Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 525 (GAU)

Pongrem Arangham v. State of Arunachal Pradesh

2009-08-05

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. B. Habung, learned Counsel for the petitioner and Mr. R.H. Nabam, learned senior Govt. Advocate, appearing on behalf of the State respondents. Also heard Mr. A. Apang, learned Counsel, who appears on behalf of the private respondent No. 4. 2. This writ petition has been filed praying for following reliefs: (i) to quash the impugned DPC recommendation dated 2.4.2008 and promotion order No. IND/ESTD/92/2007 dated 27.4.2008 issued by the respondent No. 1. (ii) to direct the respondents to show-cause as to why the writ of mandamus should not be issued directing the respondents to fill up the vacancies of Deputy Director of Industries by conducting a review DPC from the eligible ADI/Principals of the Industries Department, Govt. of Arunachal Pradesh, and; (iii) to direct the respondents to hold the review DPC for filing up the vacant post of DDI as per the Rules and to promote/appoint the petitioner. 3. In order to examine and pass necessary direction/order, the material facts may be stated thus. The petitioner was appointed to the post of Extension Officer on 4.7.1991 in the Industries Department and he was promoted to the post of Assistant Director of Industries (ADI for short) on 22.11,2000. The Department of Industries published the inter se seniority list of the ADI/Principal, ITI, as on 26.3.2002. In the said list, the petitioner's name appeared at serial No. 18 while the name of the private respondent No. 4 appeared at Serial No. 12. The Government vide notification No. IND/ESTT/72/81 (Vol-I) dated 22.7.1999 framed the Arunachal Pradesh Industries Officer Service Rules, 1999 ('1999 Rules' in short) under Article 309 of the Constitution of India to regulate the method of recruitment and condition of service of persons appointed to the Arunachal Pradesh Industries officers Service. The appointment to the post of Deputy Director of Industries ('DDT for short) is provided under Rule 9 of the said 1999 Rules. Rule 10(1) provides that there shall be four branches in the said grade, namely: (a) Assistant Director of Industries (ADI) (b) Principal, ITI, (c) Boiler Inspector, (d) Factory Inspector. These posts are the feeder posts for promotion to the posts of DDI. 4. The Department of Industries published a provisional combined seniority list of ADI/Principal, ITI as on March, 2006. Rule 10(1) provides that there shall be four branches in the said grade, namely: (a) Assistant Director of Industries (ADI) (b) Principal, ITI, (c) Boiler Inspector, (d) Factory Inspector. These posts are the feeder posts for promotion to the posts of DDI. 4. The Department of Industries published a provisional combined seniority list of ADI/Principal, ITI as on March, 2006. In the said list, the name of the petitioner was shown at serial No. 11 as ADI while the name of the private respondent No. 4 at serial No. 6 as Principal. The post of ADI is one of the feeder posts to the post of DDI. According to the petitioner, as per the said seniority list, the petitioner is the senior most serving APST candidate with requisite educational qualification and length of service for promotion to the post of DDI but the respondent authorities did not consider his case for promotion although a vacancy of DDI existed in the department since 25.7.2007. He made representation before the respondent authority for consideration of his promotion but without considering his case, promoted the private respondent No. 4, who was serving as Principal, ITI, to the post of DDI on the recommendation of DPC dated 2.4.2008, although the said respondent No. 4 did not possess the requisite educational qualification i.e. Degree in Engineering. The private respondent, as contended by the petitioner, was initially appointed to the post of Motor Mechanic Instructor on 2.5.1984 and thereafter he was promoted/appointed to the post of Foreman, ITI from which he was again promoted to the post of Principal, ITI with' retrospective effect from 15.1.1996 although, he was not possessing requisite educational qualification. The writ petitioner, therefore, challenges the DPC recommendation dated 2.4.2008 as well as the office order dated 27.4.2008 whereby respondent No. 4 has been promoted to the post of DDI from Principal, ITI. 5. Mr. Habung, learned Counsel for the petitioner submits that the DPC held on 2.4.2008, while recommending the case of the private respondent No. 4 for promotion to the post of DDI from Principal, ITI, did not follow the provisions under Rule 10 of the 1999 Rules, particularly in regard to educational qualification. 5. Mr. Habung, learned Counsel for the petitioner submits that the DPC held on 2.4.2008, while recommending the case of the private respondent No. 4 for promotion to the post of DDI from Principal, ITI, did not follow the provisions under Rule 10 of the 1999 Rules, particularly in regard to educational qualification. It is submitted that before the DPC was held on 2.4.2008, Rule 10(a) in Sub-rule (3)(I) of 1999 Rules was amended vide notification No. IND/ESTT/53/99 dated 28.2.2003, prescribing Bachelor Degree in Arts, Science or Commerce as the minimum educational qualification or as prescribed in APPSC Combined Competitive Examination Rule 2000 for appointment in the grade of ADI and equivalent post. The respondent No. 4, according to Mr. Habung, was not possessing Bachelor degree as required under the said amended Rules and as such, the recommendation made by the DPC in favour of the private respondent No. 4 for promotion to the post of DDI is illegal, irrational and arbitrary and the same is liable to be quashed. 6. Mr. Habung, learned Counsel for the petitioner further submits that the respondent No. 4 has not fulfilled the required in educational qualification for appointment to the post of DDI and by virtue of seniority alone in the feeder post, no one can claim promotion to the higher post unless he fulfills the eligibility condition prescribed by the relevant Rules. If the respondent No. 4 is found possessing the requisite minimum educational qualification like the petitioner, he would have fulfilled the eligibility criteria and in the instant case the petitioner would have no claim for promotion merely on the basis of his seniority. In order to bring home his submission, Mr. Habung cities the case of R. Prabha Devi and Ors. v. Government of India reported in (1988) 2 SCC 233 , wherein it is held that when qualification for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle, a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority in a particular cadre does not entitle, a public servant for promotion to a higher post unless he fulfills the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher grade. 7. The aforesaid DPC having failed to consider the petitioner's case as per provision of the aforesaid rules, Mr. Habung, learned Counsel for the petitioner submits that a review DPC may be directed to be constituted for recommendation of the petitioner's case and promoting him to the post of DDI in place of the private respondent No. 4. 8. An affidavit-in-opposition has been filed on behalf of the respondents No. 1 and 2. It is admitted in the said affidavit-in-opposition that for promotion from the post of ADI to DDI, the minimum educational qualification is simple Graduate in Science/Arts or Commerce with minimum 3 years service as ADI. It is stated that the private respondent No. 4 is a graduate and he has rendered his service in the department as Principal from 15.1.1996 and as ADI from 17.5.1999 to 15.11.2007. The DPC considered the case of the private respondent No. 4 for promotion to the post of DDI, after examining his seniority, educational qualification and length of service rendered by him. He was found to have fulfilled the criteria laid down in existing service Rules. Based on the averments made in the aforesaid affidavit, Mr. R.H. Nabam, learned Sr. Govt. Advocate submits that the DPC committed no wrong in recommending the case of the private respondent No. 4 for promotion to the post of DDI and similarly the respondent authorities also committed no illegality or irregularity in issuing the impugned order dated 27.4.2008 promoting the respondent No. 4 to the post of DDI and as such, no relief can be granted to the petitioner, as sought for by him. 9. The respondent No. 4 has also filed a counter affidavit stating inter alia that he is a graduate in Arts with major in political science. 9. The respondent No. 4 has also filed a counter affidavit stating inter alia that he is a graduate in Arts with major in political science. In support of his contention, a photocopy of the provisional certificate dated 6.7.2007 issued by the Registrar (SR and ED), Indira Gandhi National Open University, New Delhi (Annexure II series to the counter affidavit of the respondent No. 4) has been annexed. Mr. Apang, learned Counsel for the respondent No. 4 submits that the claim made by the petitioner that the respondent No. 4 is not a graduate and he has no requisite educational qualification for promotion to the post of DDI is baseless and misleading inasmuch as, the respondent No. 4 has obtained graduation in 2006 i.e. 2 years before the holding of DPC Moreover, it is submitted that the claim of the petitioner that he is the senior most APST candidate in the post of ADI, i.e. the feeder post for promotion to the post of DDI is also not correct. The DPC held on 2.4.2008 rightly recommended the case of the private respondent No. 4 considering his seniority, educational qualification and length of service rendered by him and there is no illegality or arbitrariness in the recommendation of the DPC which needs no interference by this Court. 10. There is no dispute in regard to seniority position of the petitioner and the private respondent No. 4. There is also no dispute that the post of ADI and Principal of ITI are the feeder posts for promotion to the rank of DDL From the pleadings of the petitioner, it is discernible that he claims promotion on the basis of educational qualification i.e. graduation, which he was possessing while the respondent No. 4 was not possessing the same. Thus, the crux of the matter is confined only to the educational qualification. The private respondent No. 4 has, on oath, made a statement to the effect that he obtained Bachelor Degree in Arts with Major in Political Science in 2006 from the Indira Gandhi National Open University by annexing a photocopy of the said certificate. The petitioner has filed no rejoinder to the said counter affidavit controverting the statement of the respondent No. 4 about obtaining his graduation vis-a-vis the genuineness of the certificate issued by the said University in favor of the respondent No. 4. The petitioner has filed no rejoinder to the said counter affidavit controverting the statement of the respondent No. 4 about obtaining his graduation vis-a-vis the genuineness of the certificate issued by the said University in favor of the respondent No. 4. In absence of any rejoinder from the petitioner questioning the possession of certificate for passing graduation by the respondent No. 4, the Court is bound to accept the same as true and correct. 11. A copy of the minutes of the DPC meeting held on 2.4.2008 under the Chairmanship of Shri Tabom Bam, IAS, Chief Secretary has been annexed as Annexure IV to the counter affidavit filed by the state respondents. From the said minutes, it appears that cases of six candidates including the petitioner and respondent No. 4 were placed before the DPC and their seniority and educational qualification have been shown. In the column of educational qualification against the name of the respondent No. 4, it has been shown as BA i.e. Bachelor in Arts. His length of service rendered in the grade of Principal/ADI has been shown as 12 years 2 months whereas against the petitioner, it has been shown as 7 years 4 months. The respondent No. 4 is the senior most APST candidate amongst the 3 APST candidates whose cases were placed before the DPC. The relevant portion of the recommendation of the DPC is quoted below: Accordingly the DPC carefully examined the service record of the above officers and observed that their grading of ACR for five years from 2002 to 2003 and 2006 to 2007 found nothing adverse. Secondly there is no any vigilance cases against the above officers. The DPC observed that as per point No. 7 come under APST reserved quota and 8 in general quota. As such the DPC has considered Shri Tuli Basar, Principal, ITI and Shri Arun Bhattacharjee for the post of Deputy Director of Industries who are in the Second and First of the above list. Shri Tuli Basar has been promoted to Principal, ITI from the post of Foreman/Group Instructor on 15th January, 1996 as per R/R 1990 and he has completed 12 years 2 months in regular service as ADI, Principal, ITI in different occasions as per service record. Shri Tuli Basar has been promoted to Principal, ITI from the post of Foreman/Group Instructor on 15th January, 1996 as per R/R 1990 and he has completed 12 years 2 months in regular service as ADI, Principal, ITI in different occasions as per service record. Shri Basar is a graduate in Arts and as such he is eligible for promotion to the post of Deputy Director of Industries as per existing R/R. 12. The recruitment to the post of DDI is provided under Rule 9 of the 1999 Rules. For better appreciation, the said Rule is quoted below: 9. Recruitment to the post of Deputy Director of Industries : Appointment in the post of Dy. Director of Industries shall be made by promotion on the principle of selection, from the "selection list" prepared under Rule 12 of these rules from amongst the Asstt. Director of Industries or equivalent/Principal, ITI who have rendered at least 3 years of regular service in the grade of Asstt. Director of Industries/Principal, ITI or its equivalent, and have the educational and other requisite qualifications prescribed for direct recruitment to the post of Asst. Director/Principal, ITI of Industries. Provided that if no eligible person is available the post may be filled up in consultation with the Commission by transfer on deputation from the following categories of posts; (i) any officers holding the post of Dy. Director of Industries or any analogous post in State/Central Govt. Deptt/Organisation or public undertaking for a minimum period of 2(two) years in the field of industries and who has educational and other requisite qualification prescribed for direct recruitment to the post of Asstt. Director/Principal ITI and or, (ii) any officers holding the post of Asstt. Director of Industries or any analogous post in State/Central Govt. Deptt/Organisation or public undertaking for a period of 8(eight) years with at least 8(eight) years experience in the field of industries and having the educational and other requisite qualification prescribed for direct recruitment to the post of Asstt. Director/Principal, ITI or Extension Officer/Economic Investigator as the case may be. 13. Rule 12 of the said Rules provides for consideration and recommendation to be made by the Committee or Commission for appointment. Director/Principal, ITI or Extension Officer/Economic Investigator as the case may be. 13. Rule 12 of the said Rules provides for consideration and recommendation to be made by the Committee or Commission for appointment. The said provisions are also quoted below for the purpose of examining whether the DPC followed the same while considering the case of the petitioner and other candidates in the meeting held on 2.4.2008: (1) As soon as a case for promotion to any post in the service arises, the Appointing Authority shall send for the post/grade of Asstt. Principal/Group Instructor/Supervisor/Instructor/EO/EI to the Committee and for other post/grade to the Commission, the character rolls, available information as may be required by the Committee or the Commission as the case may be to enable to consider such eligible candidate for promotions. (2) After consideration of the merit and seniority of the candidates the Committee or the Commission as the case may be, shall make its recommendations in respect of such person considered fit for promotion and place their names in order of preference in the respective "Select List" subject to provisions of Rule 15 of these rules, the "Select List" shall be forwarded by the Committee or the Commission as the case may be, to the Appointing Authority. It may be noted that the promotion is to be considered on the basis of merit cum seniority. 14. Having gone through the provisions of 1999 Rules, I find that the DPC, while considering the promotion to the post of DDI, followed the procedures prescribed in the Rules and recommended in favour of the private respondent No. 4 after considering the merit and seniority of the candidates. The petitioner has not been able to substantiate his contention that the DPC recommended the respondent's case for promotion without following the provision of the Rules. Unless it is established that the DPC has committed material irregularity or illegality in following the provisions of law in recommending promotion in favour of a particular candidate, there is no scope for the writ Court to interfere with the recommendation made by the DPC. 15. Unless it is established that the DPC has committed material irregularity or illegality in following the provisions of law in recommending promotion in favour of a particular candidate, there is no scope for the writ Court to interfere with the recommendation made by the DPC. 15. In the present case, since the writ petitioner, as stated earlier, failed to establish its case of irregular, illegal or arbitrary recommendation on the part of the DPC, I would refrain from interfering with the impugned recommendation of the DPC and the impugned consequential order of promotion made in favour of the private respondent No. 4. The instant writ petition, as I find, is devoid of merit and the same is liable to be dismissed. Accordingly, the same stands dismissed. 16. There shall be no order as to costs.