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TMI Blog2007 (5) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of 2004, was allowed. 3. 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 Engi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant 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. xxx xxx xxx 3.5(ii) In respect of all posts which are in the scale of pay of ₹ 12000-16500/- and above, the bench-mark shall be VERY GOOD and for all the posts which are in the scale of pay of ₹ 8000-13500/- and above but less than ₹ 12000-16500/- the bench- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. S.B.Bhattacharjee VG Os VG VG Os Os Outstanding 6. 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. 7. The fact that respondent no. 1 is senior to the appellant is not in dispute. As the DPC recommended the candidature of the appellant alone in terms of the extant rules, Respondent No. 1 herein filed a writ petition before the Gauhati High Court on 04.06.2004. During the pendency of the said Writ Petition, the Government of Mizoram itself issued a clarification on or about 13.09.2004, which reads as under : In inviting a reference to this Department 's O.M. No. A.32012/1/81-APT./Loose dated 10.10.2002 on the above subject, this is to clarify para 3.4 (g) of the said O.M. that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is once again clarified that only such ACRs should be considered which became available during the year immediately preceding the vacancy/panel years even if DPC are held later than the Schedule prescribed in the Model Calendar. In other words, for the vacancy/panel year 2000-2001, ACRs upto the year 1998-99 are required to be considered irrespective of the date of convening DPC. 10. Although the clarificatory Office Memorandum has been issued by the State of Mizoram itself, apart from the candidate concerned, viz. Shri S.B. Bhattacharjee, the State of Mizoram as also the Mizoram Public Service Commission are before us. 11. Mr. Sunil Gupta, learned Senior Counsel appearing on behalf of the State of Mizoram, Mr. Ranjit Kumar, learned Senior Counsel appearing on behalf of the Mizoram Public Service Commission and Mr. Manoj Goel, learned counsel appearing on behalf of the private appellants in support of the appeals, inter alia, submitted : (i) The Division Bench of the High Court committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration the fact that the Office Memorandum dated 10.10.2002, if read in its entirety, woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memorandum dated 13.09.2004 is binding on the State, the same would be retrospective in nature. (iv) Illustration being in nature of the proviso, the effect thereof cannot be ignored. (v) The learned Single Judge committed a manifest error in substituting one year for consideration of another year and, thus, the judgment of the Division Bench of the High Court cannot be faulted with. (vi) The Rule itself takes care of a contingency if any departmental proceeding or any criminal proceeding is initiated against the recommendee, in which event, the State would not be powerless to pass appropriate orders, as would appear from Rule 17 of the Rules. 13. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India. 14. Rule 20, as noticed hereinbefore, provides that if any vacancy or vacancie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be inconsistent with the grading under various parameters or attributes'. Each of the parameters or attributes on the basis whereof the ACRs are written and gradation is given would, thus, have to be considered. 19. The Rules indisputably envisage that a person having an overall grading of 'outstanding' shall alone be considered vis-`-vis who do not come within the purview of the gradation of outstanding despite the fact that their service career they might have received overall grading of 'Very Good'. 20. We at this stage may also notice paragraph 3.8 of the said Office Memorandum, which proceeds on the basis that for the purpose of evaluating the merit of the officers, scrutiny of the records of the officers should be limited to the records that would have been available, had the DPC met at the appropriate time. Even in relation thereto, an illustration had been given stating that if a vacancy arises in 2001-02, only the latest records of service of the Officers upto the period ending March 2000, namely, 1999- 2000 shall be taken into consideration. It categorically uses both positive language as also a negative language stating that what would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give effect to the intention of the legislature, may read the statute in a manner compatible therewith, and which would not be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. But, however, it is also necessary for us to bear in mind the illustration given by the executive while construing an executive direction and office memorandum by way of executive construction cannot be lost sight of. It is in that sense the doctrine of cotemporanea expositio may have to be taken recourse to in appropriate cases, although the same may not be relevant for construction of a model statute passed by a legislature. In G.P. Singh's 'Principles of Statutory Interpretation, 10th Edn. at p. 319, it is stated : But a uniform and consistent departmental practice arising out of construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time is an admissible aid to the proper construction of the statute by the Court and would not be disregarded except for cogent reasons. The controlling effect of this aid which is known as 'executive construction' would dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. If the first part of the statement of law in Shambhu Nath. (supra), in our opinion, is applicable, the illustration in question does not curtail nor extend the ambit. It merely clarifies what otherwise might have been obvious. It introduces the rule by abundant caution although it might not have been necessary keeping in view the purport and object which Rule 20 and paragraph 3.8 seeks to achieve. 26. The clarification issued by the State is not in the teeth of the illustration given in clause (g) of paragraph 3.4 of the Office Memorandum. The clarification having been issued, the same should be taken into consideration by this Court irrespective of the fact as to whether it was available to the Public Service Commission on 16.03.2004 when the DPC held its meeting which, in our opinion, was not of much significance. The clarification being explanatory and/or clarificatory, in our opinion, will have a retrospective effect. 27. In S.S. Grewal v. State of Punjab and Others [(1993) Supp. (3) SCC 234], this Court stated the law thus : In this context it may be stated that according to the principles of statutory construction a statute which is explanatory or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself, ( b ) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve, ( c ) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, ( d ) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and ( e ) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same. [See also S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (1992) Supp. (2 ) SCC 304 and Hardev Motor Transport v. State of M.P. and Others (2006) 8 SCC 613] In a given case, and in absence of rule, the court might have been justified to hold that the DPC must take into consideration the merit and merit only. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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