATI NH DIVISION
 FANCY BAZAR
 GHY.-01.

16:PAKSHAPATI HAZARIKA
 EXECUTIVE ENGINEER
 PWD
 GUWAHATI BUILDING DIVISION-II
 DISPUR
 GHY.-06.

17:SAILADIP DAS
 EXECUTIVE ENGINEER
 PWD
 GUWAHATI BUILDING DIVISION-I
 FANCY BAZAR
 GHY.-01.

18:ARUN CHANDRA GOSWAMI
 EXECUTIVE ENGINEER
 PWD
 SIVASAGAR BUILDING DIVISION
 SIVASAGAR- 785640
ASSAM.
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            19:SALEH AHMED CHOUDHURY
             EXECUTIVE ENGINEER
             PWD
             NH ROADS BRANCH
             O/O. THE CHIEF ENGINEER
             PWD
             NH DIVISION
             CHANDMARI
             GHY.-03

Advocate for the Petitioner   : MR. H. BURAGOHAIN

Advocate for the Respondent : MR. D. NATH,
                              SENIOR GOVERNMENT ADVOCATE, ASSAM




                                      -B E F O R E-
                 HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA


           Date of order             : 03.06.2022



                                       O R D E R

(CAV)

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 Page No.# 5/10

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 Page No.# 6/10

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 graded as 'Outstanding' in the ACR for the year 2015-2016, which had not been considered by the respondents while considering his candidature for promotion against the 2016 vacancies.

5. Petitioner's counsel submits that the respondents should have considered the petitioner's ACR for the years 2011-2012 to 2015-2016 for the 2016 vacancies in terms of the Notification dated 28.04.2003. In support of his submission, the learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of S.B. Bhattacharjee -vs- S.D. Majumdar & Ors., reported in (2007) 10 SCC 513.

6. The petitioner's counsel thus prays that the Notifications dated 01.09.2018 and 11.04.2019 should be set aside and a direction should be issued to the respondent authorities, to undertake a fresh exercise for preparing and publishing a fresh gradation list, after considering the case of the petitioner for promotion from the post Page No.# 7/10

of AEE to EE, by taking into account the petitioner's ACR for the year 2015-2016 for the 2016 vacancies.

7. Mr. D. Nath, learned senior Government Advocate, Assam, on the other hand, submits that the DPC did not commit any infirmity, in not considering the petitioner's ACR for the year 2015-2016 for the 2016 vacancies, inasmuch as, the Notification dated 28.04.2003 requires that the DPC should consider the final accepted remarks in the ACR immediately preceding the year in which the vacancy had arisen. He submits that as the vacancy had occurred in the year 2016, the last completed ACR of the petitioner and the private respondents would be ACR for the year 2014-2015, i.e. between 01.04.2014 and 31.03.2015. The learned senior Government Advocate, Assam submits that the vacancy that had occurred in a year would have to be

considered as a vacancy that occurred between 1st January and 31st December in a calendar year and, as such, even if the vacancy occurs in January or December of a calendar year, the same would have to be considered to be a vacancy that occurred for the whole year. Mr. D. Nath also relies upon the same judgment of the Apex Court in S.B. Bhattacharjee (supra), in support of his submission that the DPC had rightly not considered the petitioner's ACR for the year 2015-2016, for promotion to the vacancies that occurred in the year 2016.

8. I have heard the learned counsels for the parties.

9. Rule 2(j) of the 1978 Rules defines a 'year' to mean a 'calendar year'. 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. Rule 5 of the Assam Service (Confidential Rolls) Rules, 1990 (hereinafter referred to as 'the 1990 Rules') provides that a confidential report assessing the performance, character, conduct and qualities of every employee shall Page No.# 8/10

be written for each financial year.

10. Thus, as can be seen from the foregoing paragraph, ACR would have to be

written for the period from 1st April to 31st March of the subsequent year. On the other hand, the occurrence of vacancies would have to be considered in relation to a calendar year in terms of Rule 13(1) of the 1978 Rules.

11. The relevant extract of the Notification dated 28.04.2003 reads as under:

"Promotion upto the rank of Superintending Engineer:

Merit and suitability with due regard to seniority. The appointing authority will allocate the following points to the final accepted remarks in the ACRs in case of merit and category 3 shall not be eligible to be suitable for promotion in case of merit and suitability.

                 Below Average         =     0 point
                 Average              =      1 point
                 Good                  =     2 points
                 Very Good            =     3 points
                 Outstanding          =     4 points

The total points against each officer in the zone of consideration is to be calculated on the basis of the guidelines stated above considering ACRs for a period of 5 years on the 1 st January of the year of promotion.

..............................................................................................

            (B) Promotion from AEE to EE

                  Class-A      =      21.3 and above
                  Class-B      =      11.3 to below 21.3

Class-A will get preference over Class-B and inter-se-seniority within Class-A will remain unchanged.".

12. The question that arises for consideration is as to whether the petitioner's ACR for the year 2015-2016 should have been considered for the vacancies that arose in Page No.# 9/10

the year 2016, keeping in view the 1978 Rules, the 1990 Rules and the Notification dated 28.04.2003.

13. The extract of the Notification dated 28.04.2003 clearly shows that the total points against each officer in the zone of consideration is to be calculated on the basis of the guidelines stated in the Notification, considering the ACRs for a period of five

years on 1st January of the year of promotion. The Notification also states that points have to be allocated to the final accepted remarks in the ACR in case of merit. Thus, a reading of the above extract of the Notification dated 28.04.2003 clearly shows that only the "final accepted remarks" in the ACRs for a period of five years would have to

be considered keeping in view 1st January of the year of promotion.

14. In the opinion of this Court, the words "1 st January of the year of promotion" reflected in the extract of the Notification dated 28.04.2003, would have to relate back to the vacancy year and not to the actual year of promotion. Assuming that agenda papers for a vacancy that occurred in the year 2016 had been considered by a DPC in the year 2020 and promotion order had been issued on the basis of the DPC recommendation in the year 2022, then in terms of the literal meaning of the words

"1st January of the year of promotion", the ACR of a candidate for the year 2020-2021 would also have to be considered by the DPC, while considering promotion to a vacancy that occurred in 2016. However, this would create an ambiguous situation, inasmuch as, the ACRs beyond the year of vacancy and non-existent ACRs beyond the year of the sitting of the DPC would have to be considered. Accordingly, in the opinion

of this Court, the words "1 st January of the year of promotion", which is reflected in the Notification dated 28.04.2003, would have to relate back to the year of vacancy.

15. In the present case, the year of vacancies is 2016 and in terms of the 1978

Rules, a year means 'a calendar year', i.e. from 1 st January to 31st December.

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Therefore, for a vacancy that occurred in the year 2016, the final accepted remarks in the ACR would be the ACR for the period 2014-2015. "Final accepted remarks in the ACR", which is reflected in the extract of the Notification dated 28.04.2003, would mean the ACR which has been finally accepted by the Accepting Authority. As such, the ACR for the year 2015-2016 could not be considered by the DPC/ respondent authorities for the vacancy year 2016, as the ACR for 2015-2016 could not have been finally accepted prior to 31.03.2016 by the Accepting Authority.

16. In the case of S.B. Bhattacharjee (supra), the Apex Court was seized of a case wherein the DPC was required to consider the service records of the candidates for promotion, with particular reference to the ACRs for five preceding years. The Apex Court held that the ACRs for five preceding years must be held to mean five preceding years of ACRs which have attained finality. This Court is of the view that the decision of the Apex Court in S.B. Bhattacharjee (supra) supports the case of the State respondents, as the ACRs which had attained finality, for a period of five years preceding the date of vacancy, would entail that the ACRs of the candidates from 2010-2011 to 2014-2015 only, would have to be considered for the 2016 vacancies.

17. In view of the reasons stated above, this Court does not find any ground to interfere with the non-consideration of the petitioner's ACR for the year 2015-2016 for the vacancies that occurred in the year 2016.

The writ petition is accordingly dismissed.

JUDGE

Comparing Assistant