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2001 DIGILAW 136 (GAU)

Marpak Kadu v. State of Arunachal Pradesh and Ors.

2001-05-17

RANJAN GOGOI

body2001
The writ petitioners, who are 9 (nine) in number, have approached this Court challenging a series of identical orders bearing No.Estt (A)/20/96 dated 25.3.1998/(Annexure B to the writ petition) issued by the Secretary, General Administration Department, Govt of Arunachal Pradesh cancelling the promotion of the petitioners to the post of Upper Division Clerk in the Civil Secretariat of the State. The writ petitioners have also challenged the legality and validity of the order bearing No. Estt-(A)3/96 dated 26.5.1998 (Annexure E to the writ petition) whereby the respondent Nos 3 to 13, who were at the relevant time working as & Upper Division Clerk on ad hoc basis, were appointed as Upper Division Clerk on a regular basis. The brief facts necessary for appreciation of the controversy in the present case are set out hereunder. 2. The writ petitioners who were working as Lower Division Clerk in the Arunachal Pradesh Secretariat at Itanagar, being eligible for consideration for promotion to the next higher post of Upper Division Clerk in accordance with the Arunachal Pradesh Secretariat Subordinate Services Rules, 1989 (herein after referred to as 'the Rules') were considered for promotion and were accordingly, selected for promotion as evident from the minutes of the Departmental Promotion Committee held on 6.1.1998 (Annexure A to the writ petition). Nineteen persons including the nine writ petitioners whose names appeared in the aforesaid select list were appointed as Upper Division Clerk by order dated 25.3.1998 (Annexure B to the writ petition) and on the basis of the said appointment order, the writ petitioners joined on the same day. However, on the same day, by a series of identical orders issued under the signature of the respondent No.2, the aforesaid appointments of the writ petitioners stood cancelled. Subsequently, by a separate order dated 27th March, 1998 (Annexure F to the writ petition), the writ petitioners were allowed to officiate as Upper Division Clerks. However, by another separate order dated 26th March, 1998, the respondent Nos 3 to 13 who were at the relevant time working as ad hoc Upper Division Clerks were regularly promoted as Upper Division Clerks in the Arunachal Pradesh Secretariat. Hence, the writ petition claiming the reliefs already stated. 3. Mr. T. Michi, learned counsel for the petitioners has made a two fold submission in support of the prayers made in the writ petition. Hence, the writ petition claiming the reliefs already stated. 3. Mr. T. Michi, learned counsel for the petitioners has made a two fold submission in support of the prayers made in the writ petition. The learned counsel contends that the petitioners having been duly selected by the Departmental Promotion Committee and on the basis of the said selection, having been appointed and pursuant thereto the writ petitioners having joined in the higher post, the impugned cancellation could not have been made without hearing the writ " petitioners. Next, Mr. Michi contends that the respondent Nos 3 to 13, who were working as ad hoc Upper Division Clerks, as it appears from the tenor and contents of the appointment order dated 26th May, 1998 have been regularly appointed as Upper Division Clerks by the said order dated 26.3.98. The learned counsel contends that the rationale behind the aforesaid Govt action in cancelling the regular appointments of the writ petitioners on one hand and appointing the respondent Nos 3 -to 13 on regular basis on the other hand, defies all logic and reasonable explanation. That apart, the learned counsel contends that the aforesaid appointments of the respondent Nos 3 to 13 not having been made by following the procedure prescribed by the rules, the said appointments are ex facie illegal and are liable to be interfered with by this Court in the exercise of power under s Article 226 of the Constitution. 4. Mr. PK Barman, learned counsel appearing on behalf of the respondent Nos 1 and 2 in his oral arguments has reiterated the contentions advanced in the affidavit filed on behalf of the State-respondents. The said contentions as evident from the pleadings and the arguments of the learned counsel are to the effect that the minutes of the selection proceedings enclosed to the writ petition is not an authenticated copy and the correct version thereof, is the one enclosed as Annexure 2 to the affidavit of the State-respondents. Mr. Barman places reliance on the contents of paras 6 and 7 of the affidavit in which the impugned orders of cancellation have been sought to be justified by contending that at the relevant point of time 20 posts, in all, were available for being filled up against which 19 appointments were made by order dated 25.3.1998 (Annexure B to the writ petition). The Rules having prescribed a promotional quota of 50%, only 10 out of 19 selected candidates could have been offered appointment. It is on this count, according to the learned counsel, that the appointments of the writ petitioners had to be cancelled by the orders impugned in the present writ petition. 5. I have considered the rival submissions. The question regarding the correctness of either of the documents claimed by the parties to be the true and correct minutes of the Departmental Promotion Committee Meeting dated 6.1.1998 is of no particular significance in deciding the real controversy that has arisen in the instant case. A bare perusal of the document claimed by each party to be the authenticated copy of the minutes of the Departmental Promotion Committee Meeting dated 6.1.1998 would go to show that both documents, whichever is correct, record of a clear finding that 20 posts against promotional quota was available on basis of information furnished by the appointing authority. The shift in the aforesaid position as made in the affidavit of the State-respondents, do not appear to be supported by adequate and convincing materials. The relevant records to justify the aforesaid stand have also not been produced. A bald and omni bus statement that the promotional quota was only to the extent of 10 vacancies without detailing the reasons and/or production of the relevant records can not inspire confidence of the Court. Consequently, this Court is unable to accept the correctness of the grounds advanced by the State in support of the cancellation of the appointments of the writ petitioners made by the orders dated 25th March 1998. 6. The direct recruitment to the post of Upper Division Clerk in the State Secretariat is governed by the provisions of Rule 8 (b) read with Rule 15 and Schedule III of the Arunachal Pradesh Secretariat Subordinate Service Rules, 1989. Such direct recruitment under Rule 8 (b) of the aforesaid Rules is required to be made by an open competitive examination followed by viva voce test to be conducted by the Public Service Commission. The procedure enjoined by the Rules admittedly was not followed in the instant case in so far as the appointments of the respondent Nos 3 to 13 are concerned as is evident from the contents of para 15 of the State affidavit. The procedure enjoined by the Rules admittedly was not followed in the instant case in so far as the appointments of the respondent Nos 3 to 13 are concerned as is evident from the contents of para 15 of the State affidavit. The appointments of the respondent Nos 3 to 13 made by order dated 26.5.1998, therefore, appears to be contrary to the provisions of the Rules. However, as the writ petitioners can only claim the posts against the promotional quota and this Court has already come to the conclusion that the cancellation of the appointments by order dated 25.3.1998 is not legal and valid, this Court is not inclined to interfere with the appointments of the respondent Nos 3 to 13 at the instance of the writ petitioners. 7. In the result, the writ petition is allowed to the extent that the impugned orders bearing No. Estt (A)20/96 dated 25.3.1998 (Annexure D series to the writ petition) will stand quashed. In view of the fact that the petitioners have been working as Upper Division Clerks continuously till date, they will be deemed to be in regular service in the posts held by them. Any consequential benefits to which the writ petitioners may be entitled in terms of this order will also be allowed to them. The writ petition is allowed to the extent indicated above.