WP(C) 4078/2005 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The petitioners who are common have approached this Court in succession ventilat ing their grievance in substance against denial of their right to be considered for promotion to the post of Executive Engineer with the Brahmaputra Board (for short hereafter referred to as the Board). I have heard Mr. K.N. Choudhury, Sr. Advocate assisted by Mr. R. Dubey, Advocate for the petitioners and Ms. R. Borah, learned Standing Counsel appearing for the Board as well as the Union of India. In terms of the order dat ed 10/11/2010, Mr. G.P. Singh, Secretary of the respondent Board is also persona lly present in Court. The abbreviated version of the petitioners’ pleaded averments is that they are Mechanical Engineers holding Bachelor Degree to that effect and h ave been appointed as Assistant Engineer (Mechanical) with the Board on 28/7/198 3 whereafter they had been regularised in that post w.e.f. 11/8/1983. They were in due course promoted as Assistant Executive Engineers (Mechanical) vide notifi cation dated 8/4/1988. Their grievance is that though under the Brahmaputra Boar d Engineering Posts (Recruitment) Rules, 1986, which has since been replaced by the Brahmaputra Board (Group-A Posts) Recruitment Regulations, 2000 (hereafter r eferred to as the Regulation), they were entitled to be considered for promotion to the next higher post of Executive Engineer encompassing civil and mechanical disciplines, they have been persistently denied the same. While WP(C) 3794/2005 was pending the consideration of their said grievance, they having come to lear n that the concerned Departmental Promotional Committee (hereafter referred to a s the DPC) was likely to assemble on 3/6/2005 for consideration of the cases of the eligible Assistant Executive Engineers of the Board for promotion to the pos t of Executive Engineer, they approached this Court with WP(C) 4078/2005 apprehe nding that on this occasion as well they would be excluded from the process. Thi s Court by order dated 3/6/2005 directed in the interim that the cases of the pe titioners be also considered in the impending proceedings of the DPC and restrai ned the respondent Board from finalising the process, if they were found to be i neligible. It is a matter of record that the meeting of the DPC was postponed on 3/6/2005 a nd was eventually held on 22/6/2009. The minutes of the said meeting Annexure-II to the interim application filed on behalf of the Board (registered as M.C. 406 /2010) reveal that one Shri Aswini Kumar Kalita and Sri Hemanta Kumar Gogoi were recommended by it (DPC) for promotion to the then existing two vacancies in the post of Executive Engineer. It is, however, submitted at the Bar that in the fa ce of the interim restraint imposed by this Court, the recommendations were not given effect to. The petitioner No. 2 has since left the services of the Board o n voluntary retirement. On being queried by this Court, Mr. Singh has informed t hat adhoc arrangements are in place against the aforementioned two posts of Exec utive Engineer, which, however, would abide by the final decision in the instant proceedings. The respondent Board in its affidavit in substance has pleaded that its Engineer ing Service has two streams, Engineering Service (Civil) and Engineering Service (Mechanical) and that the promotion/appointment are made as per the exigencies of service depending on the vacancies in the post. According to the Board, two s eparate inter se seniority lists have been maintained one each for the civil and mechanical wing. While admitting that promotion of nine Assistant Executive Eng ineers (Civil) to the post of Executive Engineers have been made vide the notifi cation dated 25/11/1992 as per seniority of the Civil Engineers, it has been ass erted that unless the relevant Regulations specifically make a provision that th e Mechanical Engineers be promoted to the post ear marked for Civil Engineers, t he grievance of the petitioners are not cognizable in law. It is, however, maint ained that promotions are made as per the inter se seniority of the Civil Engine ers approved by the concerned DPC. It has been mentioned as well that the case o f the petitioners would be considered as per the inter se seniority list of the Mechanical Engineers in the event of availability of post for Executive Engineer (Mechanical). Mr. Choudhury has insistently urged that though a bare perusal o f the Regulations governing the service conditions of the Engineers of the Board including the petitioners does not indicate any bar for the consideration of th eir (petitioners) cases for promotion from the post of Assistant Executive Engin eer (Mechanical) to that of Executive Engineer, no such promotion as on date has been made from the Mechanical Wing of that rank. This, the learned Sr. Counsel has urged, is ex-facie discriminatory, unfair and unjust and thus unconstitution al. As the petitioners in terms of the conditions of eligibility prescribed by t he Rules are qualified to be considered for such promotion, the denial of such r ight of theirs is grossly illegal, arbitrary and whimsical besides in contravent ion of the letter and spirit of the Rules. Mr. Choudhury, on instructions, has s ubmitted that in the last selection that was held, the novercal attitude prevail ed and none of the Assistant Executive Engineers (Mechanical) including the peti tioners were considered on the touchstone of the Regulations for such promotion. Ms. Bora on the other hand submitted that as the projects undert aken by the Board are dominantly civil in nature, the promotions are need orient ed and thus the petitioners have no vested right to claim promotion to the post of Executive Engineer which is a strategic one. While admitting that the Rules d o not as such prohibit consideration of the cases of the Assistant Executive Eng ineer (Mechanical) for such promotion, she has submitted that no quota as such h as been earmarked for the two disciplines. As the pleaded stand of the Board and the Rules read together do not project a v ery clear picture of its stand, this Court required the presence of a competent authority thereof (Board) to be present to clarify the actual state of affairs. Mr. Singh, when queried by this Court, has apprised it of the fact that the cadr e of Executive Engineer with the Board is comprised of 18 posts. While affirming that no quota as such has been prescribed for any of the two disciplines, he ha s reiterated that the schemes and projects of the Board are predominantly civil in nature and thus the promotions to the post of Executive Engineer is principal ly guided by that consideration. He, however, has admitted that the petitioners, in terms of the Rules are otherwise eligible to be considered for promotion to the post of Executive Engineer. The pleadings of the parties and the arguments advanced have rec eived the due attention of this Court. The relevant excerpts of the Regulations dealing with promotion to the post of Executive Engineer with the Board being of considerable significance in the matter of the present adjudication, deserves t o be extracted. Executive Engineer Number of posts 18 75% by promotion and 25% by depu tation 75% of the posts by promotion from amongst officers of the grade of Assi stant Executive Engineer or equivalent with five years regular service in the gr ade of which, at least two years field experience in the post of Assistant Execu tive Engineer or equivalent failing which by deputation. As would be obvious from the above quote, 75% of the posts in th e rank of Executive Engineer is to be filled up for promotion from amongst offic ers of the grade of Assistant Executive Engineer or equivalent with five years r egular service in the grade having at least two years field experience in the po st of Assistant Executive Engineer or equivalent thereto. The Regulation per se do not conceive of any distinction between the Assistant Executive Engineer (Civ il) and Assistant Executive Engineer (Mechanical) for being considered for promo tion to the post of Executive Engineer. The criteria/norms of eligibility are th us to be uniformly applicable to the members of both the disciplines. Mr. Singh has affirmed that as on date, no promotion has been made from the post of Assist ant Executive Engineer (Mechanical) to that of Executive Engineer. This he has s ought to explain is in view of predominant nature of civil works, which the Boar d has to essentially execute. It is submitted at the Bar that the two candidates recommended by the DPC in its meeting held on 22/5/2009 for such promotion also belongs to the civil wing of the Assistant Executive Engineers. While enough materials are not available to underestimate the st and of the Board that its assignments are overwhelmingly of civil nature, admitt edly it is not wholly so. This is conspicuous from the fact that the cadre of th e service contemplates and admits Engineers in the civil discipline. The plea of the Board to deny promotion of the Assistant Executive Engineer (Civil) to the higher post of Executive Engineer on the ground that its works are chiefly civil in nature is unconvincing and does not comport with the constitutional precept of equality of opportunity in the matter of public employment which is an in ali enable facet of the right to equality and equal protection of law treasured unde r Article 14 of the Constitution of India. As it is, it has been held time out o f number that in the constitutional scheme of employment in the public sector an d otherwise the concerned authority is essentially required to conceive and prov ide reasonable promotional prospects to the members of the service under it. Not only such a requirement has been viewed to be its solemn obligation, it has bee n construed to be indispensable in the interest of institutional excellence and quality of performance contributing thereto. The Board’s stand when judged in th e above perspective, in the opinion of this court, is opposed to the said notion as well as the fundamentals of service jurisprudence. Though it has to be in it s discretion to decide on the number of posts of Executive Engineer to be filled up by Assistant Executive Engineer (Mechanical), the absolute denial of their r ight to be considered therefor, in the estimate of this Court is constitutionall y impermissible. The petitioners are in the scheme of the Regulations held entit led to a realistic promotional avenue to the rank of Executive Engineer. In the above view of the matter, noticing the unambiguous and ca tegorical stand of the Board vis-à-vis the petitioners’ claim for promotion to t he post of Executive Engineer and the stage at which they had approached this Co urt questioning the proposed proceedings of the DPC, it would be in fitness of t hings that it (Board) be directed to redo the process vis-à-vis the two posts th at had been the subject matter of the proceedings of the DPC held on 22/5/2009 a fter identifying posts in the rank of Executive Engineer to be filled up by prom otion from the rank of Assistant Executive Engineer (Mechanical). As in the comp rehension of this Court an amendment of the Regulations would be called for, the Board would forthwith resort to that exercise and initiate the necessary proces s for filling up those posts on the basis of the amendments essentially by takin g into consideration the cases of all eligible candidates holding the feeder pos t of Assistant Executive Engineer and strictly in accordance with Law. In the above view of the matter, the proceedings of the DPC held on 22/5/2009, which essentially had been held in postponement of the one initia lly convened to be conducted on 3/6/2005, are interfered with. The recommendatio n made by the DPC in the said meeting are therefore set aside. As alluded herein above, the Board in compliance of the present determination would amend the Regu lations providing in clear terms, posts in the rank of Executive Engineer to be filled up by promotion from that of Assistant Executive Engineer (Mechanical) an d thereafter administer the process as ordered. The petitions are thus allowed t o the extent as indicated hereinabove. No costs.