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2012 DIGILAW 541 (GAU)

Techi Jobac v. State of Arunachal Pradesh

2012-05-02

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. This writ petition, under Article 226 of the Constitution of India, has been made by a direct recruit to the post of Assistant Engineer (in short, 'AE') in Rural Works Department, Govt. of Arunachal Pradesh, (in short, 'RWD') whereby he has sought for not only review of the judgment and order, dated 11.11.2002, passed by this Court, in WP(C) No. 196(AP)/2001, but also a direction to the State respondents to recall the seniority list, dated 31.03.2004, whereby the petitioner, though recruited in the year 2001, has been shown as junior to the respondent Nos. 4 and 5, namely, Nending Batt and Hage Akha, who were petitioners in WP(C) No. 196(AP)/2001, aforementioned. Heard Mr. B.C. Das, learned Senior counsel, for the writ petitioner, and Mr. A.M. Buzarbaruah, learned Senior Govt. Advocate, Arunachal Pradesh, for the State respondents. 2. In order to correctly appreciate what the grievance of the present petitioner is, it is apposite to take note of the facts with which respondent Nos. 4 and 5 came to this Court with the writ petition made under Article 226, which gave rise to WP(C) No. 196(AP)/2001, and the reasons, which impelled the Court to issue directions to the State respondents to count the promotion of the respondent Nos. 4 and 5 herein to the post of AE with effect from 10.06.1999, i.e., the date on which they had, admittedly, become eligible for promotion to the post of AE. 3. As noted in the judgment and order, dated 11.11.2002, which the petitioner seeks to get reviewed, the case of the writ petitioners, in WP(C) No. 196(AP)/2001, was, in brief, thus: Both the petitioners are degree-holders in Engineering and both of them were appointed as Junior Engineers in the RWD, Govt. of Arunachal Pradesh, way back on 10.06.94. By order, dated 30.04.97, issued by the said Department, the petitioners were promoted to the post of Technical Assistants. By 6th July, 1987, both the petitioners had passed Professional Accounts Examination. By order, dated 30.03.2001, issued by the RWD, both the petitioners along with 11 others have been promoted to the post of AE and both the petitioners are presently working as AEs, petitioner No. 1 being the AE, RWD, at Ziro Division and petitioner No. 2 being AE, RWD, at Lumla, Tawang. By order, dated 30.03.2001, issued by the RWD, both the petitioners along with 11 others have been promoted to the post of AE and both the petitioners are presently working as AEs, petitioner No. 1 being the AE, RWD, at Ziro Division and petitioner No. 2 being AE, RWD, at Lumla, Tawang. According to the relevant Recruitment Rules contained in Memo No.RWD/SECTT/95/94, dated 10th October, 1997, issued by the Secretary (RWD), Govt. of Arunachal Pradesh, the petitioners, being degree holders in Engineering are eligible for promotion as AEs on completion of 5 years of regular service. The petitioners, thus, became eligible for promotion as far back as on 10.06.99, but they have been granted promotion only by order, dated 30th March, 2001 issued by the Secretary, RWD, Govt. of Arunachal Pradesh, with effect from 30.03.2001, though clear vacancies existed for granting promotion to the petitioners on 10.06.99 (when they had become eligible for promotion to the post of AEs as hereinbefore mentioned) and despite the fact that some persons junior to the petitioners have been made AEs before the petitioners were regularly promoted as AEs. 4. As the respondents, in the earlier writ petition, did not file any affidavit and Mr. R.H. Nabam, learned Additional Senior Govt. Advocate, appearing on behalf of the State respondents, submitted to the Court that the writ petition be disposed of on merit, this Court, as noted in the judgment and order under review, proceeded on the premises that the facts, as had been averred in the writ petition, were undisputed. In fact, the facts, averred in the earlier writ petition, are, even today, not in dispute inasmuch as it is not in dispute that the writ petitioners became eligible for promotion to the post of AE on 10.06.99 and at the time, when they became so eligible for promotion to the post of AEs, more than two posts in their department, i.e., Rural Works Department, were lying vacant, which were to be filled up by promotion. 5. In the circumstances indicated above, this Court observed and directed as under : 6. Upon hearing learned counsel for the parties and upon perusal of the materials on record, what I notice is that both the petitioners are degree-holders in Engineering and both of them were appointed on 10.06.94 as Junior Engineers in the Department aforementioned. 5. In the circumstances indicated above, this Court observed and directed as under : 6. Upon hearing learned counsel for the parties and upon perusal of the materials on record, what I notice is that both the petitioners are degree-holders in Engineering and both of them were appointed on 10.06.94 as Junior Engineers in the Department aforementioned. There is no dispute before me that being degree-holders in Engineering, the petitioners became, according to the relevant recruitment Rules, eligible for promotion to the post of Assistant Engineers in the same Department as far back as on 10.06.99. There is also no dispute before me that the petitioners were, eventually, promoted to the post of AE as late as on 30.03.2001 despite the fact that clear vacancies in the promotional posts of AE did exist even on 10.06.99. 7. Situated thus, there is, find, no cogent and justified reason for the omission of the department concerned not to accord promotion to the petitioners with effect from 10.06.99, particularly, when the petitioner Nos. 1 and 2 have been working as ad-hoc AE since 07.03.91 and 11.07.96 respectively. 8. Considering, therefore, the matter in its entirety, this writ petition is allowed with direction that the petitioners' promotion to the posts of Assistant Engineer shall be counted with effect from 10.06.99, that is, the date on which the petitioners became, admittedly, eligible for promotion to the posts of Assistant Engineer subject to the condition that the promotion of the petitioners to the posts of Assistant Engineer with effect from 10.06.99 shall not adversely affect the position in the gradation list of any person(s), who may be senior to the petitioners. 6. It is contended by Mr. B.C. Das, learned Senior counsel, appearing on behalf of the present petitioner, that merely because of the fact that a person becomes eligible for promotion, it does not necessarily mean that the Government must give him promotion, for, according to Mr. Das, it is open to the Government not to fill up a promotional post, but to keep it lying vacant, because it would depend on the Government, its resources and requirement whether it shall fill up a promotional post or not. 7. While there can be no dispute with the proposition of law as advanced by Mr. Das, it is open to the Government not to fill up a promotional post, but to keep it lying vacant, because it would depend on the Government, its resources and requirement whether it shall fill up a promotional post or not. 7. While there can be no dispute with the proposition of law as advanced by Mr. Das, learned Senior counsel, what must be borne in mind is that the right to be considered for promotion is no longer an ordinary right, but it is as momentous as a fundamental right in the sense that, on becoming eligible for promotion, a person has the right to be considered, ordinarily, for promotion, provided he falls within the zone of consideration. Hence, when such a person has a right to be considered for promotion, there has to be clear and conscious decision by the Government not to fill up the post by way of promotion if the Government has to deny to such a person his right to be considered for promotion. 8. It is, therefore, incumbent, on the part of the Government, to ensure that DPC is constituted and the DPC considers the eligibility and suitability of a person for promotion depending upon the conditions of promotion as may have been embodied in the relevant recruitment rules. When a person, thus, becomes eligible for promotion, right to be considered for promotion by the DPC is an invaluable right. What, therefore, logically follows from this proposition is that when a person becomes eligible for promotion and post is available for making the promotion, Government cannot avoid considering such a person's case for promotion unless it takes a decision, consciously and clearly, not to fill up the promotional post. 9. In the case at hand, there was, admittedly, no decision by the Government for not filling up the promotional post. The posts, though were available, had been left lying vacant, because of Government's sheer negligence, which means nothing but dereliction of duty by those, who had the responsibility to consider the cases of the respondent Nos. 4 and 5 herein for promotion. 10. Depending upon the date of the DPC, the effective date of promotion of a person cannot be decided, because DPC is required to meet every year. Therefore, the fact that DPC had not been constituted or did not sit at the time, when respondent Nos. 4 and 5 herein for promotion. 10. Depending upon the date of the DPC, the effective date of promotion of a person cannot be decided, because DPC is required to meet every year. Therefore, the fact that DPC had not been constituted or did not sit at the time, when respondent Nos. 4 and 5 had become eligible for promotion, cannot be made a ground to deny to the respondent Nos. 4 and 5 herein promotion with effect from the date, when they had become due for promotion, particularly, when the posts of AE, in order to be filled up by promotion, were, admittedly, lying vacant and there was no conscious decision by the Government not to fill up the said posts. 11. Situated thus, it becomes clear that though the present writ petitioner was a direct recruit to the post of AE in the year 2001, the fact remains that promotion of respondent Nos. 4 and 5 herein ought to relate back to the date, when they had become due for promotion, i.e., on 10.06.1999. 12. Having, perhaps, noticed that granting of promotion, with effect from 10.06.99 to the respondent Nos. 4 and 5, may not be incorrect, Mr. Das, learned Senior counsel, points out that this Court has, while directing promotion of respondent Nos. 4 and 5 with effect from 10.06.99, clarified that the promotion of the writ petitioners to the posts of AE, with effect from 10.06.99, shall not adversely affect the position in the gradation list of any person(s), who may be senior to the petitioners. I am constrained to observe that such a reading of the observations of this Court is not correct by Mr. Das inasmuch as this Court, while directing promotion to be granted to the respondent Nos. 4 and 5, with effect from 10.06.99, to the posts of AE, clearly stated thus : 8. I am constrained to observe that such a reading of the observations of this Court is not correct by Mr. Das inasmuch as this Court, while directing promotion to be granted to the respondent Nos. 4 and 5, with effect from 10.06.99, to the posts of AE, clearly stated thus : 8. Considering, therefore, the matter in its entirety, this writ petition is allowed with direction that the petitioners' promotion to the posts of Assistant Engineer shall be counted with effect from 10.06.99, that is, the date on which the petitioners became, admittedly, eligible for promotion to the posts of Assistant Engineer subject to the condition that the promotion of the petitioners to the posts of Assistant Engineer with effect from 10.06.99 shall not adversely affect the position in the gradation list of any person(s), who may be senior to the petitioners. 13. The above observations mean that the promotion of the petitioners shall not adversely affect promotions of those persons in the gradation list, who were, otherwise, senior to the respondent Nos. 4 and 5. The granting of promotion, with effect from 10.06.99, did not deny to any of the promotees his seniority in the seniority list. As the respondent Nos. 4 and 5 ought to have been given promotion as far back as 10.06.2009, but they were illegally and unjustifiably denied promotion and the fact, that in the meanwhile, the present petitioner was recruited directly to the post of AE in the year 2001, cannot be made a ground, sustainable in law, to deny to respondent Nos. 4 and 5 promotion with effect from 10.06.99. 14. As a last resort, Mr. Das, learned Senior counsel, points out that in the earlier writ petition, which respondent Nos. 4 and 5 had filed, the present petitioner had not been impleaded as a party, though he had become AE before the respondent Nos. 4 and 5 became AEs. 15. While considering the above submission of Mr. 14. As a last resort, Mr. Das, learned Senior counsel, points out that in the earlier writ petition, which respondent Nos. 4 and 5 had filed, the present petitioner had not been impleaded as a party, though he had become AE before the respondent Nos. 4 and 5 became AEs. 15. While considering the above submission of Mr. Das, it needs to be noted that the right of being impleaded in a proceeding before a Court, in a case of present nature, is the demand of the principles of natural justice that a person's right shall not be made to be adversely affected without giving him an opportunity of being heard; but if such a denial has taken place, the person, who challenges a judicial order on the ground that he had not been heard, must be able to show as to what prejudice has been caused to him by such denial. For this purpose, he is duty bound to show as to what he would have stated, had he received the opportunity. 16. In the case at hand, the writ petitioner has, admittedly, submitted, now, whatever he would have submitted, had he been impleaded as a party in the earlier writ petition. What he submits, now, could not have stopped the Court from taking the decision, which it took in the earlier writ petition inasmuch as the decision, taken earlier in the face of the admitted facts and the law contained in that behalf, cannot be said to be wrong or incorrect. 17. What emerges from the above discussion is that the petitioner herein has not been able to make out any case warranting this Court's interference with its own directions, given by judgment and order, dated 11.11.2002, nor has the petitioner been able to make out any case for obtaining directions that he shall be treated as senior to the respondent Nos. 4 and 5. 18. In the result and for the reasons discussed above, this writ petition fails and the same shall accordingly stand dismissed. 19. No order as to costs. Send back the records. Petition dismissed.