S.B.SINHA, J. - (1.) LEAVE granted.
(2.) INTERPRETATION of an Office Memorandum dated 10.10.2002 providing for the mode and manner for considering the suitability of candidates for promotion from one post to the other, falls for consideration in these appeals which arise out of a common judgment and order dated 27.01.2006 passed by a Division Bench of the Gauhati High Court in Writ Appeal No. 5 of 2004 whereby and whereunder the appeal preferred by Respondent No.1 from a judgment and order 29.11.2004 passed by a learned Single Judge of the said High Court in Writ Petition (Civil) No. 44 of 2004, was allowed. A post of Executive Engineer was created on 01.02.2004. For the purpose of filling up the said post, the Departmental Promotion Committee (for short, 'the DPC') held a meeting on 16.03.2004. The DPC indisputably was, inter alia, to consider the Annual Confidential Reports (for short, 'ACRs') of the candidates concerned. Both the appellant and the first respondent along with two others were eligible therefor. Promotion to the said post is governed by the Mizoram Engineering Service Rules, 2001 (for short, 'the Rules). Rule 20 of the said Rules, inter alia, provides for general procedure for promotion, relevant clauses whereof are as under : "20. (1) Whether any vacancy or vacancies arise(s) to be filled up by promotion, the Controlling Authority shall furnish to the Commission, the following documents and information : (d) Annual Confidential Reports of eligible candidates of preceding years as may be required, length of service, duly reviewed and accepted by the authorities concerned. (e) Details about reservation for member of the service in respect of graduate in Engineering and holders of under graduate diploma in Engineering as provided under sub-rules (3) and (4) of Rule 19. (f) Clearance from Vigilance Department separately in respect of each, and (g) Any other documents and information as may be considered necessary by the Commission." State of Mizoram, however, issued an Office Memorandum dated 10.10.2002 laying down the procedures to be observed by the DPC, relevant clauses whereof are as under : "3.2 While merit has to be recognised and rewarded, advancement in the officer's career should not be regarded as a matter of course but should be earned by dint of hard work, good conduct and result oriented performance as reflected in the annual confidential reports and based on strict and rigorous selection process. 3.4 Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non- discriminatory. Hence, (a) The DPC should consider CRs for equal number of years in respect of all Officers considered for promotion subject to (c) below. (b) The DPC should assess the suitability of the candidates for promotion on the basis of the their service records and with particular reference to the CR for five preceding years, irrespective of the qualifying service prescribed in the Service Rules/Recruitment Rules. (If more than one CR has been written in a particular year all the CRs for the relevant years shall be considered together as the CR for one year). (c) When ACR has not been written by the reporting Officer despite submission of the self-appraisal to the Reporting Officer by the Officers reported upon during the relevant period, the DPC should consider the CR of one preceding year beyond the relevant period. (e) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs, but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that, some time, the overall grading in a CR may be inconsistent with the grading under various parameters or attributes. (f) If the Reviewing Authority or the Accepting Authority, as the case may be, has overruled the Reporting Officer, or the Reviewing Authority, as the case may be, the remarks of the latter authority should be taken as the final remarks for the purpose of assessment, provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. If the assessment of the Reporting Officer, Reviewing Authority and Accepting Authority are complimentary to each other and one does not have the effect of overruling the other, then the remarks should be read together and the final assessment made by the DPC. (g) ACRs of Officers which became available during the year immediately preceding the vacancy/panel year should be considered by the DPCs even if DPCs are hold later than the year of vacancy. In other words, for the vacancy/panel year, 2001- 2002, ACRs upto the year ending 31st March, 2000 are required to be considered irrespective of the date of convening of DPC. However,, ACRs upto the year ending 31st March, 2001 will be considered by the DPC if it sits after September of that year even if the vacancy falls within 2001-2002. 3.5(ii) In respect of all posts which are in the scale of pay of Rs.12000-16500/- and above, the bench-mark shall be "VERY GOOD" and for all the posts which are in the scale of pay of Rs.8000-13500/- and above but less than Rs.12000-16500/- the bench-mark shall be 'GOOD'. Further, overall grading of officers shall be made in the following manner : Outstanding An Officer, who gets at least 3 (three) outstanding reports out of 5 (five), provided that the remaining 2(two) reports should not be less than 'Very Good', will be categorised as 'Outstanding'. Very Good An Officer, who gets at least 3 (three) 'Very Good' reports out of 5 (five), provided that the remaining 2 (two) reports should not be less than 'Good' will be categorised as 'Very Good'. Good An Officer, who gets at least 3 (three) 'Good' reports out of 5 (five), will be categorised as 'Average'. Average An Officer, who gets at least 3 (three) 'Good' reports out of 5 (five), will be categorised as 'Average'. An Officer who gets an overall grading of Outstanding will en bloc supersede Officer who gets an overall grading of 'Very Good' regardless of seniority. An Officer who gets an overall grading of 'Very Good' will en bloc supersede Officer who gets an overall grading of 'Good' regardless of seniority. 3.8 For the purpose of evaluating the merit of the Officers while preparing year-wise panels, scrutiny of the record of service of the Officers should be limited to the records that would have been available had the DPC met at the appropriate time. For instance, for preparing a panel relating to the vacancies of 2001-2002 the latest available records of service of the Officers up-to the period ending March, 2000 as the case may be should be taken into account and not the subsequent one. However, if on the date of the meeting of the DPC, Departmental Proceedings are in progress and under the existing instructions sealed cover procedure is to be followed, such procedure should be observed even if Departmental Proceeding were not in existence in the year to which the vacancy related. The Officer's name should be kept in the sealed cover till the proceedings are finalized."
(3.) BEFORE we embark upon the rival contentions of the parties, we may notice the assessment of ACRs of the appellant and respondent no.1 respectively from 1997-98, which is as under : JUDGEMENT_749_TLPRE0_2007Html1.htm Indisputably, if the ACR for the year 1997-98 is taken into consideration for the purpose of judging the suitability of the appellant and respondent no. 1 and that of the year 2002-03 is excluded, Respondent No. 1 being senior, would be promoted to the post of Executive Engineer; whereas in the event the ACR for the period 1997-98 is excluded and that of the year 2002-03 is taken into consideration, as the appellant herein would be given overall grading 'outstanding', the case of Respondent No.1 would not be considered at all.;