RAMAPADA DAS Vs. ASSAM STATE ELECTRICITY BOARD

JUDGEMENT

(1.) The petitioner had a brilliant academic career as he passed the Matriculation Examination securing 6th position in the Gauhati University with four letters and stars. In the Intermediate Science Examination also he secured 4th position with 2 (two) letters. Thereafter, he graduated in Electrical Engineering from Jadavpur University securing First Class. He joined the Government of Assam as an Assistant Engineer in 1956 and was confirmed in that post on 1-4-70. Quest for further knowledge took him to the overseas and he obtained the Research Degree of M. Sc. (Technical) from the University of Manchester, England, in 1961, in which year he was promoted as Executive Engineer to be confirmed in that post in 1962. He was promoted as Superintending Engineer in 1972 and in 1976 he was once selected for promotion to the rank of Additional Chief Engineer by the Selection Committee which held its meeting on 20-8-76. In the meantime he came to be appointed by the Government of Assam as its Chief Electrical Adviser. This was in July, 1971, and he served under the Government of Assam till 7th June, 1978. It may be stated that in the meantime Meghalaya, State Electricity Board had been constituted in 1975. The question of regular promotion of the petitioner as well as of respondents 7 to 10 were taken up and the selection Committee which sat on 4-11-78 examined the matter. The case of the petitioner was not favoured. The reason as recorded for this in the minutes is as below :

(2.) The contention on behalf of the Assam State Electricity Board is that the post of Additional Chief Engineer is one which carries high responsibility and is a selection post and, as such, the petitioner could not have claimed the same as a matter of right Reference has been made in this connection of Mir Ghulam V/s. Union of India, 1973 AIR(SC) 1138 wherein in para 8 of the judgment their Lordships of the Supreme Court have observed that promotion is not to be made on the basis of absence of complaint but on the basis of positive merit. It was further observed that absence of adverse remarks is no criterion of the quality of an officer. Rule 12 (a) of the Assam State Electricity Board (Engineering Service) Regulation, 1973, itself requires that promotion has to be made on the basis of seniority with due regard to merit and suitability. So, it cannot be denied that merely because a person is senior he would automatically be promoted. But then, in the present case, the petitioner was denied promotion not because of anything else, but because of his adverse remarks in the Annual Confidential Report for the period ending 31-12-77. This would be apparent from the fact that in the Selection Committee held on 20-8-76, the petitioner's name had been recommended for the post of Additional Chief Engineer. It is also submitted on behalf of the Board, by referring to Union of India V/s. M. E Reddy, 1980 AIR(SC) 563 that non-communicated adverse remarks can be taken into consideration for some purposes. That was, however, a case of compulsory retirement and this view was taken because, as pointed out in para 9 of the judgment, compulsory retirement is neither a punishment nor a stigma. Moreover, there was no rule like R. 4 (b), Assam State Electricity Board (General Service) Regulation, 1960, in that case. As already noted, this rule specifically requires that all adverse remarks against an employee entered in the service has to be communicated to the employee concerned who will then be entitled to be heard by a competent authority before the remark is ratified. Though the rule has used the expression "may" in this context, we have no doubt that this has to be read as "shall", because otherwise the adverse remarks will be communicated at the sweet will of the authority, which could not have been the intention behind the rule. Such a salutary rule has to be applied in all cases, more so, when consideration of merit and suitability for the purpose of promotion has to be adjudged on the basis of annual confidential reports, as already noted.

(3.) We have noted that a view similar to the one expressed by this Court in Civil Rule 231 of 1977 (1980 Lab IC NOC144) has been taken in M. S. Sharma V/s. State of A. P., 1982 LabIC 619(Andh Pra) by a learned single Judge to whom the matter was referred on a difference of opinion. In view of the legal position explained in these cases, we have no hesitation in holding that the denial of promotion to the petitioner was not only in violation of the principles oi natural justice but was against the service Rules themselves. The further question is as to what relief can be given to the petitioner in the present case. In Civil Rule 231 of 1977, this Court had set aside the orders of promotion. In the present case we would however, hesitate to do so for the reasor that the promotions of respondents 7 to 10 to the high post of Additional Chief Engineer was in 1978, and striking down of their promotion at this stage may not only cause individual hardship to these respondents but may upset the working of the Board which is a public utility service. We are, therefore, restraining ourselves from striking down their promotions. Instead, we direct respondents 1 to 6 to consider the case oi the petitionei afresh within a period of three months from today and if he is otherwise found fit for promotion to give him pro forma promotion from such a date as would make him senior to respondents 7 to 10. It may be stated that though in a similar situation (see Civil Rules 238 and 239/77) this Court had ordered for promotion of petitioners from the date of issue of rule, we are departing from the same here, as the petitioner in the present case was admittedly senior to respondents 7 to 10, whereas the position of the petitioners in the aforementioned civil rules was different. It is made clear that if there would be no post of Additional Chief Engineer or of equivalent rank to accommodate the petitioner, the junior most among respondents 7 to 10 shall have to make room for the petitioner.