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Gauhati High Court · body

2006 DIGILAW 627 (GAU)

K. Iboyaima Singh v. State of Manipur and Ors.

2006-07-10

M.B.K.SINGH

body2006
Heard Mr. Kh. Tarunkumar, Learned counsel appearing on behalf of the petitioner, Mr. A. Jagatchandra, learned Govt. Advocate appearing on behalf of the respondents 1 and 2 and Mr. S. Jayanta, learned senior counsel appearing on behalf of the respondent No. 3. 2. The petitioner is aggrieved by the order being lNo.18/5/93-POWER(Pt) dated 21/3/2006 by which Shri S. Jayantakumar, B. Tech., Section Officer Grade-I(Civil), who is the private respondent in this case, was allowed to hold the post of Assistant Engineer (Civil), West Sub-Division under Civil Division No. I, vacated by the late Namsin Panmei, Assistant Engineer (Civil), on in-charge basis without extra remuneration as a stop gap arrangement with immediate effect and until further. 3. The petitioner's grievance is that though he is the senior most Section Officer Grade-I (Civil), the impugned order was passed in favour of the private respondent who is far junior to him. 4. There is no dispute that the petitioner is the senior most Section Officer Grade-I(Civil). It is ascertained that this Court, on the basis of the prayer of the present petitioner, while dealing with the interim prayer made in C.R. No. 320 of 1997, directed on 2.4.1997 to the effect that if any in-charge or temporary arrangement as Assistant Engineer was to be made, the relevant seniority list should be taken into consideration. A copy of the said order is at Annexure-A/1 of the writ petition. Subsequently also, this Court in WP(C) No. 1150 of 1999, which was filed by the present petitioner, held on 01.09.1999 as follows:- “ Having regards to the submission of the learned counsel of the parties, I am of the view that while filling up the post of Assistant Engineer on in-charge basis or on temporary basis without holding any DPC, then such arrangement should be made by the appointing person in accordance with the seniority list of the department published on 21.5.1991. Accordingly, the respondents are directed that if no post of Assistant Engineer is filled up on in-charge or temporary or ad-hoc basis without resorting to DPC and without following the rules, such arrangement can be made by the officer strictly in accordance with the seniority.” A copy of the said order is at Annexure-A/2 of the writ petition. 5. Accordingly, the respondents are directed that if no post of Assistant Engineer is filled up on in-charge or temporary or ad-hoc basis without resorting to DPC and without following the rules, such arrangement can be made by the officer strictly in accordance with the seniority.” A copy of the said order is at Annexure-A/2 of the writ petition. 5. Despite the fact that the petitioner is the senior most Section Officer Grade-I(Civil) and despite the above mentioned directions of this Court made in C.R.No.320 of 1997 and WP(C) No. 1150 of 1999, the State Government, vide order dated 7.8.2002 allowed one Shri N. Ngulzachim, Section Officer Grade-I(Civil), whose seniority position was far below the petitioner, to officiate to the post of Assistant Engineer with the scale of pay of the post as stop gap arrangement until further order against the vacancy caused due to the expiry of one H. Joy Singh, Assistant Engineer(Civil). A copy of the Government's letter is at Annexure-A/3 of the writ petition. 6. It is also ascertained that the petitioner submitted a representation on 23.1.2006 to the Commissioner (Power), Government of Manipur through proper channel, requesting for his promotion to the post of Assistant Engineer (Civil) against the vacancy caused due to expiry of Shri Namsin Panmei. The Chief Engineer (Power), Government of Manipur forwarded the said representation of the petitioner vide letter dated 23.02.2006. 7. Apparently, disregarding the above said directions of this Court as well as the representation of the petitioner, whose seniority position is at Sl.No.1 as per final seniority list, the Under Secretary (Power), Government of Manipur issued an order dated 21.3.2006 whereby the private respondent No. 3, whose seniority position is at Sl.No.10 as per the said final seniority list, was allowed to hold the post of Assistant Engineer (Civil) on in-charge basis as a stop gap arrangement with immediate effect and until further order. A copy of the said order dated 21.3.2006 is at Annexure-A/8 of the writ petition. 8. A copy of the said order dated 21.3.2006 is at Annexure-A/8 of the writ petition. 8. Upon hearing the learned Government Advocate and on perusal of the affidavit-in-opposition filed on behalf of the government respondents, it is ascertained that according to the government respondents, though the seniority position of the petitioner is at Sl.No.1 of the seniority list of Section Officer Grade-I(Civil), the petitioner does not fulfill the eligibility requirement of the recruitment rules for appointment to the post of Assistant Engineer(Civil) on promotion on regular/adhoc/ officiating basis. According to the government respondents, the petitioner, who is only a licentiate in Civil Engineering, cannot be considered as one possessing either degree or diploma in Civil Engineering to qualify for promotion to the post of Assistant Engineer (Civil) as per recruitment rules. However, according to the government respondents, since the petitioner possesses neither degree nor diploma in Civil Engineering and since he was appointed as Section Officer Grade-I (Civil) on regular basis only with effect from 9.12.1981, he can be considered as eligible for promotion to the post of Assistant Engineer (Civil) on completion of 15 years service i.e. some times in the month of December, 1996 in case his having outstanding records of service. 9 There is no dispute that as per recruitment rules for direct recruitment to the post of Section Officer Grade-I (Civil) at the relevant time i.e. in 1981, the essential qualifications are (i) matriculation or its equivalent from a recognized University/Board; (ii) Degree or diploma in Elect/Mech./Civil/Telecom/Electrical Engineering (at least 3 years course from a recognized institution). The fact of appointment of the petitioner as Section Officer Grade-I (Civil) on regular basis clearly shows that the competent authority found him eligible for appointment on regular basis in 1981. Had the competent authority considered the petitioner as not having the qualification of either degree or diploma in Civil Engineering, the said regular appointment would not have been made under the relevant recruitment rules. After allowing the petitioner to serve in the grade for more than about 25 years after the said regular appointment, the government respondents cannot be allowed to question eligibility or otherwise of the petitioner for the said regular appointment without sufficient basis. It is not that the petitioner entered into service using forged certificates. After allowing the petitioner to serve in the grade for more than about 25 years after the said regular appointment, the government respondents cannot be allowed to question eligibility or otherwise of the petitioner for the said regular appointment without sufficient basis. It is not that the petitioner entered into service using forged certificates. At the time of said regular appointment, the petitioner sought his appointment on his having qualification of licentiate in Civil Engineering and having regard to the relevant recruitment rules, had the competent authority not treated the petitioner's qualification either as one of or equivalent to diploma in Civil Engineering with 3 years course from a recognized institute, the authority would not have appointed the petitioner. In the facts and circumstance, in the absence of anything substantial to show that the petitioner's qualification can never be treated as or equivalent to diploma in Civil Engineering with 3 years course from a recognized institute, the government respondents cannot be allowed to raise the question of eligibility or otherwise of the appointment of the petitioner as Section Officer Grade-I(Civil) on regular basis after having served for more than about 25 years as Section Officer Grade-I(Civil) on regular basis. 10. Further, the question, if the petitioner is eligible or not for giving promotion to the post of Assistant Engineer has to be considered by a duly constituted DPC under the relevant rules after the state Government has made a decision to fill up the vacant post of Assistant Engineer on regular basis. It is not for the State Government itself to consider the said question at this stage in an arbitrary manner ignoring the recruitment rules. For allowing a Section Officer Grade-I to hold the post of Assistant Engineer on in-charge basis, there is no any law or rule to the effect that the State Government is to re-examine the eligibility or otherwise of the person for appointment as an Section Officer Grade-I, despite the fact that the person has served as Section Officer Grade-I on regular basis for many years, to ascertain if the person is eligible for giving promotion as Assistant Engineer or not. In my considered opinion, by not allowing the petitioner to serve as Assistant Engineer(Civil) on in-charge basis, despite the fact that he is the senior most Section Officer Grade-I(Civil) and that this court has directed, in effect, for consideration of his case in case of making temporary or in-charge arrangement in connection with the filling up of the post of the Assistant Engineer, the Government respondents have acted unreasonably, unfairly and unjustly and thereby violating the spirits of article 14 read with article 16 of the Constitution of India. Since the petitioner was appointed as Section Officer Grade-I on regular basis under the relevant recruitment rules purportedly on being satisfied or possessing the qualification required to be possessed at the relevant time and since he has been serving as the senior most Section Officer Grade-I for the last more than about 25 years, in the absence of any decision or findings of a competent authority under the relevant rules to the effect that the petitioner was not possessing the essential qualification for getting regular appointment to the post of Section Officer Grade-I at the relevant time, the decision of the government respondents not to allow the petitioner to serve as Assistant Engineer or in-charge basis is arbitrary, unjust and unfair. It is to be noted that there has not been any review of the said regular appointment of the petitioner as Section Officer Grade-I. Without anything substantial, the government respondents cannot proceed on assumption that the petitioner was not possessing the essential qualification for regular appointment as Section Officer Grade-I at the relevant time and as such, he is not eligible for promotion to Assistant Engineer. In the facts and circumstances of the case, there is no sufficient basis on the part of the government respondents to proceed on the assumption that the petitioner was not possessing the qualification either of diploma in civil engineering with three years course from a recognized institute or one equivalent to it at the relevant time of his regular appointment and as such he ought to have earned outstanding grading in his service records before allowing him to serve as Assistant Engineer on in-charge basis. 11. 11. In the light of the above consideration, the impugned order dated 21.3.2006 under which the private respondent was allowed to hold the post of Assistant Engineer (Civil), disregarding the claim of the petitioner, who is the senior most Section Officer Grade-I and who has been serving in the grade for the last more than about 25 years on regular basis, is not reasonable, fair and just and as such, it is not sustainable in the eye of law. The impugned order is hereby set aside. The government respondents are hereby directed that in case the said post of Assistant Engineer (Civil), West Sub-Division No. I or any other vacant post of Assistant Engineer (Civil) is required to be managed on in-charge/temporary arrangement, the case of the petitioner is to be considered fairly, reasonably and justly and not in the manner done earlier. 12. With this direction, this writ petition is disposed of. No order as to costs.