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Judgment
Heard Mr. Y. S. Mannan, the learned counsel for the petitioner and Mr. A.D. Choudhury, the learned counsel appearing for all the respondents.
The challenge made by the petitioner’s Association in this writ petition is to the Advertisement dated 05.06.2018 which was published in the
local newspaper “Assam Tribune†on 07.06.2018 inviting applications from eligible candidates for filling up of one post of Assistant General
Manager (Finance & Accounts) (in short ‘AGM (F&A)’) from General candidates as well as from Departmental candidates. According to the
petitioner Association, there is no service rules or regulations which provide for making direct recruitment to the said post and therefore, the post
should be filled up from the next lower cadre/ feeder post by promotion.
The brief facts of the case is that the petitioner is the Assam State Electricity Board Audit & Accounts Service Association registered under the
Societies Registration Act, 1860 and claims to project the interest of the employee of Assam Electricity Grid Corporation Limited (AEGCL) with
regard to Accounts Service. As already stated herein above, an advertisement for filling up one post of AGM (F&A) was floated in the local daily
newspaper on 07.06.2018 to be filled up by direct recruitment. The post was shown as an unreserved post. According to the petitioner, the post of
Deputy Manager (Accounts) was redesignated as Senior Manager vide Notification dated 14.12.2005. Thereafter, vide Office Order dated
06.04.2011, the post of Senior Manager was redesignated as Assistant General Manager. The petitioner further contends that the AEGCL does not
have any Service Regulation of its own and therefore, the post of AGM(F&A) in the past have been filled up by promotion from the next lower cadre.
The petitioner therefore, being aggrieved with the issuance of the advertisement for filling up of one post of AGM (F&A) by direct recruitment
submitted a representation to the Managing Director, AEGCL/ Assam Power Generation Corporation Limited (APGCL) on 25.06.2018 but the same
has not been considered by the respondents authority and as such, the petitioner is before this Court.
Mr. Y.S. Mannan, the learned counsel submits that in the AEGCL, there are persons having more than 20 years of experience and working in the
post of Assistant Manager(F&A) and therefore, without considering the promotions of such persons, filling up of the post of AGM(F&A) by direct
recruitment would demoralize the existing employees and not mention, it will create administrative problems by stagnation in service and reducing
efficiency in service. He submits that there is no service rules or regulations for filling up the post in question by way of direct recruitment and
therefore, the impugned Advertisement dated 05.06.2018 being vague, arbitrary and made with malafide intention cannot be sustained. He submits that
there are presently only two posts of AGM (F&A) in the AEGCL held by the employees and therefore, there cannot be any ground for direct
recruitment for the said post.
Mr. Y.S. Mannan further submits that on an earlier occasions, a similar advertisement was issued by the sister company of the AEGCL i.e. the
Assam Power Distribution Corporation Limited (APDCL) on 08.07.2012. The petitioner Association which is also the Association of employees under
APDCL approached this Court by filing WP(C) No. 3926/2012. The writ petition was finally heard and disposed of vide Order dated 19.11.2015 by
setting aside the Advertisement dated 08.07.2012 on the ground that the same suffered from glaring anomalies and fundamental error. Therefore, the
impugned advertisement in the present case in the absence of any service rules or regulations is only an attempt on the part of the respondents to bring
in person from outside which will be detrimental to the employees who have been diligently serving under the AEGCL and therefore, the same should
be set aside as well. Mr. Y.S. Mannan thus submits that the impugned advertisement should be set aside and the respondents directed to fill up the
post in question by way of promotion from amongst eligible officers already serving under the AEGCL. In support of his submission, Mr. Y.S. Mannan
relies upon the following authorities:
1) State of Haryana & Others Vs. Kashmir Singh and Another, (2010) 13 SCC 306.
2) Srikant Roy and Others Vs. State of Jharkhand and Others, (2017) 1 SCC 457.
3) President, Board of Secondary Education, Orissa and Another Vs. D. Suvankar and Another, (2007) 1 SCC 603.
Mr. A.D. Choudhury, the learned counsel appearing for the respondents by referring to the affidavit-in-opposition filed on 17.07.2018 by the
respondents submits that no doubt this Court disposed of WP(C) No. 3926/2012 by setting aside the Advertisement dated 08.07.2012 which was
impugned therein but the same was only due to certain anomalies and errors committed while issuing the advertisement. This Court however took into
consideration the fact that as per the Assam State Electricity Board Employees Service Regulations, 1960 (Regulations), 66 1/3% of Accounts
Officers re-designated as AGM (F&A) and Senior Accounts Officer re-designated as Deputy Manager Director (F&A) are required to be filled up
by promotion. The remaining 33 1/3% are required to be filled up by direct recruitment through a Selection Committee having requisite qualification.
The Court therefore held that the petitioner in that case could not have any grievance against the post earmarked to be filled up by direct recruitment
(33 1/3%). Mr. Choudhury submits that no appeal was preferred against the said decision and therefore, the decision has attained a finality. In the
present case also, there are four sanctioned posts of AGM (F&A) and out of which three posts are still lying vacant. 33 1/3% of 4 posts being more
than one post, the AEGCL issued the advertisement for direct recruitment. The Regulations applicable for the employees of the APDCL is equally
applicable to the employees of the AEGCL and therefore, the petitioner has no right to approach this Court on issues already decided earlier.
Mr. A.D. Choudhury further submits that the writ petition is also barred by the principles of estoppel and waiver inasmuch as the petitioner’s
Association and the Chairman of APDCL/ APGCL/ AEGCL alongwith Senior officials of the said companies discussed the various issues including
the direct recruitment of Accounts personnel from the rank of AGM and above. After discussion, the parties came to the conclusion that direct
recruitment of 33% of employees in the rank of AGM and DGM will be beneficial for the organization and it should be done as per the rules. Such
being the understanding, the writ petition is also not maintainable on this ground as well.
The learned counsel further submits that the Assam State Electricity Board (ASEB) was dissolved vide Notification dated 12.03.2013 and its
functions and personnels were reassigned to APDCL, AEGCL and APGCL w.e.f. 31.03.2013. All the successor companies are following the rules
and regulations framed by the erstwhile ASEB. He submits that Clause 13 of the Regulations provides for direct recruitment through Selection
Committee for the posts of Accounts Officer/ Senior Accounts Officer to the extent of 33 1/3%. He submits that the Finance & Accounts Service
Regulation of AEGCL has not yet been formulated and it is under formulation now.
Mr. A.D. Choudhury also submits that the Advertisement dated 05.06.2018 was published with due approval of the AEGCL Board which decided
to adopt the APDCL Finance & Accounts Service Rules, 2012 (Rules of 2012) for recruitment of AGM (F&A). Accordingly, the advertisement was
published as per the Board resolution dated 14.05.2018. He submits that as per Rule 7 of the 2012 Rules, 33.33% of the post of AGM (F&A) is to be
filled up by direct recruitment and the remaining 66.66% by promotion from amongst Assistant Manager (F&A). In the absence of any regulation of
its own, the respondents authority having adopted the Regulations as well as the Rules of 2012, no fault can be attributed to the respondents. Under
the circumstances, the writ petition being without merit, the same should be dismissed. In support of his submission, the learned counsel relies upon the
following authorities:-
1) Union of India and Others Vs. C. Krishna Reddy, (2003) 12 SCC 627 paragraph 13.
2) Rockpo Dabulew Vs. State of Arunachal Pradesh & Others, 2005 (3) GLT 529 paragraph 6.
3) Mukul Saikia and Others Vs. State of Assam and Others, (2009) 1 SCC 386 paras 40 & 46.
4) State of Uttar Pradesh and Another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Others (2008) 12 SCC 675 para
45.
I have considered the submissions made by the learned counsels for the rival parties and I have perused the materials available on record.
As may be noticed, the controversy projected by the petitioner Association is that the respondents authority could not have issued the
advertisement for filling up of one post of AGM(F&A) by way of direct recruitment through the impugned Advertisement dated 05.06.2018. To
support such contention, the petitioner Association maintains that there are several employees working in the feeder post of AGM (F&A) i.e.
Assistant Manager (F&A), who are waiting to be promoted. If the post of AGM (F&A) is filled up by direct recruitment, it will demoralize the existing
employee. The further contention is that in the past, the post of AGM (F&A) has always been filled up by way of promotion from the feeder post and
that presently, two posts of AGM(F&A) are in fact held by the employees who are promoted to the post from the lower Grade. From the case
projected by the parties, it appears that there are four sanctioned posts of AGM(F&A). If the Regulations as well as the Rules of 2012 is applied, 33
1/3% or 33.33% will surely work out as one post. The respondents authority may not have a regulation or rules of its own but it is a settled law that in
the absence of an approved service rule, draft service rules or norms and criteria provided in the advertisement can be applied. As already noticed
herein above, the AEGCL, APDCL and APGCL have been carved out as the erstwhile ASEB which was having the Regulations, the respondent
authority can therefore certainly adopt either a Draft Service Rules/ Regulation or the Regulations or the Rules of 2012 of the APDCL. I therefore
find force in the argument advanced on behalf of the respondents. If the petitioner contends that no post of AGM(F&A) have been earmarked to be
filled up by direct recruitment, the same argument would apply to the claim for filling up of the post of AGM(F&A) solely by promotion. In other
words, in absence of any approved regulation or service rules specifically meant for AEGCL, it cannot be said that all the four posts of AGM(F&A)
should only be filled up by promotion.
Notwithstanding the above opinion, the authorities relied upon by the parties may be examined. In Kashmir Singh and Another (Supra), the Apex
Court held that the power of the State to transfer police person is purely an administrative function. Therefore, Court should not interfere in such
matter except where it is absolutely necessary on account of violation of any fundamental or other legal right. By the impugned action of the
respondents in the instant case, it cannot be said that any of the fundamental right or legal right or for that matter vested in rest of the petitioner
Association has been curtailed. As such, I do not find this decision to be applicable. In the case of Srikant Roy and Others (Supra), the Apex Court
held that cadre strength is measured by number of posts comprising cadre. Right to be considered for appointment can only be claimed in respect of
post in given cadre. The percentage of quota as to each source of recruitment specified in the Rules concerned should be worked out in relation to
number of posts which form cadre and has no relevance to vacancy that occur. In the present case, it may be seen that as per the Draft Rules, 33
1/3% of the 4 posts available will work out to one post and for that reason the steps taken by the respondent authority to fill up the same by way of
direct recruitment making it open to all category cannot be faulted with. Therefore, this decision also does not rendered any help to the petitioner.
In President Board of Secondary Education, Orissa and Another (Supra), the Apex Court held that in matter of examination and publication of
mark sheet, the respondent authority concerned/Education Board should ensure issuance of correct mark sheet. In the given facts of that case, for the
error committed, cost was imposed upon the Education Board. This decision in my considered view has no application to the present case. In the case
of C. Krishna Reddy (Supra), the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed
upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the writ is to
compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of
their jurisdiction. Therefore, in order that a mandamus may issue to compel the authorities to do something, it must be shown that there is a statute
which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. In the present case, it may be seen
that there is no guidelines, rules or statute which imposes a legal duty upon the respondents to fill up the post in question only by way of promotion and
therefore, the question of a case being made out for issuance of a mandamus does not arise.
In the case of Rockpo Dabulew (Supra), this Court held that the allegation of mala fide must be specifically pleaded on the basis of the Court can
arrive at its conclusion. Mere use of word ‘mala fide’ is not enough in order to arrive at the decision regarding mala fide. Similarly, in the
present case, there are no materials to substantiate the allegation of mala fide against the respondent authority. Therefore, the pleadings in that regard
has to be taken only in the fix value. In the case of Mukul Saikia and Others (Supra), the Apex Court in respect of the filling up of 18 vacancies of
Child Development Project Officers against which the private respondents were regularized did not find any infirmity inasmuch as the appointment to
the post was against the quota meant for promotees. In the present case as well as already stated herein above, one post of the AGM (F&A)
according to the Draft Rules was meant for direct recruitment keeping in view the ratio of 33 1/3% is for direct recruitment. As such, this decision
would support the case of the respondents.
In the case of Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Others (Supra), the Apex Court held that in order for a writ of
mandamus to be issued which presupposes a legal right, such right must be a subsisting right and enforceable in a court of law. There must be
corresponding legal duty on the part of the respondent concerned requiring the said respondent authority do what a statute requires it to do. However,
the same in the present case is not to be seen.
Thus, upon due consideration of the case in its entirety, I do not find any merit in the writ petition and accordingly, the same is dismissed. No cost.