WP(C) 335/2007 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI JUDGMENT & ORDER 1. Heard Mr. B. D. Das, learned counsel for the petitioner, Mr. S. K. Medhi , learned Standing Counsel appearing for the North Cachar Hills Autonomous Counc il (hereinafter referred to as the Autonomous Council) and Ms. B. Bhuyan, learne d Standing Counsel, P.W.D., Assam. Also heard Sri A. K. Phukan, learned Advocate General, Assam. 2. The petitioner is aggrieved by his non-selection for promotion to the po st of Superintending Engineer in the Public Works Department of the State of Ass am. The selection in question was held in the year 2006 for 20 vacant posts of S uperintending Engineer and the consequential select list was published on 17.1.2 007. The short case projected by the petitioner is that during the period 9.1.2002 ti ll 8.6.2005 he was holding the post of Executive Engineer under the North Cachar Hills Autonomous Council, his service being placed at the disposal of the Counc il by the State Governent. According to the petitioner, in some of the Annual Co nfidential Reports (ACRs) during the aforesaid period he was assessed as outstan ding. Such assessments were accepted by the authorities of the Council acting as the reviewing and accepting authorities. However, according to the petitioner, the ACRs in question were re-assessed by the departmental Secretary as the accep ting authority and the assessments in question were downgraded. As a result of s uch downgrading the petitioner’s name was not included in the select list dated 17.1.2007. In these facts the petitioner has contended that by virtue of the Gov ernment Notification dated 31.12.96 (Annexure-6 to the writ petition), particula rly Clause (G) thereof, the assessment made by the departmental Secretary was un authorized and the downgraded ACRs could not have formed the basis for considera tion of the petitioner’s case for promotion. The petitioner asserts that in term s of the Office Memorandum dated 31.12.96 the assessment of his ACRs as made by the Council authorities would prevail and it is the said assessment which should have been taken into consideration for the purpose of determining the entitleme nt of the petitioner for promotion to the next higher post of Superintending Eng ineer. 3. The contention of the petitioner, as noticed above, have been contested by the departmental Secretary who has filed an affidavit claiming for himself a right to make an assessment of the ACRs of officers whose services have been pla ced at the disposal of the Autonomous Council. This, according to the department al Secretary, is a power conferred on him, as the accepting authority under the provisions of the Assam Services (Confidential Rolls) Rules, 1990. 4. The Council authorities have also filed an affidavit taking a stand diam etrically opposed to what has been adopted by the departmental Secretary. Accord ing to the Council authorities, under the provisions of the Office Memorandum da ted 31.12.96, particularly Clause-(G) thereof, it is the Council authorities who are to act as the reviewing and accepting authorities in respect of ACRs of off icers whose services have been placed by the State Government at the disposal of the Autonomous Council. 5. The conflicting stands, as noticed above, and the potential that accepta nce of either would have on the service conditions of a large number of officers , even beyond the Public Works Department had made it imperative for the Court t o have the stand of the State Government on record. Accordingly, the Chief Secre tary of the State was directed to file an affidavit making the stand of the Stat e known to the Court. 6. A reading of the affidavit of the Chief Secretary indicates that the Off ice Memorandum dated 31.12.96 is pursuant to a memorandum of understanding signe d by the Government of Assam on the one hand and various representative bodies o f the Autonomous Councils on the other in the presence of the Union Home Ministe r at New Delhi sometime in the year 1995. The Memorandum of Understanding (MoU) in question visualized grant of greater autonomy to the Autonomous Councils with in the framework of the Sixth Schedule to the Constitution of India which was so ught to be achieved by grant of executive powers to the Autonomous Council in 30 subjects as enumerated in the list enclosed to the MoU in question. PWD is one of the enumerated subjects. The Chief Secretary, in the affidavit filed, has fur ther stated that the MoU in question was approved by the State Assembly by a res olution. Pursuant thereto the Governor in exercise of powers under the provision s of paragraph 6(2) of the Sixth Schedule had delegated the executive power over the enumerated subjects, including the Public Works Department, to the Autonomo us Councils. Thereafter, an amendment of the Sixth Schedule, particularly in par agraph 3 thereof was carried out. Paragraph 3A of the Sixth Schedule as applicab le to the Autonomous Councils of Karbi Anglong and North Cachar Hills brought in by the aforesaid amendment conferred law making powers on the Autonomous Counci ls in respect of various subjects in addition to what was originally conferred b y the provisions of the Sixth Schedule to the Constitution of India. Such law ma king powers conferred on the Autonomous Council by the amendment to paragraph 3 of the Sixth Schedule covers the 30 enumerated subjects mentioned in the MoU. In the affidvit filed, the Chief Secretary has further stated that having regard t o the wide dimensions of the issue he had called a meeting on 19.4.2008 in which the Commissioner and Secretaries of the Hill Areas Department, Personnel Depart ment and Public Works Department were present. In the said meeting, minutes of w hich have been enclosed to the affidavit of the Chief Secretary, a decision was arrived at that having regard to the provisions of the law and the practice foll owed insofar as the officers on deputation to the Autonomous Councils are concer ned, the preparation of the ACRs of such officers are to be governed by Clause-G of the Office Memorandum dated 31.12.96. In the said meeting a further decision was taken to the effect that the ACRs of the petitioner written by the NC Hill s Council is as per existing followed procedure and the downgrading of it by the Secretary, PWD will have no effect . 7. A consideration of the facts stated above indicate that the stand taken in the meeting dated 19.4.2008 to the effect that in cases of officers on deputa tion to the Autonomous Councils it is the Council Authorities would be the compe tent authority to prepare the ACRs is well founded. The decision must, therefore , have the approval of the Court. What would also be worthwhile to notice at thi s stage is that under the provisions of the Assam Services (Confidential Rolls) Rules, 1990 an authority specifically empowered by the Government can also act a s the accepting authority. The authorities of the Autonomous Councils can, there fore, legitimately be viewed as an authority which has been authorized by the St ate Government to act as the accepting authority under the aforesaid Rules. 8. In the present case, no dispute has been raised with regard to the asser tion of the petitioner that the consideration of his case for promotion to the p ost of Superintending Engineer was made on the basis of the downgraded assessmen t of ACRs made by the departmental Secretary. In view of the discussions that ha ve preceded such actions of the departmental Secretary have to be understood by the Court to be unauthorized in law. If that be so, the Court has to come to the inevitable conclusion that the consideration of the case of the petitioner for promotion to the post of Superintending Engineer has not been made as required b y law. The respondent authorities in the Public Works Department, therefore, are directed to place the case of the petitioner before a review DPC for a de novo consideration on the basis of the assessments in his ACRs for the years in quest ion as made by the Council authorities and thereafter to include the name of the petitioner at the proper place in the select list dated 17.1.2007 if he is foun d to be otherwise suitable and eligible. Consequential action of promotion of th e petitioner necessarily has to follow in such a situation. The aforesaid exerci se will be completed by the authorities of the Public Works Department as expedi tiously as possible and in any case within a period of two months from the date of receipt of a certified copy of this order. 9. The writ petition shall stand allowed as indicated above.