J.N. Sarma, J.@mdashAll these writ applications raise the same question of law and facts and as such they are taken up for hearing together.
2. I have heard Mr. Sharma, learned Advocate for the Petitioners in Civil Rule No. 1958 of 1998, Mr. Saikia, learned Standing Counsel, ASEB for the Respondent No. 1 and Mr. P Khataniar, learned Advocate for the Respondents Nos. 5, 6, 7, 9 and 10. I have also heard Mr. J.M. Choudhury, learned Sr. Advocate assisted by Mr. P Kataky for the Petitioners in Civil Rule Nos. 1648/98, 2023/98 and 2327/99 and Sri P. Khataniar learned Advocate for the Respondents No. 4 in Civil Rule No. 2023/98 and Civil Rule No. 2327/98 for Respondents No. 6 and 7 and Sri N. N. Saikia, learned standing counsel ASEB for Respondents No. 1, 2 and 3.
3. Civil Rule No. 1958 of 1998 has been filed by three persons and all the Petitioners were appointed on 8.4.71 as Asstt. Engineer (Elect) under Assam State Electricity Board (for short ''ASEB''). On 28.5.82 the Petitioner No. 1 was promoted as Executive Engineer (Elect). On 7.12.82 the Petitioner Nos. 2 and 3 were promoted as Executive Engineer (Elect). From 1993 the Petitioner No. 1 has been working under the ACE(Com) at Headquarter office at Guwahati. The Petitioner No. 2 also has been working in the office of ACERE since 1993. The Petitioner No. 3 had worked in the office of the ACE(Com), Diphu Elect. Division, T&T Division, Nagaon, CE(D) office at Guwahati in the period from 1993 to 1998. On 4.7.73 the Engineering Service Regulations, 1973 were framed and published by the ASEB. Regulation 12(a) deals with the method of promotion which is seniority with due regard to merit and suitability as may be assessed from the ACRs. On 27.5.83 there was amendment to the said Regulation making the method of promotion as merit cum seniority. On 27.8.92 a new method was adopted for selection based on performance appraisals and suitability for inclusion in the panel on the basis of ACR. On 1.9.95 by a Notification amendment to the orders dated 27.8.92 was made. The basic feature of the amendment was that judging suitability for inclusion in the promotion panel on specific grading was deleted. On 17.12.92 the performance appraisal formats were introduced. That is Annexures-3A and 3B to the writ application. Section-B of that ACR requires as follows:
1. Comment specifically in detail on the officer''s performance of task assigned to him. In the case of 7(a) & (b) your comments must include his capacity to supervise and get work from his subordinates. Refer to your own inspections of the officer''s establishment. If he was deficient and you had to bring that to his notice, mention this in your report. If any warning of caution was issued, please mention this in detail.
2. Integrity: Your comments must be specific and not vague.
3. On the basis of your assessment, would you recommend him for any specific task? If so, give reasons.
The reviewing officer is to give his assessment specifically on portion A and B. If he does not agree, he is to give reasons to this portion. Now, grade the officer on the basis of your assessment. The grades are Outstanding/Very good/Good/Below Average. 7(a) and (b) in Para-I read as follows:
In the case of field officers involving revenue, target assigned and how much achieved.
(b) In the case of other field/staff officers indicate the assigned task and describe your achievement. This performance was introduced on 17.11.92 by an Office order. That Office order is quoted below:
Office orders
For proper evaluation and assessment of the performance of officers/employees of the Board, it is imperative that guidelines of authorities for recording, reviewing and acceptance of Annual Confidential Report are clearly spelt out. It is, therefore, decided that henceforth the authorities shown at Col. (2)(3) and (4) in proforma will record, review and accept respectives ACRs of the officers/employees shown at Col. (1) While this order replaces all earlier orders relating to recording, reviewing and accepting, officers/employees not specifically mentioned below will, however, continue to be governed by the previous orders.
Annual confidential Reports of all officers should be recorded, reviewed and accepted and where necessary, sent to the H. Qrs Office complete in all respect, latest by 2nd week of January of the year following the year of recording. In case of default, the next higher authority should record the same in the Annual Confidential Report of the defaulting officer. A new formate for recording, reviewing and acceptance of ACRs of officers of the Board is enclosed herewith for necessary action in strict compliance therewith.
This order takes effect immediately and shall remain in force until further orders.
On 26. 12.97 for Grading an officer ''Outstanding'' and ''below Average'' specific instances were required to be given by the grader. That is Annexure-3B to the writ application. As Executive Engineer the seniority of the Petitioner No. 1 was at Sl. No. 21, the Petitioner No. 2 was at Sl. No. 22 and the Petitioner No. 3 was at Sl. No. 24. The Respondent Nos. 2 to 10 found their seniority at Sl. Nos. 32, 33, 5, 24, 50, 12, 26, 27 and 16 respectively. Namely-one C. Khound was at SI. No. 4, one P.J. Borkotoky was at Sl. No. 5, one P.N. Hazarika was at SI. No. 6, one U.C. Sarma was at Sl. No. 7, one P.K. Sarma was at Sl. No. 9 These persons at the top of the Petitioners were not made parties in the writ applications and the Respondents are AB Roy Choudhury whose name appeared at Sl. No. 32, Siddique Rahman at Sl. No. 35. Bhabani Kumar Sarma at Sl. No. 41, Arindam Nath at Sl. No. 43, D.B. Sengupta at Sl. No. 44. Dibakar Borgohain at Sl. No. 47, Baneswar Khound at Sl. No. 48 and Swapan Kr. Handique at Sl. No. 56. The selection was held on 27.2.98 and the following persons have been promoted (1) Bhupen Ch. Khound promoted as Superintending Engineer at Sl. No. 4, Sri Prasanta Borkotoky promoted as S.E. at Sl. No. 8. It may be stated herein that against the remark column in the records produced it is seen that as against an officer there were two enquiries on different time and in one enquiry there was reduction of pay and in the other it was censure. It is not known when these punishments were issued given. It will appear that reduction of pay was on 17.5.94 and Censure was on 7.2.95. That ACR entries were not made adhering to Rules/Guidelines will be evident from the fact that in ACR of 1994 there is a gradation to him as very good and in 1995 also it is very good through during these two years departmental proceeding was initiated against him and he was given punishment as indicated above. This is I am pointing out only to show that the whole thrust of argument of the learned Advocate for the Petitioners were that these ACRs were maintained in a most topsyturvey manner. It did not reflect the real performance of the officers and that were made in a most mechanical manner. On the basis of the entries made in the ACRs of the Executive Engineers, they were promoted to the rank of Superintending Engineer.
4. In all the Civil Rules the promotion order dated 16.3.98 promoting nine officers who are junior to the Petitioners from the rank of Executive Engineer (Elect) to that of Superintending Engineer (Elect) are challenged by all the Petitioners. That order of promotion is at Annexure-1 to the writ application. The persons promoted are as follows: (1) Dibakar Borgohain (2) Baneswar Khound (3) Upen Ch. Sarma (4) Debendra Narayan Deka (5) Bhabani Sharma (6) Prasanta Borkotoky (7) Prannan Sharma (8) Bhupen Chandra Khound (9) Swapan Kumar Handique (10) Amaresh Basu Roi Choudhury (11) Arindom Nath (12) Debabrata Sengupta (13) Prajnananda Hazarika and (14) Siddique Rahman. They were put on probotion for a period of one year. It was stated in the order mat these promotion have been made on the recommendation of the Departmental Promotion Committee. The prayers made in the writ application are to quash the following:
(i) order dated 27.8.92 (Annexure-4), order dated 1.9.95 (Annexure-5) and promotion order dated 16.3.98 (Annexure-1).
5. An affidavit-in-opposition has been filed on behalf of the Respondents where in paragraph 4 it is stated as follows:
That the Board made some addition and alternation in the Regulation 12-A and 12-B of the aforesaid Engineering Service Regulations 1973 and substituted the same by an amendment of the Regulations during 1992. This amendment interalia provides at Regulation 12-A(b)(i) that the Executive Engineer should have put a minimum of 5(five) years service as Executive Engineer to become eligible for promotion to the rank of Superintending Engineer.
The Regulation 12-B(iii) provides that promotion from Executive Engineer to Superintending Engineer shall be made on the basis of selection by the Departmental promotion committee-I(DPC)-I to be chairmed by the Chairman, ASEB.
The Regulation 12-B(vi) provides that the Board in selecting an officer for promotion to the higher rank shall take into account the performance of the officer for a consecutive period of 5(five) years immediately proceeding the date of selection.
The Regulation 12-B(vii) provides that while evaluating the suitability of an officer on the basis of ACRs and preparing a panel for promotion to the next higher post, the interse seniority of each of the officers included in the panel shall be determined by the Departmental Promotion Committee.
There was a further amendment of the Regulation in the year 1995 and by that the Board changed the earlier requirement of considering at least 5 officers by the Selection Committee against the vacant posts for promotion to the next higher grade as per Regulation 12-B(V). It was reduced to 4. In 1992 amendment it has been reduced to four officers in order of seniority to consider the promotion against said vacancies. Paragraph 6 of the Affidavit-in-opposition is quoted below to appreciate the controversy in this particular case.
That according to the provision of Sub-clause (a)(b)(c)(d) and (e) under the Regulation 12-B(vii) of the amendment of Engineering Service Regulations during 1992 the assessment of merit for selection of an officer for promotion was done on the basis of the number of outstanding grading received by an officer in his ACR for give years before the selection. The Board considering the inconvenience in such mode of assessment, removed those Clause by an amendment of the Regulation in 1995 and the matter of assessment of the comparative merit of the officers for selection left at the discretion of the DPCI. As such the DPCI could evolve its procedure as considered appropriate for assessment of the comparative merits of the officers on the basis of their ACR for give years preceding the date of selection and recommended for promotion.
In 1983 by Notification dated 27.5.83 the Regulation of 1973 was amended and numbering it as Regulation No. 14 reads as under:
(14) Appointment by promotion to the rank of Superintending Engineer/Addl. Chief Engineer/Chief Engineer.
(a) Appointment by promotion to the rank of Superintending Engineer, Addl. Chief Engineer and Chief Engineer from the ranks below as hereinafter mentioned shall be on the basis of merit-cum-seniority.
Earlier to 1992 the ACRs were to be graded as outstanding very good, good, average and below average. They were based on knowledge of rules, technical ability, personality, conduct, intelligence and other personal qualities. The said system was replaced by performance appraisal system in November, 1992. On 27.8.92 by an administrative order the promotion principles prevailing earlier was basically alterated. In so far as promotion of an Executive Engineer to the rank of Superintending Engineer is concerned, the changed principle was as follows:
(i) promotion from the rank of Executive Engineer to that of the Superintending Engineer shall be made on the basis of selection made by the Departmental Promotion Committee-I to be chaired by the Chairman, A.S.E.B.
(ii) The Board in selecting an officer for promotion to the higher rank shall take into account the performance of the officer for a consequentive period of 5 years immediately preceding die date of selection.
(iii) While evaluating the suitability on the basis of A.C.R. and preparing a panel for promotion to the next higher post inter-se-seniority of each of the officers included in die panel shall be determined in die following manner:
(a) officers with 5 (five) outstanding grades will move to the top of the panel with their seniority inter-se-intact.
(b) officers with 4(four) outstanding grades will move over those with 3 (three) outstanding grades.
(c) officers with 3(three) outstanding grades will move over officers with 2(two) outstanding grades but will rank interse below officers with 4(four) outstanding grades.
(d) officers with 2(two) outstanding grades in the span of 5(five) years immediately proceeding the date of selection will be considered to be the same as very good.
(e) The weightage for the very good grade in the A.C.Rs will be considered in the same manner as for outstanding as prescribed in the above regulations.
From the proceeding of the meeting of the DPC held on 27.2.98 which is quoted below it appears, that the DPC in making the promotion relied on the amendment rules of 1992 and 1995. The proceeding of the DPC is quoted below to appreciate this contention. The committee noted the followings:
(a) 14(fourteen) nos of the vacancies in the cadre of Superintending Engineer (E1) are to be filled up.
(i) 3(three) existing.
(ii) 11 (eleven) are likely to occur in view of promotion of 11 (eleven) Superintending Engineers to the rank of Addl. Chief Engineers.
(b) Regulation 12-B provided that promotion from the rank of Executive Engineer to the rank of Superintending Engineer shall be made on the basis of selection made by the DPC-I to be shared by the Chairman.
(c) Minimum qualifying service required for promotion from Executive Engineer to Superintending Engineer-5 years.
(d) Zone of consideration has been determined at four times to nos, of vacancies to be filled up as required under clause, v of the Regulation 12-B.
(e) There are no officers from the scheduled Caste/Scheduled Tribe communities within the "zone of consideration.
(f) Clause-vi of Regulation 12-B provides that the Board for selecting an officer for promotion to the higher rank shall take into account the performance of the officer for consecutive five years preceding the date of selection.
(g) An Executive Engineer shall not be eligible for promotion to the rank of Superintending Engineer unless he possess the minimum qualification prescribed in Regulation-8A (i.e. Engineering degree or its equivalent).
(2) The committee decided to evaluate the 5 years (from 1993 to 1997) ACRs of the 56 nos of Executive Engineer on the basis of rating as shown below:
Grading Rating
Average 1
Good 2
Very good 3
Outstanding 4
In paragraph 17 of the writ application it has been stated that the orders dated 27.8.92 and 1.9.95 cannot have statutory power as they have failed to conform to the mandatory requirements of Section 79 and 79A of the Electricity(Supply) Act, 1948. Further, there is nothing to show that amendments were made by the Board adhering to requirements of amendments. No doubt the matter came as agenda No. 18 before the Board on 22.5.92 and the Board passed the following resolution.
Resolution No. 13
The Board considered and approved the proposal for amendment to the Regulation 12(a) and 12(b) of the existing Regulation.
6. The same is the contention in the other civil Rules and it is on this background the challenge is made to these promotion orders stating that the process of decision making was vitiated by application of certain rules which cannot be deemed to have statutory character as they were not rules in the eye of law. It is further argued that by an administrative order, the earlier rules of promotion could not have been superseded. The promotions having not been made by adhering to Rules applicable are liable to be struck down. Seniority is alleged to have been given a complete go by.
7. Before we proceed further, let us take up the first preliminary objection raised by Mr. Saikia, learned standing counsel for ASEB. Mr. Saikia urges two points (i) that there is no prayer to declare the amended rules as invalid or unconstitutional and as such, they cannot be quashed as prayed for. (ii) that the scope of judicial review is limited. This Court cannot exercise the appellate power in the grab of judicial review to set at naught the selection made by DPC. But Sri Saikia failed to consider that the concern of the Constitutional court is the legitimacy of the decision making process and not the merit of the decision. If it can be established that the promotions were given by considering the amended rules of 1992 and 1995 which if are found not to be valid rules certainly the decision making process shall stand vitiated inasmuch as certain norms not available to the DPC has been exercised by the DPC. In this connection Sri Saikia places reliance in 1998 (3) GLT 167 . Sashimohan Singh and Ors. v. Gurumayum Satyabati Devi and Ors. where Principle has been enunciated by a Division Bench of This Court relying on a decision of the Apex Court in
8. Let us take up the first contention of Sri B.N. Sharma learned Advocate for the Petitioners in Civil Rule No. 1958/98. The first contention is that from the Affidavit-in-opposition filed by the ASEB, it will be seen that they have accepted it as amendment to the rules and it was on the basis of that DPC acted upon. He draws my attention to Section 79 of the Electricity (Supply) Act, 1948. Section 79 was amended in the year 1984 and as such, rules which were amended in 1992 and 1995 must comply with the requirement of Section 79 of the Act of 1948. Section 79(c) gives the power to the Board to frame rules with regard to the duties of officers and other employees of the Board and their salaries, allowances and other conditions of service. Promotion certainly is the condition of service and if there is any rules or amendment with regard to this, that must conform to Section 79 as amended in 1984. The amendment provides that the Board by notification in the official Gazette may make regulations. The contention of Sri Sharma is that these amended rules of 1992 and 1995 were never notified in the official Gazette. I asked Mr. Saikia to produce the copy of the Gazette notification where it has been notified. But Mr. Saikia Med to do so. Rather he admitted that these rules have not been notified in the official Gazette. Sri Saikia further submits that as the Board does not have any official Gazette, the question of notifying it in the official Gazette does not arise. But the official Gazette has been defined in the General Clauses Act and Section 3(39) of that Act defines what is official Gazette. Official Gazette or Gazette shall mean the Gazette of India or official Gazette of state. So, it does not lie in the mouth of the counsel to say that as the State Electricity Board does not have official Gazette the question of notifying if in the official Gazette does not arise. General Clauses Act certainly applicable to the ASEB. The power of making regulations conferred upon the Board u/s 79 of the Act, 1948 is in the nature of delegated legislation. The power to make regulations cannot be treated at par with an administrative act. Certain modes/methods have been prescribed and that also by amendment of the Section and if it is not adhered to the rule will not be deemed to be rules in the eye of law. Delegated legislations are made by virtue of powers conferred by the statute and if certain conditions are imposed by the statute, it must be adhered to. No compliance with the requirements of the statute shall invalidate such a rule.
9.In
10. There is also an argument that some of the persons who have been promoted being not made parties, all promotions cannot be set aside. The selection process in its entirety being challenged, it is not necessary to make all the selected persons parties See
11. Right to be promoted is not vested right. But the right to be considered for promotion is a vested right and also a fundamental right as held in
12. In a recent decision of the Apex Court in 1999 (3) GLT 1 Ajit Singh and Ors. v. State of Punjab and Ors. the Supreme Court held that there is no right to promotion but a person has right to be considered for promotion. Right to be considered for promotion is a fundamental right provided a person satisfies the eligibility. In the earlier rules, the law was that for each promotional post five persons shall be considered. That also was reduced to four by amended rules. The regulations of 1992 and 1995 are not valid. The reduction of the zone of consideration of five to four also will be illegal and that also has vitiated in the decision making process. It is argued by Sri Saikia that even if the amendments are not Regulations it is the administrative orders to fill up the gaps in the earlier rules for promotion. This contention of Sri Saikia otherwise, would have been a tenable submission if the administrative order would not have altered/changed the earlier Regulations made for promotion inasmuch as the law is that once a regulation is made laying down certain things it cannot be superseded by an administrative order of the Board. The administrative order of the Board cannot be allowed to be over ride the statutory regulation made by the Board earlier. If any authority is required for this proposition of law, one may have a look at 1987 Lab. I.C. 262, The Comptroller and Auditor General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr.
13. Accordingly, I find that Annexures-4 and 5 cannot be deemed to be regulations framed by the Board in exercise of power u/s 79 of the Electricity (Supply) Act, 1948 and as such they cannot over ride the earlier provisions with regard to promotion made in 1973 and 1983. A bare perusal of the DPC proceeding will show that it acted on the basis of these rules of 1992 and 1995 and did not consider the earlier rules of 1983 and 1973. So, the whole decision making process was bad having taken into consideration irrelevant matters. Accordingly, without going to anything else, the whole DPC proceeding and the promotions made on the recommendation of it is to be quashed which I hereby do. Now fresh steps shall be taken to promote the officers on the basis of 1973 and 1983 Regulations and not on the basis of 1992 and 1995 amendments as these have not been framed in accordance with law. Fresh steps for promotion shall be taken by strictly adhering to 1973 and 1983 rules by taking into consideration all the candidates who come within the zone of consideration, as pointed out by the Supreme Court that consideration for promotion is a fundamental right and that also has been denied in this particular ease as earlier five persons were to be considered for promotion to each post, but that was reduced to four without authority of law. The further proceeding for promotion shall be completed within a period of three (3) months from the date of receipt of this order. For this period of three (3) months, persons already promoted may not be demoted. But if within the period of three months the proceeding for promotion is not completed, the persons promoted shall'' be demoted as they cannot be allowed to enjoy a wrongful state of things.
14. All the Civil Rules are allowed by quashing the orders dated 27.8.92 (Annexure-4) and dated 1.9.95 (Annexure-5), Dated 17.7.92 the amended rules of 1992 and the amended rules of 1995 and the promotion made on 16.3.98 vide Annexure-1 on the basis of DPC proceeding dated 27.2.98. The proceeding of the DPC also shall stand quashed. The period of three months shall run from the date of receipt of the copy of the order by the ASEB. The Petitioners shall obtain the certified copy of this order and shall produce the same before the authority to do the needful in terms of the order. I make no order as to costs.
