14.05.2015 WP(C) No.810/2015 BEFORE HON BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. SK Goswami, learned counsel for the petitioners and Mr. P Roy, learned Addl. Advocate General, Assam assisted by Ms. B Hazarika, learned Govt. Advocate, Assam. Also heard Dr. B Ahmed, learned Standing Counsel, Irrigation Department, Assam. This petition has been filed under Article 226 of the Constitution of India, seeking a direction to the respondents to follow the provisions of Rule 13(1) of the Assam Engineering (Irrigation Department) Service Rules, 1978 and to promote the petitioners from the rank of Assistant Engineer (Civil) to Assistant Executive Engineer (Civil). Matter relates to selection for promotion from Assistant Engineer (Civil) to Assistant Executive Engineer (Civil) in the Irrigation Department, Govt. of Assam. Petitioners are serving as Assistant Engineer (Civil) in the Irrigation Department. According to them, they are eligible for promotion to the next higher rank of Assistant Executive Engineer (Civil). Petitioners are placed at serial Nos.34, 36, 45 and 47 in the gradation list of Assistant Engineer (Civil). Petitioner Nos. 1, 2 and 3 belong to the un-reserve (UR) category whereas petitioner No.4 belongs to Other Backward Class (OBC). A meeting o the Selection Board for selection of candidates for promotion from Assistant Engineer (Civil) to Assistant Executive Engineer (Civil) was held on 11-02-2015. Selection Board considered 2 vacancies for the year 2013 and 27 vacancies for the year 2014. For the two vacancies for the year 2013, the Selection Board prepared zone of consideration of eight candidates as per seniority. Petitioner No.1 was included at Sl. No.7 in the zone of consideration. For the 27 vacancies for the year 2014, the Selection Board prepared zone of consideration of only 69 officers. Names of petitioners appeared at Sl. Nos. 5, 8, 17 & 19 in the said zone of consideration. For the year 2013, against the 2 vacancies, Selection Board recommended two candidates for promotion, one belonging to the un-reserve (UR) and the other belonging to the W.P(C) No.810 OF 2015 Page 1 of 6
Scheduled Tribe (Plains) (ST(P)) category i.e., candidates at Sl. Nos. 1 & 5 of the zone of consideration. For the year 2014, the Selection Board recommended 21 candidates against 27 vacancies. The candidates at Sl. Nos. 1, 2 & 3 in the zone of consideration belonging to the UR category were recommended and thereafter from Sl. Nos. 4 to 21, those recommended candidates belong to the reserve category, such as ST(P) Scheduled Tribe (Hills) (ST(H)) and Scheduled Castes (SC). Thus against 27 vacancies for the year 2014, recommendation was made to fill up only 21 vacancies. At this stage, the present writ petition was moved. This Court passed order dated 12-02-2015 issuing notice and in the interim, directed that consequential notification pursuant to the Selection Board meeting held on 11-02-2015 should not be issued. State has filed an application for vacation/modification of the aforesaid order dated 12-02-2015, which has been registered as MC No.846/2015. While writ petitioners have filed objection to the misc. application, respondents have also filed their affidavit in the main writ petition. Stand taken by the State is that the total cadre strength in the post of Assistant Executive Engineer (Civil) is 201 and the break up of the different categories are as follows :- UR - 157 ST(P) - 20 SC - 14 ST(H) - 10 Total - 201 153 officers belonging to UR category are in position. Therefore, vacancy for UR was only 4. Man in position in respect of ST(P) was 5 and, therefore, vacancy for ST(P) was 15; for SC, man in position was 10 and, therefore, vacancy was 4 and likewise, man in position for ST(H) was 4 and, therefore vacancy was 6. Except 4 vacancies, all roster points earmarked for the W.P(C) No.810 OF 2015 Page 2 of 6
UR category have been filled up. 1 UR candidate for the year 2003 and 3 UR candidates for the year 2014 have been recommended which ensures complete representation of UR category. Recommendation for 18 out of the remaining vacancies have been made to be filled up by the reserve category candidates. Recommendations could not be made against all the 27 vacancies because of non-availability of eligible reserve category candidates, as these vacancies are specifically earmarked for the reserve category candidates. Petitioners have pointed out that zone of consideration for the 27 vacancies for the year 2014 ought to have been 108, but only 69 officers were included in the zone of consideration. It is further stated that as per information furnished to the General Secretary, Assam Engineering Service Association by the Irrigation Department on 27-06-2014, there were 30 vacancies in the cadre of Assistant Executive Engineer (Civil). Additionally, five persons in the rank of Assistant Executive Engineer (Civil), namely, Sri Sailendra Nath Konwar, Sri Amal Chandra Bora, Sri Dhrubajyoti Saikia, Sri Jitendra Pran Changkakati and Sri Siddique Ali Barbhuiya had retired from service on attaining superannuation in the months of November/December, 2014. If these 5 vacancies were included, the available clear vacancies in the cadre of Assistant Executive Engineer would be 35, in which case petitioners would have a fair chance of getting promotion. Non-consideration of these vacancies is therefore, unjustified. Mr. Goswami, learned counsel for the petitioner submits that it was clearly illegal on the part of the respondents to confine the selection to only 27 vacancies for the year 2014 when, admittedly, there were 35 vacancies. Had all the vacancies which occurred in the year 2014 been considered by the Selection Board, petitioners would have got a fair chance of being recommended for promotion. Non-consideration of all the vacancies crucially affected the calculation regarding man in position in the UR category. He has also raised objection regarding filling up of 18 out of the 27 notified vacancies by candidates belonging to the reserve category leaving aside only 3 vacancies for the unreserve candidates. Mr. P. Roy, learned Addl. Advocate General has referred to the roster points in the cadre of Assistant Executive Engineer (Civil) and submits that only 4 roster points earmarked for UR category were vacant and therefore only 4 W.P(C) No.810 OF 2015 Page 3 of 6
UR candidates were recommended for promotion by the Selection Board. The rest of the vacancies are required to be filled up by the reserve category candidates considering the back log position in the roster. He submits that Selection Board had followed the provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation in Vacancies and Posts) Act, 1978 (as amended in 2012) while carrying out the selection exercise and there is no infirmity in the procedure followed. Petitioners position being at Sl. Nos.5, 8, 17 & 19 in the zone of consideration, in any case, they could not be recommended against the available vacancies for the unreserve category. Therefore, the selection exercise has been carried out in accordance with law and no case for interference is made out. While there is no reason to disbelief the stand of the State respondents regarding the vacancy position for the different categories against the roster points in the cadre of Assistant Executive Engineer (Civil) having total cadre strength of 201, it is the number of vacancies placed before the Selection Board, which requires consideration. The Assam Engineering (Irrigation Department) Service Rules, 1978 has been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The cadre of Assistant Executive Engineer is included in Class-I of the Assam Engineering (Irrigation Department) Service. Vacancies in the cadre of Assistant Executive Engineer are required to be filled up by way of promotion from the cadre of Assistant Engineer. To be eligible for such promotion, one has to render minimum 5 years of continuous service in the feeder category of Assistant Engineer. The criteria for promotion is merit with due regard to seniority. As per Rule 13, which lays down the general procedure for promotion, before the end of each year, the Govt. is required to make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre. Once the likely number of vacancies are determined, the appointing authority shall furnish to the Selection Board the requisite documents and information in respect of officers four times the number of vacancies in order of seniority. In other words, the zone of consideration comprises of four times the likely number of vacancies. Thus, the Government is required to make an W.P(C) No.810 OF 2015 Page 4 of 6
assessment of the likely number of vacancies to be filled up by promotion in the next year cadre-wise. This would include actual and anticipated vacancies. Though the Selection Board conducted proceeding for the year 2014 for 27 vacancies earmarking 3 vacancies for the UR category, the documents placed on record by the petitioner, particularly the letter dated 27-06- 2014 indicates that 30 vacancies were available in the cadre of Assistant Executive Engineer (Civil) till that point of time. In addition to the above, petitioners have contended in their counter-affidavit filed on 08-04-2015 to the misc. application of the State that 5 officers in the rank of Assistant Executive Engineer (Civil), namely, Sri Sailendra Nath Konwar, Sri Amal Chandra Bora, Sri Dhrubajyoti Saikia, Sri Jitendra Pran Changkakati and Sri Siddique Ali Barbhuiya had retired from service during November/December, 2014. If that be so, admittedly, there were 8 additional clear vacancies in the rank of Assistant Executive Engineer, which required consideration by the Selection Board. Not only that, as per Rule 13 as noticed above, Govt. was required to make an assessment of the likely number of vacancies to be filled up by promotion in the next year i.e., in the year 2015. Thus, actual and anticipated vacancies are required to be filled up. It is the specific contention of the petitioners that had these additional vacancies been considered, petitioners would have had a fair chance of getting promotion. However, a perusal of the record produced by the learned Additional Advocate General shows that the 5 vacancies in the rank of Assistant Executive Engineer (Civil) arising out of superannuation of Shri Dhrubajyoti Saikia, Shri Jitendra Pran Changkakati, Shri Sailendra Nath Konwar, Shri Siddique Ali Borbhuyan and Shri Amal Chandra Bora which according to the learned Counsel for the petitioners had not been taken into account while ascertaining the vacancies for the year 2014 were infact taken into account by the authority while calculating the 27 vacancies for the year 2014. But interestingly, the record shows that 7 retirement vacancies in the said cadre were anticipated upto 31-05-2015 (page 5 of the notings). Except one, viz., Shri Hari Shankar Medhi who is superannuating on 31-05-2015, the remaining 6 officers have retired by now. These anticipated vacancies were thus available for consideration for promotion. This aspect would, therefore, require reconsideration by the departmental authorities. W.P(C) No.810 OF 2015 Page 5 of 6
In State of UP -Vs- Sangam Nath Pandey, (2011) 2 SCC 105, the Apex Court held that it is the duty of the State to identify the vacancies and to ensure that the selection procedure to fill up the identified vacancies is carried out speedily. This is necessary to avoid uncertainty to all categories of candidates which may not only affect their rights but may also lead to administrative complications. Therefore, without disturbing the recommendations made by the Selection Board in its meeting held on 11-02-2015, recommending 21 officers in the rank of Assistant Engineer for promotion to Assistant Executive Engineer, Court is of the view that respondent Nos. 1 & 2 should examine the above grievance of the petitioners about availability of the additional vacancies in the cadre of Assistant Executive Engineer (Civil) for the next year i.e., 2015, both actual and anticipated, by making detail reference to the record, including the gradation list and thereafter hold Selection Board meeting for considering promotion to the additional vacancies beyond the 27 vacancies considered by the Selection Board on 11-02-2015. Accordingly, respondent Nos. 1 & 2 are directed to carry out the aforesaid exercise within a period of 8 (eight) weeks from the date of receipt of a certified coy of this order. Interim order passed by this Court on 12-02-2015 would stand vacated. Writ petition is accordingly disposed of. No costs. BIPLAB Judge W.P(C) No.810 OF 2015 Page 6 of 6