Rajiv Gandhi University v. Parimal Kumar Chakraborty
2009-04-29
I.A.ANSARI, P.K.MUSAHARY
body2009
DigiLaw.ai
JUDGMENT I.A. Ansari, J. 1. Heard Mr. A. Mannan, learned Counsel for the appellants, and Mr. B.C. Das, learned senior Counsel, appearing on behalf of the respondent. 2. The material facts, giving rise to the present appeal, may, in brief, be set out as under: (i) The respondent herein, a diploma holder, received an offer of appointment to the post of Junior Engineer (Civil), Public Works Department, Government of Arunachal Pradesh, on 8.9.1982. As the respondent submitted his joining report on 8.9.1982, an order was issued, on 13.5.1986, showing his date of appointment with effect from 1.10.1982. Consequent upon selection for appointment, on deputation, to the post of Assistant Engineer (Civil), Arunachal University, restyled as Rajiv Gandhi University, the Chief Engineer, Public Works Department, Zone-1, Government of Arunachal Pradesh, released, vide order, dated 7.5.1993, the respondent, with effect from 7.5.1993, so as to enable the petitioner report to the Registrar, Rajiv Gandhi University, for further duties. Thereafter, by an order, dated 14.5.1993, issued by the appellant University, the respondent was appointed, on deputation, as Assistant Engineer (Civil), in the said University, with effect from 10.5.1993. Having continued to serve, as Assistant Engineer (Civil), under the said University, the respondent was absorbed, vide order, dated 10.9.1998, as Assistant Engineer (Civil), by the said University, with effect from 1.5.1998. The respondent made representation, on 7.8.2003, to the Registrar, Rajiv Gandhi University, seeking promotion, as Executive Engineer, on the ground that he had completed more than 10 years of service, as Assistant Engineer (Civil), in the said University and the qualifying period of service for promotion to the post of Executive Engineer from the post of Assistant Engineer, in respect of a diploma holder, is ten years of regular service in the grade of Assistant Engineer. By its letter, dated 13.11.2003, the appellant University informed the respondent that since he had not completed 10 years of regular service as Assistant Engineer (Civil), his case could not be considered for promotion to the post of Executive Engineer.
By its letter, dated 13.11.2003, the appellant University informed the respondent that since he had not completed 10 years of regular service as Assistant Engineer (Civil), his case could not be considered for promotion to the post of Executive Engineer. (ii) As the respondent did not receive the promotion, which he had sought for, ho filed, as petitioner, a writ petition, under Article 226 of the Constitution of India, which gave rise to WP(C) No. 322 (AP)/2006, seeking issuance or appropriate writ(s) directing the Arunachal University to treat him as absorbed with effect from 10.5.1993, i.e., the date on which he had joined the University, on deputation, as Assistant Engineer (Civil), and also to recon the period of his duties, on deputation, as regular period of service so that the period spent, on deputation, by him as an Assistant Engineer, could be counted towards computing the requisite period of service for the purpose of promotion to the post of Executive Engineer (Civil). 3. The appellant herein resisted the writ petition by contending, inter alia, that the writ petitioner, had been absorbed with effect from 1.5.1998, the order of absorption was passed as far back as on 10.9.1998, the respondent had never objected to his absorption with effect from 1.5.1998, until the time the question of his promotion had arisen, his such belated claim may not be entertained. It was further contended by the appellant University that promotion to the post of Executive Engineer requires 10 years of regular service in the post of Assistant Engineer (Civil) in the appellant University and since, according to the appellant University, the respondent had not completed 10 years of regular service in the grade of Assistant Engineer (Civil), with effect from the date of his absorption, i.e., 1.5.1998, the respondent was not eligible for consideration for promotion. 4. By judgment and order, dated 31.7.2007, a learned Single Judge of this Court has declined to interfere with the order, dated 10.5.1998, whereby the respondent was absorbed, with effect from 1.5.1998 as Assistant Engineer (Civil), by the said University.
4. By judgment and order, dated 31.7.2007, a learned Single Judge of this Court has declined to interfere with the order, dated 10.5.1998, whereby the respondent was absorbed, with effect from 1.5.1998 as Assistant Engineer (Civil), by the said University. Having, thus, held that the appellant's absorption, with effect from 1.5.1998, cannot be interfered with, the learned Single Judge, however, held that the petitioner had completed 10 years of service, in the grade of Assistant Engineer (Civil), by reckoning the period, with effect from 10.5.1993, and, hence, he was eligible for promotion to the post of Executive Engineer. The appellant University has accordingly been ordered to consider the respondent's case for promotion to the post of Executive Engineer (Civil). Aggrieved by the direction, so given, the University has preferred this appeal. 5. Before proceeding further, it may be pointed out that the respondent-writ petitioner has not challenged learned Single Judge's direction that the respondent-writ petitioner's absorption, with effect from 1.5.1998, by order, dated 10.9.1998, cannot be interfered with. We are, therefore, required to determine whether the period of service, which the respondent had rendered between 10.5.1993 [i.e., the date of appointment of the respondent, on deputation, as Assistant Engineer (Civil), in the University concerned], until the time the appellant was absorbed by order, dated 10.9.1998, with effect from 1.5.1998, shall or shall not be counted for the purpose of determining the period of regular service, which is required, under the relevant Recruitment rule, as the qualifying period of service for the purpose of promotion to the post of Executive Engineer from the post of Assistant Engineer (Civil) for a person, who does not hold a degree but a diploma. 6. While considering the present appeal, it is worth pointing out that though a person, in service in a given Department, may have been absorbed, in the borrowed Department, with effect from a date later than the date of his joining the borrowed Department, on deputation, the period of service, which such a person spends, on deputation, in the borrowed Department, is required to be counted, as regular service, in the post in which he served on deputation. The only circumstance, where such a period, spent on deputation, cannot be counted is, when the person is appointed, in the borrowed Department, on ad hoc or temporary basis.
The only circumstance, where such a period, spent on deputation, cannot be counted is, when the person is appointed, in the borrowed Department, on ad hoc or temporary basis. The reference, in this regard, may be made to the case of K. Madhavan and Anr. v. Union of India and Ors. (1987) 4 SCC 566 , wherein the Apex Court observed, while considering the similar question, as under: 10. The Rule 1975 rules which are relevant for the purpose do not explain what is meant by the expression on a regular basis. The expression has created some ambiguity in the eligibility Clause giving rise to this controversy. There can be no doubt that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on a regular basis, but when a person is appointed to a post on a purely temporary or on an ad hoc basis, the appointment is not on a regular basis. The expression 'on a regular basis' in the 1975 Rules cannot, in our opinion, be interpreted to mean as on absorption in the CBI as SR The general principle is that in the absence of any specific provision to the contrary, the length of service from the date of appointment to a post should be taken into consideration for the purpose of either seniority in that post or eligibility for the higher post. As no explanation has been given in the 1975 Rules of the said expression, we do not think it desirable to deviate from the established principle of computing the length of service for the period of seniority or eligibility for the higher post from the date of appointment. In our view, therefore, the expression 'on a regular basis' would mean the appointment to the post on a regular basis in contradiction to appointment on ad hoc or stopgap or purely temporary basis. 7. What transpires from the above observations, made in K. Madhavan (supra), is that unless a regularly appointed Government employee is appointed, on ad hoc basis or on purely temporary basis, on deputation, in the borrowed Department, the period, which he spends, on deputation, is required to be counted as a period of regular service for the purpose of determining his qualifying period of service to promotional post(s).
In the present case, the respondent was, admittedly, appointed, on deputation, with effect from 10.5.1993, as an Assistant Engineer (Civil) by the appellant University. On his absorption, with effect from 1.10.1998, he became a regular employee of the University, with effect from 1.5.1998. This does not mean that the period of service, which the respondent had rendered between 10.5.1993 and 1.5.1998, on deputation, would evaporate or become non-existent or that the said period would not be treated as his period of regular service, in the post of Assistant Engineer (Civil), in the appellant University, for the purpose of computing the qualifying period of service for promotion to the post of Executive Engineer in the said University, for, even when the respondent had been serving, on deputation, without being absorbed, in the appellant University, his service was regular and, hence, notwithstanding the fact that he stands absorbed, with effect from 1.5.1998, the fact remains that while computing the requisite period of service for the purpose of promotion, his service has to be counted with effect from 1.5.1993 and not with effect from 1.5.1998 as has been contended by the appellant University. Considered from this angle, it becomes clear that the learned Single Judge was not incorrect in coming to the conclusion that the appellant's qualifying period of service shall be counted, with effect from 1.5.1993, for the purpose of considering him for promotion to the post of Executive Engineer. As we find no infirmity in the conclusion, so reached by the learned Single Judge, we see no reason to interfere with the directions given, in the writ petition, to the appellant University to consider the respondent-petitioner's case for promotion to the post of Executive Engineer in accordance with law. We are, however, of the further view that the respondent-petitioner's case for promotion shall be considered by the appellant University within a period of three months from today. 8. Because of what have been discussed and pointed out above, we do not find any merit in this appeal. The appeal, therefore, fails and the same shall accordingly stand dismissed with direction that respondent-petitioner's case for promotion shall be considered by the appellant University within a period of three months from today. 9. No order as to costs. Appeal dismissed.