Manisana, J.:— In this writ application, the petitioner has challenged the selection made on 1.11.90 for appointment to the post of Additional Chief Engineer.

2. Facts,—Two posts of Additional Chief Engineer were to fall vacant in the Flood Control Department, one on 1.4.90 and another towards the end of 1990. A meeting of the Selection Board was held on 20.2.90 to select eligible Superintending Engineers for promotion to the post of Additional Chief Engineer. The Selection Board did not select the petitioner but selected the third respondent Pranab Bora and the fourth respondent J.C Barua, though the petitioner was the senior to them. The petitioner challenged the selection before this Court in Civil Rule No 555 of 1990. This Court, by a judgment and order-dated 9.4.90, quashed the selection and the matter was sent back for consideration afresh by the Selection Board. On 1.4.90, one of the anticipated vacancies occurred. At that point of time, under rule 13(4)(d) of the Assam Engineering (Flood Control Department) Service Rules, 1981, (for short ‘the Rules’), the promotion was to be made on the basis of seniority cum merit. rule 13(4)(d) of the Rules was amended changing the criteria of selection from seniority cum merit to merit with due regard to seniority. The amending rules were notified on 27.8.90 and were published in the Gazette of Assam on 29.8.90 After the amendment of the rule 13(4)(d) a meeting of the Selection Board was held on 1.11.90, and the Selection Board selected four persons on the the basis of merit with due regard to seniority. They were: (1) Sri P.C Jain, (2) Sri P. Bora (third respondent), (3) Sri J.C Barua (fourth respondent) and (4) Sri T.N Barman (fifth respondent). On the basis of the said selection, under order dated 10.11.90, Shri P.C Jain was given promotion to officiate as Additional Chief Eengineer, Flood Control Department with effect from the date on which his immediate junior promoted as Additional Chief Engineer. Shri P.C Jain, however, would continue on deputation under the Central Water Commission until further orders. The second in the select list was the third respondent Sri P. Bora and, therefore, he was promoted to the post of Additional Chief Engineer on 10.11.90 under another order.

3. The petitioner Shri S.K Ghosh filed this petition on 15.11.90 challenging the select list dated 1.11.90 The subsequent events after filing the writ petition were as follows. Another post of Additional Chief Engineer fell vacant on 28.12.99 and the fourth respondent J.C Barua who was No. 3 in the select list, was promoted on 28.12.90 to officiate as Additional Chief Engineer. The respondent-3 was appointed as ad hoc Chief Engineer of the Flood Control Department with effcct from 1.11.91 On 26.11.91, the petitioner Shri S.K Ghosh and Sri S.T Rahman were promoted temporarily and appointed to officiate as Additional Chief Engineer on ad hoc basis, after approving the select list. The fourth respondent Shri Barua had retired from his service with effect from 31.3.92 All the promotions were subject to the result of this writ petition.

4. The question which arises for consideration is whether old rules under which promotion was to be made on the basis of seniority-cum merit shall apply for the post which fell vacant on 1.4.90, although the meeting of the Selection Board was held on 1.11.90, after the new rules came into force on 29.8.90

5. In Y.V Rangaiah v. J. Sreenivasan Rao, (1983) 3 SCC 284 : AIR 1983 SC 852, the Supreme Court has held that vacancies which occurred prior to the amended rules should be governed by old rules and not by the amended rules. In A.A Calton v. Director of Education, (1983) 3 SCC 33 : AIR 1983 SC 1143, the Supreme Court considered the validity of the appointment of principal by the Director of Education made under section 16F of the UP Intermediate Education Act 1921. In that case, the High Court quashed the selection and appointment of the Principal on the ground that it was not done by the Director of Education as was provided under the Act, and the High Court directed the Director to make selection and appointment. Pursuant to the direction of the High Court, the Director made appointment to the post of Principal by his order dated 3.8.77 But, before that date section 16F was amended on 18.8.75 taking away the power of the Director to make appointment under section 16F. In view of the amendment, the validity of the order of the Director making appointment to the post of Principal was again questioned. The Supreme Court has held that the amending rule had no retrospective effect and, therefore, it did not have any effect on the proceeding which had commenced prior to 18.8.75 Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceeding.

6. In P. Mahendran v. State of Karnakata, (1990) 1 SCC 411 : AIR 1990 SC 405 the Supreme Court reiterated the principles laid down in A.A Catton's case, ((1983) 3 SCC 33 : AIR 1983 SC 1143) and has held that after the commencement of selection process, if any amendment of the rule is made prospectively, changing the eligibility criteria, the amending rule would not affect the selection and appointment as the selection process which had already commenced had to be completed in accordance with the Jaw as it stood at the commencement of selection. Similar view was also taken in N.T Katti v. Karnataka PSC, (1990) 3 SCC 157 : AIR 1990 SC 1233.

7. Coming to the case on hand, after the amendment, Sub-rule (4) of the rule 13 of the Rules reads:

“Selection for promotion shall be on the basis of merit with due regard to seniority in all cadres of posts.”

8. Clause (ii) of rule 1 of the amending rules states that “they shall come into force at once”.

9. It is well settled rule of construction that every statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statutory rules showing the intention to affect the existing rights, the rules must be held to be prospective. The amending rule quoted above does not contain any express provision giving the amendment retrospective effect nor there is anything showing necessary intendment for enforcing the rules with retrospective effect. Therefore, applyi???g the principles of the Supreme Court laid down in the above cited cases, the vacancy which occurred prior to the amended rule shall be governed by the old rules, that is to say,—selection should b??? made on the basis of seniority-cum-merit in respect of the posts which fell vacant on 1.4.90 But on a perusal of the proceedings of the Selection Board held on 1.11.90, it is found that the Selection Board adopted the principle, namely, “merit with due regard to seniority”, for the vacancy which occurred on 1.4.90 as well as for the post which would fall vacant on 23.12.90 Therefore, the selection Board had erred in applying the principle for selection in so far as the vacancy occurred on 1.4.90 was concerned.

10. It is well settled that it is not obligatory for the Court to interfere in all the cases unless justice of that case so demands. Let us now examine the case on hand if it requires our interference. All the criteria for selection on the basis of seniority-cum-merit as well as on the basis of merit with due regard to seniority are available before us.

11. For the vacancy fell on 1.4.90, the promotion was to be made on the basis of seniority-cum-merit, as already stated. In the State of Mysore v. Syed Mahmood, AIR 1968 SC 1113, the Suprems Court has stated thus:

“Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.”

12. The above principle was followed in Government of India v. Balakrishnan, (1975) 3 SCC 256 : AIR 1975 SC 1498. It, therefore, follows that senior officer will be selected for promotion unless his merits or service records do not show his fitness for the higher post, i.e, seniormost eligible person shall be selected for promotion irrespective of better merit of his juniors.

13. There are eight (8) Superintending Engineers in the field of choice for consideration for promotion to the posts of Additional Chief Engineer. In order of seniority, they are as follows—(1) Sri P.C Jain, (2) Sri S.K Ghosh (petitioner), (3) Sri P. Bora (respondent-3), (4) Shri J.C Barua (respondent-4), (5) Shri S.T Rahman (respondent- 5), (6) Sri T.N Barman. (7) Sri N.K Choudhury and (8) Shri J.M Dass. The proceedings of Selection Board indicate that a departmental proceeding was pending against Sri S.C Ghosh (petitioner) and the findings of the Selection Board as regards Shri Ghosh was to be under sealed envelope.

14. The question which, therefore, arises for consideration is whether the first or the second vacancy could have gone in favour of the petitioner but for departmental proceeding against him. Comparative merits of the Superintending Engineers in the field of choice and their gradation list are on record. For mis-application of the basis of selection the proceeding might be bad but the seniority and the comparative merit list would remain constant and, therefore, they can be considered. The Seniormost of all the Superintending Engineers was Shri P.C Jain and the merit list also indicates that he was found fit to be promoted. Therefore, he was to be given promotion to the post of Additional Chief Engineer which fell vacant on 1.4.90 As Shri P.C Jain was on deputation he was to be given formal promotion;. and the next junior to the petitioner was to officiate when Shri Jain was on deputation, as the departmental enquiry was still pending against the petitioner. Therefore, no injustice was caused to the petitioner so far the first vacancy was concerned. In respect of the 2nd vacancy occurred on 28.12.90, the method of selection for the post was merit with due regard to the seniority, that is to say,—the merit was to be given dominant place and if merit was equal or balanced selection might be made in favour of a senior one. When the vacancy occurred on 28.12.90, departmental proceedings against the petitioner was still pending. It is stated at the Bar that the petitioner was exonerated in the proceedings on 2.11.91 On a reading of the records of the proceedings of the. Selection Board along with the judgment of this Court in Civil Rule No 555 of 1990, it appears that the petitioner could not be promoted to the post which fell vacant on 28.12.90 as he would be below the third respondent Sri P. Barua in the merit list, and as such, Sri P. Barua should be given regular promotion. Therefore, no injustice had been caused to the petitioner.

15. For the foregoing reasons, we decline to interfere with the impugned selection made on 1.11.90 and the subsequent promotions. Accordingly, the petition is dismissed. No costs.