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2002 DIGILAW 186 (GAU)

Atik Miyu v. State of Arunachal Pradesh and Ors.

2002-05-02

I.A.ANSARI

body2002
I. A. ANSARI, J. - Challenging the legality, correctness and justification of the order dated 28.12.2000, issued by respondent No.l, namely, Commissioner & Secretary to the Govt of Arunachal Pradesh, Public Works Department, Itanagar, according regular promotion to the respondent Nos. 4 and 5, namely Tamar Nalo, Assistant Engineer (Civil), PWD, Itanagar and Nyajum Padu, Assistant Engineer (Civil), PWD, Itanagar, with effect from 10.7.81 and 25.7.81 respectively, the petitioner has approached this Court seeking to get the order aforementioned quashed and to receive appropriate direction/s for maintaining original inter-se-seniority between the parties concerned. 2. Briefly stated, the facts giving rise. to this writ petition are as follows : The petitioner belongs to indigenous tribe of the State of Arunachal Pradesh. The petitioner, who holds a degree of Bachelor of Civil Engineering, was appointed as Assistant Engineer (Civil) in PWD department on 23.01.1991 and joined the said post on the said date. The petitioner was a directly recruited candidate by Arunachal Pradesh Public Service Commission and was recruited as per the existing rules, namely, "The Assistant Engineer (Civil) (Group-B) Recruitment Rules, 1991 (hereinafter referred to as "the Rules of 1991". As per the Rules of 1991, 50% of the total posts of Assistant Engineers are to be filled up by direct recruitment and the remaining 50% of the posts are to be filled up by promotion from Junior Engineers (Civil) of Arunachal Pradesh, Public Works Department, having 8(eight) years of regular service in the grade with minimum qualification of diploma in Civil Engineering. The Arunachal 'Pradesh Public Works Department published a final seniority list of Assistant Engineers (Civil) as on 1.3.99 and the name of the petitioner appeared at Serial No. 139 thereof. As the respondent Nos. 4 and 5 were not in the cadre of Assistant Engineer, the said list did not bear their names. Vide order No. SPWD-057/2000-01, dated 28.12.2000, issued through the Commissioner & Secretary, PWD, Arunachal Pradesh, the Government regularised the ad-hoc promotion of few Junior Engineers including that of the respondent Nos. 4 and 5 in the post of Assistant Engineers under promotional quota, the date of regularisation of respondent Nos. 4 and 5 having been shown as on 10.7.89 and 25.7.89 respectively. 4 and 5 in the post of Assistant Engineers under promotional quota, the date of regularisation of respondent Nos. 4 and 5 having been shown as on 10.7.89 and 25.7.89 respectively. The promotion, so accorded to the said two respondents aforementioned, has adversely affected the seniority position of the petitioner inasmuch as the petitioner was Assistant Engineers (Civil) as far back as on 23.1.91 i.e. the date on which the respondents were, under the Arunachal Pradesh Administration (Public Works Department) Group-B and Group- A Post Recruitment Rules, 1983 (hereinafter referred to as "the Rules of 1983") not eligible for being considered for such promotion. 3. I have carefully perused the entire record. I have heard Mr. C. Baruah, learned Senior Advocate appearing on behalf of the petitioner, and Mr. R.H. Nabam, learned Additional Senior Govt. Advocate, who has appeared on behalf of the respondents. 4. None of the respondents have filed any affidavit-in-opposition disputing and/ or denying the factual and/or legal aspects of the averments made by the petitioner in the writ petition. This apart, even at the time of hearing, Mr. R.H. Nabam has not disputed or assailed the correctness of the averments made by the petitioner in the writ petition. 5. Situated thus, this Court has to proceed treating the averments made in the writ petition as true and correct. Reference may be made, in this regard to 1993 Supp. (4) SCC 46. 6. Before entering into the merit of the grievances of the petitioner, it is apposite to have a close look into the Rules of 1983, which admittedly governs the promotion of the respondent Nos. 4 and 5. Serial No. 5 in the Schedule to this rule lays down, concedes even Mr. Nabam, that for promotion to the post of Assistant Engineers (Civil) of Arunachal Pradesh Public Works Department, the candidate concerned, if a degree holder in Civil Engineering should have been in regular service for 5 (five) years and, in case of a Junior Engineer, having diploma in Civil Engineering, the minimum eligible period of regular service is 10 (ten) years. 7. There is no dispute before me that the respondent Nos. 4 and 5 are both diploma holders in Civil Engineering and, hence, since they were appointed as Junior Engineer (Civil) on 10.7.81 and 25.7.81 receptively, they could have become eligible for promotion as Assistant Engineer (Civil) on and from 10.7.91 and 25.7.91 respectively. 7. There is no dispute before me that the respondent Nos. 4 and 5 are both diploma holders in Civil Engineering and, hence, since they were appointed as Junior Engineer (Civil) on 10.7.81 and 25.7.81 receptively, they could have become eligible for promotion as Assistant Engineer (Civil) on and from 10.7.91 and 25.7.91 respectively. Curiously enough, however, vide the impugned order, dated 28.12.2000, aforementioned respondent Nos. 4 and 5 (who had joined as Junior Engineer (Civil) on 10.7.81 and 25.7.81 respectively) stand regularised as Assistant Engineer (Civil) with effect from 10.7.89 and 25.7.89. 8. It is crystal clear from a bare reading of the Rules of 1983 that since respondent Nos. 4 and 5 were appointed as Junior Engineer (Civil) on 10.7.81 and 25.7.81 respectively, they were not eligible for promotion on 10.7.89 and 25.7.89 respectively. Therefore, to the extent the impugned order accords regular promotion to the respondent Nos. 4 and 5 with effect from 10.7.89 and 25.7.89 respectively, the order is illegal and needs corrections. 9. It is also worth noticing that though under the Rules of 1991, the petitioner stands regularly appointed as Assistant Engineer (Civil) since 23.1.91, by according retrospective promotion to the respondents aforementioned, the Govt. of Arunaclial Pradesh has unwittingly made the petitioner junior to the respondent Nos. 4 and 5 as Assistant Engineer (Civil) on and from dates, when the respondent Nos. 4 and 5 were not even eligible for such promotion. Apart from the fact that the promotion so given to the respondent Nos. 4 and 5 is not only in contravention of the Rules of 1983, which governs the case of the respondents concerned, but that according of such notional promotion to the respondents aforementioned has adversely affected, as indicated hereinabove, the service career of the petitioner, which is unjust. According of such notional promotion with retrospective effect, which adversely or prejudicially affect the seniority of those, who already stand absorbed/recruited in the service, deserves to be discouraged. The Apex Court has, in fact, deprecated the practice of giving of notional seniority with retrospective effect, when suchpromotion effects seniority of those, who have already entered into the service. Reference may be made, in this regard, to Govind Prasad Vs. R.G. Prasad & Ors., reported™ (1994) 1 SCC 437 . 10. In the result and for the reasons discussed above, this writ petition succeeds. Reference may be made, in this regard, to Govind Prasad Vs. R.G. Prasad & Ors., reported™ (1994) 1 SCC 437 . 10. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order, dated 28.12.2000, aforementioned is quashed to the extent that it gives retrospective promotion to the respondent Nos. 4 and 5 with effect from 10.7.89 and 25.7.89 respectively. The respondent Nos. 1 and 2 are hereby directed to pass, within two months from today, necessary orders correcting, in the light of the discussions held hereinabove, the dates of regularisation of the promotion of the respondent Nos. 4 and 5 to the post of Assistant Engineer (Civil) showing that the respondent Nos. 4 and 5 stand regularly promoted with effect from 10.7.91 and 25.7.91 respectively. 11. With the directions mentioned hereinabove, this writ petition is disposed of. 12. No order as to costs.