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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
Judges
Acts
  • rule 13(4)(d) of the Assam Engineering (Flood Control Department) Service Rules, 1981, (for short the Rules),
  • INTERMEDIATE EDUCATION ACT 1921
  • Sub-rule (4) of the rule 13 of the Rules
  • posts.8. Clause (ii) of rule 1
  • Rule 13(4)(d) of the Rules
  • rule 13(4)(d)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
Judges
Acts
  • rule 13(4)(d) of the Assam Engineering (Flood Control Department) Service Rules, 1981, (for short the Rules),
  • INTERMEDIATE EDUCATION ACT 1921
  • Sub-rule (4) of the rule 13 of the Rules
  • posts.8. Clause (ii) of rule 1
  • Rule 13(4)(d) of the Rules
  • rule 13(4)(d)
Smart Summary

Judgment Summary — Selected Extract

Factual and Procedural Background

Two posts of Additional Chief Engineer in the Flood Control Department were expected to fall vacant — one on 1.4.1990 and another towards the end of 1990. A Selection Board met on 20.2.1990 and did not select the petitioner (Shri S.K. Ghosh), choosing instead Pranab Bora (third respondent) and J.C. Barua (fourth respondent). The petitioner challenged that selection in Civil Rule No. 555 of 1990 and this Court, by judgment dated 9.4.1990, quashed the earlier selection and remitted the matter for fresh consideration by the Selection Board.

On 1.4.1990 the first vacancy actually occurred. At that time rule 13(4)(d) of the Assam Engineering (Flood Control Department) Service Rules, 1981 provided for promotion on the basis of seniority-cum-merit. Rule 13(4)(d) was amended; the amending rules were notified on 27.8.1990 and published in the Gazette on 29.8.1990, changing the criterion to "merit with due regard to seniority."

After the amendment a Selection Board meeting was held on 1.11.1990 which selected four persons on the basis of "merit with due regard to seniority": (1) P.C. Jain, (2) P. Bora (third respondent), (3) J.C. Barua (fourth respondent), and (4) T.N. Barman (fifth respondent). Subsequent promotion orders were issued: P.C. Jain was given promotion to officiate with effect from the date on which his immediate junior was promoted; P. Bora (third respondent) was promoted on 10.11.1990. The petitioner filed the present writ petition on 15.11.1990 challenging the select list dated 1.11.1990.

After the writ petition was filed, another vacancy arose on 28.12.1990 and J.C. Barua (third in the select list) was promoted to officiate as Additional Chief Engineer on that date. Various temporary and ad hoc promotions followed; some promotions were made subject to the outcome of this writ petition. The Court was asked to determine whether the older rule (seniority-cum-merit) or the amended rule (merit with due regard to seniority) governs the promotions, particularly for the vacancy that arose on 1.4.1990 even though the Selection Board met after the amendment.

Legal Issues Presented

  1. Whether the old rule (seniority-cum-merit) or the amended rule ("merit with due regard to seniority") governs promotion to the post which fell vacant on 1.4.1990, when the Selection Board meeting to decide promotion was held on 1.11.1990 after the amendment came into force on 29.8.1990.
  2. Whether the Court should interfere with the Selection Board's select list dated 1.11.1990 and the subsequent promotions, given the procedural history and relative seniority/merit of the candidates (including departmental proceedings pending against the petitioner).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Y.V. Rangaiah v. J. Sreenivasan Rao, (1983) 3 SCC 284 : AIR 1983 SC 852 Vacancies occurring prior to amended rules should be governed by the old rules and not by the amended rules. The Court relied on this principle to hold that the vacancy of 1.4.1990 (which arose before the amendment) should have been governed by the old seniority-cum-merit rule, not the amended rule applied by the Selection Board on 1.11.1990.
A.A. Catton v. Director of Education, (1983) 3 SCC 33 : AIR 1983 SC 1143 An amending rule does not have retrospective effect unless expressly or necessarily implied; proceedings commenced prior to amendment must continue under the law as it stood at commencement. The Court applied this ruling to conclude that the amending rule did not retrospectively affect proceedings or vacancies that had arisen before the amendment date; accordingly the old rule governed the vacancy of 1.4.1990.
P. Mahendran v. State of Karnataka, (1990) 1 SCC 411 : AIR 1990 SC 405 After commencement of the selection process, a prospective amendment that changes eligibility criteria does not affect the selection process already commenced; selection must continue under the law as it stood at commencement. The Court cited the principle to reinforce that selection processes or vacancies that began prior to the amendment should be completed under the original rules.
N.T. Katti v. Karnataka PSC, (1990) 3 SCC 157 : AIR 1990 SC 1233 Similar view to P. Mahendran and A.A. Catton regarding non-retrospectivity of amending rules affecting ongoing selection processes. The Court referenced this case as supporting authority for the non-retrospective application of the amending rule to the vacancy of 1.4.1990.
State of Mysore v. Syed Mahmood, AIR 1968 SC 1113 In a seniority-cum-merit promotion regime, seniority alone does not give an absolute right; a senior officer may be passed over if found unfit for the higher post. The Court used this principle to explain that even under the old seniority-cum-merit rule, a seniormost officer is not entitled to promotion if unfit; selection depends on both seniority and fitness/merit.
Government of India v. Balakrishnan, (1975) 3 SCC 256 : AIR 1975 SC 1498 Affirms that senior officers will be selected for promotion unless their merits/service record show they are not fit; seniormost eligible person should ordinarily be selected. The Court cited this authority to support the view that seniormost eligible candidates should be preferred under seniority-cum-merit, subject to fitness considerations.

Court's Reasoning and Analysis

The Court proceeded through a stepwise analysis grounded in statutory construction and the cited precedents:

  1. Identification of timing: The Court noted the factual timeline — the first vacancy occurred on 1.4.1990 (before the amendment) while the Selection Board met on 1.11.1990 (after the amendment published on 29.8.1990).
  2. Principle of prospectivity: The Court reiterated the settled rule that statutory amendments are prospective unless expressly or by necessary implication made retrospective. The amending rule did not contain express retrospective effect nor was there a necessary implication to make it retrospective.
  3. Application of precedent: Relying on Y.V. Rangaiah, A.A. Catton, P. Mahendran, and N.T. Katti, the Court held that vacancies arising prior to the amendment must be governed by the law as it stood at the time of vacancy; hence the vacancy of 1.4.1990 should have been governed by the old rule of seniority-cum-merit.
  4. Identification of Selection Board error: On review of the Selection Board proceedings of 1.11.1990, the Court found the Board applied "merit with due regard to seniority" for both the 1.4.1990 vacancy and the vacancy expected on 23.12.1990, and thus erred in applying the amended criterion to the earlier vacancy.
  5. Assessment of prejudice and justice: The Court then examined whether this error warranted interference. It reviewed the gradation/merit lists and noted P.C. Jain was seniormost and found fit for promotion. The record showed departmental proceedings pending against the petitioner, with Selection Board treating remarks as sealed. Given Jain's fitness and his deputation status, the Court concluded the first vacancy's outcome (promotion of Jain and subsequent officiation arrangements) caused no injustice to the petitioner.
  6. Consideration of the second vacancy (28.12.1990): The Court treated the 28.12.1990 vacancy as governed by the amended rule ("merit with due regard to seniority"). The petitioner remained under departmental proceedings at that time (the Court notes he was stated to have been exonerated on 2.11.1991). Reading the Selection Board records and the earlier judgment, the Court concluded the petitioner would have been below P. Barua on the merit list for the second vacancy, so even under the amended rule the petitioner could not have been promoted to that post.
  7. Conclusion on interference: Balancing the legal error (misapplication of criteria) against the absence of prejudice to the petitioner, the Court exercised restraint and declined to interfere with the select list dated 1.11.1990 and the subsequent promotions.

Holding and Implications

HOLDING: The Court declined to interfere with the Selection Board's select list dated 1.11.1990 and the subsequent promotions; accordingly, the writ petition stands DISMISSED. No costs were awarded.

Implications and direct consequences:

  • The Court held as a matter of law that vacancies arising prior to the amendment of rule 13(4)(d) are governed by the old seniority-cum-merit rule. The Selection Board erred in applying the amended rule to the vacancy of 1.4.1990.
  • Despite identifying that error, the Court found, on the record before it, that the petitioner suffered no prejudice: P.C. Jain was the seniormost and fit for promotion to the first vacancy, and for the second vacancy (which was governed by the amended rule) the petitioner was below P. Barua on the merit list and thus would not have been promoted; accordingly the challenged promotions were upheld.
  • The decision resolves the particular dispute between the parties and validates the selection/promotion decisions made following the 1.11.1990 select list; the Court did not articulate any broader or novel principle beyond applying established precedent on non-retrospectivity and the operation of seniority-cum-merit.

    Sushil Kumar Ghosh v. State Of Assam And Others

    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.

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    Sushil Kumar Ghosh v. State Of Assam And Others
    (Oct 27, 1992)