Judgment & Order (Oral)1. Heard Mr. T.J. Mahanta, learned Senior counsel assisted by Mr. P.P. Dutta, learned counsel for the petitioner. Also heard Mr. D. Doley, learned State counsel for respondent no. 1; Mr. A. Kalita, learned Standing counsel, Industries & Commerce Department for respondent no. 2; Mr. G. Choudhury, learned Standing counsel, Assam Industrial Development Corporation for respondent no. 3 and Mr. S.K. Goswami, learned counsel for respondent no. 4.2. The subject-matter in this writ petition filed under Article 226 of the Constitution of India is in relation to filling up of an existing vacant post of General Manager in Assam Industrial Development Corporation (“the AIDC” and/or “the Corporation”, for short) from amongst the eligible candidates in the feeder cadre of Deputy General Manager (Technical) in the Corporation and the validity or otherwise of a panel recommended by the Public Enterprise Selection Board containing 2 (two) names wherein the respondent no. 4 was placed at Serial no. 2 therein.3. The issue that has been raised by the writ petitioner is that a process was initiated by the respondent AIDC in the year 2019 to fill up a vacant post in the cadre of General Manager. As per the extant rules, the feeder cadre to fill up the posts in the cadre of General Manager in the Corporation is the cadre of Deputy General Manager (Technical). Accordingly, particulars of 4 (four) nos. of candidates from the cadre of Deputy General Manager (Technical) who fell within the zone of consideration, were forwarded on 31.10.2019 to the Public Enterprise Selection Board for selection of a suitable candidate for the post of General Manager. The Public Enterprise Selection Board in its meeting held on 07.11.2019, prepared and recommended a panel consisting of 2 (two) names for being promoted to the post of General Manager, AIDC. Though the petitioner’s name was included amongst the 4 (four) candidates forwarded to the Public Enterprise Selection Board his name was not included in the panel recommended by the Public Enterprise Selection Board on 07.11.2019. The candidate at serial no. 1 from the said panel, one Sri Prasanta Bora was promoted to the post of General Manager. Thereafter, Sri Prasanta Bora retired from service on 31.07.2020 on reaching the age of superannuation. As a result, the said post of General Manager for which the selection process was undertaken, has become vacant again. The petitioner has approached this Court by way of this writ petition alleging and contending that there has been a move at the respondent Corporation to fill up the said resultant vacant post of General Manager by promoting the respondent no. 4 on the basis of the panel whereas, according to him, the vacancy is required to be filled up by a fresh process of selection from amongst the eligible candidates in the zone of consideration in the feeder cadre of Deputy General Manager (Technical) as per the Service Rules of the AIDC.4. Mr. Mahanta, learned Senior counsel for the petitioner has submitted that the Public Enterprise Selection Board while recommending the panel of 2 (two) Officers on 07.11.2019, had indicated that the panel would remain valid for 1 (one) year for consideration for filling up the existing vacant post as well as any post of General Manager (un-reserved category) that might fall vacant within 1 (one) year from the date of issue of the Minutes. It is the contention of the petitioner that since the candidate at serial no. 1 from the said panel had been promoted the panel is no longer valid as it has spent its force. The question of filling up any post of General Manager that might fall vacant during 1 (one) year from the date of issue of the Minutes has become redundant. The question of keeping the panel valid for a period of 1 (one) year would have arisen if the employer for certain valid reason did not act immediately upon it by making appointment from the said panel. In such situation, the panel could have remained valid for the period of 1 (one) year. But once a candidate from the said panel was appointed by promotion in the post of General Manager the vacancy that has arisen resultantly for the exclusive reason that the person who got promoted and also got retired within the period of 1 (one) year, cannot be allowed to be filled up by holding that the validity of the panel is still not over. He has submitted that to fill up the said resultant vacancy, a fresh selection process has to be undertaken.5. Mr. Choudhury, learned counsel for the respondent Corporation has submitted that there are 3 (three) posts in the cadre of General Manager in the Corporation and out of those 3 (three) posts, 2 (two) posts are to be filled up by way of promotion from amongst the eligible candidates in the feeder cadre of Deputy General Manager (Technical). The post of General Manager at issue is a promotional post and to fill up the said promotional post, the process was undertaken in the year 2019. The Corporation had prepared and forwarded a list of 4 (four) candidates who fulfilled the eligibility criteria as per the Service Rules of the Corporation to the Public Enterprise Selection Board for selection of a suitable candidate and the Public Enterprise Selection Board had accordingly, forwarded the panel recommending 2 (two) names to the Government and the Corporation. Accordingly, as the Public Enterprise Selection Board had recommended the panel of 2 (two) candidates in order of merit, the Corporation had promoted the candidate at serial no. 1. He has categorically denied that there was any move to further act upon the said panel as has been apprehended by the petitioner through his representation submitted before the Corporation. No action to fill up the vacant post of General Manager was undertaken by the Corporation prior to passing of the interim order by this Court and no such action, he submits, has been undertaken in the interregnum since the passing of the interim order by this Court on 07.08.2020. He has further submitted that in the event it is decided that the panel recommended by the Public Enterprise Selection Board is no longer valid, the Corporation would initiate a fresh process of selection to fill up the post of General Manager at the earliest.6. Mr. Goswami, learned counsel appearing for the respondent no. 4 has submitted that the name of the respondent no. 4 was recommended by the Public Enterprise Selection Board at serial no. 2 in the panel prepared at the end of the selection process. He has submitted that the Public Enterprise Selection Board while recommending the panel containing two names, had mentioned that the panel would remain valid for 1 (one) year for consideration for filling up the existing vacant post as well as any post of General Manager (un-reserved category) that might fall vacant within 1 (one) year from the date of issue of the Minutes i.e. 07.11.2019. It would, thus, be open, he submits, for the respondent authorities to act upon the said panel as the said panel has remained valid as on date. He has further submitted that the Public Enterprise Selection Board had already got satisfied with the credentials of the respondent no. 4 and found him eligible for being promoted to the post of General Manager in the respondent Corporation. He has further submitted that as the petitioner was not included in the said panel, an inference can clearly be drawn to the effect that the respondent no. 4 is ahead of the petitioner on merits. Alternatively, he has submitted that the respondent no. 4 is going to retire on 31.01.2021 whereas the petitioner would retire on 31.12.2023. He has, therefore, submitted that the respondent no. 4 has a better right to be considered for promotion and if any fresh selection process is undertaken, such selection process must be completed prior to his retirement. He has submitted that the respondent authorities should not keep the existing vacancy in the cadre of General Manager which is a vital post in respect of functioning of the respondent Corporation, vacant and the process must be undertaken so as to complete it at the earliest which would be to the benefit of the Corporation as well as to the respondent no. 4. Mr. Goswami has submitted that as on date, there is no other eligible candidate other than the petitioner and the respondent no. 4 in the feeder cadre of Deputy General Manager (Technical), who fulfils the criteria of eligibility to be promoted to the post of General Manager. He has submitted that for the purpose of deciding the writ petition, the interlocutory application he has filed may be treated as an affidavit-in-opposition on behalf of the respondent no. 4. He has drawn attention of the Court to a notification dated 06.09.1989 of the Department of Public Enterprises, Government of Assam with regard to the process of selection to fill up a post of General Manager in the Corporation.7. Mr. Doley and Mr. Kalita have adopted the submissions advanced by the learned counsel for the respondent Corporation. They have further submitted, in context of the submissions advanced on behalf of the respondent no. 4 that in the event this Court directs the respondent authorities to initiate a fresh process of selection by holding that the earlier panel is no longer has remained valid to act upon, that the respondent authorities would make endeavour to complete the fresh selection process, if ordered, at the earliest.8. I have given due consideration to the submissions advanced by the learned counsel for the parties and also perused the materials available in the record.9. There is no dispute to the fact that AIDC is an instrumentality of the State coming within the purview of Article 12 of the Constitution of India. By the notification dated 06.09.1989 of the Department of Public Enterprise, Government of Assam, the State Government has reconstituted the Public Enterprises Selection Board. One of the key objectives behind reconstituting the Public Enterprises Selection Board, headed by the Chief Secretary to the Government of Assam, is to select personnel with financial and managerial expertise at the top management level in the State Level Public Enterprises to take these State Level Public Enterprises forward. As per the said notification, top level appointments in State Level Public Enterprises viz. Executive Chairman, Managing Directors, Functional Directors of the Board and General Managers are to be made on the basis of recommendations of the Public Enterprises Selection Board.10. It would also be apt to quote Rules 23 (i) and (ii) of the Assam Industrial Development Corporation Limited (Employees) Service Rules, 1992 (“the Service Rules”, for short), which read as follows:Rule 23 (i) all appointments and promotions shall be made at the discretion of the Management and notwithstanding his/her seniority, no employee shall have a right to be appointed or promoted to any particular post or grade.(ii) Broadly, for all categories of posts, the basic principles for promotion will be merit, efficiency and past performance, seniority being taken into consideration only when other factors are equal. The Departmental Assessment/Promotion Committee shall be guided by the service records and confidential character records and confidential character rolls of all employees eligible for promotion as per the job specifications that may be approved by the Board.11. As the AIDC is a State Level Public Enterprise, selection of candidate for a post of General Manager is to be done by the Public Enterprises Selection Board. As per the Service Rules of the Corporation, there are 3 (three) posts in the cadre of General Manager. Out of the 3 (three) posts, 2 (two) posts are to be filled up by way of promotion and the other by direct recruitment. The criteria of eligibility for filling up the promotional post are prescribed in the Service Rules of the Corporation. As per the Schedule to the Service Rules, 4 (four) years experience as Deputy General Manager (Technical) with minimum qualification of degree is Engineering/Technology is the norm of eligibility to be considered for promotion to the post of General Manager.12. There is no dispute to the fact that both the petitioner and the respondent no. 4 fulfilled the criteria of eligibility as per the Service Rules of the Corporation in the year 2019. A move was initiated in the year 2019 from the end of the Corporation to fill up a vacant post of General Manager in the Corporation from amongst the officers in the feeder cadre of Deputy General Manager (Technical) in the Corporation where both the petitioner and the respondent no. 4 were then and are also presently serving.13. By communication dated 31.10.2019, the respondent no. 2 had informed the respondent no. 3 that a meeting of the Public Enterprises Selection Board would be held on 07.11.2019 for conducting an interview to select ‘a’ suitable candidate for the post of General Manager. A list of 4 (four) candidates was prepared wherein both the petitioner and the respondent no. 4 were included. The Public Enterprises Selection Board interviewed all 4 (four) candidates on 07.11.2019 for the post of General Manager and thereafter, recommended a panel of 2 (two) candidates, in order of merit, to the Industries & Commerce Department, Government of Assam for appointment by promotion to the post of General Manager. In the said panel, the name of one Sri Prasanta Bora was placed at serial no. 1 and the name of the respondent no. 4 was placed at serial no. 2. The Public Enterprises Selection Board had further observed that the panel would remain valid for 1 (one) year for consideration of filling up the existing vacant post as well as any post of General Manager (un-reserved category) that might fall vacant during 1 (one) year from the date of issue of the Minutes.14. It is an admitted position that the Government in the Industries & Commerce Department and the AIDC had acted on the said selection panel and promoted Sri Prasanta Bora to the post of General Manager on 07.12.2019. After serving in the post of General Manager in the Corporation since 07.12.2019, Sri Prasanta Bora retired from service on 31.07.2020 on reaching the age of superannuation.15. The questions that have arisen for consideration are whether earlier selection process can be said to have come to an end with the appointment of Sri Prasanta Bora and whether the selection panel recommended by the Public Enterprises Selection Board which consisted of two names, can be operated now qua the vacancy that has arisen due to retirement of Sri Prasanta Bora on 31.07.2020.16. As has been mentioned above, the select list recommended by the Public Enterprises Selection Board on 07.11.2019 contained 2 (two) names. It is evident from the communication dated 31.10.2019 that the Public Enterprises Selection Board would conduct the interview to select ‘a’ suitable candidate for the post of General Manager in the Corporation. As the first candidate from the said selection panel, prepared in order of merit, for the only vacant post of General Manager for which the selection process was undertaken, was promoted the selection panel so prepared, came to be end. The purport and object of the selection panel had ceased to exist as soon as a candidate from the said selection panel was appointed on promotion in the then vacant post of General Manager. As the said candidate i.e. Sri Prasanta Bora who was offered appointment, accepted the offer of appointment on promotion and joined in the post, the currency of the panel had expired. In other words, once a candidate from the said selection panel was promoted at no rate, anybody else in the panel like the respondent no. 4 in the case in hand, can legitimately contend that he should have been promoted in the vacancy that has arisen on account of the subsequent retirement of Sri Prasanta Bora, the person appointed from the panel or any other vacancy that has arisen subsequently. It would have been a different case if the candidate at serial no. 1 when offered appointment had not joined. In such scenario, it would have been open for the respondent no. 4 to contend that since the candidate at serial no. 1 did not join when offered promotion he should be promoted to the said vacant post as the selection body has already found him eligible to be promoted to the post of General Manager by including his name at serial no. 2 in the selection panel and the period of validity of 1 (one) year has not expired.17. This Court is also of the considered view that as the selection process was undertaken only for a post, it was not open for the Public Enterprises Selection Board to observe that the panel would remain valid also for any post of General Manager that might fall vacant during 1 (one) year from the date of issue of the Minutes when it was only entrusted with the task to recommend a panel of suitable candidates for only one post of General Manager in the Corporation. The question of keeping the panel valid for a period of 1 (one) year had become redundant when a candidate from the said selection process was given promotion and the candidate had joined the post.18. In the light of the foregoing discussion, this Court holds that the panel prepared by the Public Enterprises Selection Board on 07.11.2019 for filling up a post of General Manager has spent its force and it is no longer open for the respondent authorities to act further upon it to fill up the resultant vacancy. If the respondent authorities decide to fill up the vacancy that has arisen due to retirement of Sri Prasanta Bora then a fresh selection process has to be undertaken by the respondent authorities.19. Though the right to promotion is not a fundamental right, right to be considered for promotion has been held to be a fundamental right. When a person joins a post and service he joins also with the expectation that during the course of his service career, he would get opportunities to climb up the ladder and would be promoted to posts in higher cadres with higher responsibilities and higher pay subject to fulfilment of the criteria of eligibility laid down by the employer. It is also true that promotion increases efficiency in the administration and stagnation gives rise to sense of frustration and indifference amongst

the employees which, in turn, also affects the employer in some adverse manner.20. In this backdrop, the plea advanced on behalf of the respondent no. 4 deserves consideration. The Court has taken note of the fact that the service career of the respondent no. 4 is going to end by 31.01.2021 as on that day he is going to retire from service on reaching the age of superannuation. Considering the above fact situation obtaining in the case, more particularly, that the post of General Manager in the Corporation is a post which is vital for the functioning of the respondent Corporation and which should not be kept vacant for a prolonged period, it is expected that the respondent authorities will initiate the process of selection for filling up the vacant post of General Manager in the Corporation in an expeditious manner.21. Considering the case pleaded on behalf of the respondent Corporation and taking into account the submissions of the learned counsel for the parties, already taken note of in the preceding paragraphs, this Court considers it appropriate to direct the respondent Corporation to complete the process of sending the proposal along with the list of eligible candidates in the zone of consideration, to fill up the existing vacant post of General Manager from their end to the Government of Assam in the Industries & Commerce Department within a period of 15 (fifteen) days from the date of receipt of the certified copy of this order either from the petitioner or from the respondent no. 4. It is further observed that on receipt of such proposal from the respondent Corporation, the Government of Assam in the Industries & Commerce Department and the Public Enterprises Department would complete the process of selection in an expeditious manner, preferably within a period of 6 (six) weeks thereafter.22. With the observations made and directions given above, this writ petition stands disposed of. Interim order passed earlier stands merged with this order. There shall, however, be no order as to cost.