WA 118/2008 BEFORE HON’BLE THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) B.K. Sharma, J The matter relates to promotion to the post of Secretary in the Public Works Department, Government of Assam. The challenge made to the promotio n of the appellant in the first writ appeal i.e. W.A. 118/2008 having been uphel d by the learned Single Judge, these two writ appeals have been preferred, one b y the promotee Secretary and the other by the State. Sri Ajay Chandra Bordoloi, the respondent No. 1 in both the writ appeals, filed the writ petition. The prom otee Secretary whose promotion has been set aside by the learned Single Judge is Sri Mohan Chandra Boro. BASIC RELAVENT FACTS 2. The writ petition being WP(C) No. 3573/2007 was filed by the respondent No. 1 challenging the notification dated 26.6.2007, by which the Government of A ssam in the Personnel Department promoted the appellant in W.A. No. 118/2008 to the post of Secretary in the Public Works Department (Roads). Be it stated here that the post of Secretary is a promotional post in the Department from the post of Chief Engineer. 3. A revised inter-se seniority list of Chief Engineer, PWD was published v ide notification dated 6.6.2007 issued by the Government of Assam in the Public Works Department, in which, the respondent No. 1 was placed at serial No. 1 whil e the writ petitioner was placed at serial No. 3. Two other Chief Engineers incl uded in the list namely Sri Mrinal Ranjan Das and Sri Mumtaz Uddin Ahmed were pl aced at serial No. 2 and 4 respectively. The Selection Committee constituted for the purpose of considering promotion to the post of Secretary from amongst the Chief Engineers within the zone of consideration applying the ratio of 1:4 consi dered the said four Chief Engineers for such promotion. The Selection Committee recommended the appellant and Sri M.R. Das (respondent No. 2) in order of merit. Pursuant to such recommendation, the appellant having been promoted to the post of Secretary by the impugned notification dated 26.6.2007, the respondent No. 1 filed the writ petition which having been allowed, the appellant has filed the writ appeal coupled with the writ appeal filed by the State. 4. In the writ petition it is the case of the petitioner/ respondent No. 1 that the criterion of merit-cum-seniority as envisaged under the relevant rules was not followed while considering the case of the incumbents and that the Selec tion Committee was also not constituted as per the laid down procedure. It will be apposite to quote the relevant provisions of the recruitment rules i.e. the A ssam Engineering (Public Works Department) Service Rules, 1978. 3. Class, Cadre, Branch and Status - 1. The service shall consist o f the following classes and cadres - (a) Class -1 (Senior Grade) : It shall include the Cadres/Posts - (I) Secretary, PWD (II) Deputy Secretary, PWD equivalent to the rank of Superintending Engineer, PWD (III) Chief Engineer, PWD (IV) Addl. Chief Engineer, PWD (V) Superintending Engineer, PWD (VI) Director, Road Research Laboratory (VII) Sr. Architect in the rank of Superintending Engineer, PWD. 4 & & & & & & &. 5. Method of Recruitment - 1. & & & & 2. Recruitment to Class-I (Senior Services) an Executive Engineer shall be made by promotion only in accordance with Rr. 12 and 13 12. Promotion - (1) All vacancies in Class-I services an Executive Engineer, Architect, Depu ty Architect, Research officer of Class-I, Junior Grade shall be filled by promo tion : Provided that the Governor may, for good and sufficient reasons, fill up any of the posts in Class-I (Senior Grade) for specialized investigation, designed and Research post temporarily or on tenure by transfer or deputation from outside th e service, if it is satisfied that there is no suitable officer in the service a vailable for filling the vacancies (2). Subject to suitability as may be decided by the Selection Board and by the Appointing Authority as set forth in R13 and also subject to possessing such qu alification and experience as may be prescribed by the Governor, from time to ti me, a member shall be eligible for promotion to the corresponding higher cadre i n the manner hereinafter provided. The qualifications and experience prescribed as on the date of commencement of these rules are furnished in sub-Rr (3 and 4) of this rule and also in schedule III: (i) (ii) (iii) (iv) (v) (vi) From Assistant Executive Engineer to Executive Engineer (vii) From Executive Engineer to Superintending Engineer (viii) From Superintending Engineer to Additional Chief Engineer (ix) From Additional Chief Engineer to Chief Engineer (x) From Chief Engineer to Secretary (3). & & & & & &. (4) For promotion from Executive Engineer to Superintending Engineer and for fur ther promotion an officer shall have the academic prescribed qualification as in the rule for a direct recruit Assistant Engineer. 13. General procedure for promotion (1) Before the end of each year the Governme nt shall make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre. (2) The Appointing Authority shall then furnish to the Selection Board the follo wing documents and information with regard to as many officers in order of senio rity as four times the number of vacancies as assessed under sub-R. (1): (a) information about the number of vacancies; (b) list of officers in order of seniority, eligible for promotion (separate lists for promotion to different cadres shall be furnished) indicating the cadr e to which the case of promotion is to be considered; (c) character rolls and personal files of the officers listed together with all papers showing that any adverse remark recorded in the character rolls has b een duly communicated to the person concerned and any representation against suc h adverse remarks has been disposed of after due consideration; (d) details about reservation in case of promotion to Class II of the servic e and about carry forward of vacancies as provided under sub-R.(3) of the R.11; and (e) any other documents and information as may be considered necessary by th e Appointing Authority or required by the Board. (3) The Appointing Authority shall simultaneously request the Selection Boar d to recommend within one month a list of officers, found suitable for promotion in order of preference, in respect of promotion to each of the cadres in which recruitment is to be made by promotion. (4) Promotions up to the rank of Superintending Engineer, Senior Architect w ill be made on merit and suitability with due regard to the seniority and promot ions above the rank of Superintending Engineer on merit-cum-seniority. (5) The Selection Board, after examination of the documents and information furnished by the Appointing Authority, shall recommend to the Appointing Authori ty a select list of officers about double the probable number of vacancies, in o rder of preference, found suitable for promotion. In case the Board does not con sider an officer suitable for promotion according to seniority, it shall record the reasons thereof in writing and forward to the Appointing Authority together with the select list. (6) The Appointing Authority shall consider the select list prepared by the Board alongwith character rolls and personal files of the employees and approve the list unless it considers any change necessary. If the Appointing Authority c onsiders it necessary to make any change in the list received from the Board, he shall inform the Board of the changes proposed and after taking into account th e comments, if any, as may, in his opinion, be just and proper. Provided that it shall not be necessary for the Appointing Authority to consider the list submitted by the Board recommending candidates for promotion u nder R.11. This list shall be forward by the Appointing Authority to the Commiss ion, as provided under R.14(1). (7) The inclusion of a candidate’s name in a select list shall confer no rig ht to promotion unless the Appointing Authority is satisfied after such enquiry, as may be considered necessary, that a candidate is suitable for promotion. (8) The select lists shall remain valid for we months from the date of appro val by the Commission in case of Assistant Engineers and for 12 months from the date of approval by the Selection Board in other cases. (9) The promotions shall be in accordance with the list finally approved by the Appointing Authority. (10) The select list as finally approved shall be published by the Appointing Authority in the Assam Gazette within 15 days from the date of approval. Provided that the Government can remove any name from the select list in case of misconduct etc., coming to the notice of the Government and that no cla im for promotion can be made on the basis of the select list. 15. Selection Board - The Selection Boards as referred to in Rr 11, 12 and 13 sh all consist of the following : (1) Selection Board for the posts of Chief Engineer and Additional Chief Eng ineer: Chairman : (i) Chief Secretary Member: (ii) Secretary, Irrigation (iii) Secretary, Flood Control Member Secretary: (iv) Secretary, PWD (2) & & & & & PLEADED CASE OF THE APPELLANTS IN THE WRIT PROCEEDING 5. In the counter affidavits filed by PWD, Personnel Department and the res pondent No. 1, it is their specific case that the appellant was promoted, he bei ng the seniormost officer in the cadre of Chief Engineer and otherwise fit for p romotion to the post of Secretary, PWD in terms of the executive instruction iss ued under No. AAP 61/ 81/Pt/62 dated 10.11.2000. In this connection the specific averments made in the respective counter affidavits are reproduced below: COUNTER AFFIDAVIT OF PWD 3. That at the very outset respectfully begs to state that the basic and re levant facts leading to the issuance of the notification No. AAP.77/07/33 dated 26.6.2007 have not been stated in the writ petition for reasons not known to the answering respondent. As such, the answering respondent respectfully begs to pl ace on record the relevant facts hat are necessary for adjudication of the issue s involved in the instant case. 3.A That the competent authority in the Government of Assam noticed that the re is a basic fallacy/lacuna in the Assam Engineering (PWD) Service Rules, 1978, particularly with regard to the post of Secretary to the Government of Assam, P WD. Though the said post is envisaged in Class-I (Senior Grade) Cadre and Rule 1 3(4) provides that all promotions above the rank of Superintendent Engineer will be made on the basis of merit-cum-seniority, there is no Selection Board provid ed for in the Rules of 1978 for selection of an incumbent to the post of Secreta ry PWD. The Personnel (A) Department, Government of Assam deliberated upon the i ssue and ultimately the matter was placed before the Hon’ble Chief minister of A ssam. The Hon’ble Chief minister upon deliberations and discussions and after ex amining the issue thoroughly passed the following order in file No. AAP.61/81/Pt /62 dated 10.11.2000. The post of Commissioner and Secretary, PWD is the senior most administrative po st of the department and is outside the cadre. In order to ensure the administra tive efficiency and discipline, this post is to be filled up by the senior most person among the C.E.’s In accordance with this principle, Sri M.C. Gogoi should be appointed as Commissioner and Secretary, PWD. As regards the filling up the post of Secretary, PWD, though the Selection Commi ttee is not provided for in the rules, I would like to accept the recommendation s of the Committee for the time being, though strictly speaking, the post of Sec retary, PWD shall be filled up strictly according to the seniority of the C.E.’s . Incidentally Sri Bora is also the senior most man after Sri Gogoi and therefor e, he needs to be appointed formally as Secretary, PWD. Before any vacancy arises in the post of Commissioner/ Secretary PWD the Rules s hould be amended to provide the criteria of seniority among the C.E.’s for the s election for these two posts viz. Commissioner and Secretary, PWD. This is desir able in view of the fact that once the officers have been promoted to the level of C.E.’s they are more or less equally placed as far as the merit is concerned and seniority should take precedence over the merit factor. 4. B That the order passed by the Hon’ble Chief Minister in file No. AAP 61/8 9/Pt as quoted in paragraph 3 A above not being under challenge in the instant c ase, the relief as prayed for in the writ petition cannot, in any even be grante d. It is pertinent to state at this stage that the respondent No. 4 being the se nior most officer in the cadre of Chief Engineer and being otherwise fit for pro motion to the post of Secretary, PWD, he was promoted to the said post vide noti fication dated 26.6.2007, strictly in terms of the executive instruction reflect ing an executive policy of the Government of Assam. The answering respondent hum bly submits that it is a settled position of law that the parent action itself n ot being under challenge the petitioner is not entitled to challenge the actions taken in consequence thereof. As such, the writ petition is not maintainable an d hence liable to be dismissed. 5. That the answering respondent humbly begs to submit that there was a cle ar lacuna/gap in the Assam Engineering (PWD) Service Rules, 1978. Such gap/lacun a, having come to the notice of the authorities, the matter was examined thoroug hly at the highest level and a conscious policy decision was taken as stated in paragraph 3B of the instant affidavit. It is humbly submitted that it is no more res integra that a gap in the Service Rules can be filled up by way of executiv e instructions. Moreover, since the date on which this executive instructions re flecting the executive policy of the government, officers have been promoted to the cadre of Secretary, PWD on the basis of the said executive instructions i.e. on the basis of seniority and not on the basis of merit-cum-seniority. Recourse to issuance of the said executive instructions had to be taken as the relevant Service Rules were unworkable. It is a settled position of law that when statuto ry provisions are unworkable, it is very much within the powers and ambit of the Government to act in exercise of the executive powers. As such, it is humbly su bmitted that there has not been any illegalities or arbitrariness in the instant case as is sought to be projected by the petitioner. Apparently no fundamental or legal right of the petitioner has been violated in the instant case. As such, the writ petition is liable to be dismissed. COUNTER AFFIDAVIT OF PERSONNEL DEPARTMENT 9. That the statements made in paragraph 22 and 23 of the writ petition are incorrect and misconceived and hence, categorically denied by the answering res pondent. Although, the petitioner has deemed it fit to reproduce the provisions of Rule 13(4) of the Rules of 1978, he has conveniently avoided making even a pa ssing reference to the fact that there is no Selection Committee envisaged for p romotion to the post of Secretary under the said Rules of 1978. For reasons best known to the petitioner, he has also failed to disclose the fact that the Gover nment of Assam noticed that there is a lacuna in the Assam Engineering (PWD) Ser vice Rules, 1978, particularly with regard to the post of Secretary to the Gover nment of Assam PWD. Though the said post is envisaged in Class-I (Senior Grade) Cadre and Rule 13(4) provides that all promotions above the rank of Superintendi ng Engineer will be made on the basis of merit-cum-seniority, there is no Select ion Board provided for in the Rules of 1978 for selection of an incumbent to the post of Secretary, PWD. The Personnel (A) Department, Government of Assam delib erated upon the issue and ultimately the matte was placed before the Hon’ble Chi ef Minister of Assam. The then Hon’ble Chief Minister, upon deliberations and di scussions and after examining the issue thoroughly, passed the following order i n the file No. AAP.61/89/Pt and communicated the same to the PWD vide letter No. AAP.61/89/Pt/62 dated 10.11.2000. The post of Commissioner and Secretary, PWD is the senior most administrative po st of the department and is outside the cadre. In order to ensure the administra tive efficiency and discipline, this post is to be filled up by the senior most person among the Chief Engineers. In accordance with this principle, Sri M.C. Go goi should be appointed as Commissioner and Secretary, PWD. As regards the filling up the post of Secretary, PWD, though the Selection Commi ttee is not provided for in the rules, I would like to accept the recommendation s of the Committee for the time being, though strictly speaking, the post of Sec retary, PWD shall be filled up strictly according to the seniority of the Chief Engineers. Incidentally Sri Bora is also the senior most man after Sri Gogoi and therefore, he needs to be appointed formally as Secretary, PWD. Before any vacancy arises in the post of Commissioner/ Secretary PWD the Rules s hould be amended to provide the criteria of seniority among the Chief Engineers for the selection for these two posts viz. Commissioner and Secretary, PWD. This is desirable in view of the fact that once the officers have been promoted to t he level of Chief Engineers they are more or less equally placed as far as the m erit is concerned and seniority should take precedence over the merit factor. The answering respondent humbly submits that it is apparent from the facts and c ircumstances narrated in the instant paragraph that the Rules of 1978, in so far as the post of Secretary is concerned, was unworkable, accordingly, the Governm ent of Assam took an executive decision to promote the senior most Chief Enginee r to the post of Secretary and said procedure has been followed all along since the year 2000. In the above circumstances, the provision of rule 13(4) laying do wn the criteria of merit-cum-seniority has no application in the instant case. I n any event, the petitioner, inspite of being aware of the above executive decis ion of the Govt. of Assam, has deemed it fit not challenge the same. As such, in the humble submission of the deponent, the consequences thereof are not open to challenge. 14. That the statements made in paragraph 31 of the writ petition are entire ly irrelevant and misconceived in the backdrop of the facts and issues involved in the instant case and hence, the same are categorically denied by the answerin g respondent. The answering respondent reiterates that there was a serious lacun a in the rules of 1978 and the said Rules have become unworkable for the purpose of promotion to the post Secretary under the Public Works Department. It was in this factual background that the Government of Assam took a conscious policy de cision to make promotion to the said post strictly on the basis of seniority in the cadre of Chief Engineer. The said practice and procedure is being followed s ince the year 2000. As such, going by the petitioner’s own submissions, the mann er having been prescribed for promotion to the post of Secretary, PWD by the Gov ernment of Assam in exercise of powers under Article 162 of the Constitution of India, the said manner/procedure is required to be followed and has been strictl y followed in the present case. As such, it is further humbly submitted no legal right of the petitioner has been infringed in the instant case that would neces sitate interference at the hands of the Hon’ble Court. Hence, the writ petition is liable to be dismissed. COUNTER AFFIDAVIT OF THE APPELLANT SRI M.C. BORO 13. That as regards the statements made in paragraph 22 of the writ petition , the deponent states that the interpretation sought to be given while seeking t o explain the Rule for giving promotion to the post of Secretary, PWD, is absolu tely misconceived in law and the same is not maintainable. The deponent states t hat under the relevant Rules i.e. Assam Engineering (Public Works Department) Se rvice Rules, 1978, though the post of Secretary, PWD is a Cadre post and Rule 13 .4 provides that promotions above the rank of Superintendent Engineers would be made on the basis of merit cum seniority of the incumbents in the zone of consid eration, the Service Rules do not provide for any selection board for the post o f Secretary. Therefore the Service Rules of the department could not be acted up on for making selection to the post of Secretary, PWD. The government accordingl y decided that the post of Secretary PWD would be filled up by the senior most p erson at the rank of the Chief Engineer. This fact is also available from the af fidavit filed by respondent No. 2 in the writ petition. 21. That the deponent states that the promotion to the post of Secretary by order dated 26.6.2007 has been made on the basis of the order passed in the file No. AAP.61/89/PT by the Chief Minister and communicated to the PWD department b y Personal (A) Department by letter No. AAP.61/89/PT/62 dated 10.11.2000, taking into account the seniority of the incumbents in the rank of Chief Engineers as the criterion for giving promotion to the post of Secretary, PWD and the order/g uideline is in order and holding the field and therefore the is no illegality in the matter of selection of the deponent to the post of Secretary, PWD. PLEADED CASE OF THE APPELLANTS IN THE WRIT APPEALS STATE APPEAL (W.A. 134/2008) 6. As in the writ proceeding in the appeal proceeding also, it is the case of the State appellant that the selection was conducted on the basis of the afor esaid executive instruction. In this connection specific averments in the appeal are quoted below: 17. That pursuant to the recommendations made in a selection conducted on 22.6. 2007 based on the principles laid down by the Chief Minister’s order which also has been the uniform practice in the Public Works Department since the issuance of the said order, the Government of Assam vide Notification No. AAP.77/07/33 da ted 26.6.2007, promoted the Proforma Respondent/Respondent No. 4 to the post of Secretary, Public Works Department. III-3. That, although Rule 13 (4) of the Service Rules of 1978 generally provid es for selection based on the criteria of merit-cum-seniority for the posts abov e the rank of Superintending Engineer, the Rule making authority did not provide for a Selection Board for promotion to the post of Secretary, PWD. Admittedly, the intention of the Rule making authority is not discernible even upon a close scrutiny of the Rules. On the face of such ambiguity, the Hon’ble Chief Minister of Assam consciously issued office memorandum providing that the inter-se merit s of the officers having been assessed at several previous stages, on having rea ched the rank of Chief Engineer, they are more or less of equal merit and hence, the criteria of seniority was required to be followed for promotion to the post of Secretary, PWD. It is evident that there existed a lacunae in the Rules, whi ch was filled up as indicated above in exercise of powers under Article 162 of t he Constitution of India as well as Assam Rules of Executive Business, 1968. Mor eover, the order so