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2014 DIGILAW 35 (MEG)

K. Lyngdoh v. Krismel Nellang

2014-03-19

PRAFULLA C.PANT, T.NANDAKUMAR SINGH

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Judgment Prafulla C. Pant; CJ. Both these appeals are directed against the judgment and order dated 21.07.2008 passed by the learned Single Judge in WP(C) No. 271(SH)2007 whereby, the writ petition has been allowed and promotion order dated 31.10.2007 (Annexure-XV to the writ petition) in respect of private respondents has been set aside, and the State respondents have been directed to consider the promotion of the writ petitioner afresh. Heard learned counsel appearing for the parties and perused paper on record. 2. The brief facts of the case are that the writ petitioner was initially appointed as Peon (Checker) in the Department of Taxes, Govt. of Meghalaya and was posted at Check Gate, Byrnihat. He was promoted in the year 1990 as Lower Division Assistant (for short 'LDA') vide Memorandum dated 16.01.1990. The respondents No. 3-8 in the writ petition (who are appellants in Writ Appeal No. 21 of 2008) were also LDAs with the Department of Taxation of the State. The writ petitioner had pleaded that the said respondents though senior as LDAs in the writ petition did not accept the job of Upper Division Assistant (for short 'UDA') and as such, the writ petitioner was promoted (in officiation) vide order dated 30.09.1994 as UDA. On its basis, the writ petitioner has claimed himself to be senior to respondents No. 3-8 in the writ petition. The writ petitioner has relied upon Rule 7(4) of the Draft Rules of 1991, and pleaded that as against the respondents No. 3-8 in the writ petition, the writ petitioner should have been promoted to the post of Inspector of Taxes. It is admitted by the writ petitioner in Para-9 of the writ petition that in the Amalgamated Gradation List, he was shown junior to the private respondents No. 3-8. He made a representation as pleaded in the writ petition but his representation dated 31.08.2000 was not accepted and he was communicated about the same vide letter dated 27.10.2000. Claiming that the writ petitioner was more qualified, the promotion of respondents No. 3-8 in the writ petition was challenged by the writ petitioner. 3. Respondents contested the writ petition and filed their stay vacation application challenging the claim of the writ petitioner. Claiming that the writ petitioner was more qualified, the promotion of respondents No. 3-8 in the writ petition was challenged by the writ petitioner. 3. Respondents contested the writ petition and filed their stay vacation application challenging the claim of the writ petitioner. In the affidavit-in-opposition filed on behalf of the State respondents (who have filed the present Writ Appeal No. 22 of 2008) it is stated before the learned Single Judge that final Amalgamated Gradation List of the writ petitioner and the private respondents was published on 02.08.2006 (Annexure-XVI to the writ petition) and the private respondents in the writ petition, who were given promotions were senior to the writ petitioner. It is specifically pleaded by the State respondents in their affidavit-in-opposition that the Gradation List of LDA & UDA were combined list, and merely for that reason, the writ petitioner started working as UDA in officiation, he cannot claim right of promotion over the officials senior to him. Annexure-VI to the writ petition which is a copy of the order dated 30.09.1994 shows that the writ petitioner was only allowed to officiate as UDA in the Office of the Superintendent of Taxes, Byrnihat. Annexure-VI to the writ petition filed by the writ petitioner itself shows that the officiating arrangement was purely temporary. As such, it can be said that the writ petitioner did not get regular promotion over the private respondents No. 3-8. 4. Apart from above, we are of the considered view that the Draft Rules relied upon by the writ petitioner could not have been invoked before the same was approved by the Government and notified by the competent authority. Therefore, in our opinion, learned Single Judge erred in law in accepting the plea of the writ petitioner that the promotion of the writ petitioner should have been made on the basis of Rule 7(4) of the Draft Rules of 1991. 5. In Vimal Kumari vs. State of Haryana & Ors: (1988) 4 SCC 114, the Apex Court has held that the Draft Rules cannot be invoked for regulating promotion criteria unless the same are notified. In the same case, the Apex Court further held in Para-7 that in absence of any other criteria, seniority is to be followed in promotion. 6. In Vimal Kumari vs. State of Haryana & Ors: (1988) 4 SCC 114, the Apex Court has held that the Draft Rules cannot be invoked for regulating promotion criteria unless the same are notified. In the same case, the Apex Court further held in Para-7 that in absence of any other criteria, seniority is to be followed in promotion. 6. In Nagpur Improvement Trust vs. Yadaorao Jagannath Kumbhare & Ors: AIR 1999 SC 3084 , the Apex Court has observed in Para-8 as under:- .........While interpreting the provisions of Section 21 of the Act (Nagpur Improvement Trust Act, 1936) the High Court has lost sight of general principle of service jurisprudence that in the absence of any statutory rules governing the service conditions of the employees, the executive instructions and/or decisions taken administratively would operate in the field and appointments/promotions can be made in accordance with such executive instructions/administrative directions. ............. 7. It appears from the record that the Office Memorandum No. ERTS(T) 85/96/Pt.II/18 dated 24.08.2007 was holding the field (in absence of Rules) which was followed in making promotion of present appellants of Writ Appeal No. 21 of 2008 including respondents No. 3-8 in the writ petition. 8. For the reasons discussed above, we are unable to agree with the view taken by the learned Single Judge in allowing the writ petition and setting aside the promotion of appellants before us in Writ Appeal No. 21 of 2008. Therefore, both the writ appeals i.e. WA No. 21 of 2008 and WA No. 22 of 2008 are allowed. Impugned judgment and order dated 21.07.2008 passed by the learned Single Judge in WP(C) No. 271(SH)2007 is hereby set aside. No order as to costs.