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2009 DIGILAW 383 (GAU)

Ruchu Niji v. State of Arunachal Pradesh

2009-06-04

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. D. Boje, learned Counsel for the Petitioners. Also heard Ms. G. Deka, learned Addl. Senior Government Advocate, for State-Respondents and Mr. A. Bhattacharjee, learned Counsel appearing for Respondent No. 4. 2. This petition has been presented under Article 226 of the Constitution of India for setting aside and quashing the impugned provisional seniority list dated 30.04.2004 prepared and issued by the Superintending Engineer (E), APEC-I, Circle No. 1, Naharlagun, Department of Power, vide O.M. No. SE/APEC-I/JE (E)/01/04-05/504-23 dated 13.05.2004 in respect of Junior Engineers (E)/Mech./E and Computer Science as on 30.04.2004. 3. The pleadings of the Petitioners are that an advertisement was issued by the Superintending Engineer (Coord.), APEC-I, Naharlagun, on 21.01.1997 for filling-up Group-C posts including 7 Nos. of Junior Engineer (E). Pursuant to the aforesaid advertisement, the Petitioners and Respondent No. 4 applied for the said post. After the interview was conducted, select list was prepared and published vide Memorandum dated 20.05.1997 (Annexure-A-1 to the petition). In the said select list, the private Respondent No. 4 found place at serial No. 1 while the Petitioners were placed at serial Nos. 2, 3 and 4. The Respondent No. 4, as he reportedly accepted some assignment in another department namely the Irrigation and Flood Control Department, did not join the post of Junior Engineer (E) in the Department of Power. The Petitioners 1, 2 and 3 joined their duties as Junior Engineer (M) on 27.08.1997, 24.07.1997 and 21.07.1997 respectively. The name of Respondent No. 4 was deleted from the said select list of 20.05.1997 and a combined merit list of 29 candidates was prepared and published by the Respondent No. 3 viz. Superintending Engineer (Coord.), Department of Power, Naharlagun, on 12.07.1997 placing the names of Petitioners 1, 2 and 3 at serial Nos. 1, 3 and 6 respectively. However, the Respondent No. 4 was appointed as Junior Engineer (M) vide Memorandum under No. SE/APEC-I/E/S-6(c)/4/97-98/165-71 dated 15.04.1998 by the aforesaid Respondent No. 3, namely, Superintending Engineer (Coord.), Department of Power, Naharlagun, and he joined his service on 17.08.1998. 4. Mr. 1, 3 and 6 respectively. However, the Respondent No. 4 was appointed as Junior Engineer (M) vide Memorandum under No. SE/APEC-I/E/S-6(c)/4/97-98/165-71 dated 15.04.1998 by the aforesaid Respondent No. 3, namely, Superintending Engineer (Coord.), Department of Power, Naharlagun, and he joined his service on 17.08.1998. 4. Mr. D. Boje, learned Counsel for the Petitioners submits that once the Respondent No. 4 joined in the Department of Irrigation and Flood Control and preferred not to accept the assignment under the Department of Power, he could not have been appointed on 15.04.1998 long after the period from the date of his selection to the said post of Junior Engineer (Mech.) under the Department of Power. Even after appointment on 15.04.1998, the Respondent No. 4 joined only on 17.08.1998 i.e. after expiry of one year from the date of selection on 20.05.1997. The Respondent authorities have committed grave illegality in appointing private Respondent No. 4 and allowing him to join after a lapse of one year from the date of his selection. 5. The further plea of the Petitioners is that while preferring the draft gradation list of Junior Engineers as on 30.04.2004, the name of private Respondent No. 4 has been shown at serial No. 241 while the Petitioners' names have been shown at serial Nos. 244, 246 and 249 respectively. Against column-5 of the aforesaid draft gradation list, in respect of Respondent No. 4, his date of joining has been shown as on 17.08.1998 and in respect of Petitioners 1, 2 and 3, the dates of their joining have been shown as on 27.08.1997, 24.07.1997 and 21.07.1997 respectively. The aforesaid dates of joining are correct but the Respondent authorities have wrongly put the name of the Respondent No. 4 much ahead of the Petitioners although he joined in the post almost one year after the joining of Petitioners. The Petitioners approached the Respondent authorities particularly, Respondent No. 3, from time to time, for correction of the aforesaid draft gradation list and placing the Petitioners in their correct positions i.e. above the private Respondent No. 4 but the same were not responded at all by the concerned authority. Having no other alternative remedy, the Petitioners have approached this Court for cancellation and setting aside the aforesaid draft gradation list. 6. Mr. Having no other alternative remedy, the Petitioners have approached this Court for cancellation and setting aside the aforesaid draft gradation list. 6. Mr. Boje, learned Counsel for the Petitioners, further submits that as per provision under Rule 27(2)(b) of Arunachal Pradesh Power Engineering Service Rules, 1993, the direct recruits should be assigned seniority from the date of their respective appointments with due regard to their positions in the merit list as obtained in the competitive examination. Applying this provision, the date of appointment is to be taken into consideration and even if the date of appointment of Respondent No. 4 is accepted as on 15.04.1998, his position cannot be placed above the present Petitioners and such fixation of wrong seniority must be corrected. 7. Based on the averments made in paragraph-7 of the counter filed by the State Respondents, Ms. G. Deka, learned Addl. Senior Government Advocate, submits that the offer of appointment to Respondent No. 4 was made within the normal validity period of one year and there was nothing wrong in appointing Respondent No. 4 alongwith 5 other selected candidates. Based on paragraph-9 of the said counter, she also submits that the provisional seniority list of Junior Engineers as on 30.04.2004 was published and widely circulated to all concerned asking for filing claims and objections within 60 days. It is categorically stated that no claims and objections whatsoever have been received by the Respondents from the Petitioners in question within this stipulated time period. Moreover, subsequently, another provisional seniority list of Junior Engineers, as on 30.09.2008, in the Department of Power was also issued and circulated vide Memorandum No. SE/APEC-I/Coord/JE(E)/01/08-09/3438-45 dated 29.10.2008 and the Petitioners are well aware of this provisional seniority list of 2008. 8. Ms. G. Deka, learned Addl. Senior Government Advocate submits that the Respondents received a representation dated 25.04.2007 from the Petitioner No. 1 Sri Ruchu Niji claiming for review of inter-se-seniority of Junior Engineers as on 30.04.2004. The said representation of Petitioner No. 1 was considered and disposed of vide letter No. SE/APEC-I/Coord/JE(E)/ 01/08-09/1747-49 dated 22.07.2008 (Annexure-XII to the counter affidavit). The said representation was rejected on the ground that the claim and objection was filed beyond the prescribed period of 60 days from the date of publication/circulation of the provisional seniority list of dated 30.04.2004. The Petitioners, according to Ms. Deka, learned Addl. The said representation was rejected on the ground that the claim and objection was filed beyond the prescribed period of 60 days from the date of publication/circulation of the provisional seniority list of dated 30.04.2004. The Petitioners, according to Ms. Deka, learned Addl. Senior Government Advocate, have not filed any claim and objection to the seniority list of Junior Engineers of 2008. However, she has no instruction as to whether the provisional seniority list of 2008 aforesaid has been finalized by the Respondents or not. 9. I have considered the submissions made by the learned Counsel for the Petitioners and also the materials placed by them along with their pleadings. From the pleadings, it is found that the merit position of the Petitioners and Respondent No. 4 as per select list dated 20.05.1997 is not disputed. The respective dates of joining of the Petitioners are also not disputed. What is disputed is that the Respondent No. 4 has been appointed just before the expiry period of the aforesaid merit list and also that he was allowed to join on 17.08.1998 i.e. after the expiry of the validity of the said merit list which is unauthorized and illegal. The seniority position given to the Respondent No. 4 is in serious dispute inasmuch as his date of joining has been recorded as on 17.08.1998 whereas his position in the seniority list has been placed at serial No. 241 and the positions of the Petitioners 1, 2 and 3, in the aforesaid seniority list, have been placed at serial Nos. 244, 246 and 249 respectively. The Petitioners have been raising serious objection to such fixation of seniority giving the Respondent No. 4, seniority over the Petitioners, even before publication/circulation of the aforesaid draft gradation list on 13.05.2004. The Petitioners contend that they are not aware of the circulation of the second draft gradation list of Junior Engineers in 2008 and they have not received any communication to that effect till this date. The Respondent authorities have not also annexed a copy of the aforesaid draft gradation list of 2008 to the counter affidavit. They have simply made averments to that effect without furnishing the copy of such seniority list. The Respondent authorities have not also annexed a copy of the aforesaid draft gradation list of 2008 to the counter affidavit. They have simply made averments to that effect without furnishing the copy of such seniority list. At the time of hearing also, the State Respondents have not produced the relevant records in order to show that the draft gradation list of 2008 was in fact circulated and the same was furnished to the Petitioners asking them to file claims and objections, if any. 10. Since the Respondent authorities, as claimed by them, have prepared and circulated draft gradation list of Junior Engineers of 2008 and no record has been shown that the Petitioners have been furnished with copy of such draft gradation list, it is deemed fit and proper to dispose of this writ petition with a direction to the Respondent authorities to furnish copy of the draft gradation list of Junior Engineers of 2008 to the Petitioners so as to enable them to make appropriate representation(s) before the concerned Respondent authorities and on receipt of such representation(s), the Respondent authorities shall examine, consider and dispose of the same by a speaking order. Be it made clear that the Respondent authorities shall furnish copies of draft gradation list of 2008 to the present Petitioners through their counsel within 15(fifteen) days from today and the Petitioners shall submit representation(s) within 2(two) weeks thereafter. Thereafter, the Respondent authorities shall dispose of the same as directed above within a period of 2(two) months from the date of receipt of such representations. 11. With the above observations and directions, this writ petition stand disposed of. There shall be no order as to costs.