Nyajum Padu v. Commissioner and Secretary, PWD, Govt. of Arunachal Pradesh
2007-03-19
ZELRE ANGAMI
body2007
DigiLaw.ai
JUDGMENT Z. Angami, J. 1. A number of cases have been listed together for hearing and ultimately the above mentioned cases were heard together. Before proceeding with the discussions on the issues raised in the above writ petitions it is considered to make a reference to the specific issues raised in each of the writ petitions as involving interested parties. 2. In WP(C) No. 294 (AP) 2005, the validity of order dated 21.5.2005 has been challenged. Shri Nyajum Padu, a promotee, is the sole petitioner. Respondents No. 1 and 2 are the State respondent authorities. Respondents No. 3 to 27 are private respondents who are direct recruits. The petitioner and the private respondents are in the same grade of Assistant Engineer under PWD, Government of Arunachal Pradesh. By order dated 21.5.2005, the appointments of private respondents to the post of Assistant Engineer were ordered to be regularized with effect from the date of the recommendation of the Arunachal Pradesh Public Service Commission effecting the date of appointments from 31.7.1990 in respect of private respondents No. 3 to 23 and 20.11.1990 in respect of respondents No. 24 to 27. In WP (C) No. 448 (AP) 2005, Shri Ratu Techi, a direct recruit, is the sole petitioner. Respondent No. 1 is the State of Arunachal Pradesh. Respondents No. 2 to 5 are promotees. In this case the petitioner has challenged the validity of the order dated 26.7.2005. By the said order dated 26.7.2005 the adhoc promotion of private respondents was regularized against promotion quota with effect from the date of their initial adhoc promotion by way of giving one time relaxation in terms of the provision of Rule 5 of the Recruitment Rules of Assistant Engineer. In WP (C) 452 (AP) 2005, Shri Taniya Soki and two others, as direct recruits, have also challenged the validity of the same order dated 26.7.2005. In WP(C) No. 481 (AP) 2005, Shri Atik Miyu, as direct recruit, has also challenged the validity of the above said order dated 26.7.2005.
In WP (C) 452 (AP) 2005, Shri Taniya Soki and two others, as direct recruits, have also challenged the validity of the same order dated 26.7.2005. In WP(C) No. 481 (AP) 2005, Shri Atik Miyu, as direct recruit, has also challenged the validity of the above said order dated 26.7.2005. In WP (C) 491 (AP) 2005, Shri Minjom Padu and eight others, as direct recruits, have challenged the validity of the same order dated 26.7.2005 and had also asked for a relief in the nature of directing the official respondents to publish the final inter-se-seniority list of Assistant Engineers (PWD) as on 31.7.2004 by correcting the provisional inter-se-seniority list so circulated vide memo dated 18.8.2004 and deleting the names of the private respondents from the said list and/or placing the petitioners above private respondents. In WP (C) 508 (AP) 2005, Shri Nyajum Padu and nine others, as direct recruits, have challenged the validity of the final inter-se-seniority list of Assistant Engineers under PWD as on 16.7.2005 circulated vide memo dated 19.8.2005. In WP(C) 526 (AP) 2005, Shri Atik Miyu, a direct recruit, has challenged the validity of the above said final seniority list published vide memo dated 19.8.2005. 3. Apart from the State authorities/respondents, they are two categories of officers involved in the issues arising out of the action of the State authorities referred to above. One category is direct recruits, who are also degree holders and the other category is promotees having been promoted from the grade of Junior Engineers. The later category are stated to be diploma holder except one who is stated to have also acquired a degree after having entered in the service as Junior Engineer. To resolve the issues that have been raised as involving both the categories, it is considered necessary to make a discussion on the issues that may be broadly formulated on the basis of the pleadings of the parties in the above said cases. In fact, the Counsel for the parties have also made submissions as to the validity of the action of the authorities as either benefiting one set of parties or adversely affecting the other set of parties.
In fact, the Counsel for the parties have also made submissions as to the validity of the action of the authorities as either benefiting one set of parties or adversely affecting the other set of parties. Therefore, instead of adverting to the pleadings and contentions raised in each case by respective parties, the submissions of the Counsel for the respective parties may be referred to in the order of the action challenged before this Court as follows: (1) Order dated 21.5.2005; (2) Order dated 26.7.2005; (3) The seniority list of Assistant Engineers under PWD published vide memo dated 19.8.2005. 4. Before making reference to the submissions made by the learned Counsel for the respective parties, it may also be considered to make a reference to the broad facts of the case as appearing from the pleadings of the respective parties. The direct recruits, who also came to be initially appointed on adhoc basis, were appointed to the post of Assistant Engineers (Civil) under PWD vide order dated 23.01.1991 on the basis of recommendation of the Arunachal Pradesh Public Service Commission, hereinafter referred to as "the APPSC" and on the further conditions that they shall be on probation of two years from the date of joining of the respective place of posting and the promotees were initially appointed as Junior Engineer and they were given adhoc promotion to the post of Assistant Engineer on different dates. It is the common case of the direct recruits that their names were reflected in the final seniority list of Assistant Engineer as on 01.3.1999 and the names of the promotees were not reflected in the said list. By order dated 28.12.2000, the adhoc promotion of the promotees was regularized from the date shown against the respective names of the promotees and the names of the promotees referred to in these cases appeared against serial No. 40 to 43 as under APST of the above said order dated 28.12.2000 (04.01.2001). Thereafter the names of the promotees came to be reflected in the provisional inter-se-seniority list of Assistant Engineer (Civil) under PWD as on 25.9.2001 published vide office memo dated 27.9.2001. Apparently the said seniority list dated 27.9.2001 is based on the date of regularizing the adhoc promotion of the promotees.
Thereafter the names of the promotees came to be reflected in the provisional inter-se-seniority list of Assistant Engineer (Civil) under PWD as on 25.9.2001 published vide office memo dated 27.9.2001. Apparently the said seniority list dated 27.9.2001 is based on the date of regularizing the adhoc promotion of the promotees. It is disclosed from the pleading that one Atik Miyu the petitioner in WP(C) 526 (AP) 2005 and WP(C) 481 (AP) 2005 had filed the writ petition, as in WP(C) 833 (AP) 2001, challenging the legality and correctness of the above said order dated 28.12.2000. This Court, vide judgment and order dated 2.5.2002, had quashed the above said order dated 28.12.2000 to the extent that it gives retrospective promotion to respondent Nos. 4 and 5 (Shri Tamar Nalo and Shri Nyajum Padu respectively) with effect from 19.7.1989 and 25.7.1989 respectively. It was further directed that respondent authorities (Respondent Nos. 1 and 2) shall pass, within two months from that day necessary order correcting, the date of regularization of the promotion of Respondent Nos. 4 and 5 to the post of Assistant Engineer (Civil) showing that Respondents No. 4 and 5 shall stand regularly promoted with effect from 10.7.1991 and 25.7.1991 respectively. It is further disclosed that as by way of giving effect to the direction to this Court contained in the above said judgment and order dated 2.5.2002, the Commissioner (PWD), Government of Arunachal Pradesh had issued order dated 4.7.2002 to the extent that the date of promotion to Shri Tamar Nalo, Assistant Engineer shall stand corrected with effect from 10.7.1991 instead of 10.7.1989 and in respect of Shri Nyajum Padu the date of promotion in the rank of Assistant Engineer shall stand corrected with effect from 25.7.1991 instead of 25.7.1989. It was further directed by the aforesaid order dated 4.7.2002 that the inter-se-seniority of the above said officers vis-a-vis other Assistant Engineers in PWD shall remain altered and further indicating that a modified seniority list of Assistant Engineers are being issued separately. Further provisional inter-se-seniority list of Assistant Engineer (Civil) under PWD as on 31.7.2004 was circulated vide letter dated 18.8.2004 and the officers were also directed to submit representations on the discrepancies, if any, within 15.10.2004. It transpires that a number of direct recruits had submitted representations against the above said provisional inter-se-seniority list of 2004.
Further provisional inter-se-seniority list of Assistant Engineer (Civil) under PWD as on 31.7.2004 was circulated vide letter dated 18.8.2004 and the officers were also directed to submit representations on the discrepancies, if any, within 15.10.2004. It transpires that a number of direct recruits had submitted representations against the above said provisional inter-se-seniority list of 2004. It is not disputed otherwise that no further appeal was filed against the above said judgment and order dated 2.5.2002 passed in the above said WP(C) 833 (AP) 2001. It is also not pleaded in the above said cases as having made any grievances against order dated 4.7.2002 referred to above. It transpires that on further consideration of the matter by order dated 21.5.2005, the appointment of altogether 22 officers to the posts of Assistant Engineers, direct recruits was regularized with effect from 31.7.1990 which is stated to be the date of recommendation of the APPSC forwarded vide letter dated 31.7.1990 and 4 other officers, also direct recruits, with effect from 20.11.1990 as recommended by the APPSC vide letter dated 20.11.1990. The validity of this order has been challenged in WP(C) 294 (AP) 2005 as mentioned earlier. It further transpires that on further consideration of the matter, the adhoc promotion of 4 officers to the post of Assistant Engineer was regularized against promotion quota with effect from the date of initial adhoc promotion by giving one time relaxation under the provision of Rule 5 of the Recruitment Rules of Assistant Engineer. The validity of this order has been challenged by a number of direct recruits in the cases referred to earlier. By O.M. dated 19.8.2005, the final seniority list of Assistant Engineer (Civil) in the Arunachal Pradesh Public Works Department as on 16.7.2005 was published. The validity of this seniority list was challenged in WP(C) 526 (AP) 2005 and also in WP(C) 508 (AP) 2005. On perusal of the same, it may be understood that the said seniority list was not based on the impugned orders dated 21.5.2005 or 26.7.2005. On going through the pleadings, a reference has been made to the Arunachal Pradesh Administrative (PWD) (Group 'B' posts) Recruitment Rules 1983 (hereinafter referred to as' 1983 Rules') and the Assistant Engineer (Civil) (Group 'B') Recruitment Rules 1991, as amended by notification dated 19.5.1999 (hereinafter referred to as' 1991 Rules'). In 1983 Rules, a provision concerning the powers to relax is provided in Rule 6.
In 1983 Rules, a provision concerning the powers to relax is provided in Rule 6. The power to relax provided in 1991 Rules is under Rule 5. Although, reference has been made to Rule 5 in the impugned order dated 26.7.2005 it is not disputed that the officers covered by the impugned order dated 26.7.2005 are governed by 1983 Rules in so far as regularization of the adhoc promotion is concerned. 5. As may be seen from the particulars of the cases referred to above, the petitioners have filed the writ petition in individual capacity or in group as a common cause. Apart from the respondent authorities, the private respondents are the same in respect of the cases where the validity of order dated 26.7.2005 and validity of seniority list dated 19.8.2005 have been challenged. The respondent authorities have filed affidavits-in- opposition in the cases. The affidavit-in-opposition have also been filed on behalf of some individual officers who have been impleaded as private respondents. Instead of setting out the pleadings of the parties in seriatim, it is convenient to record the submissions made on behalf of the each respective parties and to make a reference to specific pleading at that stage, if considered appropriate. Accordingly, the submissions made by the learned Counsel for the parties may be referred to and discussed in the order of the address made by the respective Counsel. 6. Mr. P.K. Tiwari, learned Counsel appearing for the petitioners in WP(C) 491 (AP) 2005 & WP(C) 508 (AP) 2005, while making specific reference to the above said impugned orders dated 26.7.2005, 21.5.2005 and seniority list dated 19.8.2005 in the list of dates so submitted, he has made a particular attack on the validity of impugned order dated 26.7.2005. By way of replying to the submissions made on behalf of the other contesting parties, he has reiterated his contention in support of the attack made on the above said impugned order dated 26.7.2005. For convenience his submissions made be discussed as herein. According to him the impugned order dated 26.7.2005 is dehors Recruitment Rules and the order of regularization suffers from legal infirmities for a number of reasons. According to him the relevant rule applicable to the present case is 1983 Rules, the contention of which is not disputed by the parties as earlier mentioned.
According to him the impugned order dated 26.7.2005 is dehors Recruitment Rules and the order of regularization suffers from legal infirmities for a number of reasons. According to him the relevant rule applicable to the present case is 1983 Rules, the contention of which is not disputed by the parties as earlier mentioned. According to this Rules, the eligibility clause in regard to qualifying length of service is provided in the said 1983 Rules, according to which, a diploma holder must acquire 10 years of service and a degree holder 5 years of service in the grade of Junior Engineer to become eligible for being considered for promotion to the post of Assistant Engineer. This is also borne out from the impugned order dated 26.7.2005 wherein the specific length of service is shown to have been relaxed for the purpose of regularization. On the basis of the aforesaid premises, Mr. Tiwari, the learned Counsel proceeds to make submissions, as attacking order dated 26.7.2005 as hereunder: (a) That the impugned order dated 26.7.2005 is not in any case in conformity with Rule 6 of 1983 Rules, the Rule of which requires that specific order is required to be rendered for relaxing any provision of the Rules and reasons must be recorded in writing as reflecting the opinion of the Lt. Governor/Governor that it is necessary and expedient so to do. In the present case the impugned order dated 26.7.2005 may only be understood as an order of regularization without a speaking order as required in Rule 6 of the 1983 Rules. (b) That beside the main legal infirmities as apparent from the order dated 26.7.2005 for want of any specific order of relaxation as required, the same order also suffers from further legal infirmities as the regularization of the adhoc promotion has not been done in compliance with the Requirement of Rules as the same had not been considered by the DPC. (c) That the eligibility concerning qualifying length of service is an essential condition of Recruitment Rules and the same could not have been relaxed in terms of the power to relax provided under Rule 6 of the 1983 Rules.
(c) That the eligibility concerning qualifying length of service is an essential condition of Recruitment Rules and the same could not have been relaxed in terms of the power to relax provided under Rule 6 of the 1983 Rules. (d) That the judgment and order dated 2.5.2002 passed in WP(C) 833 (AP) 2001 is binding on the State and in fact, the said judgment and order dated 2.5.2002 was given effect to by the State authorities as by way of passing order dated 4.7.2002 wherein the effective date of promotion of one Sri Tamar Nalo (respondent party) and Sri Nyajum Padu (also respondent party) was corrected with effect from 10.7.1991 instead of 10.7.1989 and 25.7.1991 instead of 25.7.1989 respectively. The judgment and order of this Court, which has reached the finality, could not have been rendered nullified in the manner as was done and as such the impugned order dated 26.7.2005 cannot be sustained in law. (e) That the impugned order dated 26.7.2005 is illegal and the same cannot be considered as a legal basis for the promotion of private respondents as mentioned therein to the post of Assistant Engineers and consequently, to draw a conclusion that the concerned officers cannot be deemed to have become a member of the service in the grade of Assistant Engineer and therefore to make any claim of their placement in the seniority of Assistant Engineer (Civil) and in any case, they cannot claim any benefit of seniority as based on such order. The promotees not having been promoted in accordance with the relevant rules, they are required to be placed below the direct recruits appointed on the basis of recruitment that took place in 1990 through the APPSC. (f) That the impugned order dated 26.7.2005 is nothing short of an executive order made in violation of the Recruitment Rules framed under proviso to Article 309 of the Constitution, inasmuch as, the adhoc promotion was not at all regularized through the DPC and the legal infirmities found in the impugned order cannot be cured by resorting to the executive powers under Article 162 of the Constitution.
(g) That in any view of the matter, the impugned order dated 26.7.2005 is liable to the quashed and consequently, the final seniority list of Assistant Engineer as on 16.7.2005 is required to be corrected as showing the seniority of the petitioners above the contesting private respondents and to make regular promotion to the posts of Executive Engineer in terms of the Recruitment Rules on the basis of the corrected final seniority list of Assistant Engineers. As regards the validity of seniority list dated 19.8.2005 Mr. Tiwari submits that the same is otherwise not sustainable in law. An argument was initially put by him that order dated 28.12.2000 having been superseded by the order dated 26.7.2005 and if the said order dated 26.7.2005 is set aside, the order dated 28.12.2000 would cease to operate and consequently the promotees, whose services as Assistant Engineer having not been extended on adhoc basis, would also cease to be in the grade of Assistant Engineer. However, taking a practical view of the matter, he did not press this argument for recording a finding on this point and fairly submits that the status of the promotees may be determined on the strength of the order dated 28.12.2000 read with order dated 4.7.2002. But at the same time he has pressed his argument that on the basis of such orders, the promotees cannot make a claim of seniority over the petitioners as the regularization of adhoc promotion was not made in terms of the rule applicable to the present case. He further submits that order dated 28.12.2000 had not been made on the basis of the recommendation of DPC as required under the relevant rules and the same cannot constitute a valid and legal basis for claiming the seniority. While raising a contention to the extent that order dated 26.7.2005 cannot be sustained in law, he submits that the purported relaxation made thereof cannot be made in exercise of the powers to relax. According to him the relaxation purportedly made is with respect to the conditions of recruitment and such relaxation cannot be made by an executive order. In support of his contention that the relaxation made with respect to the condition of eligibility in the present case is bad in law, he has placed reliance on the decision of the Apex Court as reported in 1993 Suppl.
In support of his contention that the relaxation made with respect to the condition of eligibility in the present case is bad in law, he has placed reliance on the decision of the Apex Court as reported in 1993 Suppl. 3 SCC 575 [Syed khalid Rizvi v. Union of India] and the decisions of this Court as reported in 2003 (2) GLT 78 [Ananda Ram Borah and Ors. v. State of Assam and Ors.] and 2004 (1) GLT 308 [M. Laitphlang (Dr.) (MS) and Ors. v. State of Meghalaya and Ors.]. In support of his contention that the impugned order dated 26.7.2005 is illegal for the reason that the order regularizing the adhoc promotion is in violation of the recruitment rules framed under Article 309 of the Constitution and that it is not open to the authorities to make such regularization by an executive order in exercise of powers under Article 162 of the Constitution, he has placed reliance on the decision of the Apex Court as reported in [J&K Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors.]. In support of his contention that the impugned order is also illegal for the reason as having retrospective effect in violation of Recruitment Rules and such order in the nature of an executive order cannot whittle down for can have retrospective effect as to destroy the basic right of the petitioners, he has placed reliance on the decisions of the Apex Court as reported in 1994 Suppl (3) SCC 451 [Uday Pratap Singh and Ors. v. State of Bihar and Ors.] and Govind Prasad v. R.G. Prasad and Ors.]. In support of his contention that in any view of the matter, the service rendered on adhoc capacity cannot be counted towards seniority over the regular appointees and that the impugned order is liable to be held as illegal as allowing the services of the private respondents to be counted towards the seniority, he has placed reliance on the decisions of the Apex Court as reported in [Keshav Chandra Joshi and Ors. v. Union of India and Ors.] and [VP. Srivastava and Ors. v. State of M. P. and Ors.].
v. Union of India and Ors.] and [VP. Srivastava and Ors. v. State of M. P. and Ors.]. In support of his contention to the subsequent promotion to the post with retrospective effect resulting in the promotees become senior to the direct recruits, where such persons have directly recruited within the quota prescribed, is not permissible, he has placed reliance on the decision of the Apex Court as reported in [State of Bihar and Ors. v. Akhori Sachindra Nath and Ors.]. In support of his contention that the impugned order dated 26.7.2005 is otherwise bad in law for the reason that it is contrary to the judgment and order dated 2.5.2002 passed by this Court in WP(C) 833 (AP) 2001 and that the judgment and order of this Court cannot be rendered ineffective by an executive order when such a course of action is not permissible in the realm of a legislative enactment, he has placed reliance on the decision of the Apex Court as reported in [S.R. Bhagwat and Ors. v. State of Mysore]. 7. Mr. Nani Grayu, learned Counsel for one Khoda Gyati [Respondent No. 5 in WP(C) 491 (AP) 2005] submits that the concerned respondent, as APST candidate, having been appointed as Junior Engineer in 1983 was given adhoc promotion to the post of Assistant Engineer in 1989 and by order dated 28.12.2000 his adhoc promotion was regularized with effect from 3.8.1991, the promotion order of which was not challenged in respect of the respondent in question. He further submits that if order dated 26.7.2005 and order dated 21.5.2005 should go, order dated 28.12.2000 should be maintained and principles of seniority adopted by the State of Arunachal Pradesh with respect to the determination of inter-se-seniority between direct recruits and the promotees should be applied. In this connection, he has referred to the principle laid down in O.M. dated 3.7.1986 issued by the Govt. of India as applicable to the State of Arunachal Pradesh. Accordingly, he submits that seniority be determined by rotation in the order of promotion and direct recruits. In this view of the matter, he submits that the petitioners would have not automatic right to claim the seniority over the concerned respondent. 8. Mr.
of India as applicable to the State of Arunachal Pradesh. Accordingly, he submits that seniority be determined by rotation in the order of promotion and direct recruits. In this view of the matter, he submits that the petitioners would have not automatic right to claim the seniority over the concerned respondent. 8. Mr. R.H. Nabam, learned Counsel for one Nich Tadar [Respondent No. 5 in WP (C) 448 (AP) 2005], referring to the application filed in MC 107 (AP) 2005 and in particular refers to circular dated 19.9.1996, which is annexed as annexure-D to the said application and submits that on having considered the representation submitted for applying the said circular dated 19.9.1996, the case of the petitioner along with others was considered and order dated 28.12.2000 was rendered. It is also pointed out that the concerned respondent along with another had filed a writ petition as in WP(C) 76 (AP) 2004 challenging the respective dates of regularization of Assistant Engineers with effect from 2.8.1991 and 3.9.1992 fixed vide letter dated 28.12.2000 with a further prayer that the adhoc service rendered by them to be counted towards the seniority in the post of Assistant Engineers in terms of circulars dated 31.7.1991 and dated 19.9.1996 granting one time relaxation. While the above said writ petition was disposed of along with other writ petitions vide judgment and order dated 23.3.2005, it appears that no particular direction was given by this Court with respect to the said WP(C) 76 (AP) 2004. However, learned Counsel has referred to a letter dated 19.4.2005 annexed to the said application as annexure-G and points out that the concerned respondent was given a personal hearing by the State Government in reference to the above said judgment and order dated 23.3.2005. He also submits that the order concerned respondent had otherwise also obtained a degree in Engineering in 2002. He also submits that order dated 26.7.2005 cannot be held to be bad on the assumption that no reasons have been recorded. It is not necessary that reasons have to be recorded in the order itself and the same can be established from the records which should reveal the reason. He submits that there is no requirement of the promotion been considered by the DPC under the relevant rules as the rules only speak to the extent that if the DPC exists.
It is not necessary that reasons have to be recorded in the order itself and the same can be established from the records which should reveal the reason. He submits that there is no requirement of the promotion been considered by the DPC under the relevant rules as the rules only speak to the extent that if the DPC exists. In any view of the matter, he submits that there is a provision in the rules providing for the power to relax and any rule can be relaxed and not as contended by the Counsel for the petitioner. As against the status of the petitioners, he submits that the initial appointment order dated 23.01.1991 speaks of an appointment being made on probation and till today there is no order confirming the direct recruit-petitioner (s) and they cannot be treated as having become regular member of the service in the grade of Assistant Engineer. In support of his contention, he has placed reliance on the decisions of the Apex Court as reported in [Om Prakash Srivastava v. State of M.P.) [Municipal Corporation, Raipur v. Ashok Kumar Misra]. In support of his contention that retrospective promotion can be made by relaxing a condition of promotion, he has also placed a reliance on the decision of this Court as reported in 2005 (4) GLT 567 [Er. Lalmuanzova v. State of Mizoram and Ors.]. 9. Mr. L. Sera, the learned Counsel appearing for Shri Ratu Techi in WP (C) 448 (AP) 2005 also supports the contention of qualifying length of service being an essential condition of recruitment, the same cannot be relaxed. In support of such contention, he has also placed reference on the decision of this Court as reported in 2004 (1) GLT 308 [M. Laitphlang (Dr.) (MS) and Ors. v. State of Meghalaya and Ors.]. He also submits that order dated 26.7.2005 is only an executive order and the same cannot override the provision of the rules framed under Article 309 of the Constitution. He further submits that in any case the order dated 26.7.2005 cannot be sustained as the process of consideration has not been made through DPC. 10. Mr. K. Jini, learned Counsel appearing for one Tamar Nalo [Respondent No. 4 in WP(C) 491 (AP) 2005] submits that order dated 26.7.2005 having been made in exercise of the power to relax the same is valid.
10. Mr. K. Jini, learned Counsel appearing for one Tamar Nalo [Respondent No. 4 in WP(C) 491 (AP) 2005] submits that order dated 26.7.2005 having been made in exercise of the power to relax the same is valid. He also submits that even if the concerned respondent was initially promoted on adhoc basis, he was entitled to get the benefit referable to the post of Assistant Engineer and having regard to the circumstances peculiar to the present case where the DPC cannot be held in time, there is nothing wrong by way of making promotion with retrospective effect. He further submits that even if order dated 26.5.2005 is set aside, order dated 4.7.2002 shall apply and in which case, he is entitled to be treated as senior to the direct recruit-petitioners on application of the principles of seniority for determining the inter-se-seniority of promotees and direct recruits. According to him, the seniority of the answering respondents have been correctly reflected in the impugned seniority list dated 19.8.2005. He also submits that in the absence of statutory provision as regard to the determination of seniority, an executive instruction can be made providing for determination of the seniority. 11. Mr. R. Saikia, learned Counsel appearing for Sri Nyajum Padu [Respondent No. 3 in WP (C) 491 (AP) 2005] and petitioner in WP (C) 294 (AP) 2005 submits that order dated 21.5.2005 is not valid in law. According to him, the appointment of the direct recruits [Respondents in WP(C) 294 (AP) 2005] cannot be given effect retrospectively as sought to be made by the impugned order. According to him this is not a case of regularization and in any case the seniority of the concerned respondents in the above said WP (C) 294 (AP) 2005 cannot be given the benefit of counting seniority from the date of selection by the State Public Service Commission. In support of his contention that the seniority may be counted from the date of appointment and not from the date of selection made by the APPSC, he has placed reference on the decision of the Apex Court as reported in (2002) 10 SCC 710 [Dr. Chandra Prakash and Ors. v. State of U.P. and Anr.].
In support of his contention that the seniority may be counted from the date of appointment and not from the date of selection made by the APPSC, he has placed reference on the decision of the Apex Court as reported in (2002) 10 SCC 710 [Dr. Chandra Prakash and Ors. v. State of U.P. and Anr.]. He also submits that the authorities having not acted upon the order dated 21.5.2005 while passing final seniority list dated 19.8.2005, the said order dated 21.5.2005 is of no legal consequence and as such order dated 21.5.2005 is liable to be set aside. He also submits that order dated 21.5.2005, if given effect to, would unsettle the settled position in regard to the seniority. He also submits that on the facts and in the circumstances of the case, the promotee-respondents are entitled to count their length of service of adhoc promotion as having continued for longtime and in support of his contention, he has placed a reference on the decisions of the Apex Court as reported in [Narender Chandha and Ors. v. Union of India and Ors.], [Union of India and Ors. v. Pratap Narain and Ors.] and [Suraj Prakash Gupta and Ors. v. State of J & K and Ors.]. 12. Mr. M. Batt, learned Counsel appearing for respondents No. 13, 14, 15 & 20 in WP(C) 294 (AP) 2005 submits that no challenge has been made as to the validity of the appointment of the respondents as Assistant Engineers as such since such appointment was made through selection process conducted by the State Public Service Commission. On consideration of possessing the required qualifications they were also appointed initially as Assistant Engineer on adhoc basis vide order dated 8.9.1989 and they had gone through the selection process conducted in 1990 itself and the State Public Service Commission had made recommendation vide letter dated 31.7.1990. In this background the State authorities have passed order dated 21.5.2005 as appointing the respondent with effect from 31.7.1990 which is the date of recommendation by the APPSC. According to him such action is valid. In support of his contention that the effective date of appointment could be made on the basis of the date of recommendation made by State Public Service Commission, he has placed reference on the decisions of the Apex Court as reported in [State of Gujarat v. C.G. Raiyani and [Dr. Anuradha Bodi and Ors.
In support of his contention that the effective date of appointment could be made on the basis of the date of recommendation made by State Public Service Commission, he has placed reference on the decisions of the Apex Court as reported in [State of Gujarat v. C.G. Raiyani and [Dr. Anuradha Bodi and Ors. v. Municipal Corporation of Delhi and Ors.]] 13. Mr. T. Michi, learned Counsel, appearing for respondent No. 18, 26 and 27 in WP(C) 294 (AP) 2005 submits that the concerned respondents have made representations for giving the benefit of being appointed from the date of recommendation made by the State Public Service Commission and the State authorities had, in consultation with the Advocate General of the State and Law Department, had modified the appointment order vide order dated 21.5.2005. He submits that the petitioner has otherwise no locus standi to question and challenge the above said order dated 21.5.2005. He also submits that the petitioner has no basis for claiming seniority over the respondents. He has pointed out that the petitioner in this case was not regularly appointed as Assistant Engineer and as such his name did not even appear in the seniority list published in 1999. In any view of the matter, the appointment of petitioner vide order dated 4.7.2002 may be taken as having become a finality. He submits that in any view of the matter the adhoc promotion of the petitioner having not been regularized through the DPC in terms of the Recruitment Rules, petitioner has no right to claim seniority over the answering respondents and as such, there is no legal basis for the petitioner to challenge the impugned order dated 21.5.2005. 14. Mr. C. Baruah, learned senior Counsel appearing for the petitioner (s) in WP(C) 481 (AP) 2005 and WP(C) 526 (AP) 2005 submits that the petitioner is the same petitioner in WP(C) 833 (AP) 2001. He submits that judgment and order dated 2.5.2002 passed in the above said case has become a binding judgment. According to him, the impugned order dated 26.7.2005, whether it be treated as an order purported to have been made in terms of 1983 Rules or 1991 Rules, is illegal.
He submits that judgment and order dated 2.5.2002 passed in the above said case has become a binding judgment. According to him, the impugned order dated 26.7.2005, whether it be treated as an order purported to have been made in terms of 1983 Rules or 1991 Rules, is illegal. Even if by way of exercising the power to relax, a relaxation can be made, he submits that in the present case, the impugned order has not been made in compliance with Rule 5 of the 1991 Rules [or Rule 6 of 1993 Rules) and as such it cannot at all be treated as relaxation of the requirement of the rules. In support of his contention that the order of relaxation as purportedly made vide order dated 26.7.2005 cannot be sustained in law, he has placed reliance on the decisions of the Apex Court in the cases of Suraj Parkash Gupta, Keshav Chandra Joshi & Syed Khalid Rizvi (supra) and also the case as reported in [State of Orissa and Ors. v. Sukanti Mohapatra and Ors.]. He also submits that it is not permissible for the authorities to make an order as in the form of the impugned order dated 26.7.2005 as nullifying this Court's judgment and order dated 2.5.2002 and as such the said impugned order dated 26.7.2005 cannot stand scrutiny of law. As regard the impugned seniority list dated 19.8.2005, he submits that the same is erroneous as showing the names of the private respondents above the petitioner. He has pointed out that by judgment and order dated 2.5.2002 passed in WP(C) 833 (AP) 2001, the order dated 28.12.2000 was quashed to the extent that retrospective promotion given to the respondents No. 4 and 5 with effect from 10.7.1989 and 25.7.1989. The impugned seniority list dated 19.8.2005 has still taken the dates contrary to the judgment and order dated 2.5.2002 and as such the impugned seniority list dated 19.8.2005 cannot be allowed to stand. 15. Mr. A. Apang, learned Senior Govt. Advocate has at the outset sought to place the factual position. He has clarified that the recruitment to be made to the post of Assistant Engineer at the relevant point of time is governed by the 1983 Rules.
15. Mr. A. Apang, learned Senior Govt. Advocate has at the outset sought to place the factual position. He has clarified that the recruitment to be made to the post of Assistant Engineer at the relevant point of time is governed by the 1983 Rules. For the purpose of making recruitment to the post of Assistant Engineer by direct recruitment, a requisition was sent to the State Public Service Commission in 1990 and at that point of time some were also appointed as direct recruits on adhoc basis. The selection process took place and the recommendation was sent to the Government by the APPSC vide letter dated 31.7.1990. He has also pointed out that the service of the adhoc appointees, before they were appointed on the basis of recommendation of DPC vide order dated 23.01.1991, were terminated with effect from 01.01.1991 and were allowed to continue in service in the same capacity from 2.1.1991 to 31.3.1991 vide order dated 18.1.1991. He has also clarified that the impugned order dated 21.5.2005 was issued without making further consultation with the State Public Service Commission. As regard the impugned order dated 26.7.2005, he has also clarified that the relaxation order, though shown to have been made in terms of 1991 Rules [as quoting Rule 5 of the same Rules] such order of relaxation was not made in consultation with the State Public Service Commission. He has also clarified that no DPC was held for considering the cases of the persons referred to in the impugned order dated 26.7.2005. As regard the impugned seniority list dated 19.8.2005 it is independent of orders dated 21.5.2005 and 26.7.2005. He submits that because of various interim orders passed in the present cases, no further action was taken on the basis of the orders dated 21.5.2005 and 26.7.2005. 16. On consideration of the pleadings of the respective parties and submissions made by the learned Counsel for the parties and also as disclosed by the records, we may proceed to record finding on each of the issues raised in the above proceedings as herein. 17.
16. On consideration of the pleadings of the respective parties and submissions made by the learned Counsel for the parties and also as disclosed by the records, we may proceed to record finding on each of the issues raised in the above proceedings as herein. 17. On the validity of order dated 21.5.2005: As earlier discussed, the validity of this order was challenged in WP (C) 294 (AP) 2005 on the ground inter alia that the said order is contrary to the rules and also contrary to the conditions of the initial appointment dated 23.01.1991 and that the same order has given undue advantage to the respondents and disturbing the settled position of seniority. As appearing from the letter dated 18.5.1990 referred to in the affidavit of the respondent authorities, a requisition was sent to the State Public Service Commission for selection/regularization of 21 adhoc Assistant Engineers. It is also revealed from the records that by letter dated 31.7.1990 the State Public Service Commission had sent a list of 30 selected candidates for recruitment to the posts of Assistant Engineer (Civil) under Arunachal Pradesh Public Works Department, indicating that the names were listed in order of merit. By another letter dated 20.11.1990, the State Public Service Commission has sent an additional list of 06 APST candidates, indicating therein that their names shall come immediately below Serial No. 30 of their earlier letter dated 31.7.1990. By the impugned order dated 21.5.2005, the appointment of 26 candidates are shown to have been regularized from the date of the recommendation of the State Public Service Commission. In the affidavit of the State authorities, it is however, clarified that the names appearing against Serial Nos. 1, 5, 6, 9, 10, 16, 21, 22, 23, 25 & 26 as appearing in the impugned order dated 21.5.2005 were fresh appointees and they were included inadvertently. 18. On reading of the above said letters dated 31.7.1990 and 20.11.1990, it may be understood that the said orders do not convey that the adhoc appointees were in fact recommended for regularization. It is also clearly mentioned in the above said letters as regard the respective position of the candidates recommended in the order of merit. During the course of hearing, it has also been clarified that before issue of order dated 21.5.2005, the State Public Service Commission was not further consulted.
It is also clearly mentioned in the above said letters as regard the respective position of the candidates recommended in the order of merit. During the course of hearing, it has also been clarified that before issue of order dated 21.5.2005, the State Public Service Commission was not further consulted. It is also pointed out that the service of the adhoc appointees were in fact terminated with effect from 01.01.1991 and the adhoc service was extended up to 31.3.1991 with effect from 2.1.1991 vide order dated 18.1.1991. This particular order dated 18.1.1991 would convey that the service of the adhoc appointees was in fact terminated at one point of time before issuing of the order dated 23.1.1991. From the facts disclosed above, it may be understood that the order of regularization vide order dated 21.5.2005 is not based on the recommendation of the State Public Service Commission and if that be the case, there is a legal basis to contend that the same order would liable to be held as contrary to the Recruitment Rules. As pointed out, not less than 11 names of non-adhoc appointees were included in the said order dated 21.5.2005. While it is clarified in the affidavit of respondent authorities that such names were included inadvertently, it is also not the case that a corrigendum have been issued in this regard. It cannot be denied that order dated 21.5.2005 is erroneous and may be found fault with. Even if it is intended to give the benefit of the date of the recommendation to the non-adhoc-appointees by an executive order as well as the adhoc appointees, there is a legal basis to contend that such decision would be contrary to the recommendation of the State Public Service Commission, as the APPSC had not been consulted in that regard. The recommendations having been made by the State Public Service Commission as specifying the order of merit, giving the benefit from the date of recommendation to the adhoc appointees would not be only against the recommendation of the State Public Service Commission but also such a course of action would have the effect of disturbing the order of merit. Therefore, on the basis of the facts disclosed, order dated 21.5.2005 is not based on a decision take in accordance with the procedure adopted for recruitment. 19.
Therefore, on the basis of the facts disclosed, order dated 21.5.2005 is not based on a decision take in accordance with the procedure adopted for recruitment. 19. During the course of hearing, except the learned Counsel for the respondent No. 13, 14, 15 and 20, the Counsel for the other respondents did not make any elaborate submissions as giving a legal basis for the said order dated 21.5.2005. Mr. M. Batt, learned Counsel for the respondents mentioned earlier has submitted that the petitioners having been ultimately recommended through a selection process conducted by the State Public Service Commission, there was nothing wrong for the State authorities to appoint the selected adhoc appointees with effect from the date of recommendation as sought to be made by the impugned order dated 21.5.2005. He has placed reliance on the decisions of the Apex Court given in C.G. Raiyani (supra) and Dr. Anuradha Bodi (supra) and pointed out that the petitioners in the above cases have been regularized from the date on which the Public Service Commission had recommended their appointment. In Dr. Anuradha Bodi's case it may be noticed that the petitioners have challenged the validity of an order by which they were appointed from the date the UPSC recommended their appointment and they have claimed that they ought to have been appointed on regular basis with effect from the initial dates of appointment. The Apex Court did not accept the claim of the petitioners being appointed on regular basis from the dates of initial appointment orders appointing the petitioners but from the date of recommending their appointments by the Public Service Commission. However, a view may be taken that the Apex Court have not laid down a law that as of right the person recommended by the Public Service Commission could claim the date of appointment as with effect from the date of recommendation of the Public Service Commission. In C.G Raiyani (supra) also the claim was made for regularizing the adhoc service followed by regular appointment on the basis of selection. Incidentally, the date of regularization was given with effect from the date of selection for regular appointment. The Apex Court held that the persons claiming could not have been given the benefit of adhoc service as the appointment was made on adhoc basis without following any acceptable process of selection.
Incidentally, the date of regularization was given with effect from the date of selection for regular appointment. The Apex Court held that the persons claiming could not have been given the benefit of adhoc service as the appointment was made on adhoc basis without following any acceptable process of selection. In this case also, a view may be taken that the Apex Court did not lay down a proposition of law that a person can claim for an appointment with effect from the date of recommendation of the Public Service Commission as of right. 20. What may be inferred from the above discussions is that the State Public Service Commission did not make any specific recommendation as confined to the adhoc appointees but have rather made general recommendation listing the names of the recommended persons in the order of merit. Apparently, the cases of the adhoc appointees had not been treated differently as to give their appointment from the date of recommendation of the State Public Service Commission perhaps for the reasons that such a course would undo the merit list prepared by the Public Service Commission. No reasons are also disclosed as to why the fresh appointees as well could be appointed from the date of recommendation. Even assuming that the names of the fresh appointees are to be ultimately excluded, the appointment of adhoc appointees from the date of recommendation of the State Public Service Commission may obviously be found contrary to the recommendation of the State Public Service Commission in particular with respect of the right that may be followed from the order of merit. 21. On consideration of the different aspects of the matter, therefore, a view may be taken that there is a legal and valid basis to say that the order dated 21.5.2005 is not in conformity with Rules or not free from an element of arbitrariness.
21. On consideration of the different aspects of the matter, therefore, a view may be taken that there is a legal and valid basis to say that the order dated 21.5.2005 is not in conformity with Rules or not free from an element of arbitrariness. In regard the contention to the extent that the order dated 21.5.2005 is liable to be bad in law on the ground that order has been issued confirming the direct recruits who were initially appointed on probation for 2 years, while the 1983 Rules or 1991 Rules did not specify the conditions for confirmation or such confirmation as a basis for counting seniority, it is not found necessary to test the correctness of order dated 21.5.2005 on the grounds urged in view of a finding already recorded to hold that the same is not conformity with the Rules or not free from an element of arbitrariness. 22. On the validity of order dated 26.7.2005 : As earlier discussed, 1983 Rules would apply to the cases of the officers covered by the above said order dated 26.7.2005, although, the same order dated 26.7.2005 came to be issued after coming into force of 1991 Rules. In fact, it is obvious from the said order dated 26.7.2005 or earlier order dated 28.12.2000 that the eligibility with respect to the length of qualifying service as prescribed in 1983 Rules was taken. 1983 rules does not speak of the requirement of consulting the State Public Service Commission in the matter of promotion. However, the constitution of Departmental Promotion Committee (DPC) is clearly mentioned wherein the composition of the DPC itself has been set out in the schedule to the said Rules. 23. While Rule 5 of 1991 Rules speaks of the Governor to make an order for relaxing any of the provision of Rules for the reasons to be recorded and in consultation with the Arunachal Pradesh Selection Board/Public Service Commission, Rule 6 of 1983 Rules does not make reference as to the requirement of consulting the State Public Service Commission. As contended by the learned Counsel for the petitioners, the said Rule 6 speaks of an order relaxing any of the provision of Rules and requirement of recording the reasons in writing.
As contended by the learned Counsel for the petitioners, the said Rule 6 speaks of an order relaxing any of the provision of Rules and requirement of recording the reasons in writing. Before coming to the part of the submissions made by the learned Counsel for the petitioners to the extent that the eligibility of recruitment by promotion as sought to be made by the impugned order dated 26.7.2005 cannot be relaxed, the factual position may be ascertained. While it is pointed out by Mr. A. Apang, learned Senior Govt. Advocate that reasons have been recorded as regard to the issue of the impugned order dated 26.7.2005, it has also not been explained if a separate and independent order has been rendered as relaxing the length of qualifying service in respect of the officers mentioned in the order dated 26.7.2005 for being considered for appointment to the post of Assistant Engineer. It is also pointed out that for considering the cases of the officers mentioned in the said impugned order, no DPC was constituted for the purpose and no recommendation has been made as such by the DPC as contemplated under 1983 Rules. It is stated at the Bar that the State Public Service Commission came to be established in the year 1988. However, it may also be placed on record that for exercising the power to relax the eligibility with respect to the qualifying length of service or for regularizing the adhoc promotion of the concerned officers appearing in the impugned order, the State Public Service Commission or DPC is not shown to have been consulted. 24. The Counsel for the concerned officers benefited by the impugned order dated 26.7.2005 have submitted that it is within the competence of the Government to relax any provision of the Rules including the eligibility with respect to the qualifying length of service and it is not necessary to render any specific speaking order as long as the reasons are recorded, Rule 6 of 1983 Rules speaks of the power to relax. Order dated 26.7.2005 makes a specific mention of the specific period sought to be relaxed for the purpose of regularizing the adhoc promotion and it is amply clear that the recruitment eligibility with respect to the qualifying length of service is sought to be relaxed.
Order dated 26.7.2005 makes a specific mention of the specific period sought to be relaxed for the purpose of regularizing the adhoc promotion and it is amply clear that the recruitment eligibility with respect to the qualifying length of service is sought to be relaxed. Order dated 26.7.2005 in no way convey that the procedure of making selection for promotion is also sought to be relaxed in exercise of the powers to relax. Relaxation of eligibility condition for recruitment is one thing and the procedure adopted for considering the cases for promotion is another thing. Therefore, even if the Rule 6 is interpreted to include the powers to relax the eligibility with respect to the qualifying length of service, there is still a procedural requirement of going through DPC for selection as normally required to have proper assessment of performance and suitability etc. of the officers and in that situation, it is only reasonable to say that a separate order of relaxation be rendered and the matter be left to the DPC for proper consideration, without which the entire process of regularization can be questioned as to be arbitrary and against the constitutional scheme of public employment. 25. What may be noticed is that under the provision of 1983 Rules, the eligibility with respect to the qualifying length of service is prescribed and the same Rules also prescribed the procedure for appointment to the post of Assistant Engineer by promotion, according to which it is to be understood that there is a requirement of the cases of promotion to be considered by the DPC. In the present case, apart from the manner in which the qualifying length of service are sought to be relaxed, the impugned order dated 26.7.2005 have not been shown to have been issued as based on the recommendation of DPC and as such order dated 26.7.2005 can only be described as an order also rendered in relaxation of the legal requirement of making reference to DPC. Be that as it may, the conclusion may be drawn that the eligibility with respect to qualifying length of service and the requirement of consulting DPC are definitely conditions of recruitment. As earlier mentioned, it has been contended by the Counsel for the petitioners in the proceeding challenging the validity of the said order dated 26.7.2005, such condition of recruitment cannot be relaxed.
As earlier mentioned, it has been contended by the Counsel for the petitioners in the proceeding challenging the validity of the said order dated 26.7.2005, such condition of recruitment cannot be relaxed. In this connection, making reference to the decisions of the Apex Court in [Keshav Chandra Joshi and Ors. v. Union of India and Ors.) [Suraj Prakash Gupta and Ors. v. J & K and Ors.] Dr. Anuradha Bodi and Ors. v. Municipal Corporation of Delhi and Ors.) 1993 Suppl. (3) SCC 575 [Syed Khalid Rizvi v. Union of India) and the decisions of this Court as reported in 2003 (2) GLT 78 [Ananda Ram Borah and Ors. v. State of Assam and Ors.] and 2004 (1) GLT 308 [M. Laitphlang (Dr.) (MS) and Ors. State of Meghalaya and Ors.], the contention of the petitioners has to be accepted and to take a view that the impugned order dated 26.7.2005 is bad in law. 26. As regards the submission of Mr. R. Saikia that retrospective promotion can be made and that there is no illegality in giving the benefit of adhoc promotion to the concerned respondents and for which a reliance has been placed on the decisions of the Apex Court in Suraj Prakash Gupta (supra), Narendra Chandha (supra) and Pratap Narain (supra). Such submission may be answered as not acceptable in view of the finding that the order dated 26.7.2005 is liable to be held as bad in law for the reasons already discussed. In any view of the matter, it may be observed that the above said decisions cannot be applied to the facts of the present case, as also observed by the Apex Court in Suraj Prakash Gupta case that Narendra Chandha case, which was applied in Pratap Narain case, must be treated as an exception. Suraj Prakash Gupta (supra), in support of justifying retrospective promotion may be said to have no application to the facts of the present case in view of the finding that the retrospective promotion given to the concerned respondents is not in accordance with the Rules. As for the submission Mr.
Suraj Prakash Gupta (supra), in support of justifying retrospective promotion may be said to have no application to the facts of the present case in view of the finding that the retrospective promotion given to the concerned respondents is not in accordance with the Rules. As for the submission Mr. R.H. Nabam on the question of relaxation of the requirement of the Rules, as based on the decision of this Court in Lalmuanzova case, it may be noted that the facts are distinguishable and, a view may be taken that as a matter of law the said decision cannot be applied to the facts of the present case. 27. The validity of the said order dated 26.7.2005 is also sought to be challenged that the same is otherwise bad in law as the same has the effect of nullifying the judgment and order dated 2.5.2002 passed by this Court in WP (C) 833 (AP) 2001. It is not disputed that the said judgment and order dated 2.5.2002 has attained finality and the same had also been acted upon by passing further order dated 4.7.2002. The persons affected by the said order dated 4.7.2002 have also not challenged the validity of the same and therefore, it must be understood that the said order was accepted by them. The impugned order dated 26.7.2005 has the effect of undoubtedly nullifying the judgment and order dated 2.5.2002. As submitted in support of the petitioners in this proceeding dealing with the validity of the order dated 26.7.2005, making a reference to the decision of the Apex Court in S.R. Bagwat (supra), it can be held that the impugned order dated 26.7.2005 is also to be held bad in law. 28. On the validity of seniority list dated 19.8.2005: It is revealed that the names of promote-respondents in WP (C) 508 (AP) 2005 and WP (C) 526 (AP) 2005 have not been reflected in the final seniority list of Assistant Engineer (Civil) in P.W.D. as on 01.03.1999. Their names came to be reflected in the provisional seniority list as published vide order dated 27.9.2001. Apparently, the said seniority list with respect to 02 officers impleaded as respondents No. 4 and 5 in WP(C) 833 (AP) 2001 came to be challenged and consequently the passing of judgment and order dated 2.5.2002.
Their names came to be reflected in the provisional seniority list as published vide order dated 27.9.2001. Apparently, the said seniority list with respect to 02 officers impleaded as respondents No. 4 and 5 in WP(C) 833 (AP) 2001 came to be challenged and consequently the passing of judgment and order dated 2.5.2002. It is also revealed that a further provisional inter-se-seniority list of Assistant Engineers as on 31.7.2004 was calculated vide letter dated 18.8.2004. It is also placed on record that direct recruits have made representations against the said provisional seniority list of 2004. It has been pointed out that a screening committee was constituted vide order dated 24.11.2004 and the said screening committee had held its proceeding on 11.01.2005. Apparently, on consideration of representations submitted by the Assistant Engineers through the screening committee, the final seniority list of Assistant Engineer (Civil) in P.W.D. of the State was approved and the same was published vide O.M. dated 19.8.2005, the validity of which has been challenged by the direct appointees- petitioners. On having gone through the said seniority list dated 19.8.2005, although order dated 28.12.2000 has been quashed to the extent that the retrospective promotion given to the respondents No. 4 and 5 with effect from 10.7.1989 and 25.7.1989, the same dates are reflected in the seniority list dated 19.8.2005. What appears from the reading of the proceedings of the screening committee, a view was taken that the provisional seniority list published vide letter dated 18.8.2004 is found to be in conformity with judgment and order dated 2.5.2002 and there is no deviation from the prescribed quota/rules against the recruitment years. Contention has been raised on behalf of the promotees-respondents that even going by order dated 28.12.2000, read with order dated 4.7.2002, the direct recruits-petitioners would have no basis to complain against the placement of their names in the impugned seniority list as the principles of seniority based on rotation as adopted by the State of Arunachal Pradesh has to be applied and was in fact applied. 29. Contention that has been raised on behalf of the direct recruit-petitioners that the promotees-respondents having not been promoted in accordance with the rules, they cannot have any legal basis for claiming their seniority over the direct recruit-appointees-petitioners.
29. Contention that has been raised on behalf of the direct recruit-petitioners that the promotees-respondents having not been promoted in accordance with the rules, they cannot have any legal basis for claiming their seniority over the direct recruit-appointees-petitioners. At this point of time, if order dated 26.7.2005 cannot be treated as having any legal force, though there is also a contention that order dated 28.12.2000 also ceases to operate, a view may be taken that there only one order on the strength of which the promotees-respondents can claim to have been appointed regularly to the post of Assistant Engineer by promotion. As earlier mentioned the order dated 28.12.2000 has to be read with order dated 4.7.2002. The contention raised on behalf of the promotees-respondents as above may have to be examined along with the contention that has been raised on behalf of the direct recruits-petitioners to the extent that the promotees-respondents could not have a legal basis to claim their seniority as reflected in the impugned seniority list dated 19.8.2005. 30. It is not controverted that the principles of seniority laid down in O.M. dated 3.7.1986 are applied in the State with respect to the determination of inter-se-seniority of direct recruits and promotees. Whether these principles are to be applied to the present facts of the case, it may require further examination. As a matter of proper legal premises, such principles are to be applied when the appointment of direct recruits and promotees are made in accordance with the rules or norms that may be found to be in conformity with the constitutional scheme of public employment. In the present case, there is no dispute that the direct recruits-petitioners have been appointed on the basis of the recommendation of the State Public Service Commission. Although it may be taken that the validity of orders dated 28.12.2000 and 4.7.2002 is not under the scrutiny in this proceeding, it is considered necessary to examine that if the promotees-respondents have any legal foundation for claiming seniority on the strength of the above said orders. Order dated 28.12.2000 does not at all convey that the adhoc promotion was regularized on the basis of the recommendation of DPC.
Order dated 28.12.2000 does not at all convey that the adhoc promotion was regularized on the basis of the recommendation of DPC. No contention has been raised or materials have placed to the extent that the order of regularization was in fact based on the procedure of referring the matter to the DPC as contemplated in terms of 1983 Rules or 1991 Rules. Therefore, a conclusion has to be drawn that the regularization of the adhoc promotion made vide order dated 28.12.2000 has not been made in accordance with the provision of the relevant Recruitment Rules and as such, the contention of the direct recruits-petitioners to the extent that the promotees-respondents could not have a legal basis for claiming their seniority over the direct recruits appointed in 1991 merits consideration. It may be noted that the present order dated 28.12.2000 came to be issued after almost 10 years of appointment of direct-recruits and the said order dated 28.12.2000 has the effect of giving retrospective promotion to the promotees-respondent. As a matter of legal proposition, while retrospective promotion can be given as earlier discussed, it is also equally true that such promotion has to be made in accordance with the relevant Recruitment Rules. That is to say, the cases for promotion is required to be considered in consultation with the State Public Service Commission or DPC as the case may be. In both the 1983 Rules and 1991 Rules, there is a requirement of referring the matter to DPC. Taking a view that it is contemplated under the Rules that regular promotion can be made in consultation with DPC and that such requirement has not been complied with in the present case, referring to the decisions of the Apex Court in Suraj Prakash Gupta (supra), it has to be held that the regularization of the service of promotees-respondents cannot be said to be according to the Rules even if such regularization has been made to be within the promotion quota as there is still a requirement of considering eligibility and suitability etc. by DPC. 31.
by DPC. 31. Question may therefore be raised, though the validity of the order dated 28.12.2000 read with order dated 4.7.2002 has not been challenged in the present proceeding, whether the finding discussed as above can be made a basis for testing the correctness of the seniority list dated 19.8.2005 and to hold that the promotees-respondents could not have a legitimate claim of seniority over the direct recruits-petitioners. In this connection, a reference may be made to the decision of this Court as reported in 2004 (3) GLT 517 [Bibekananda Das and Ors. v. State of Assam and Ors.). In this case, similar question has been formulated as to whether seniority of an appointee to a service can be changed without interference with his appointment when seniority of such appointee is changed on the ground that the appointment of the person, who is treated as senior is in violation of the relevant Recruitment Rules and where the appointment of one who seeks seniority is in accordance with the relevant Recruitment Rules. Referring to the decisions of the Apex Court in Sukanti Mahapatra (supra) and Rafiquddin (supra) this Court held that even when, on account of lapse of a long period, appointment made to a service in breach of the relevant Recruitment Rules is not set aside and quashed, such irregular appointee shall not be allowed to steal a march over the regular appointees. In the present case, the order of regularizing adhoc promotion came to be issued with retrospective effect vide order dated 28.12.2000 and it has certainly resulted in the promotees becoming the senior to the direct recruits although this was rectified vide judgment and order dated 2.5.2002. However, the contention of the direct recruit-petitioners to the extent that such retrospective promotion in resulting promotees to become senior to the direct recruit is not permissible, as founded in the decision in the Apex Court in Akhouri Sachindra Nath (supra), is required to be appreciated. In the present case, it has to be held that the regularization of adhoc service of promotees-respondents vide order dated 28.12.2000 cannot said to be in accordance with the rules and as such the same order cannot constitute a valid legal basis to count their seniority and be placed above the direct recruits who have been appointed almost 10 years before the order of regularization.
Order dated 28.12.2000 is an executive order and taking a view that the same order is in violation of the Recruitment Rules, the contention of the direct recruits-petitioners may be found to be supported by the decisions of the Apex Court as reported in Uday Pratap Singh (supra) and Govind Prasad (supra). In light of what is discussed above, a view may be taken that the impugned seniority list dated 19.8.2005 is not supported by a valid legal basis and the same suffers from legal infirmities of depriving the claim of direct recruits-petitioners as to the seniority based on right flowing from the order of appointment issued in terms of the Recruitment Rules. 32. Apart from what is discussed above, taking a view that order dated 28.12.2000 has not been rendered in accordance with the Rules, for the reasons already stated earlier, a conclusion may also be drawn that the principles of seniority with respect to the rotation of promotee-direct-recruit required to O.M. dated 3.7.1986 cannot be applied to the present case and therefore to say that the application of such principles to the facts of the present case is liable to be held to arbitrary and unfair. 33. In view of the reasons as discussed above and the findings recorded thereon, I am to hold that the impugned orders dated 21.5.2005 and 26.7.2005 are contrary to the Rules and are found not free from element of arbitrariness as standing the test of Articles 14 and 16 of the Constitution and as such, the same are liable to be set aside. For the reasons as discussed above and the findings recorded therein, I also hold that the impugned seniority list dated 19.8.2005 suffers from legal infirmities as contrary to the Rules and Articles 14 and 16 of the Constitution of India. 34. Accordingly, the writ petitions wherein the validity of the aforesaid orders dated 21.5.2005, 26.7.2005 and seniority list dated 19.8.2005 has been challenged are also allowed. Consequently, it is only considered fair and just that respondent-authorities shall proceed with such further steps as recasting the inter-se-seniority of the officers in the grade of Assistant Engineer and/or taking such further action in accordance with law, as may be considered fit and proper in the interest of justice.