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2014 DIGILAW 506 (GAU)

Techi Jabae v. State of Arunachal Pradesh & Ors.

2014-05-08

B.K.SHARMA, M.R.PATHAK

body2014
R.K. Sharma J.:- 1. This writ appeal is directed against the judgment and order dated 11.11.2002 passed in WP(C) No. 196 (AP)/2001 affirmed in review judgment dated 2.5.2012 passed in WP(C) No. 4819/2010. 2. The writ petition being WP(C) No. 196 (AP)/2001 was filed by the respondents No. 4 and 5 praying for a direction to the official respondents to provide regular promotion as Assistant Engineer in the Rural Works Department with effect from 10.6.1999, on which date, they had completed 5 years of service in the feeder cadre of Junior Engineer. Be it stated here that according to the private respondents they being engineering graduates, as per the recruitment rules, they became eligible for promotion on 10.6.1999 on completion of 5 years of service in the feeder cadre. Recruitment rules provide for 5 years of regular service in the feeder cadre, of Junior Engineer. Earlier, there was another post of Technical Assistant in between Junior Engineer and Assistant Engineer which was subsequently abolished and relinquished as Junior Engineer. 3. As recorded in the impugned judgment and order, the private respondents were appointed as Junior Engineer in Rural Works Department on 10.6.1994 and within less then three years of service as such, they were promoted to the post of Technical Assistant vide order dated 30.4.1997. Thereafter they were given functional change of the post of Assistant Engineer and while holding such charge, their cases were considered by the DPC and as per the recommendation of the DPC meeting held on 20.3.2001, they were promoted to the post of Assistant Engineer vide order dated 28/30.3.2001. In the order of promotion, it was provided that their seniority would count with effect from 20.3.2001 i.e. the date on which the DPC had met. By filing the aforesaid writ petition, they had contended that since they had been holding the promotional post of Assistant Engineer on temporary basis and there were vacancies, they were entitled to get promotion from the date when they completed 5 years of required service in the feeder cadre of Junior Engineer. In the writ petition, their prayer was also to correct the date of promotion in their order of promotion dated 28/ 30.3.2001. 4. Mr. In the writ petition, their prayer was also to correct the date of promotion in their order of promotion dated 28/ 30.3.2001. 4. Mr. P.K. Tiwari, learned counsel for the appellant, however, submits that apart from the fact that the case projected by the petitioners in the said writ petition was incorrect, inasmuch as they were not holding the promotional post of Assistant Engineer substantively, but were allowed the functional charge of the same, the said charge was also discontinued on 16.8.2000. 5. By the impugned judgment and order, the learned Single Judge while noticing the aforesaid facts, more particularly the fact that the petitioners involved there in, who are the private respondents in this appeal have been promoted to the post of Assistant Engineer on regular basis pursuant to the aforesaid DPC vide order dated 30.3.2001 was of the opinion that their such promotion should have been made effective from the date when they had attained the eligibility for promotion and accordingly vide the impugned judgment and order, direction was issued that the petitioners promotion to the post of Assistant Engineer should be made effective from 10.6.1999. However, while ordering as such, it was also stipulated that the promotion of the petitioners, i.e., the respondents herein as Assistant Engineer with effect from 10.6.1999 should not adversely affect the position in the gradation list of any person(s), who might be senior to the petitioners. Be it stated here that the present appellant was not party to the writ petition. 6. The appellant herein is a direct recruit to the post of Assistant Engineer and he was appointed on 14.8.2000 pursuant to the recommendation of the Public Service Commission. It will be pertinent to mention here that the private respondents had also appeared in the selection conducted by the Public Service Commission along with the appellant, but could not succeed. Thus, it is submitted by Mr. Tiwari, learned counsel for the appellant that had it been a case in which they had succeeded in the Public Service Commission selection, they would have become Assistant Engineer on the basis of the merit position in the Public Service Commission list only in 2000 along with the appellant. However, because of the impugned judgment, they have now become Assistant Engineer with effect from 10.6.1999 occupying higher seniority positions above the appellant. 7. However, because of the impugned judgment, they have now become Assistant Engineer with effect from 10.6.1999 occupying higher seniority positions above the appellant. 7. As noted above, the impugned judgment and order dated 11.11.2002 was passed ex parte against the present appellant. When he came to know about the said judgment, he filed a writ petition being WP(C) No. 542 (AP)/2005, which was subsequently re-numbered as WP(C) No. 4819/2010. The said writ petition was filed virtually in the form of review petition as in the earlier writ petition, that was disposed of by the impugned judgment arid order dated 11.11.2002, the appellant was not party. The writ petition filed "by the appellant was dismissed by order dated 2.5.2012 upholding the impugned judgment and order dated 11.11.2002. Being aggrieved, the appellant has filed the present appeal. 8. We have heard Mr. P.K. Tiwari, learned counsel for the petitioner and have also heard Mr. R.H. Nabam, learned State Counsel and Mr. M. Batt, learned counsel along with Mr. G. Tadi, learned counsel for the respondent Nos. 4 and 5. We have also considered the entire materials on record. 9. Mr. Tiwari, leaned counsel for the appellant submits that the learned Single Judge could not have ordered for effecting promotion of the private respondents from the date of attaining eligibility without considering other relevant factors. According to him, mere eligibility did not cloth them with any right for their promotion. He further submits that since the private respondents had been promoted vide order dated 28/30.3.2001 pursuant to the recommendation of the DPC that was held on 20.3.2001 with the specific stipulation that their seniority would count with effect from 20.3.2001, the private respondents could not have projected altogether a different case in the writ petition suppressing the material facts. In this connection, he has referred to the initial appointments of the private respondents as Junior Engineer, which were in the form of temporary appointment under Central Civil Service (Temporary Service) Rules, 1965. They were offered with such appointment vide orders dated 23.5.1994 and upon acceptance of the terms and conditions stipulated therein, they were appointed as Junior Engineer de horse any recruitment process as per the recruitment rules. They were offered with such appointment vide orders dated 23.5.1994 and upon acceptance of the terms and conditions stipulated therein, they were appointed as Junior Engineer de horse any recruitment process as per the recruitment rules. As noted above, even before completion of 3 years of such temporary service, they were further promoted to the post of Technical Assistant and thereafter they claimed further promotion to the post of Assistant Engineer with effect from the date of purported attainment of eligibility on completion of 5 years of service with effect from 10.6.1999. 10. Mr. Nabam, learned State Counsel submits that since the case of the respondents had been considered by the review DPC pursuant to the impugned judgment and order of this court and they have been promoted with effect from 10.6.1999, there is nothing wrong in it. Learned counsel representing the respondent Nos. 4 and 5 also submits that the said respondents were given initial appointment in 1994 as direct recruit on availability of vacancies and in absence of any other qualified candidates. According to him, although the appointment was said to be under Central Civil Service (Temporary Service) Rules, 1965, but for all intent and purpose, the same was on regular basis. He submits that since the private respondents had completed 5 years of service, as per the recruitment rules, they attained the eligibility with effect from 10.6.1999 for further promotion to the post of Assistant Engineer, their cases ought to have been considered for such promotion instead of deferring the same till 2001 when they were promoted vide the aforesaid order dated 28/30.3.2001. 11. The fact of the matter is that the appellant was appointed as Assistant Engineer (Civil) as a direct recruit with effect from 14.8.2000 pursuant to the selection conducted by the Arunachal Pradesh Public Service Commission. The fact of the matter is also that the private respondents had also appeared in the said selection, but could not be successful. By the time the appellant had entered into the cadre of the Assistant Engineer, the private respondents were not born in the said cadre. They were in the feeder cadre of Junior Engineer. The fact of the matter is also that the private respondents had also appeared in the said selection, but could not be successful. By the time the appellant had entered into the cadre of the Assistant Engineer, the private respondents were not born in the said cadre. They were in the feeder cadre of Junior Engineer. Thereafter, the DPC considered their cases along with others and by the aforesaid order dated 28/30.3.2001, they were promoted to the post of Assistant Engineer clearly stipulating that their seniority would be counted with effect from 20.3.2001, on which date the DPC had met. 12. On perusal of the impugned judgment dated 11.11.2002 passed in WP(C) No. 196 (AP)/2001 what is found is that the prayer of the private respondents was to give them retrospective promotion with effect from 10.6.1999 when they had allegedly attained the eligibility. Merely because they had attained the eligibility on 10.6.1999, same by itself did not cloth them with the right to get DPC convened on the same date and to order for their promotion from the same date. As it appears they also did not challenge the order of their promotion dated 28.3.2001 providing them promotion with effect from 20.3.2001, but only sought for correction of the date of promotion. 13. It is in the above context, Mr. Tiwari, learned counsel for the appellant has drawn our attention to the high haste in which the private respondents had been promoted after their initial appointment as Junior Engineer on temporary basis to the post of Technical Assistant and thereafter providing functional charge of the post of Assistant Engineer. Referring to their initial appointment under Central Civil Service (Temporary Service) Rules, he submits that their such appointments being not substantive in nature following the recruitment rules holding the field, they could not have been further promoted and the learned Single Judge ought to have been considered that aspect of the matter before providing retrospective promotion with effect from 10.6.1999. He also submits that the learned Single Judge should have considered such retrospective promotion might affect the seniority of the persons already in the cadre of Assistant Engineer. 14. Instead of racking up the issue regarding initial appointment of the private respondents, we confine ourselves to the issue as to whether the learned Single Judge could have-issued direction for retrospective promotion of the said two respondents. 14. Instead of racking up the issue regarding initial appointment of the private respondents, we confine ourselves to the issue as to whether the learned Single Judge could have-issued direction for retrospective promotion of the said two respondents. Even if there was vacancy in the promotional post, it was for the authority to decide as to whether the said posts should be filled up or not. Mere attainment of eligibility cannot make an incumbent to claim promotion from the date of eligibility. Various other factors are also required to be considered, otherwise all the promotees will claim that their promotion should be given effect to from the date of their eligibility. Moreover, the suitability of the private respondents having been judged by the DPC which met on 20.3.2001 could not have been made applicable with effect from 10.6.1999. It is in this context, Mr. Tiwari, learned counsel for the appellant placing reliance on the decision of the Apex Court reported in UPSC v. Hiranyalal Dev and Ors., AIR 1988 SC 1069 submits that the learned Single Judge could not have issued direction for granting promotion to the private respondents from a particular date. 15. Mr. Tiwari, learned counsel for the appellant has also placed reliance on the decision of the Apex Court reported in R.S. Garg v. State of U.P. and Ors., (2006) 6 SCC 430 . In the said case, the Apex Court was concerned with the illegal appointment and the experience gathered in the substantive capacity. It was held that appointment de horse the rules would render the same illegal. This judgment has been referred by Mr. Tiwari, learned counsel for the appellant to submit that when the initial appointment of the private respondents were illegal, they could have score a march over the appellant, who was regularly appointed as a direct recruit upon selection conducted by the Public Service Commission. 16. In Union of India and Ors. v. Majji Hangammayya and Ors., in AIR 1977 SCC 757, the Apex Court held that no employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurred. In Nani Sha and Ors. 16. In Union of India and Ors. v. Majji Hangammayya and Ors., in AIR 1977 SCC 757, the Apex Court held that no employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurred. In Nani Sha and Ors. v. State of Arunachal Pradesh and Ors., (2007) 15 SCC 406 , the Apex Court dealing with the tussle between the direct recruits and promotes held that promotion given in 2002 could not have been made retrospectively operational from 1994 and thereby making the promotes senior to the direct recruits already in the cadre. As in the said case, in the instant case also the private respondents had been working under the appellant at-least from 2000 to 2001 and thereafter because of the impugned judgment, they scored a march over him. 17. In Amarjeet Singh and Ors. v. Devi Ratan and Ors., (2010) 1 SCC 417 , the Apex Court held that an officer cannot be granted seniority prior to his birth in a cadre, adversely affecting the seniority of other employees, appointed prior to him. 18. In the instant case, admittedly, the private respondents were appointed initially on temporary basis as Junior Engineer and thereafter on the basis of the impugned judgment and order, they could get their promotion with effect from 10.6.1999 when they had attained their purported eligibility. Although, the learned counsel for the respondents Nos. 4 and 5 referring to the minutes of the DPC held on 20.3.2001 annexed to the counter affidavit submits that retrospective promotion of the private respondents along with some others was pursuant to the said review DPC, but on the face of it such purported review DPC was held simply, following the direction of this court towards giving retrospective promotion to the private respondents with effect from 10.6.1999. In the DPC, suitability of the respondents was not judged and the DPC provided retrospective promotion to them solely on the basis of the direction contained in the impugned judgment. That apart, the basic challenge in this appeal is the judgments of the learned Single Judge. 19. All the above aspects of the matter having not been considered by the learned Single Judge in its review judgment dated 2.5.2012 passed in WP(C) No. 4819/2010, the same is also liable to be set aside and quashed. That apart, the basic challenge in this appeal is the judgments of the learned Single Judge. 19. All the above aspects of the matter having not been considered by the learned Single Judge in its review judgment dated 2.5.2012 passed in WP(C) No. 4819/2010, the same is also liable to be set aside and quashed. As noted above, in the earlier impugned judgment dated 11.11.2002, while providing retrospective promotion to the respondents who were the petitioners therein, it was specifically provided that, their such retrospective promotion with effect from 10.6.1999 shall not adversely affect the position in the gradation list of any person(s) who might be senior to them. Thus, even with the retrospective promotion, the respondents could not have scored a march over the appellant in seniority, more so when he was already in the cadre before induction of the respondents. This aspect of the matter was also not considered in the review judgment. 20. For all the aforesaid reasons, the impugned judgment and orders dated 11.11.2002 passed in WP(C) No. 196(AP)/2001 and; review judgment dated 2.5.2012 passed in WP(C) No. 4819/2010 stands set aside and quashed. Consequently, the appellant would rank senior to the private respondents on the basis of his direct recruit to the cadre of Assistant Engineer on 14.8.2000, when the private respondents were not born in the said cadre and were working in the feeder cadre of Junior Engineer. Accordingly, their respective seniority position shall be re-casted. 21. The writ appeal is allowed, without, however, any order as to costs.