Virendra Kumar Gupta v. State of Arunachal Pradesh
2005-06-16
H.N.SARMA
body2005
DigiLaw.ai
JUDGMENT H.N. Sarma, J. 1. Heard Mr. P.K. Tiwari, learned Counsel appearing on behalf of the Petitioners, and Mr. C.K. Sarma Baruah, the learned Advocate General, assisted by Mr. B.L. Singh, learned Senior Government Advocate, Arunachal Pradesh on behalf of the State Respondents. None appeared for the private Respondents at the time of hearing. 2. The Petitioners who are five in numbers were appointed as Junior Engineer (In short, JE) in the Rural Works Department (In short, RWD) of the State of Arunachal Pradesh. The said RWD was trifurcated in the year 1995 into: (1) Rural Works Department (RWD), (2) Irrigation and Flood Control Department (IFCD) and (3) Public Health Engineering Department (PHED). On such trifurcation the Petitioners opted for IFCD and accordingly since 1995, the Petitioners became member of the said IFCD. During the relevant time, the recruitment rules relating to the recruitment/promotion to the Post of Assistant Engineer (In short, AE) in the IFCD were regulated and guided by a set of rules known as the Recruitment Rules, 1984 to (Central Civil Service Group-B) Posts. The case of the Petitioners is that, they having passed the required departmental professional examination as required under the said 1984 rules and having possessed the necessary eligibility criteria for being promoted to the next higher cadre of AE, were entitled to be so considered, but the Departmental authority did not consider the same. Consequently the Petitioners approached this Court in WP(C) No. 735 (AP) 2001, wherein this Court vide judgment and order dated 12.12.01 disposed of the said writ petition with certain directions. It is the further case of the Petitioner that in spite of the aforesaid direction passed in WP(C) No. 735 (AP) 2001, the Petitioners are not favoured with the promotion to the next higher grade and by the impugned order No. SIFCD-48/96(pt)/I dated 18-12-01, the authority promoted as many as 24 numbers of JE including the private Respondents, but not the Petitioners. Thereafter, vide Anr. order in the form of a memorandum being No. SIFCD-55/2000 dated 07-05-02, the Secretary, IFCD rejected the prayer made by the Petitioner No. 1 and 2 for promotion to the Rank of AE and the grounds of rejection is applicable to all the Petitioners.
Thereafter, vide Anr. order in the form of a memorandum being No. SIFCD-55/2000 dated 07-05-02, the Secretary, IFCD rejected the prayer made by the Petitioner No. 1 and 2 for promotion to the Rank of AE and the grounds of rejection is applicable to all the Petitioners. The Petitioners allege that the aforesaid two order have been passed without considering and taking note of the directions/orders of this Court passed in WP (C) No. 735 (AP) 2001 on 12.12.01. The Petitioners allege that the vacancies of AE having arisen in the Department in the year 1995-97, the cases of the Petitioners should be considered in terms of the 1984 rules and not in terms of the subsequent rules namely the 1997 Rules, which came into effect on being adopted the same vide notification No. SIFCD-109/97 (pt) dated 09.07.97 as claimed by the Department. Challenging the aforementioned impugned orders dated 18.12.01 and 07.05.02, the Petitioners have filed this writ petition praying for quashing of the impugned orders and for a mandamus directing the Respondents to convene a review Departmental Promotion Committee (DPC) showing year wise break up of vacancies that arose during the period of 1995-97 i.e. during the prevalence of 1984 rules and to consider the case of the Petitioners by the said review DPC for promotion to the rank of AE in those vacancies. 3. The State Respondents and the private Respondent Nos. 7 and 8 have submitted their respective affidavits in opposition denying the contentions made by the Petitioner and denying their claim for promotion to the rank of AE in terms of 1984 rules. The contentions of the Respondents inter alia are that the post of AE to which the Petitioners are claiming for promotion are promotional posts. Pursuant to the trifurcation of the erstwhile RWD, the Government, vide order No. RWD-Sectt. 10/95 dated 11.09.96, the Group A, B, C and D Posts of the parent Department were also trifurcated to three different Departments so created and certain posts were alleged to the IFCD. Till the adoption of the Recruitment Rule for the post of AE (Civil) of RWD by the IFCD vide notification No. SIFCD-109/97 (PT) dated 09.12.97, the earlier rule prevalent in the RWD was followed. Consequently, the existing Rule in the erstwhile RWD, viz. the Recruitment Rules, 1984 to (Central Civil Service Group-B) Posts under the RWD continued to prevail in the IFCD.
Consequently, the existing Rule in the erstwhile RWD, viz. the Recruitment Rules, 1984 to (Central Civil Service Group-B) Posts under the RWD continued to prevail in the IFCD. As per the 1984 Rules, to qualify for promotion to the rank of AE, a person in the feeder cadre is required to pass departmental professional examination in: 1. Engineering Theory, 2. Engineering Practical and 3. Accounts; provided that the persons having graduation will have to pass only in account. However, there is no time limit fixed for passing the departmental professional examination. It is also stated in the affidavit that in the meantime the 1984 Rule was superseded by a new set of rules namely the Assistant Engineer (Civil) Group 'B' Recruitment Rules, 1997 having framed and published vide notification No. RWD/SECTT/ 93/94 dated 21.04.97, with further amendment vide No. RWD/ SECTT/93/94 dated 24.10.97. Thereafter the matters for consideration of the eligible candidates for promotion to the post of AE were taken up by the IFCD. In 1997 Rules, the requirement of passing departmental examination in engineering subjects was done away with and the requirement is to pass departmental professional examination in accounts only. The departmental promotion committee there after considered the cases of eligible candidates coming within the zone of consideration for promotion to the rank of AE. But the Petitioners not having possessed the necessary eligibility criteria were not recommended by the DPC for promotion. After passing of the judgment and order dated 12.12.01 in WP(C) No. 735/2001, the cases of the Petitioners were considered and vide memorandum No. SIFCD-55/2000 dated 07.05.02, a detailed order was passed rejecting the prayer of the persons concerned as they did not come within the zone of considerations for promotion, their position in the seniority list being much below to promote them to the existing 11 numbers of vacancies against none APST category up to 20.04.97, as per the recruitment rules. It is also stated in the affidavit that although the Petitioners cleared their departmental professional examination in the year 1986, 1989 and 1992, but the claim of the Petitioners for promotion during the year 86-'92 could not be considered as the IFCD came into function after trifurcation of the composite RWD only in the year 1996.
It is also stated in the affidavit that although the Petitioners cleared their departmental professional examination in the year 1986, 1989 and 1992, but the claim of the Petitioners for promotion during the year 86-'92 could not be considered as the IFCD came into function after trifurcation of the composite RWD only in the year 1996. It is further stated that the Petitioners were serving only as JE (Diploma Holder) and they were not promoted to the Technical Assistant (in short, TA), which is the feeder grade for promotion to the rank of AE, and there is no provision in the rules for promotion of JE directly to the post of AE sweeping over the post of TA, as per the 1984 Rules. At para 8 of the affidavit it is stated that, as per the Recruitment Rules of 1986, no provision exists for promotion of JE directly to the post of AE without getting promotion to the post of TA, which provision was, however, to some extent relaxed by the 1997 Rules, issued vide notification No. RWD/SECTT/93/94 dated 21.04.97. The further case of the State Respondent is that the IFCD having come into existence only in the year 1995, and actual functioning since the year 1996, the claim for promotion in the said Department made by the Petitioner during the year' 86-'92 does not arise. It is stated that the order dated 18.12.01 was passed before getting the copy of the order passed by this Court in WP(C) No. 735 (AP) 2001 on 12.12.01, which was however again reconsidered and a fresh order was passed on 07.05.02 in compliance with the order of the High Court. The private Respondents in their affidavit denied the claim of the Petitioners on the count that the Petitioners not having essential eligibility criteria by holding the feeder post of TA, were not entitled to be promoted during the relevant time and their cases were eligible for consideration only after the 1997 Rules. 4. The Petitioner also filed an affidavit in reply and an additional affidavit in support of their cases.
4. The Petitioner also filed an affidavit in reply and an additional affidavit in support of their cases. In the additional affidavit, the Petitioners have annexed certain orders with a view to show that on earlier occasion also the Respondent authorities did not stick to the requirement for promotion to the rank of AE from the feeder Grade of Technical Assistant, and in fact, promotions were made to the rank of AE from that of JE without first promoting them to the T.A. In support of his argument Mr. Tiwari, learned Counsel for the Petitioners, has submitted that the provisions of 1984 Rules relating to the requirement of promotion from the rank of TA should be read down and with a view to provide relief to the Petitioners, the said criteria should not be applied. It is also submitted that in the past, the Respondent authorities having promoted some JE directly to the rank of AE without first promotion them to TA, the cases of the Petitioners should also be considered in the same line. With effect from 11.09.2000, the Cadre of JE and TA having been merged and a common cadre of JE having been made, now the requirement of promotion to AE from amongst the TA having been abolished, the same should be given retrospective effect to facilitate promotion to the Petitioners and the effect of such merger should relegate back to the date of creation of the IFCD. Referring to the promotion of the private Respondents it is submitted by the learned Counsel that they not having been able to qualify themselves by passing the required departmental promotional examination particularly in engineering papers as per 1984 Rules, their promotion after coming into operation of the 1997 Rules, which has abolished such requirements, is arbitrary, more particularly, in view of their promotion with retrospective effect. Allegation has also been made regarding the non-compliance of the earlier directions issued by this Court in WP(C) No. 735 (AP) 2001 and the impugned orders dated 18.12.01 and 07.05.02 are liable to be quashed for such non-compliance. Mr.
Allegation has also been made regarding the non-compliance of the earlier directions issued by this Court in WP(C) No. 735 (AP) 2001 and the impugned orders dated 18.12.01 and 07.05.02 are liable to be quashed for such non-compliance. Mr. C.K. Sarma Baruah, the learned Advocate General appearing for the state has submitted that as per the relevant recruitment Rules, the feeder post for promotion to the Rank of AE being TA and the Petitioners not having promoted to such feeder cadre as of TA, they were not entitled to be promoted to the rank of AE during the currency of such rule. It is also contended by the learned Advocate General that, in view of the express and specific provisions in the prevalent recruitment Rules relating to promotion to the rank of AE, the said provisions should not be read down in as much as the Legislative Authority in framing the rules made those provisions with specific purpose and intention. It is also submitted that if in some cases the Executive Authority by flouting the existing statutory rules promoted some JE directly to the rank of AE, such promotion being de hors the rule, should not be treated as a precedent and no relief can be granted to the Petitioners on such count. Even if in appropriate cases the principle of reading down is applied, it would be only prospective and not retrospective. So far as non-compliance of the directions issued by this Court in WP(C) No. 735 (AP) 2001 is concerned, it is submitted by the learned Advocate General that admittedly, Petitioners not holding the feeder post of TA and they not having the necessary eligibility criteria for consideration of promotion to the rank of AE, their cases for promotion could not be considered in term of the relevant statutory rules. But none the less, vide memorandum, dated 07.05.02, the directions of this Court was complied with and the Petitioners were not found entitled to be promoted to the rank of AE. After merger of TA with that of JE, the Petitioners are now entitled to be considered for promotion, subject to the reservation policy of the state. 5. I have carefully considered the rival submissions made by the parties in support of their respective cases and perused the pleadings and connected materials and documents available on record.
After merger of TA with that of JE, the Petitioners are now entitled to be considered for promotion, subject to the reservation policy of the state. 5. I have carefully considered the rival submissions made by the parties in support of their respective cases and perused the pleadings and connected materials and documents available on record. On consideration of the respective statements made by the learned Counsel, the point now emerges for consideration for disposal of this case is: (a) whether the Petitioners were entitled to be considered for promotion to the rank of AE in terms of 1984 Rules, without holding the feeder post of TA, and (b) whether with a view to promote the Petitioners to the rank of AE the said requirement should not be adhered to strictly, particularly, in view of the fact that the cadre of TA was merged with JE with effect from 11.09.2000 and relaxed to some extent in 1997 Rules. The IFCD was created by trifurcating the RWD vide notification dated 13.07.95 and the placement of earmarked posts in the IFCD were made in the year 1996. The claim of the Petitioners is that, they having opted to serve in the IFCD were placed accordingly, and they claim for promotion to the rank of AE. All the Petitioners are Engineering Diploma holders. During relevant time there was no separate rules regulating the services of the employees in the IFCD and the rules prevalent in the RWD were being adopted and followed and this rule was known as the Recruitment Rules, 1984 to (Central Civil Service Group-B) Posts under the RWD, Govt., of Arunachal Pradesh. The preamble of the rule says that the said rule was made to regulate the method of recruitment to the post of Assistant Engineer/Assistant Surveyor of Works (Civil/Agri. Engg.) in Arunachal Pradesh. Rule 3 of the said rule provides the method of recruitment to the post, age limit and other matters relating to the said post of Assistant Engineer/Assistant Surveyor of Works shall be as specified in Col. 5 to 13 of the schedule attached to the rule. In Col. 1 of the schedule the name of the post, Assistant Engineer/ Assistant Surveyor of Works (Civil/Agri. Engg. ) is noted. In Col. 11 it is provided that 50% of the post is to be filled up by promotion and 50 by direct recruits. Col.
5 to 13 of the schedule attached to the rule. In Col. 1 of the schedule the name of the post, Assistant Engineer/ Assistant Surveyor of Works (Civil/Agri. Engg. ) is noted. In Col. 11 it is provided that 50% of the post is to be filled up by promotion and 50 by direct recruits. Col. 12 provides the relevant criteria for filling up the post by promotion, where in the necessary eligibility criteria of such promotee have been provided as follows: (a) Promotee: Four years as Tech. Asstt. (Engg)/of Rural Works Deptt. A.P. having a regular service for Diploma holders and 5 years for Degree holders taking into services of both the Grades subject to passing of the Departmental Professional Examn. In the following subjects: (a) Engg. Theory-Full Marks-200 and Pass Marks-120 (b) Engg. Practical-Full Marks-50 and Pass Marks-30. (c) Accounts-Full Marks-50 and Pass Marks-30. N.B. Graduates will have to pass in accounts only. This now leads us to see the criteria for appointment/promotion to the rank of Technical Assistant (Engg.). There is a separate set of rules known as the Recruitment Rules, 1984 to (Central Civil Service Group-C) Posts under the RWD, Govt. of Arunachal Pradesh issued vide notification No. RWD/ESTT/99/79A dated 27.04.84. In the preamble of the said rule stated that, "In exercise of the powers conferred by the proviso to Article 309 of the Constitution read with the notification conveyed under the Government of India, Ministry of Home Affairs reference No. U14012/71/74-AP dated 7th June, 1976 and all other powers enabling him in this behalf the Administrator of Arunachal Pradesh hereby makes the following rules regulating the method of recruitment to the post of Technical Assistant (Engg), Rural Works Department, Arunachal Pradesh (Central Civil Service, Group 'C') in the Rural Works Department, Govt. of Arunachal Pradesh, namely: Under Rule 3 of the said rules it is provided that the method of recruitment to the said post of Tech. Asstt. (Engg) of Rural Works Deptt. the age limit, qualification and other matters shall be as specified in Col.5 to 13 of the schedule attached thereto. In Col. 1 of the schedule the name of the post is shown as Technical Asstt (Engineering) and in Col. 2 the number of posts has shown as 45, subject to variation dependent on the work load. At Col. 5 it is provided that the post is selection post. At Col.
In Col. 1 of the schedule the name of the post is shown as Technical Asstt (Engineering) and in Col. 2 the number of posts has shown as 45, subject to variation dependent on the work load. At Col. 5 it is provided that the post is selection post. At Col. 10 it is provided that the posts are to be filled up by promotion cent percent. In Col. 11 the criteria for promotion is provided as follows: By promotion: 1. Junior Engineer (Civil/Agril) Rural Department having 8 and 5 years regular service in the grade for unqualified and diploma holders respectively and 3 years service in the grade (for Graduates in Civil/Agri. Engg.) 2. Educational Qualification: Must possess degree/diploma in Agril/Civil Engineering. On a conjoint reading of Recruitment to Technical Assistant, rules of 1984 and Recruitment to the post of Assistant Engineer/Assistant Surveyor of Works (Civil/Agri. ENGG) Rules, 1984 the following situation emerges the post of Technical Asstt. (Engineering) is a higher post in rank and status than that of the JE and in fact JE is the feeder post for promotion to the rank of TA. Similarly, for promotion to the rank of AE the feeder post is TA and the rules of promotion to the post of AE, it is not provided that a JE can be promoted to such higher rank of AE without first being promoted to the rank of TA. Of course, apart from being in the feeder post, there are certain other restrictions of passing departmental professional examination also in both the cases. 6. With a view to appreciate the submissions made by Mr. P.K. Tiwari, learned Counsel for the Petitioners with his usual tenacity regarding subsequent merger of TA and JE into a common cadre of JE and relaxation to some extent by 1997 rule, we may now proceed to examine the affect of 1997 rule and abolition of the Cadre of TA vis-a-vis the right and entitlement of the Petitioner to consider their cases for promotion to the rank of AE with effect from the year 1996 i.e. on the creation of the IFCD. The IFCD adopted the recruitment Rules for the post of Assistant Engineer (Civil) of the RWD of 1997, vide notification No. SIFCD-109/97 (pt) dated 09-12-97. In the schedule of the said rule, 50% of the posts of AE are to be filled up by way of promotion.
The IFCD adopted the recruitment Rules for the post of Assistant Engineer (Civil) of the RWD of 1997, vide notification No. SIFCD-109/97 (pt) dated 09-12-97. In the schedule of the said rule, 50% of the posts of AE are to be filled up by way of promotion. Col. 12 of the said 1997 rule as amended vide notification No. RWD/SECTT/93/94 dated 24.10.97 provides that those posts shall be filled by promotion from TA (Engg) of RWD, Govt. of Arunachal Pradesh with 3 years of regular service in the grade with minimum qualification of diploma in Civil/Agri (Engineering) and also having passed in accounts examination as JE; failing which from amongst the JE of the Department with 8 years of regular service in the grade for diploma holders in Civil/Agri. Engineering with 5 years of regular service of decree holder in Civil/Agri. Engineering respectively, provided that they have passed in accounts examination as JE. The 1997 Rules supersedes the 1984 Rules holding the field for recruitment to the post of AE. Rule 6 of the 1997 rule is the saving clause which provides that nothing in those rules shall affect reservation/relaxation of age limit and other conditions required to be provided for the Schedule castes and Scheduled Tribes and other social categories of persons in accordance with the order issued by the State/Central Government from time to time in this regard. The said rule is prospective in applicability, nor can the said rule be interpreted to be of retrospective in operation. After coming into operation of the 1997 rule, it is thus clear that from the date of effect of the said rule which was published vide notification RWD/SECTT/97/94 dated 21-04-97, the promotion to the rank of AE can be made by promotion from TA with 3 years of regular service in the grade with minimum qualification of dipoloma in Civil/Agri. Engineering and also having passed in accounts examination as JE and on failure to get TA with such qualification, promotion can also be made from amongst JE of the Department with 8 years of regular services in the grade for diploma holders and 5 years of regular service for degree holders in engineering respectively, provided both of them have passed in accounts examination in JE.
Ultimately vide order No. SIFCD-160/98 dated 11.09.2000, the post of Technical Assistants in the IFCD is merged with the post of Junior Engineers and this was done consequent upon adoption of three tire pay structure for Junior Engineers working under the PWD, PHED, RWD, Power Department and IFCD of the State of Arunachal Pradesh. The contention of the learned Counsel for the Petitioner that all of them have passed departmental professional examination before coming into operation of 1997 Rule, where as the private Respondents could not clear such departmental examination in the engineering subjects and by getting the advantage in terms of the abolition of the restriction by 1997 Rules relating to passing of such departmental examination, they have been promoted by the Respondent authority. It is not disputed in the Bar that the private Respondents were holding the post of TA, but they could not be promoted during the continuance of 1984 Rules in as much as they could not pass the departmental professional examination, and only after relaxation such restriction by 1997 Rules, they were promoted to the rank of AE. In the background of the aforesaid situation, it is now to be seen, whether the cases of the Petitioner can be directed to be considered for promotion in terms of the 1984 Rules, stretching the relaxation, as has been made by 1997 Rules. All the rules referred to above are framed under Article 309 of the Constitution of India and are statutory in character and whether the Petitioners are entitled to get relief in breach of such statutory Rules of 1984. The rules in question being legislative in character have the force of law and any appointment in breach of such rules framed under Article 309 would not be legal one (Ref. AIR 1965 SC 868 , State of Mysore v. M.H. Bellarry). It is the expected Principle of law, that where the recruitment to a service is regulated by statute, the recruitment must be made in accordance with those rules and any appointment made in the breach of such rules would be illegal. Mr.
AIR 1965 SC 868 , State of Mysore v. M.H. Bellarry). It is the expected Principle of law, that where the recruitment to a service is regulated by statute, the recruitment must be made in accordance with those rules and any appointment made in the breach of such rules would be illegal. Mr. Tiwari, learned Counsel for the Petitioners has strenuously submitted that as the rigor being a technical assistant for promotion to the rank of AE was prevalent in 1984 Rule has been modified in 1997 and later on vide notification No. SEFCD160/98 dated 11-09-2000, the posts of TA are merged with JE, the said benefit should also be extended to the Petitioners for consideration of their cases as per the 1984 Rules by reading down the provisions Mr. Tiwari has tried to import the principle laid down in Heydon's case "(1584) 3 Co. Rep. 7a, p. 7b: 76ER 637" i.e. purposive construction of a statute to absorb the issue involved. In fact there is no conflict or no any manner of doubt regarding the applicability of 1984 Rules as well as the 1997 Rules. The rule in Heydon's case is also known as "Purposive Construction" or "Mischief Rule", enables consideration of four matters in the matter of construction of an Act namely. 1 st: What was the common law before the making of the Act, 2nd: What was the mischief and defect for which the common law did not provide, 3rd: What remedy the Parliament hath resolved and appointed to cure the disease of the common wealth, and 4th: The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. (Ref. Maxwell on Interpretation of Statute, 12th Edition, P.40) 7. I have given my thought-full consideration regarding to the submission of Mr. Tiwari for application of the principle of Heydon's case to suppress the alleged mischief. The primary Rule for general interpretation of a statute is literal construction.
(Ref. Maxwell on Interpretation of Statute, 12th Edition, P.40) 7. I have given my thought-full consideration regarding to the submission of Mr. Tiwari for application of the principle of Heydon's case to suppress the alleged mischief. The primary Rule for general interpretation of a statute is literal construction. It is the principle of literal construction that nothing is to be added to or taken away from a statute unless there is justifiable ground for interference that the legislatures intended to serve which it omitted to express. The principle of Heydon's case is applicable in case of ambiguity and where it is reasonably capable of giving more than one meaning. (Ref. AIR 1957SC 832; CIT, Madhya Pradesh and Bhopal v. Sodra Devi). The rule of Heydon's Case is applicable only when the language is ambiguous and the said rule in that case was only applied after first find that the words 'any individual' in the setting are ambiguous. The Apex Court in the case of "Kanailal Sur v. Paramnidhi Sadhukhan" ( AIR 1957 SC 907 ) inter alia held that the recourse to object and policy of the Act or consideration of the mischief and defect which the Act purports to remedy is only permissible when the language is capable of two constructions. In the case in hand, there is no such situation that the provisions of Col. 12 of the schedule of 1984 Rule is ambiguous and capable of giving two different constructions has not been drawn to my notice. On reading of the said provision, it is absolutely clear that the said provision is clear, simple a transparent and there is no ambiguity in it. By subsequent relaxation of the provisions in the 1997 Rules, and subsequent merger of the posts of Technical Assistant (Engg), such a mischief or ambiguity cannot be imported or presumed. Accordingly, I could not persuade myself to accept the contentions, though strenuously raised by Mr. Tiwari. Regarding non-compliance of the directions issued by this Court vide judgment and order dated 12-12-01 passed in WP(C) No. 735 (AP) 2001, it is submitted by the learned Advocate General that the impugned order No. SIFCD-48/96(pt)/1 dated 18.12.01, was passed before reaching the said judgment in the Department i.e. at the time of passing the said order, the aforesaid judgment and order of the Court was not within the knowledge of the authority.
Accordingly, the cases of the private Respondents having been recommended by the DPC, they were promoted to the rank of AE on regular basis. Subsequently, on going through the aforesaid judgment of this Court dated 12.12.01, along with representation of the Petitioner No. 1 and 2, the Government reconsidered the matter afresh in the light of the judgment and order of the High Court, and during such consideration the cases of the Petitioners were also taken duly note of and in such process the cases of the Petitioners were duly considered; and on such consideration it was found that as per the inter se seniority, the Petitioners position amongst the eligible candidates being at SI. No. 14, 15, 18 and 19 respectively against 11 vacancies available for none APST category up to 20.04.97 as per the old recruitment Rules of 1984 they could not be promoted. The further submission made by Mr. Tiwari relating to the practice that was prevalent in the Department to the effect that even the JE, not in the cadre of TA were also promoted, referring to Annexure A1, A2 and A3 of affidavit in reply. It is seen from the aforesaid orders that, vide A1 that some of the promotees, as submitted by Mr. Tiwari, were holding the post of JE. Referring to those documents, it is submitted by Mr. Tiwari that by not giving the same benefit to the Petitioners, the Respondents have exhibited discriminatory attitude towards the Petitioners, which is an arbitrary exercise of power. 8. As discussed herein above, it is the statutory requirement as per the 1984 Rules that, promotion to the post of AE is to be made from the feeder post of TA, subject to passing of departmental professional examination as per the rules. If departing from such statutory requirement the Department promoted some persons who were not holding the feeder post of TA, such appointments are certainly de hors the rule and such action of the Departmental Authority will be per se illegal and it cannot be followed as a precedent or binding upon the Court to issue similar directions in case of other similar employees, not in the feeder post of TA., That will amount to giving a direction to disobey the statutory rules and to violate the law holding the field.
In the case of "A.P. Christian Medical Educational Society v. State of A.P." reported in (1986) 2 SCC 667 , at Para 10 the Apex Court observed that "We cannot imagine anything more destructive of the rule of law than a direction by the Court to disobey the laws". Again in the case of "Union of India v. Rakesh Kumar", reported in AIR 2001 SC 1877 it is held by the Apex Court that by erroneous interpretation of rules if someone is granted pensionary benefits it would not mean that same mistake should be perpetrated by direction of Court on the ground of discrimination or hardship. It would be unjustifiable that Court should direct something that is contrary to rules. Accordingly, I refrain myself from passing such a direction as prayed for by Mr. Tiwari. 9. There is also a provision of relaxations under the 1984 Rules, but no case for relaxation has been propounded in this writ petition, nor such prayer has been made by the Petitioners before this Court or before the authority for giving them the relaxation for consideration of their cases for promotion to the rank of AE as per the 1984 Rules and accordingly the same is not to be considered in this writ petition 10. In view of the aforesaid discussions and decisions, I do not find any merit in this writ petition and accordingly the same stands rejected. 11. No order as to cost. Petition dismissed.