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2009 DIGILAW 817 (GAU)

Ringu Kalley v. State of Arunachal Pradesh

2009-11-18

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. Tony Pertin, learned Counsel for the petitioner and also heard Mr. R.H. Nabam, learned Senior Government Advocate, Arunachal Pradesh appearing on behalf of the respondents. 2. The petitioner, a diploma holder in electrical engineering was initially appointed as W/C Lineman (LT) for a period of 6 (six) months on ad-hoc basis in the pay scale of Rs. 4000-100-6000/- p.m. in the Power Department under the State of Arunachal Pradesh. He was posted at Naharlagun Electrical Division. His ad-hoc appointment was extended from time to time. After serving for a period of 3 (three) years, he made a representation before the respondent authorities for regularisation of his ad-hoc service and for changing of his trade from W/C Lineman (LT) to Senior Electrician as both the posts carry equal pay scale. The Executive Engineer (E), Ziro Electrical Division under whom the petitioner worked had recommended his case to the Superintending Engineer concerned for regularisation of service as Senior Electrician. The DPC, after conducting a trade test, in its meeting held on 12.3.2001 recommended for regularisation of petitioner's service as Senior Electrician. Pursuant to the DPC's recommendation, the Superintending Engineer concerned issued an approval letter dated 24.12.2001 to the respondent-Executive Engineer (E). Accordingly, a formal office order No. ZED/WC 2/2001-02/4383-86 dated March, 2002 (Annexure-P/4 to the writ petition) was issued by the respondent-Executive Engineer (E) appointing the petitioner as W/C Electrician purely on temporary basis without adding the word "senior" to Electrician. The petitioner approached the respondent-Executive Engineer (E) for making necessary correction, who, in his turn, sent a letter dated 5.11.2003 to the respondent-Superintending Engineer for taking early action in the matter. Ultimately, the respondent-Superintending Engineer concerned issued an office order dated 27.10.2005 (Annexure-P/6 to the writ petition) re-designating the post held by the petitioner as W/C Senior Electrician providing that petitioner's service seniority in W/C Senior Electrician shall be reckoned from the date of DPC held on 25th May, 2005. The petitioner is aggrieved by the said order inasmuch as, the benefit of counting the seniority as W/C Senior Electrician has been given effect only from 25th May, 2005 and not from the date of his initial appointment i.e. on 27.10.1998. 3. Mr. Pertin, learned Counsel for the petitioner submits that the post of Lineman (LT) is equivalent to Senior Electrician carrying equal pay scale i.e. Rs. 3. Mr. Pertin, learned Counsel for the petitioner submits that the post of Lineman (LT) is equivalent to Senior Electrician carrying equal pay scale i.e. Rs. 4000-100-6000/- p.m. The petitioner has been drawing the said pay scale since his initial appointment as W/C Lineman (LT). The DPC recommended for his appointment as W/C Senior Electrician but at the time of issuing the formal appointment order, the appointing authority namely, respondent-Superintending Engineer, inadvertently mentioned the name of the post as W/C Electrician with pay scale of Rs. 3050-75-3950-80-4590/- p.m., a post lower than the Senior Electrician. According to him, a great injustice has been done in so far as the petitioner, who was drawing higher pay scale of Rs. 4000-100-6000/- p.m. as W/C Lineman (LT) has been reverted to or down graded to the lower post of W/C Electrician, which carries a lower pay scale of Rs. 3050-75-3950-80-4590/- p.m. The respondent authorities have committed grave mistake by not taking into account the service rendered by him as W/C Lineman (LT) since his initial appointment for which the respondent-Executive Engineer (E) recommended for regularisation of his service as W/C Senior Electrician. Any mistake in the order conveying the decision of the DPC re-designating the post by dropping the word "senior", which was inadvertent, should have been corrected and the impugned order dated 27.10.2005 (Annexure-P/6 to the writ petition) cannot be allowed to operate inasmuch as the petitioner's service seniority is to be counted from the date of DPC held on 25.5.2005 and not from the date of his initial appointment i.e. on 27.10.1998 as W/C Lineman (LT). 4. Mr. Nabam, learned Senior Government Advocate, controverting the submissions made by the learned Counsel for the petitioner, submits that the petitioner was appointed on 27.10.1998 as W/C Lineman (LT) on ad-hoc basis and his ad-hoc appointment was regularised as W/C Electrician on purely temporary basis as per the recommendation of DPC; held on 12.3.2001 which is reflected in the formal office order issued by the respondent-Executive Engineer (E) vide order No. ZED/W/C-2/2001-2002/4383-86 dated Ziro, March, 2001 (Annexure-D/1 to the counter affidavit). According to him, the period of service as W/C Lineman (LT) cannot be treated as the period of W/C Electrician. According to him, the period of service as W/C Lineman (LT) cannot be treated as the period of W/C Electrician. His promotion from W/C Electrician to the post of W/C Senior Electrician (ad hoc) was considered by the DPC only on 25th May, 2005 after conducting a trade test, which is reflected in the result-sheet of the DPC for regularisation of ad-hoc service in respect of the petitioners W/C Senior Electrician (Ad hoc) and on the basis of the same, the DPC recommended and forwarded the petitioner's case to the respondent- superintending Engineer (Annexure-D/7 to the counter affidavit). Moreover, the service book of the petitioner was opened as W/C Senior Electrician only from 25th May, 2005 as per the aforesaid recommendation of the DPC and order of the respondent authorities. 5. I have perused and considered the materials placed before this Court. I have also given my serious thought on the submissions made by the learned Counsel for the parties. From the pleadings of the parties, it is found admitted that the petitioner was initially appointed as W/C Lineman (LT) on ad-hoc basis for a period of six months which was extended from time to time allowing him to continue in the post and he made representation for regularisation of his ad-hoc service as Senior Electrician as the post of Lineman (LT) and Senior Electrician are equivalent post with equal pay scale. His case was recommended by his immediate higher officer but the DPC held on 12.3.2001 recommended regularisation/appointment of the petitioner as W/C Electrician purely on temporary basis. The petitioner's case is that the DPC held on 12.3.2001 recommended to regularise/appoint the petitioner as W/C Senior Electrician but inadvertently dropped the word "senior" and the formal order was issued without the word "senior". This averment of the petitioner is based on no record except the certain communications addressed by the respondent-Executive Engineer (E) to the respondent-Superintending Engineer. In the communication dated 5.11.2003 (Annexure-P/5 to the writ petition), it is stated that "during conducting DPC/Trade test for regularisation of ad-hoc service a typing error on documents like mark sheet of DPC and forwarding letter has been made deleting Senior Electrician to Electrician." The respondent-Superintending Engineer on receipt of the same, on the body of the said letter asked the respondent-Executive Engineer (E) to reconduct DPC for promotion from W/C Sr. Lineman to W/C Sr. Electrician. Lineman to W/C Sr. Electrician. The endorsement/order is dated 7.7.2004 which reads as follows: EE (E), Ziro Please re-conduct DPC for promotion from W/C Sr. Lineman to W/C Sr. Electrician. Sd/Illegible. SE(E), NLG. 7.7.2004 6. This indicates that the respondent-Superintending Engineer did not accept the contention of the petitioner, and for that matter in the communication of the Executive Engineer concerned there is no mention about any typographical or typing error on the documents like mark-sheet of the petitioner which were placed before the DPC held on 21.9.2001. As ordered by the respondent-Superintending Engineer, as it could be gathered, the second DPC was held on 25.5.2005. Had there been any typographical mistake/error or inadvertent deleting of the word "senior", as alleged/claimed by the petitioner, it would have been reflected in the minutes of the DPC and the DPC would have taken decision either accepting or rejecting the contention of the petitioner. The DPC, it appears, recommended the petitioner's case for regularisation of his service as W/C Senior Electrician (ad-hoc) only from 25th May, 2005 as because the trade test was conducted only on 25.5.2005 in respect of the petitioner as W/C Senior Electrician (Ad-hoc). There is no averment in the petition that any trade test was conducted before the meeting of the DPC was held on 21.9.2001 for regularisation/appointment as W/C Senior Electrician. 7. The indisputable fact that has emerged, therefore, is that the petitioner was allowed to work as W/C Lineman (LT) and Electrician on different occasions. His appointment as W/C Senior Electrician is also on ad-hoc basis. The service of the petitioner was never regularised in the post of W/C Lineman (LT) which is equivalent to the post of W/C Senior Electrician. He was temporarily appointed as W/C Electrician after the recommendation of DPC held on 12.3.2001, a post lower than the post of Senior Electrician and as such the petitioner cannot claim regularisation in the post of Senior Electrician unless recommended by the DPC. But the petitioner was clearly recommended for appointment as W/C Senior Electrician (Ad-hoc) only on 25.5.2005. This would not entitle the petitioner for regularisation of his service as W/C Senior Electrician from the date of his initial appointment unless so recommended by the DPC conducted for the purpose of appointing him as W/C Senior Electrician on regular basis with retrospective effect from the date of his initial appointment. 8. This would not entitle the petitioner for regularisation of his service as W/C Senior Electrician from the date of his initial appointment unless so recommended by the DPC conducted for the purpose of appointing him as W/C Senior Electrician on regular basis with retrospective effect from the date of his initial appointment. 8. There is yet another reason for declining interference with the decision of the DPC. The accepted position of law is that normally the recommendations of the Selection Committee can not be challenged except on ground of mala fides or serious violation of the statutory rules. If the Courts interfere with the recommendations of the Selection Committee, it amounts to exercising of power as appellate authorities. The Courts, as a matter of principle, cannot sit as Appellate authorities to examine the recommendations of the Selection Committee like the Courts of appeal. In this regard, without referring to earlier decisions, it would be enough to refer to the latest decision of the Apex Court in M.V. Thimmaiah v. UPSC reported in (2008) 2 SCC 119 . 9. Under the aforesaid facts and circumstances, I do not find any valid ground for interference with the impugned order dated 27.10.2005 (Annexure-P/6 to the writ petition) inasmuch as a writ Court cannot review the decision of the DPC especially when the DPC took the decision for appointing/re-designating the petitioner as W/C Senior Electrician (Ad-hoc) reckoning his service seniority with effect from 25.5.2005. It is to be noted here that the DPC as per the mark-sheet of trade test conducted on 25.5.2005, recommended for appointment of petitioner as W/C Senior Electrician (Ad hoc) but in the office order dated 27.10.2005, the Superintending Engineer concerned has issued the impugned order dated 27.10.2007 re-designating the post as W/C Senior Electrician without incorporating the world "Adhoc." 10. It is a disquieting experience that inspite of direction from this Court, the respondent authorities failed to produce the records containing the minutes of DPC held on 21.9.2001 and 25.5.2005. Those minutes were indispensable for the purpose of verifying and ascertaining what exactly happened or what decision was taken, particularly in the DPC meeting held on 21.9.2001. It is a disquieting experience that inspite of direction from this Court, the respondent authorities failed to produce the records containing the minutes of DPC held on 21.9.2001 and 25.5.2005. Those minutes were indispensable for the purpose of verifying and ascertaining what exactly happened or what decision was taken, particularly in the DPC meeting held on 21.9.2001. The Court has been deprived of looking in to them and satisfying itself as to the correctness of the allegations made by the petitioner that there was a typographical error by deleting the most vital word "senior" which was to be added to the word Electrician. However, the impugned order dated 27.10.2005, in my considered view, is not liable to be quashed and set aside. The petitioner shall be given the service benefit reckoning his seniority from 25.5.2005 and the respondent authorities shall take necessary steps for immediate release of arrear due to the petitioner and also to extend other service benefits as entitled under the existing rules and guidelines, if any. 11. Before parting with the records, I would say that if the respondent authorities have committed any mistake or there is any bona fide lapse on their part for which the petitioner has been deprived of promotion/appointment to or regularisation in the post of Senior Electrician, they may take corrective measures. In Union of India v. Narendra Singh (2008) 2 SCC 750 , the Apex Court held that mistakes are mistakes and they can always be correcting by following due process of law. This is a discretion of the department concerned. 12. With the above observations and directions, this writ petition stands disposed of. There shall be no order as to costs.