Calcutta High Court - Port Blair
Shri Subrata Bachar vs The Hon'Ble Lt. Governor And Others on 16 December, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]
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PRESENT: HON'BLE JUSTICE SHAMPA DUTT (PAUL)
WPA/533/2024
Shri Subrata Bachar ... Petitioner
Versus
The Hon'ble Lt. Governor and Others ... Respondents
For the petitioner : Mr. Gopala Binnu Kumar
For the respondents : Mr. Rakesh Kumar
Heard on : 11.12.2025
Judgment on : 16.12.2025
SHAMPA DUTT (PAUL), J.
1. The writ petition has been preferred praying for direction upon the respondents No. 3 and 4 to act in terms of the recommendation dated 28th June 2024 of the DPC and to accord promotion to the petitioner to the post of Junior Engineer (E&M) under promotional quota with retrospective effect and to provide all the consequential service benefits.
2. The petitioner's case is that he was engaged to the post of Unskilled Mazdoor on 24/09/1999, after discharging more than 5 years of service as unskilled mazdoor, subsequently on the basis of a selection process initiated by the department, the 2 petitioner was appointed to the post of Lineman (Electrical) on adhoc basis for a specific period which was extended from time to time.
3. Subsequently on the basis of the resolution adopted by the PBMC vide Order dated 05/06/2007 the petitioner was appointed on regular basis to the post of Lineman (Electrical) under the respondent No. 3.
4. The next promotional post of the Lineman is Junior Engineer (E&M) with having 7 years of regular service.
5. The petitioner became eligible to be promoted to the post of Junior Engineer (E&M) in the later part of the year 2014 despite of that the case of the petitioner was not considered though Stanley James who was senior to the petitioner as Lineman was promoted to the said post of Junior Engineer (E&M) in the year 2015 alongwith one Dheeraj Ram.
6. Dheeraj Ram died on 04/02/2022 and thereafter the said post is lying vacant, though the petitioner is discharging the duties and responsibilities of Junior Engineer (E&M) on and from 02/08/2021 on Current Duty Charge without any extra renumeration but no regular appointment was accorded to the petitioner.
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7. After repeated approach by the petitioner, on 28/06/2024 a DPC was conducted and the petitioner was found eligible to be promoted to the said post as such DPC recommended the name of the petitioner but the petitioner was not promoted. When the matter was sent to the respondent No. 1 for approval, the respondent No. 1 noted that the recruitment rule for the post of Junior Engineer (E&M) needs revision to align with Department of Personnel and Training guidelines, ensure fairness and eliminate ambiguity and therefore directed the department to complete the amendment of the said recruitment rule by 12.08.2024 and to submit proposal subsequently for promotion of eligible officers. Hence this writ petition.
8. Copy of an office order being No. 1657 dated at Port Blair 17.07.1998 has been placed as Annexure - 1. The said order issued by the Secretary of the Municipal Council, Port Blair shows the panel as recommended by the Selection Committee who shall be considered for appointment in the Municipal Council in future, as and when vacancy arises. The petitioner herein was recommended at No. 1 for Junior Engineer (Electrical).
9. Document marked Annexure P-2 shows that the petitioner was appointed as an unskilled Mazdoor under the 4 Council for a period of two months on and from 24.09.1999 and posted under the Assistant Engineer (E&M).
10. Annexure P-3 shows that the petitioner was appointed as Lineman, Electrical Section of the Port Blair Municipal Council wherein it was clarified that the petitioner would not be considered for regular appointment.
11. Vide Annexure 4 which is an order dated 06.07.2007, the Secretary, Municipal Council on the basis of a resolution taken by the Municipal Council, the Chairman was pleased to regularize the adhoc promotions and appointments of the persons vested therein, wherein at No. 5 is the petitioner herein and the date of effect was given vide order No. 4663 dated 31.12.2003.
12. Annexure P-5, is a notice dated 15.10.2014. It is the final seniority list of persons who were found to be eligible for promotion to the post of Junior Engineer (E & M) and the petitioner herein was recommended at No. 2 to the post of Junior Engineer (E & M), PBMC.
13. Recruitment Rules published in the Andaman and Nicobar Extra Ordinary Gazette dated 21.05.2012 was applicable to the said procedure.
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14. Subsequently by the document at Annexure P-7 dated 28.01.2025, two of the listed persons were promoted to the post of Junior Engineer (E & M) with effect from 06.01.2025. The petitioner's name did not figure in the said list.
15. Vide an order No. 3413 dated 02.08.2021 (Annexure P-8), the petitioner herein was entrusted with the current duty charges of Junior Engineer-IV (Electrical) without any extra remuneration until further orders and it was again made clear that the order would not entitle the petitioner to claim regular appointment to the post of Junior Engineer.
16. It appears from the document marked as Annexure - 9 that the Post Based Roaster shows that one of the unreserved category is still lying vacant and the candidate at No. 1 expired on 04.02.2022.
17. It further appears from the minutes of the meeting of the DPC held on 28.06.2025 that the DPC was made the following observation :
"DPC was informed that Port Blair Municipal Council is having eight (08) sanctioned posts of Junior Engineer (E&M). Out of which, six (06) posts have been already filled by direct recruitment and 01 out of the 02 (two) promotional posts is lying vacant in the Pay Band-2 Rs 9300-34800 with Grade Pay of Rs 4200/- [Pay Matrix (Level-6) Rs 35400-112400). DPC was further informed that as 6 per the notified RR, the post of Junior Engineer (E&M) has to be filled up by 20% Promotion from amongst the serving employees with seven years regular service under E&M & Electrical Sub Division since appointment with a minimum educational qualification of degree or diploma in Mechanical/Electrical/Automobile Engineering from a recognized University/Institution.
DPC was further informed that there is no ST employee in the grade under zone of consideration. As per the seniority list, the following one (01) Lineman is eligible for promotion to the post of Junior Engineer (E&M) in terms of the provision contained in the Recruitment Rules and he is clear from vigilance angle.".
18. Thus, the name of the petitioner herein was recommended for promotion to the post of Junior Engineer (E & M).
19. Mr. Gopala Binnu Kumar, learned Counsel for the petitioner has placed the instructions of the Departmental Promotion Committee meeting, which has been titled as guidelines on the Departmental Promotion Committee and is dated 10.04.1989.
20. It appears that it has been categorically noted in part 1 para 3.1 as follows :-
"3.1 Determination of regular vacancies and size of the select panel.
3.1.1 It is essential that the number of vacancies in respect of which a panel is to be prepared by a DPC should be estimated as accurately as possible. For this purpose since action is to be initiated in 7 advance, the vacancies to be taken into account should be clear vacancies arising in a post/grade/service in the relevant vacancy year due to retirement, regular long term promotion and deputation. As regards vacancies arising out of deputation, only those cases of deputation for periods exceeding one year should be taken into account, due note, however, being kept also of the number of the deputationists likely to return to the cadre and who have to be provided for. Purely short term vacancies created as a result of officers proceeding on leave, or on deputation for a shorter period, training etc. should not be taken into account for the purpose of preparation of a panel. In cases where there has been delay in holding DPCs for a year or more, vacancies should be indicated year-wise separately.
[Para 4.1 of O.M.NO.22011/5/86-Estt.(D) dated10.04.1989] 3.1.2 DPC for a grade may take into account all clear expected vacancies by retirement etc. in the concerned grade as well as chain vacancies on account of retirement etc. in the higher grades which can be clearly anticipated in the same vacancy year.
[Para 7 of O.M.No.22011/9/198-Estt.(D) dated 08.09.1998] 3.1.3 Chain Vacancies on account of retirement, etc. in the higher grades in a vacancy (panel) year shall include:
The vacancies which can be clearly anticipated as likely to become available in the concerned grade by promotion of officers of the service to higher grades during that vacancy (panel) year. (Expected promotion to the higher grades under the Model Calendar for DPCs would normally be against vacancies arising by retirement in all the higher grades/hierarchy - as per paragraph 7 of the Office Memorandum dated September 8,1998).8
[Para 2 of O.M.No.22011/9/98-Estt.(D) dated 06.10.1999] [For vacancies that arise subsequently during the vacancy year due to death, resignation, creation of new posts, a supplementary DPC needs to be convened.]".
21. The petitioner was informed by the respondent company as follows :-
"With reference to Note #219, the RR amendment of JE(E&M) has been initiated in the relevant e-File No. 35218 and being placed before the RR review committee meeting. This file may be returned to GA Section, PBMC for further action please.".
22. This is an internal communication sheet dated 12.08.2024 and has been issued on the basis of the note by the Secretary (PBMC) dated 08.08.2024, which notes "RR amendment of JE (E&M) to be taken up on priority in the necessary RR committee meeting.
23. Mr. Gopala Binnu Kumar, learned Counsel for the petitioner has relied upon the said order.
24. In the present case, the DPC has recommended the petitioner's claim for promotion after the considering the RR, APARs, vigilant clearance, integrity certificate and other relevant records pertaining to the petitioner. 9
25. In R. Ranjith Singh & Ors - versus - The State of Tamil Nadu & Ors reported in Civil Appeal No. Of 2025 (Arising out of SLP(C) Nos. 5137-38 of 2021], the Supreme Court held that :-
"20. This Court in the case of State of Madhya Pradesh and Another Vs. M/s G.S. Dall and Flour Mills 1992 Supp (1) Supreme Court Cases 150 has held that executive instructions can supplement a Statute or cover areas which the Statute does not extend. They cannot run contrary to the statutory provisions or whittle down their effect. In the present case, the G.O. dated 13.07.1995, G.O. dated 24.10.1996 and G.O. dated 10.06.2009 are executive instructions and based upon the executive instructions, the statutory provisions as contained under the statutory rules could not have been made applicable as has been done in the present case.
21. This Court in the case of Jaiveer Singh and Others Vs. The State of Uttarakhand and Others 2023 INSC 1024 has held as under:
"34. It can thus be seen that it is a trite law that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, it can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. It is a settled proposition of law that an authority cannot issue orders/office memorandum/ executive instructions in contravention of the statutory rules. However, instructions 10 can be issued only to supplement the statutory rules but not to supplant it.
This Court has again held in the aforesaid case that the Government cannot issue executive instructions in contravention of the statutory rules.
22. The State Government without amending the recruitment rules right from 1995 continued with the appointing process under the direct recruitment category by appointing in-service candidates and in the considered opinion of this Court, such a recourse was not available to the State Government without amending the recruitment rules. However, in light of the fact that the persons have been promoted in 1995 and thereafter also, this Court is not touching their promotion orders. The State Government without amending recruitment rules till 2017 continued to appoint Sub-Inspector of Police from Head Constables serving the police department and all such recruitments were made without amending the recruitment rules. The recruitment rules were amended only in the year 2017. In the considered opinion of this Court, the amendment to the recruitment rules in the year 2017 to the extent it provides for 20% reservation under the direct recruitment category to the in service candidates, does not warrant any interference. However, the amendment brought vide G.O. dated 21.11.2017 amending Rule 25(a) of the 1955 Rules, which provides for grant of seniority to all in-service candidates over and above candidates recruited from the open market is certainly violative of Articles 14, 16 and 21 of the Constitution of India and deserves to be struck down by this Court.
23. The State Government after realizing its mistake has gone to the extent of giving retrospective effect in the matter of seniority meaning thereby giving a preferential 11 treatment to the in-service candidates who are less meritorious and who have already been granted a concession by permitting them to appear under the 20% quota earmarked for them. In the considered opinion of this Court, the action of the State Government in amending the recruitment rules with retrospective effect is certainly violative of Articles 14, 16 and 21 of the Constitution of India. A statute which takes away the right of an individual with retrospective effect deserves to be set aside by this Court.".
26. In Tej Prakash Pathak & Ors. - versus - Rajasthan High Court & Ors. reported in Civil Appeal No. 2634 of 2013, the Supreme Court held that:-
"29. The ultimate object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services.33 It is now well settled that while a written examination assesses a candidate's knowledge and intellectual ability, an interview test is valuable to assess a candidate's overall intellectual and personal qualities. While written examination has certain distinct advantages over the interview test there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, 12 adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity.34 Thus, the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection.35
30. What is clear from above is that the object of any process of selection for entry into a public service is to ensure that a person most suitable for the post is selected. What is suitable for one post may not be for the other. Thus, a degree of discretion is necessary to be left to the employer to devise its method/ procedure to select a candidate most suitable for the post albeit subject to the overarching principles enshrined in Articles 14 and 16 of the Constitution as also the Rules/ Statute governing service and reservation. Thus, in our view, the appointing authority/ recruiting authority/ competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the recruitment process. But if the extant Rules or the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/ examiner/ interviewer is taken by surprise. The decision in K. Manjusree (supra) does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played. This view is in consonance with the rule against arbitrariness enshrined in Article 14 of the Constitution and meets the legitimate 13 expectation of the candidates as also the requirement of transparency in recruitment to public services and thereby obviates mal practices in preparation of select list.
42. We, therefore, answer the reference in the following terms:
(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;
(2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;
(3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;
(4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ non-14
arbitrary and has a rational nexus to the object sought to be achieved.
(5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps;
(6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies.
However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.".
27. A Coordinate Bench in its order relied upon in respect of the recruitment and promotion in the Port Blair Municipal Council which is also the office herein in the present case observed that the office memorandum dated 10th April, 1989 also categorically states that 'a vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy'. In view thereof, the petitioner's eligibility for promotion is not in doubt. The only reason for which such promotion has been withheld appears to be that a decision pertaining to amendment of the existing RRs is under consideration of the competent authority. Such reasoning is not acceptable to this Court since even if the RRs are amended, the same would be prospective in nature and such 15 amendment cannot render the petitioner ineligible as the same shall not apply to the petitioner [R. Ranjith Singh (Supra) and Tej Prakash Pathak (Supra)].
28. For the reasons discussed above, this Court directs the respondents to take necessary steps and grant promotion to the petitioner to the post of JE (E&M), as recommended by the DPC on 28th June, 2024, within a period of eight weeks from the date of communication of this order.
29. With the above observations and directions, the writ petition is disposed of.
30. There shall, however, be no order as to costs.
31. Urgent Photostat certified copy of this order, if applied for, shall be supplied to the parties as expeditiously as possible, upon compliance of all formalities.
[ SHAMPA DUTT (PAUL), J. ]