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2009 DIGILAW 75 (GAU)

Dumar Bagra v. State of Arunachal pradesh

2009-02-04

H.N.SARMA

body2009
JUDGMENT H.N. Sarma, J. 1. The challenge made in this writ petition is the interpretation of the order dated 1.10.2008 passed by the Commissioner, PWD, Arunachal Pradesh, to be a fresh appointment of the Petitioner in the present department, AP PWD, as Assistant Engineer accepting his repatriation from deputation by the Hydro Power Development Department as well as for non-consideration of his promotion to the next higher grade of Executive Engineer. 2. I have held Mr. K. Ete, learned Counsel for the Petitioner and Ms. G. Deka, learned Additional Sr. GA, AP. 3. The relevant factual matrix projected in this writ petition, inter alia, are that the Petitioner is a degree holder in civil engineering and he was appointed as Assistant Engineer on being recommended by the APPSC vide order dated 23.1.1991 issued by the Commissioner, PWD. While the Petitioner was rendering his services in the capacity as Assistant Engineer in different offices, the Hydro Power Development Department of the Government of Arunachal Pradesh having requested the Arunachal Pradesh Public Works Department for deputing officer/engineers on permanent absorption basis at different levels including Superintending Engineer, Executive Engineer and Assistant Engineer, a circular was issued by the Joint Secretary (PWD), Government of Arunachal Pradesh, Itanagar, indicating the same and inviting such options from the interested engineers in the format prescribed therein. The Petitioner being interested to be absorbed as Executive Engineer in the Hydro Power Development Department gave his consent for such absorption and accordingly, vide order dated 26.7.2005, the Petitioner was appointed to the post of Executive Engineer (C) on deputation. The employees of the Hydro Power Development Department challenged the above decision of the authorities to bring officers on deputation from out side the department in W.P.(C) No. 239 (AP)/2005, which was disposed of on 8.7.2005, directing the Respondent authorities to consider the cases of the qualifying departmental engineers for promotion to the rank of Executive Engineer by holding necessary DPC. The said order was, however, having challenged in W.A. No. 458/2005, the operation thereof was suspended on 25.7.2005. In the appointment order dated 25.6.2005 it was indicated that the appointment of the Petitioner would be subject to the outcome of Writ Appeal 458/2005 pending before this Court. Vide order dated 10.7.2006, the period of deputation of the Petitioner was extended for another one year. In the appointment order dated 25.6.2005 it was indicated that the appointment of the Petitioner would be subject to the outcome of Writ Appeal 458/2005 pending before this Court. Vide order dated 10.7.2006, the period of deputation of the Petitioner was extended for another one year. On 10.8.2006, a memorandum was issued by the Secretary(Power), Government of Arunachal Pradesh, indicating the intention of the Government to absorb the Petitioner and five other Assistant Engineers of Public Works Department in the Hydro Power Development Department. It is also stated therein that on being absorbed in the Hydro Power Development Department, the Petitioner and five others would have neither any lien in Public Works Department nor they would have any claim for repatriation to the Public Works Department and the Petitioner has indicated his willingness thereto vide his letter dated 22.8.2006. Thereafter vide order dated 23.10.2006 the Petitioner and five other similarly situated officers were absorbed in the Hydro Power Development Department, while was issued by the Secretary (Power) but without prejudice to the outcome of Writ Appeal No. 458/2005 pending before this Court. The aforesaid order was again challenged in W.P.(C) No. 436 (AP)/2006 by the departmental officers wherein vide order dated 11.12.2006, the said order dated 23.10.2006 was suspended. An appeal being WA No. 125/2007 having been filed by the Petitioner and others, the appellate Court disposed of the said appeal without interfering with the interim order but directing to maintain status quo as was on 5.12.2007 as passed in Misc. Case No. 402/2007 till disposal of the Writ Appeal. The Petitioner having understood that his absorption in the Hydro Power Development Department has not yet been finally made and the same being only a provisional one and subject to the outcome of the aforesaid two litigations, decided to come back to his parent department, i.e. PWD to avoid any uncertainty. Accordingly, the Petitioner made a prayer to the Commissioner, PWD as well as the Secretary (Power) vide his application dated 10.4.2008. In the aforesaid application, the Petitioner categorically stated that in view of pending of two litigations, namely WA No. 458/2005 and W.P.(C) No. 436 (AP) 2006, he has not been permanently absorbed in the Hydro Power Development Department, as such, he has developed a feeling of insecurity and expressed his intention to come back to his parental department, i.e. PWD. In the aforesaid application, the Petitioner categorically stated that in view of pending of two litigations, namely WA No. 458/2005 and W.P.(C) No. 436 (AP) 2006, he has not been permanently absorbed in the Hydro Power Development Department, as such, he has developed a feeling of insecurity and expressed his intention to come back to his parental department, i.e. PWD. On receipt of the said application of the Petitioner, the Government in the Power Department wrote to the Commissioner, AP PWD, vide letter dated 2.5.2008 wherein it is indicated that the Petitioner who was absorbed provisionally and applied for repatriation to the parent department and, as such, sought for comment to be furnished to them within one month. But no such comment was furnished by the Commissioner, APPWD. Consequently, vide order dated 23.6.2008, the Petitioner was repatriated to his parent department, i.e., PWD, with immediate effect. Thereafter vide office order dated 14.7.2008, the Petitioner was released by the Chief Engineer, Hydro Power Development Department. On being so released, the Petitioner submitted his joining report before the Commissioner, PWD, on 14.7.2008, itself after repatriation. Vide letter dated 4.9.2008, the Under Secretary, PWD, intimated to the Petitioner that since the Petitioner has exercised his option of permanent absorption in the Hydro Power Development Department, his joining report as Assistant Engineer in Arunachal Pradesh Public Works Department could not be considered. The Petitioner thereafter went back to the Hydro Power Development Department and after certain communication between the two departments ultimately vide order dated 1.10.2008, the repatriation of the Petitioner in the parent department (AP PWD) was accepted as special case accepting his joining report in his own grade as Assistant Engineer without prejudice to the promotion of Junior Engineers to the rank of Assistant Engineer already carried on in the department. In the said order it is clearly stated that his inter-se seniority of the Petitioner would be decided later on. Considering the tenor and spirit of the order dated 1.10.2008, the Petitioner having considered that he would be deprived from his seniority as well as consequential promotional benefits in his parent department, he filed a representation before the Commissioner, AP PWD, to that effect on 3.10.2008 for granting him the consequential service benefits after his repatriation including suitable position in the gradation list and promotion to which he is entitled to as per rules. The position of the Petitioner in the gradation list prepared by Department appears at serial No. 51. In the mean time, vide order dated 18.10.2007 and 12.6.2008, three juniors officers whose seniority position in the gradation list are at serial Nos. 55, 56 and 57 were promoted to the rank of Executive Engineer without considering the case of the Petitioner for promotion while he was in deputation in Hydro Power Development Department. Challenging the aforesaid action of the Respondent authorities, the present writ petition has been filed. 4. A counter has been filed on behalf of the State Respondents wherein the stand has been taken on behalf of the Respondent Nos. 1 and 2 is that the Petitioner having opted for permanent absorption in the Hydro Power Development Department voluntarily he would have neither any lien nor any claim for repatriation to his parent department and he forfeited all rights whatever he had in the parent department, i.e., APPWD. It is further contended that on humanitarian consideration, the prayer of the Petitioner for repatriation to the parent department was allowed, but his absorption in the parent department was accepted as fresh appointment. 5. Mr. K. Ete, learned Counsel for the Petitioner, submits that the Petitioner although exercised his option for permanent absorption in the Hydro Power Development Department, his absorption was only a provisional one in view of pendency of litigations before this Court. The learned Counsel has strengthened his argument referring to the communication made by the Under Secretary (Power) dated 2.5.2008 and 17.9.2008 wherein the specific stand taken by the Power Department is that the Petitioner's absorption was provisional only and he was to be absorbed permanently later on. Referring to the aforesaid fact situation, the learned Counsel submits that since the Petitioner was not permanently absorbed, he can always exercise his right to be repatriated to his parent department. Referring to the aforesaid fact situation, the learned Counsel submits that since the Petitioner was not permanently absorbed, he can always exercise his right to be repatriated to his parent department. Facing uncertainty in his service career due to pendency of two litigations wherein the question of absorption of the Petitioner in the Hydro Power Development Department is under challenge, the Petitioner decided to return to his parent department and the authorities ultimately accepted the same and after such acceptance, the authorities are not empowered under the law to refuse or deny the promotion and seniority benefit to the Petitioner to which he is entitled taking the note of his initial appointment on 23.1.1991 and his related position as reflected in the gradation list dated 16.7.2005. 6. The learned State Counsel, on the other hand, has contended that since the aforesaid two litigations are pending, it would be just and proper to WA it for the outcome of the two cases before taking up this petition. The aforesaid two litigations are pending before this Court wherein the issues are the permanent absorption of the Petitioner and other Assistant Engineers from the Public Works Department to the Hydro Power Development Department and promotions of the qualified engineers of the Hydro Power Development Department to the rank of the Executive Engineer. The Petitioner has already decided not to be absorbed permanently in the Hydro Power Development Department. In that view of the matter, pendency of the aforesaid two litigations would not stand in the way of deciding the present dispute as has been projected in this writ petition. In fact, the present stand of the Petitioner is in support of the writ Petitioners in W.P.(C) No. 436 (AP) 2006 and W.P.(C) No. 436 (AP)/2006 to the extent that he is not required to be permanently absorbed in the Hydro Power Development Department. 7. The other contentions of the learned State counsel that the Petitioner having exercised his right to be absorbed permanently, his case was later on considered and repatriation to the parent department was considered only on humanitarian ground and his repatriation has been construed as fresh appointment in the parent department. The aforesaid submission is contrary to the records, inasmuch as, in the impugned order dated 1.10.2008 there is no indication that the repatriation of the Petitioner would be considered as fresh appointment in the parent department. The aforesaid submission is contrary to the records, inasmuch as, in the impugned order dated 1.10.2008 there is no indication that the repatriation of the Petitioner would be considered as fresh appointment in the parent department. It is not understood as to under what provisions of law such a stand could have been taken by the Respondent authorities, which has adverse affect of forfeiting the service career of the Petitioner with effect from January, 1991 to October, 2008. When an officer is repatriated to his parent department after deputation all rights and liabilities in the parent department springs up, inasmuch as, by such deputation, the officer always retain his lien in his parent department and the same cannot be taken away in the manner as it has been sought to be done by the Respondent authorities. In this connection, reliance to the decision of the Apex Court in the case of R.L. Gupta and Anr. v. Union of India and Ors. reported in (1988) 2 SCC 150 , made by Mr. K. Ete, has relevance in the present case. The Apex Court in the aforesaid case has ruled at paragraph-13 of the judgment as follows: We are not impressed by the submission made on behalf of the High Court that the Petitioner having been informed by the High Court that he was going on deputation at his own risk he could not retain his seniority over his juniors who were placed on probation during the period of deputation. It is well known that many officers have to be sent on deputation in the public interest to other departments in order to meet the exigencies of public service and that before sending them on deputation their consent in invariably taken. Merely because they have given their consent to go on deputation they should not be allowed to suffer unless there is a specific rule to the contrary or other good reason for it. That is the ratio of the decision in State of Mysore v. M.H. Bellary and of the decision in State of Mysore v. P.N. Nanjundiah. Merely because they have given their consent to go on deputation they should not be allowed to suffer unless there is a specific rule to the contrary or other good reason for it. That is the ratio of the decision in State of Mysore v. M.H. Bellary and of the decision in State of Mysore v. P.N. Nanjundiah. These decisions declare that an officer on deputation is entitled to get increments in the pay scale attached to the post in their parent department and also to get promotion when it is based on seniority-cum-merit as and when his junior in the parent department is promoted by the application of the 'nest below rule'. When increment and promotion can be earned, there is no reason why he should not be treated as being on probation also in the post held by him in the parent department even while he is on deputation ... 8. The provisions of Service Rules of the Petitioner is regulated and guided by a set of Fundamental Rules. Under Fundamental Rule 14A of the Rules, a Government Servant's lien on a post is terminable only on certain circumstances. FR14A is quoted herein below: (a) Except as provided in Rule 13 and Clause (d) of this Rule Government servant's lien on a post may in no circumstance be terminated. If the result will be to leave him without a lien upon a regular post. (b)... (c)... (d) A Government servant's lien on a post shall stand terminated on his acquiring a lien on another post (whether under the Central Government or State Government outside the cadre on which he is borne). 9. Again in the case of Balkrishnan Pandey v. State of Bihar and Ors. reported in (1996) 2 SCC 282 , the Apex Court in paragraph-5 of the judgment has held as follows: It is settled law that an employee on temporary promotion would continue to hold the lien in his substantive post until it is duly terminated. He cannot hold two substantive posts at the same time. Once it is concluded that the Appellant is a deputationist working in the Directorate of SEP, his name was rightly not shown in the seniority list of that Department. Therefore, he continued to hold his lien and seniority as Junior Statistical Supervisor in the parent department. He cannot hold two substantive posts at the same time. Once it is concluded that the Appellant is a deputationist working in the Directorate of SEP, his name was rightly not shown in the seniority list of that Department. Therefore, he continued to hold his lien and seniority as Junior Statistical Supervisor in the parent department. On reversion, he came back to his post as a Junior Statistical Supervisor and in his own right he was promoted as SSA. Since the fifth Respondent happeneded to be a permanent incumbent in the Directorate of SEP, he was promoted as SSA. When further vacancy in the higher ladder, namely, SRA, had fallen vacant, he was considered and promoted in that vacancy. Under those circumstances, the High Court is well justified in refusing to interfere with the matter and we do not find any justification warranting interference. 10. In the case in hand, as indicated above, the absorption of the Petitioner in the Hydro Power Development Department was only provisional and subjected to the outcome of the litigations pending before this Court. The Petitioner considered it proper in the interest of his service career that instead of remaining in uncertainty, he should come back to his parent department and accordingly, he having applied for the same, the same was accepted by the Respondent authorities. Once the Petitioner has been repatriated to his parent department, he would get all his benefits to which he is entitled under the service law/rules in the parent department. The Petitioner's lien to the post in his parent department is not lost in the process and it is retained. In such a situation, the benefit of seniority as well as promotion could not have been denied to him. In fact, no such stand has been taken by the Respondent authorities in the impugned order. Such stand is sought to be projected only in the counter affidavit filed on behalf of the Respondent Nos. 1 and 2, which is impermissible under the law. In fact, no such stand has been taken by the Respondent authorities in the impugned order. Such stand is sought to be projected only in the counter affidavit filed on behalf of the Respondent Nos. 1 and 2, which is impermissible under the law. As the Petitioner was not permanently absorbed while considering the promotion of the officers placed at serial 55, 56 and 57, the case of the Petitioner ought to have been considered for such promotion to the higher rank of Executive Engineer but apparently that was not done and non-consideration of promotion of the Petitioner has adversely affected his fundamental rights as enumerated under Articles 14 and 16 of the Constitution of India apart from violation of the recruitment Rules. 11. Although in the counter affidavit another stand about the pendency of vigilance case in the Hydro Power Development Department is taken, Mr. Ete, learned Counsel for the Petitioner, by producing a letter dated 2.2.2009 written by the Under Secretary (Vigilance), Government of Arunachal Pradesh, submits that the allegations leveled against the Petitioner and others could not be proved by the Investigating Officer and they are absolved from such allegations. 12. In view of above discussions, I am of the opinion that the Petitioner has been able to make out a case for issuing necessary direction to the Respondent authorities and accordingly, it is directed that the Respondent authorities shall not consider repatriation of the Petitioner as fresh appointment and shall extend all the service benefits, such as, promotion, etc. to which he is entitled under the recruitment rules. Since it is on record that the officers junior to the Petitioner have already been promoted, the case of the Petitioner for promotion to such post shall be considered from the date on which his juniors were promoted. The aforesaid exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order. 13. With the aforesaid observations and directions, this writ petition stands allowed as indicated above. Petition allowed