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2008 DIGILAW 30 (GAU)

State of Arunachal Pradesh v. K. K. Hazarika

2008-01-10

HRISHIKESH ROY, ZELRE ANGAMI

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. R.H. Nabam, learned Senior Govt. Advocate appearing for the appellants/respondents. Also heard Mr. T. Pertin, learned Counsel, representing the sole respondent/writ petitioner. 2. The present writ appeal has been filed to challenge the order dated 23.06.2005 passed in W.P.(C) No. 324 (AP) 2005, allowing the writ petition filed by the respondent/writ petitioner. 3. The writ petition was filed by the petitioner, who at the relevant time was posted as Assistant Engineer in the Rural Works Department (RWD), seeking a direction for his promotion to the post of Executive Engineer in terms of the Executive Engineer (Civil) Recruitment Rules, 1998 (hereinafter referred to as "the 1998 Rules"). It was contended that the writ petitioner, who is an Engineering Diploma Holder, was promoted as Assistant Engineer on 26.05.1996 and in terms of the 1998 Rules, the writ petitioner having completed 8 years of regular service in the cadre of Assistant Engineer, was eligible for promotion to the post of Executive Engineer. 4. It maybe noted that in the Departmental Promotion Committee (DPC) meeting held on 24.05.2005, the cases of promotion from Assistant Engineer to Executive Engineer of the RWD were taken up and the petitioner was denied consideration for promotion in the said DPC meeting on the ground that he had not completed 10 years of service which however was not the qualifying length of service prescribed under the 1998 Rules. The 1998 Rules had prescribed 8 years of qualifying service as Assistant Engineer in respect of both diploma as well as degree holders. However, by Government order issued on 01.08.2002, the qualifying service for diploma holders Assistant Engineers was raised to 10 years and for engineering graduates 8 years regular service as earlier prescribed under the 1998 Rules was kept as it is, for being eligible for promotion to the Executive Engineers posts. 5. The Government order dated 01.08.2002 prescribing 10 years qualifying service for diploma holder, however was not incorporated in the 1998 Rules at the relevant point of time when consideration of cases for promotion were being made. The said changes were incorporated in the Recruitment Rules only with effect from 05.07.2005, when the amendments to the 1998 Rules were effected by the Recruitment to the posts of Executive Engineer (Civil) (First Amendment) Rules, 2005, which made the following change in the 1998 Rules: 1... 2. The said changes were incorporated in the Recruitment Rules only with effect from 05.07.2005, when the amendments to the 1998 Rules were effected by the Recruitment to the posts of Executive Engineer (Civil) (First Amendment) Rules, 2005, which made the following change in the 1998 Rules: 1... 2. Column 12: (1) Promotion from Assistant Engineer (Civil) of the Department having 8 (eight) years of regular service in the grade in case of Degree Holders and 10 (ten) years of regular service in case of Diploma holders. 6. The only submission made on behalf of the appellants/State by Mr. R.H. Nabam, learned Sr. Govt. Advocate is that by virtue of the Government order dated 01.08.2002, the 1998 Rules is to be construed to have been amended and only such diploma holding Assistant Engineers who completed 10 years of regular service, should be considered as eligible for promotion to the post of Assistant Engineer. It is further submitted that since the DPC dated 24.05.2005 was held after the Government order dated 01.08.2002, fulfilling of 10 years qualifying service for Diploma holders became mandatory after 01.08.2002 and as because on 24.05.2002, the respondent/writ petitioner had not completed the 10 years qualifying service, his case was rightly not considered for promotion. 7. Countering the arguments advanced by the appellants, it is submitted by Mr. T. Pertin, learned Counsel appearing for the sole respondent/writ petitioner that without appropriate amendment of the 1998 Rules, the Government order dated 01.08.2002 cannot be construed to be legally operational and having any affect on the 1998 Rules and the amendment to the Rules, carried out should operate only prospectively with effect from 05.07.2005, when the amendment Rules were notified in the Official Gazette. 8. In support of the aforesaid submissions, Mr. T. Pertin, learned Counsel has referred to the decisions of the Hon'ble Supreme Court reported in [1987] 1 SCR 1054, B.K. Srinivasan and Anr. v. State of Karnataka and Ors. In B.K. Srinivasan (supra), the Hon'ble Supreme Court has laid down the law on the point as under: 15. There can be no doubt about the proposition that where a law whether Parliamentary or Subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. There can be no doubt about the proposition that where a law whether Parliamentary or Subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking as abide by law or from the standpoint of Justice Holmes's 'Unconscientious bad man' seeking to avoid the law, law must be known that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, A Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute are not. It will then take effect from the date of such publication or promulgation. 9. The decision of the Hon'ble Supreme Court reported in (1998) 9 SCC 223 in the case of B.L. Gupta and Anr. v. M.C.D. has also been cited to show that the vacancies which accrued prior to amendment of the Rules carried out with effect from 05.07.2005, have to be filed up on the basis of the unamended 1998 Rules, which prescribes only 8 years of regular service for being considered eligible for promotion to the post of Executive Engineer. 10. The learned Counsel also submits that the respondent/writ petitioner has since been given promotion during the pendency of the present writ appeal and the only subsisting grievance is that the said promotion was not given in May 2005 when the DPC met for considering promotions. It is submitted that vacancies for non-APST categories were then available as per the reservation roster and accordingly the respondent/writ petitioner, who is on the verge of retirement has lost the opportunity of serving in a higher grade for a longer period. It is submitted that vacancies for non-APST categories were then available as per the reservation roster and accordingly the respondent/writ petitioner, who is on the verge of retirement has lost the opportunity of serving in a higher grade for a longer period. It is also submitted that his juniors in service have stolen a march of the writ petitioner because of denial of promotion to him at the appropriate time, when it was due. 11. In the present case the reason why the writ petitioner was denied promotion by the DPC which met on 24.05.2005 was because the writ petitioner had not completed the 10 years qualifying service prescribed for diploma holders by the Government order dated 01.08.2002. But the 1998 Rules were not amended and the Rules prescribed 8 years qualifying service without making any distinction between diploma or degree holders. This is the reason why the learned Single Judge set aside the decision taken by the DPC on 24.05.2005 with regard to the writ petitioner and directed that consideration of the petitioner's case for promotion be made. In our view, no interference is called for with the impugned decision, since the learned Single Judge had concluded that the rejection of the legitimate claims of the writ petitioner for promotion to the post of Executive Engineer has been wrongly made on the ground of non-completion of 10 years of regular service in the cadre of Assistant Engineer. The above view is also in consonance with the law laid down by the Supreme Court in B.K. Srinivasan (supra) and B.L. Gupta (supra) cited on behalf of the respondent. 12. Since the writ petitioner's case for promotion was wrongly denied at the appropriate time and since the writ petitioner has been given belated promotion, we deem it appropriate to direct holding of review DPC for giving retrospective effect to the promotion of the writ petitioner with effect from an earlier date when promotions were given to other eligible Assistant Engineers to the post of Executive Engineer, on the basis of the recommendation of the DPC, which met on 24.05.2005. 13. Considering the injustice, done to the writ petitioner and the denial of promotion to him in due time, the appropriate review considerations be expeditiously made within a period of 3 (three) months from the date of receipt of a copy of this Court's order. 13. Considering the injustice, done to the writ petitioner and the denial of promotion to him in due time, the appropriate review considerations be expeditiously made within a period of 3 (three) months from the date of receipt of a copy of this Court's order. The impugned judgment dated 23.06.2005 is accordingly upheld and this Writ Appeal is disposed of in terms of the aforesaid order.