Gauhati High Court
Swapan Kumar Handique And Ors. vs Padma Dhar Deka And Ors. on 9 February, 2001
JUDGMENT P.G. Agarwal, J.
1. All these writ appeals involve common question of law and facts and as such these are disposed of by this common Judgment.
2. Heard the learned counsel for the parties.
3. The matter relates to promotion of the Assistant Engineer and Executive Engineer to the post of Executive Engineer and Superintending Engineer respectively. Petitioners, in the various writ petitions out of which the present writ appeals have arisen, are all the employees of the Assam State Electricity Board, for short, the ASEB. Assam Engineering Service Regulations, 1973 framed and published by the ASEB governs the matter of promotion. As per Regulation 12 the appointment by promotion shall be made on the basis of seniority with due regard to merit and suitability in all respects as may be assessed from the Annual Confidential Reports in respect of the officers concerned. The Regulation contains other parameters and conditions for such promotion. The Regulations were, thereafter, amended in the year 1983, hereinafter referred as 1983 amendment which provided that the promotion should be given on the basis of merit cum seniority. Subsequently on 27.8.1992, the Regulations were again amended providing for selection based on performance appraisals and suitability for inclusion in the panel. The performance appraisals formats were introduced. The 1992 amended Regulations were again amended vide notification issued on 1.9.1995. The 1992 amendment provides :
" at Regulation 12-A(b)(i) that the Executive Engineer should have put a minimum of 5(five) years service as Executive Engineer to become eligible for promotion to the rank of Superintending Engineer.
The Regulation 12-B(iii) provides that promotion from Executive . Engineer to Superintending Engineer shall be made on the basis of selection by the Departmental Promotion Committee-I (DPC-I) to be chaired by the Chairman, ASEB.
The Regulation 12-B(vi) provides that the Board in selecting an officer for promotion to the higher rank shall take into account the performance of the officer for a consecutive period of 5(five) years immediately preceding the date of selection.
The Regulation 12-B(vii) provides that while evaluating the suitability of an officer on the basis of ACRs and preparing a panel for promotion to the next higher post, the inter se seniority of each of the officers included in the panel shall be determined by the Departmental Promotion Committee."
4. As per the earlier provisions of the Regulation the selection committee was required to consider the cases of five officers against one vacant post; but it was reduced to four officers by the latter amendments.
5. The amended provisions of 1992 and 1995 were challenged in the writ petitions by the petitioners mainly on the ground that these amendments are not applicable as they have not assumed the statutory character for the reason that the ASEB did not publish these notifications as required under the law and approval of the State Legislature was not obtained as required. Section 79 of the Electricity (Supply) Act, 1948 provides as follows:
"Power to make regulations. - The Board may by notification in the Official Gazette, make regulations not consistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely:-
(a) the administration of the funds and other properly of the Board, and the maintenance of its accounts;
(b) the summoning and holding of meetings of the Board, the times and places at which such meetings shall be held, the conduct of business threat and the number of members necessary to constitute a quorums;
(c) the duties of (officers and other employees) of the Board, and their salaries, allowances and other conditions of service;
(d) all matters necessary or expedient for regulating the operations of the Board under Section 20;
(e) the making of advances to licensees by the Board under section 23 and the manner of repayment of such advances;
(f) the making of contributions by the Board under Section 24;
(g) the procedure to be followed by the Board in inviting, considering and accepting tenders;
(h) principles governing the fixing of Grid Tariffs;
(i) principles governing the making of arrangements with licensees under Section 47;
(j) principles governing the supply of electricity by the Board to persons other than licensees under Section 49; (jj) expending sum not included in statement submitted under Sub-section (1) or Sub-section (5) of Section 61, under subsection (2) of Section 62;
(k) any other matter arising out of the Board's functions under this Act for which it is necessary or expedient to make regulations:
Provided that regulations under clause (a), (d) and (jj) shall be made only with the previous approval of the State Government and regulations under Clauses (h) and (i) shall be made with the concurrence of the Authority."
6. So far the question of obtaining approval of the state Legislature is concerned, the admitted case of the ASEB is that the ASEB Engineering service Regulations, 1973 was laid before the Assembly on 12.12.1996. As regards the Notification/Publication is concerned, the appellant ASEB has filed Annexure-A, a copy of the Assam Gazette-Extraordinary dated 17.1.2000 to show that the amendments were notified on that day. Learned counsel for the appellant ASEB has submitted that where the Regulations are defective for non-publication and once the defect is removed, the Notifications becomes valid. Learned counsel for the appellant in support of his submission has referred to the decision of the Apex Court in the case of Bihar S.A. Produce Marketing Board and Ors. v. Shankar Makhana Bhandar and Ors., reported in 1994 Supp (2) SCC 522. In the above referred decision, the notification levying market fee was held to be bad for non-publication. The State Government thereafter enacted a validation Act validating the non-publication to be as if valid publication. The facts of the present case are altogether different and we therefore hold that the ratio of law laid down in Bihar S.A. Produce Marketing Board (supra) is not applicable. At this stage, we may refer to the observations of the Apex Court in the case of V. Balasubramaniam v. Tamil Nadu Housing Board and others, reported in AIR 1988 SC 6. In that case the Apex Court in para-13 held as follows:
"Assuming for purposes of argument that the non-publication of the regulations in the Official Gazette rendered them ineffective as regulations as held by the Division Bench of the High Court but without expressing any final opinion on the said question it has to be held that it was open to the Board to lay down appropriate norms in accordance with which it proposed to make appointments of its officers and staff. The regulations which were made by the Board on 20.3.1963 which had been modified by its two resolutions dt. 8.12.1964 and 8.11.1965 and which had been approved and confirmed by the state Government could still form the basis of the appointments of the officers and staff of the Board until they were replaced by formal regulations published in the form of a notification in the Official Gazette."
In the case of Collector of Central Excise v. New Tobacco Co. and others reported in (1998) 8 SCC 250 the Apex Court went a step further stating and holding that the requirement of publication of notification in the Official Gazette is satisfied only when the Gazette containing the notification is made available to the public. In this case, there is no dispute at the Bar that during the pendency of the writ petitions even, 1992 and 1995 amendments were not published.
7. Section 79 of the Electricity (Supply) Act, 1948 was amended with effect from 15.3.1984 by an amendment Act of 20 of 1983. Prior to that amendment, Section 79 provided that the Board may make regulations. Vide 1983 amendment, the words 'by Notification in the Official Gazette' was incorporated. This goes to show that notification in the Official Gazette was made compulsory in making any Regulations and as stated above, in the present case the notification was made in the year 2000 only. The learned Single Judge has held that the amended rules will come into effect from the date of publication only where the mode is prescribed for such publication. In view of the specific provision of Section 79 of the Act and the Apex Court decisions as quoted above, we find no basis to take a contrary view of the matter and hold that in the instant case 1992 and 1995 Regulations shall come into effect from the date of their publication only.
8. The learned Single Judge has also held that promotion made on the basis of Annexures 4 and 5, 1992 and 1995 amendments, are liable to be quashed. Learned counsel for the respondent writ petitioners submits that the vacancies of 1992 and 1995 cannot be filled up on the basis/consideration of the amended rules which were notified in January, 2000 only. The 1973 Rule as amended in 1983 must govern the field. It is well settled that vacancies in a particular year can not be clubbed with vacancies of subsequent year and the rule governing vacancy position during that period should be applied so that the rights accrued to the candidates is not extinguished and the candidates are not deprived. We, therefore, uphold the direction of the learned Single Judge after considering the case of the writ petitioners for promotion on the basis of 1973 Regulation as amended in 1983 and for not applying the provisions of 1992 and 1995 amendment.
9. We have found that the learned Single Judge has also quashed the 1992 and 1995 amendment regulations on the ground of non-publication. Because of non-publication, the above Regulations may not be applicable to the present case; but there is no scope to quash the above Notifications. As stated above, these Notifications have been notified/published as required under the law on 17.1.2000 and as such this provision shall be applicable and will govern the field from the date of such publication. We, therefore, set aside the finding regarding quashing of these Notifications.
10. Mr. B.N. Sarma, learned counsel for some of the respondents has submitted that the impugned order has already been implemented and promotions have been given to the candidates sand as such the appeals have become infructuous. We have perused the promotion order dated 10.1.2000 which provides that the promotions have been made provisionally subject to the result of the Writ Appeals. The respondents/writ petitioners are no way aggrieved with the promotion order passed in the light of the impugned judgment and as such no fresh directions are required to be given.
11. In view of the aforementioned observations, the batch of Writ Appeals, stands disposed of with modification regarding quashing of 1992 and 1995 amendment to the Regulations. The 1992 and 1995 amendment shall be applicable to the concerned employees from the date of their publication only. The ASEB will be at liberty to proceed accordingly.