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1999 DIGILAW 397 (GAU)

Pawan Kumar v. State of Mizoram

1999-12-10

D.BISWAS

body1999
This petition has been preferred by the writ petitioner challenging the promotion orders of respondent Nos 6 and 7 to the post of Superintending Engineer in PHE Department, Govt of Mizoram and for other reliefs including direction for his promotion. 2. The petitioner and the respondent Nos 6 and 7 are Engineers working under the PHE Department of the Govt of Mizoram. Earlier the Department of PWD and PHE were one and the same and they were initially appointed as Assistant Engineers in the combined Department of PWD/PHE. In the year 1983, the Departments of PWD and PHE were bifurcated and two separate Departments were created. On creation of two distinct and separate Departments, options were called for from the serving Engineers and according to the option exercised by them, their services were allocated to the Department of their choice. Accordingly, vide notification dated 6.5.1986, the services of the petitioner and the respondent Nos 6 and 7 were placed at the disposal of the PHE Department.This was done as per option exercised by them. The services of other Engineers were also simultaneously placed at the disposal of the Department of their choice. Therefore, it appears that the petitioner and the respondent Nos 6 and 7 became Engineers of the PHE Department permanently with effect from 6.5.1986. 3. Before bifurcation, in the combined seniority list, both the respondent Nos 6 and 7 were senior to the writ petitioner. This fact is not disputed. The inter se-seniority list published from time to time also indicate this. That the writ petitioner was junior to the respondent Nos 6 and 7 in the cadre of Executive Engineer before and after bifurcation is not in challenge. 4. In the year 1990, vide notification dated 19th September, 1990 the respondent Nos 6 and 7 were promoted to the post of Superintending Engineer (PHE). The petitioner was not considered for promotion along with respondent Nos 6 and 7. 4. In the year 1990, vide notification dated 19th September, 1990 the respondent Nos 6 and 7 were promoted to the post of Superintending Engineer (PHE). The petitioner was not considered for promotion along with respondent Nos 6 and 7. Petitioner's case is that although he is junior to respondent Nos 6 and 7, by virtue of his continuous service since beginning in the PHE Wing, he was entitled to promotion to the post of Superintending Engineer to the exclusion of respondent Nos 6 and 7 as both the respondent Nos 6 and 7 did not acquire the minimum qualifying service of 5 years in PHE Department as prescribed as eligibility criteria for consideration to the post of Superintending Engineer. According to the petitioner, by the time the promotion order was made he had acquired the eligibility and, as such, it was he who alone ought to have been considered and promoted to the post of Superintending Engineer. 5. Mr. N. Sailo, learned Govt Advocate referring to the provisions of the Recruitment Rules, namely, Mizoram Public Works Department (Group A Posts) Recruitment Rules, 1975 submitted that the eligibility criteria that an Executive Engineer should have five years' experience in the grade has to be computed from the date when they were permanently allocated to the PHE Department. According to Shri Sailo, the services rendered by the petitioner or any other Engineer in the PHE Wing of the composite Department of PWD/PHE prior to bifurcation and allocation of their services to either of the Departments cannot be taken into consideration for the purpose of computation of the period of five years prescribed in the Recruitment Rules. 6. It would appear that before the services of the Engineers were allocated to either of the Departments as per their option, they were working in a combined cadre and the posts held by them were inter changeable. The authority used to post Engineers in either of the Departments as per administrative exigency.Therefore, it appears that there is substance in the contention of Shri Sailo. After careful consideration of the submission advanced on behalf of the petitioner, I am of the opinion that services rendered either in PHE or PWD Wing of the combined Department before bifurcation by an Engineer cannot be reckoned for the purpose of computation of the eligibility criteria of five years in the appropriate line. After careful consideration of the submission advanced on behalf of the petitioner, I am of the opinion that services rendered either in PHE or PWD Wing of the combined Department before bifurcation by an Engineer cannot be reckoned for the purpose of computation of the eligibility criteria of five years in the appropriate line. While framing the Rules, the Rule making authority by the words 'appropriate line' wanted to mean the services rendered in either of the bifurcated Departments for a period of five years. The contention that the earlier period has to be taken into consideration cannot be accepted as it would create an anomalous situation disturbing the right of many senior Engineers of the erstwhile PWD/PHE Department. Therefore, this Court is of the opinion that the period of five years shall be counted on and from the date when the Engineers concerned have been permanently allocated to either of the Departments. 7. Therefore, the position as emerges is that neither the respondents nor the petitioner had acquired the minimum eligibility criteria of five years in the PHE Department on 19th September, 1990 when the respondent Nos 6 and 7 were promoted. Obviously the promotion of respondent Nos 6 and 7 were irregular and against the provisions of law. 8. But it is also clear that on 19th September 1990 the petitioner also did not acquire the eligibility criteria and, as such, on that day he had no right for consideration for promotion to the post of Superintending.Engineer. Therefore, the illegal promotion of respondent Nos 6 and 7 in any manner cannot be said to have encroached upon or defeated any right vested in the writ petitioner for consideration for promotion. From this point of view, although the promotions were made beyond the provisions of the Rules, 1 would decline to interfere with the promotion orders of respondent Nos 6 and 7. The question would have been altogether different had the petitioner by that time been in possession of the minimum eligibility criteria for consideration for promotion. 9. The petitioner was subsequently promoted to the post of Superintending Engineer in the year 1992. He had completed five years of service in the PHE Department as Executive Engineer on 6.5.1991. This means that the writ petitioner was eligible on and after 6.5.1991 for promotion to the next higher grade. 9. The petitioner was subsequently promoted to the post of Superintending Engineer in the year 1992. He had completed five years of service in the PHE Department as Executive Engineer on 6.5.1991. This means that the writ petitioner was eligible on and after 6.5.1991 for promotion to the next higher grade. The question arises as to whether he is entitled to promotion with effect from 6.5.1991 since on that day he had completed five years of service as Executive Engineer in the PHE Department. 10. The established principles of law is that promotion cannot be claimed as a matter of right. It is for the appropriate authority to consider and promote an officer to the next higher grade as per administrative necessity. The petitioner has no 8 right to enforce in a Court of law to give him promotion with effect from the date he had acquired the eligibility criteria for consideration for promotion. Therefore, his prayer for promotion from an earlier date cannot also be conceded to. 11. Mr. George Raju, learned counsel for the petitioner wanted to make out a case of discrimination by arguing that since the respondents without having eligibility were given promotion, the respondent State ought to have given promotion to the writ petitioner in the like manner. This argument, in my opinion, is also not acceptable. The petitioner who has not completed the minimum qualifying service cannot be said to have been discriminated merely because two of his seniors were promoted without having requisite qualification. The orders of promotion of respondent Nos 6 and 7 are evidently wrong and, therefore, this Court cannot direct the Govt to pass another wrong order in order to promote the petitioner. In my opinion, this argument made on behalf of the writ petitioner cannot be accepted as a case of discrimination of the purpose of issuing a writ calling upon the respondents to promote him to the post of Superintending Engineer with effect from the date when respondent Nos 6 and 7 were promoted. 12. In the circumstances, the discretionary powers under Article 226 cannot be invoked to grant the reliefs sought for in the writ petition. The petition is, therefore, dismissed. No order as to costs.