S.B. BHATTACHARJEE versus S.D. MAJUMDAR AND ORS.

Citation: [2007] 6 S.C.R. 743 · Decided: 15-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

.. 
-
S.B. BHA IT ACHARJEE 
A 
S.D. MAJUMDAR AND ORS. 
MAY 15, 2007 
[S.B. SINHA AND C.K. THAKKER, JJ.] 
B 
Constitution of India, 1950: 
Art. 16-Held: though a person has no fundamental right to promotion 
he has a fundamental right to be considered therefor-Terms and conditions C 
of service of an employee including his right to be considered for promotion 
are governed by rules framed under proviso to Art. 309-Mizoram Engineering 
Service Rules, 200I-r. 20. 
Service Law: 
Mizoram Engineering Service Rules, 200I: 
D 
r. 20-Govt of Mizoram Office Memorandum dated JO.I0.2002-
Promotion to the post of Executive Engineer-Consideration of Annual 
Confidential Report for fIVe preceding years-Held, the clause 'the ACRs for E 
fIVe preceding years' must be held to mean ACRs of fIVe preceding years' 
which have attained finality-For calculation of 'preceding fIVe years' ACRs 
up to the year immediately preceding the vacancy/pane/ year should be 
considered by the DPC-Interpreting the O.M in this manner, respondent 
no. I, being senior to appellant was rightly held by Division Bench of the 
High Court to be entitled to promotion. 
F 
Interpretation of Statutes: Illustration 
contained in an Office 
Memorandum-Held cannot be lost sight of while construing the provisions 
of the O.M 
Clarificatory Office Memorandum-Restrospective operation of-Held G 
since it is clarijicatory in nature, it has to be given effect to. 
Doctrine of contemporanea exposition-Applicability of 
Words and phrases: Expresssion, "ACRs of officers which become 
743 
II 
744 
SUPREME COURT REPORTS 
[2007) 6 S.C.R. 
A available during the year immediarezv preceding the vacancy/penal year"-
...i.. 
Occurring in government of Mi:oram O.M. dated 10.10.2002-Meaning of 
In terms of Rule 20 of the Mizoram Engineering Service Rules 2001 
relating to procedure for promotion and consideration of Annual Confidential 
B 
Report or preceding years of eligible candidates, State of Mizoram issued an 
Office Memorandum dated lO. l0.2002, which provided, inter alia, that "the 
DPC should asses~ suitability of candidates for promotion on the basis of 
their service records and with particular reference to CR for five preceding 
years." Sub para (g) of Para 3.5 of the O.M. provided that ACRs of Officers 
which became available during the year immediately preceding the vacancy/ 
... 
-4. 
c panel year should be considered by the DPC even if DPC was held later than 
the year of vacancy. A Post of Executive Engineer in the State was created on 
1.2.2004. In order to fill up the said post, the Departmental Promotion 
Committee met on 16.3.2004. Undisputedly, respondent no.I was senior to the 
appellant. If ACR for the year 1997-98 was taken into consideration and that 
of the year 2003-03 was excluded, respondent no.I being senior to the 
D appellant would be promoted; whereas in the even of excluding ACR for the 
year 1997-98 and taking into consideration ACR for the year 2002-03, 
appellant would be given over all grading 'outstanding' and as such respondent 
·• 
no.I would not be considered at all. As the DPC recommended candidature of 
the appellant, respondent no.I filed a writ petition before the High Court. 
E During the pendency of the writ petition the State Government issued a 
clarification dated 13.9.2004 clarifying Para 3.4(g) of O.M. dated lO. l0.2002. 
However, the Single Judge of the High Court dismissed the writ petition. But 
the Division Bench of the High Court allowed the writ appeal filed by 
respondent no. I. Aggrieved the Appellant filed the instant appeal. 
F 
Dismissing the appeal, the Court 
HELD: I. 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 term and conditions of service of an employee 
G 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. (Para 13) [754-G-H; 755-A) 
2.1. The validity or otherwise of the Office Memorandum dated 
) -
H 
10.10.2002 issued in terms of Rule 20 of the Mizoram Engineering Service 
'It 
• 
.,,_ 
S.B. BHATTACHARJEE v. S.D. MAJUMDAR 
745 
Rules 2001 is not in question. With a view to give effect to the statutory A 
rules governing the field, the State of Mizoram has issued the said Office 
Memorandum directing that the 

Excerpt shown. Read the full judgment & AI analysis in Lexace.