WP(C) 4839/2008 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. G.N. Sahewalla, learned Sr. counsel for the petitioner, Mr. Go goi, learned standing counsel Finance Department appearing for the respondent No s.1 to 3 and Mr. R.K. Talukdar, learned counsel appearing for the respondent No. 4. The petitioner, who is presently working as the Director of Institutiona l Finance on officiating capacity, pursuant to the order of promotion dated 14.1 2.2004, by the present petition has prayed for consideration of his case for pro motion to the post of Director, Finance (Economic Affairs) Deptt. with effect fr om the date when the post fell vacant i.e. on 30.04.2001 and/or w.e.f. 04.09.200 2 i.e. the date when he completed the 3(three) years qualifying service in the f eeder post, namely, the Joint Director of Finance (Economic Affairs) Department, with consequential benefit. A further prayer has also been made to direct the r espondent Nos.1 to 3 to furnish all the requisite informations to the Assam Publ ic Service Commission (herein after referred to as the Commission), the responde nt No.4, to enable the Commission to approve the list of officers found suitable for promotion, in order of preference, as required under Rule 13 of the Assam F inance Economic Service Rules, 1989 (in short the 1989 Rules), as amended by the Assam Finance Economic Service (Amendment) Rules, 1995, which came into effect from the date of its publication in the official gazette i.e. on 20.12.1995. Mr. Sahewalla, learned Sr. counsel appearing for the petitioner has subm itted that though the post of Director, Finance (Economic Affairs) Deptt. fell v acant on 30.04.2001 and the petitioner at that point of time was the lone person working as the Joint Director, which is the feeder post, his case was not consi dered at the relevant point of time and not even on completion of 3(three) years qualifying service in the feeder post i.e. on 04.09.2002. According to Mr. Sahe walla, the selection board constituted under the provisions of 1989 Rules, as am ended, considered the case of the petitioner and another person, who subsequentl y was appointed to the post of Joint Director, for promotion into two posts, one in the post of Director, Finance (Economic Affairs) Deptt. and the other in the post of Director, Institutional Finance and accordingly the petitioner was prom oted on officiating basis in the post of Director, Institutional Finance, ignori ng the fact that he was the senior in the rank of Joint Director to the other pe rson, namely, Sri Rajani Ranjan Hazarika (who is not a party to the proceeding) and who was given the promotion to the post of Director, Finance (Economic Affai rs) Deptt. It has further been submitted by Mr. Sahewalla that the Commission th ough from time to time requested the Govt. of Assam in Finance Department to fur nish certain informations/ clarifications, those have not been furnished and as a result of which the Commission could not finalize the selection process as req uired under Rule 13 of the 1989 Rules. Mr. Sahewalla, therefore, submits that th e writ petition be disposed of with a direction to the said respondents to furni sh all the requisite informations/ clarifications, as sought for by the Commissi on for the purpose of undertaking the process for approval of the select list fo r promotion, in order of preference, as required under Rule 13 of the 1989 Rules , so that the petitioner can get all the service benefits, who is going to retir e from service in the month of November, 2010, on attaining the age of superannu ation. Mr. Gogoi, learned standing counsel, Finance Department submits that the case of the petitioner, on 30.04.2001, could not be considered as the incumbent , who was due to retire from service as Director, Finance (Economic Affairs) Dep tt., was given the extension in service. In any case, according to the learned c ounsel, the petitioner having not acquired the qualifying service of 3(three) ye ars in the post of Joint Director, he was not eligible for consideration for pro motion on that date. It has further been submitted by the learned standing couns el, Finance Department that the extended service of the said incumbent to the po st of Director, Finance (Economic Affairs) Deptt. came to an end on 31.07.2003 a nd thereafter the process of selection of candidate for both the posts of Direct or, Finance (Economic Affairs) Deptt. and Director, Institutional Finance were t aken up by the Board constituted in terms of the 1989 Rules and on the basis of the recommendation of the Board, the petitioner as well as one Sri Rajani Ranjan Hazarika were appointed on officiating basis as the Director, Institutional Fin ance and Director, Finance (Economic Affairs) Deptt. respectively. According to the learned standing counsel the entire records were thereafter submitted to the Commission in the month of March, 2005 for undertaking the final selection proc ess as required under Rule 13 of the said Rules. It has also been submitted that thereafter certain clarifications were sought for by the Commission from time t o time, which were furnished by the Finance Department vide communication dated 05.08.2006. It has also been submitted that as the Commission was not satisfied with the informations/clarifications submitted by the Finance Department, the Co mmission issued further communications to furnish certain more informations as w ell as the clarifications and the communication between the Commission and the D epartment concerned is presently going on. Mr. Gogoi, however, has fairly submit ted that all the informations required would be submitted to the Commission with in a period of 3(three) weeks, so that the Commission can discharge his duties o f preparation of the list as required under Rule 13 of the 1989 Rules. The learned counsel appearing for the Commission submits that the Commis sion is not in a position to finalize the process of selection as required by 19 89 Rules, in view of non-submission of all the required informations/clarificati ons as sought for by the Commission from time to time, the last being the commun ication dated 07.03.2009. It has also been submitted by the learned counsel that within a period of 4(four) weeks from the date of submission of all the require d informations/clarifications, the Commission will finalize the selection proces s and recommend the names, in order of preference, to the appropriate authority, as required by 1989 Rules. It appears from the 1989 Rules, as amended by the 1995 Amendment Rules, that under Rule 12, as amended, an incumbent for promotion from one cadre to ano ther has to have at least 3(three) years of continuous service in the cadre from which he is considered for promotion. It appears from the materials made available on record that though the o riginal incumbent to the post of Director, Finance (Economic Affairs) Deptt. was due to retire from service on attaining the age of superannuation on 30.04.2001 , his services were extended and such extension came to an end on 30.07.2003. Th e Finance Department, thereafter, initiated the process for selection of candida te for the purpose of appointment by way of promotion to the post of Director, F inance (Economic Affairs) Deptt. as well as Director, Institutional Finance, bot h of which are the Class-I post and accordingly the selection board recommended the names of the petitioner as well as one Sri Rajani Ranjan Hazarika for promot ion. Consequent to that the order of officiating promotion was issued on 14.12.2 004 appointing the petitioner to the post of Director, Institutional Finance and the said Rajani Ranjan Hazarika, who is not a party to the proceeding, to the p ost of Director, Finance (Economic Affairs) Deptt. The Govt. of Assam in the Finance Department, thereafter, send the recor ds to the Commission for approval of the names of the persons for promotion on r egular basis as required under Rule 13 of the 1989 Rules. Different communicatio ns between the Commission as well as the Finance Department as annexed to the pl eadings of the parties in the present writ proceeding reveal that the Commission from time to time sought for certain informations as well as clarifications fro m the Finance Department and though an attempt was made by the Finance Departmen t to furnish such informations/clarifications, the Commission as it appears from the communication dated 07.03.2009 was not satisfied with the informations and clarifications so furnished. Admittedly such clarifications as sought for by the said communication dated 07.03.2009 has not been furnished by the Finance Depar tment till date. Rule 13 of the 1989 Rules, as amended, requires making of selection by t he Board, constitution of which is stipulated in Rule 14 thereof and recommendat ion of the list of the candidates found suitable in such selection. Sub-rule (3) of Rule 13 of the 1989 Rules requires that the selection made by the Board shal l be referred to the Commission for their approval. The appointing authority is also required to furnish the Commission with necessary records and informations relating to the candidates selected by the Board for promotion and to request th e Commission to furnish its recommendations for promotion of the officers, in or der of preference, within one month. Sub-rule (4) of Rule 13 provides that the s election shall be made on the basis of merit with due regard to the seniority. S ub-rule (5) thereof requires the Commission to finalize the list of officers fou nd suitable for promotion, in order of preference and with such modifications as it may consider proper, after examination of the records and informations furni shed by the appointing authority. Sub-rule (6) of Rule 13 requires the appointin g authority to give effect to the promotion, in order of preference given by the Commission, as and when vacancies occur. It also provides that the list shall r emain in force for a period of 1(one) year from the date of recommendation of th e Commission. In the instant case, as noticed above, the Commission could not perform its duty as required by Rule 13 of the 1989 Rules because of non-furnishing of t he required informations by the Govt. of Assam in Finance Department. No fault, therefore, can be found with the Commission in not making required recommendatio n as required by Rule 13 of the said Rules. As noticed above, learned standing counsel, Finance Department, has subm itted that all the required informations shall be furnished to the Commission wi thin a period of 3(three) weeks from today. The learned counsel appearing for th e Commission has also submitted that within 4(four) weeks from the date of submi ssion of required informations, the process for recommendation of the names of t he candidates for promotion as required under Rule 13 of the 1989 Rules shall be completed. In view of the aforesaid position, the present writ petition is disposed of with a direction to the respondent Nos.1 to 3 to furnish all the required in formations to the Commission within a period of 3(three) weeks from today. The C ommission within 4(four) weeks from the date of receipt of such informations sha ll finalize the process of recommending the names of the persons found suitable for promotion in order of preference, as stipulated in sub-rule (5) of Rule 13 o f the 1989 Rules. The respondent Nos.1 to 3 shall pass necessary order within 3( three) weeks thereafter. It is needless to say that if the petitioner is found to be suitable for promotion to the post of Director, he shall be entitled to all the service bene fits. The writ petition is accordingly disposed of. No costs.