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Gauhati High Court · body

2004 DIGILAW 204 (GAU)

Punyo Tangu v. State of Arunachal Pradesh

2004-03-23

B.LAMARE

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JUDGMENT B. Lamare, J. 1. Heard Mr. Grayu, learned Counsel for the Petitioner and Mr. B.L. Singh for the Respondents. 2. The Petitioner was appointed in October 1995 as Junior Engineer under the Rural Works Department, Govt, of Arunachal Pradesh along with other candidates including the Respondents 3 and 4 in this petition. The Petitioner is BE passed whereas the Respondents 3 and 4 are Diploma holders. However by order dated 30.3.01, 13 Junior Engineers were promoted to the post of Assistant Engineer in the Department including the Respondents 3 and 4. The Petitioner was not promoted by the said promotion order dated 30.3.01 therefore, the Petitioner being aggrieved by this order has approached this Court by this petition. 3. The case of the Petitioner is that he possesses the BE degree and the Respondents 3 and 4 are Diploma holders. According to the Service Rules the qualifying length of service to the post of Assistant Engineer from the post of Junior Engineer is 8 years for the Diploma holders and 5 years for the Degree holders. According to the Petitioner, the Respondents 3 and 4 have not completed the qualifying 8 years to make them eligible to forward their names for selection. However, their names were forwarded to the DPC inspite of the fact that they have not completed their qualifying length of service as Junior Engineer. On the other hand, the Petitioner has completed 5 years of service as Junior Engineer and he deserves to be promoted to the next higher post of Assistant Engineer. It is also the contention of the Petitioner that when there are officers possessing the qualifying length of service the case of the Respondents 3 and 4 should not be forwarded to the DPC for consideration as they are not in the zone for promotion. By forwarding the names of the Respondents 3 and 4 for consideration the requirement of the Recruitment Rules has been violated. 4. The Respondents resisted the claim of the Petitioner and filed affidavit in opposition. It is stated in the affidavit in opposition that the Respondents 3 and 4 were senior to the Petitioners according to the seniority list of Junior Engineer. It is stated in paragraph 6 of the affidavit that the Respondent No. 3 is placed at SI. No. 34, Respondent No. 4 is placed at SI. No. 35 and the Petitioner is placed at SI. It is stated in paragraph 6 of the affidavit that the Respondent No. 3 is placed at SI. No. 34, Respondent No. 4 is placed at SI. No. 35 and the Petitioner is placed at SI. No. 119 of the seniority list. Therefore, since the Respondents are senior to the Petitioner their case deserves to be considered by the DPC for promotion. It is also contended by the Respondents that the case of the Respondents 3 and 4 for one time relaxation was given as special case by Govt. order dated 30.3.01 under Clause 5 of the Recruitment Rules. 5. It is admitted position that according to the Recruitment Rules the qualifying length of service for being eligible for consideration for promotion to the post of Assistant Engineer from the post of Junior Engineer is 5 years for Degree holder and 8 years for the Diploma holder. It is also admitted position that the Respondents 3 and 4 have not completed 8 years in service by the time their names were forwarded to the DPC. It is also not disputed that in the seniority list the names of the Respondents 3 and 4 are shown about the name of the Petitioner. 6. The Recruitment Rules was framed under the provision of Article 309 of the Constitution of India. It is no doubt that under Clause 5 of the Recruitment Rules the power of relaxation is given to the State Respondent. 7. No doubt according to seniority list of the Junior Engineer the Respondents 3 and 4 are shown as senior to the present Petitioner for consideration of their names to be forwarded to the DPC but the Respondents are bound by the letter and spirit of the Recruitment Rules. Forwarding their names on the basis of the seniority list without conforming to the provision of the Recruitment Rules would be detrimental to the very purpose for which the Rules were framed. 8. The question to be seen is therefore whether the names of the Respondents 3 and 4 can be forwarded to the DPC when they are short of the qualifying length of service as required under the Rules. To make this matter clear we may look into the records pertaining to the selection of the Respondents 3 and 4. 8. The question to be seen is therefore whether the names of the Respondents 3 and 4 can be forwarded to the DPC when they are short of the qualifying length of service as required under the Rules. To make this matter clear we may look into the records pertaining to the selection of the Respondents 3 and 4. From page 2 of the note in the file it is seen that the candidates for Non-APST and APST were forwarded separately. The name of the APST candidates were forwarded and the names were shown from SI. Nos. 34 to 43, 105 and 107 to 124. This shows that the names were forwarded according to the seniority position. In this list as shown at page 2 and 3 of the note the names of the Respondents 3 and 4 were shown at SI. Nos. 1 and 2 and the name of the Petitioner at SI. No. 22 of the list. At page 3 of the note it is mentioned that "in respect of the diploma holder in Civil Engineer, APST JE are not actually eligible and qualifying the required length of service for promotion in the said grade post of AE(C) as per existing Recruitment Rules other than within the zone of consideration. So it is up to the Government to decide as to whether they can be granted relaxation of the qualifying length of service for the purpose or not as it requires minimum of 8 continuous years of service for consideration for the purpose as per the Recruitment Rules." 9. From the note dated 22.3.01 at page 7 and 8 of the Note sheet it is seen that the Departmental Committee was already held and recommendation was made where 13 candidates were recommended for promotion by the DPC in its meeting held on 20.3.01 and the appointment order was issued on 30.3.01. Till the stage of holding of the DPC there is nothing to show from the records that the qualifying length of service of the Respondent 3 and 4 was relaxed by the competent authority. Therefore, it shows that the names of the Respondents 3 and 4 were forwarded to the DPC without relaxation being granted in their favour by the competent authority. Therefore, it shows that the names of the Respondents 3 and 4 were forwarded to the DPC without relaxation being granted in their favour by the competent authority. Inspite of their not having their requisite length of service, the names of the Respondents 3 and 4 were forwarded to the DPC and they were recommended by the DPC. 10. From the note dated 22.3.01 at page 8 of the file it is also seen that remark was made "before issue of the order one time relaxation may be given to Shri Yimo Geyi and Shri Rido Alio for 1 1/2 month short of 8 years obtaining approval from ACR to avoid criticism." This remark was made after the DPC has already recommended the names of the Respondents 3 and 4 and this was approved by the authority on 28.3.01 much after the DPC was held. The above remark in the file shows that all the process for promotion of Respondents 3 and 4 were completed but the relaxation was given belatedly only to avoid criticism. There is nothing in record to show that a special consideration was made to relax the length of service of the Respondents 3 and 4 as required under Recruitment Rules. The authority simply approved the above remark at page 8 of the note by approval order at page 9 of the note dated 28.3.01. Therefore, the plea taken by the Respondents in paragraph 7 of the affidavit that the case of the Respondents 3 and 4 was given relation as a special case by Govt, order dated 30.3.01 finds no place in the records produced to day. There was nothing in the record to show that the Respondents 3 and 4 was considered as special case as stated by the Respondents in their affidavit. Needless to say that the relaxation was granted after their names were forwarded to the DPC and after the DPC meeting their names were recommended. The action of the Respondents is not in consonance with the provision of the Recruitment Rules. 11. The Recruitment Rules was framed under Article 309 of the Constitution. The power of relaxation given under the Rules cannot be exercised when there are eligible candidates in the zone of promotion. The action of the Respondents is not in consonance with the provision of the Recruitment Rules. 11. The Recruitment Rules was framed under Article 309 of the Constitution. The power of relaxation given under the Rules cannot be exercised when there are eligible candidates in the zone of promotion. Relaxation can be made only in case where there are no candidates in the zone of consideration and that too under the special consideration of the merit of the candidates. If the authority is allowed to adopt the policy of pick and choose even in respect of candidates who do not have the requisite qualifying length of service, the whole policy as enshrined in the Rules will be thrown into the winds. This kind of administrative action will lead to chaos and discontentment amongst the employees and the right will be replaced by the wrong. In the instant case, there is nothing to show that the authority has exercised the power diligently. On the other hand, the relaxation was granted after the names of the Respondents 3 and 4 were forwarded to the DPC and the selection was made by the DPC. The Respondents has therefore given a convenient go-by to the statutory Rules framed under Article 309 of the Constitution. 12. In the case of Dr. Rajinder Singh, Appellant v. State of Punjab and Ors. Respondents reported in (2001) 5 SCC 482 the Apex Court in paragraphs 7 and 8 of the judgment has held as follows: 7. The settled position of law is that no government order, notification or circular can be substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accept service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution. 8. As Respondent 3 was not eligible for consideration to the post of Deputy Director. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution. 8. As Respondent 3 was not eligible for consideration to the post of Deputy Director. Health Services, the Departmental Promotion Committee committed a mistake in recommending him. Consequent promotion of Respondent 3 on the basis of recommendation of the Departmental Promotion Committee being contrary to law is liable to be set aside. 13. As already observed the names of the Respondents 3 and 4 were forwarded to the DPC without relaxation of their qualifying length of service and their names were also recommended by the DPC without relaxaiton. The whole process of selection was completed but just before issue of appointment order a note was put up for relaxation of their length of service to avoid criticism. The action is therefore arbitrary and against the provision of Recruitment Rules. 14. For the aforesaid reasons, the recommendation of the Respondents 3 and 4 by the DPC as well as the appointment order dated 30.3.2001 issued in favour of the Respondent 3 and 4 are hereby set aside and quashed. The Respondents are directed to consider the case of the Peti8:36 PM 3/22/20118:36 PM 3/22/2011tioner for promotion. Since the Petitioner is already holding the post of Assistant Engineer his case may be considered for regularization in the post and this shall be done within a period of 2 (two) months from the date a copy of this order is served on the Respondent No. 2, the Secretary, Rural Works Department (RWD), Govt, of Arunachal Pradesh, Itanagar. This petition is allowed and disposed of.