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2017 DIGILAW 1447 (GAU)

Kipa Amah v. State of Arunachal Pradesh

2017-11-16

SONGKHUPCHUNG SERTO

body2017
JUDGMENT : Songkhupchung Serto, J. 1. Heard Mr. Dicky Panging, learned counsel, appearing on behalf of the writ petitioners. Also heard Mr. Kardak Ete, learned Senior Addl. Advocate General, Arunachal Pradesh, assisted by Ms. Tsering Wangmu, learned Government Advocate, on behalf of the State Respondents. Mr. Khoda Tama, learned counsel, appearing on behalf of private Respondent No. 4 is also heard. This is a writ petition under Article 226 of the Constitution of India, challenging the impugned order, dated 02.12.2016, issued by the Secretary(Urban Development & Housing), Government of Arunachal Pradesh, whereby the Respondent No. 4, who is a Junior Engineer in Public Works Department, Government of Arunachal Pradesh, was brought into the Department of Urban Development & Housing, Government of Arunachal Pradesh, as Urban Programme Officer(for short, UPO) which is equivalent to the post of Assistant Engineer, on deputation basis. At the same time, repatriation of the respondent No. 4 has also been prayed for. 2. The case of the petitioners, in brief, is that pursuant to a selection process, they were appointed as Assistant Urban Programme Officer (AUPO, for short) in the Department of Urban Development & Housing, Government of Arunachal Pradesh, in the year 2009-10 and ever since, their appointment orders were issued, they have continued to serve in the said Department and have completed service length of 5 to 8 years. That while they were waiting expectantly and eagerly to be promoted to the post of UPO for which they were already eligible as per the Recruitment Rules namely "The Urban Programme Officer Recruitment Rules, 2006" (hereinafter referred to as 'Rules of 2006'), the Respondent No. 4 was all of a sudden brought to the vacant post of UPO by the impugned order referred to above in violation of the Rules of 2006. That the said order having been issued in violation of the Rules of 2006, it needs to be quashed and set aside so that those among the petitioners who are already eligible for promotion to the post of UPO, gets a chance for such promotion. 3. Mr. Panging, learned counsel, referred to column 12 of the Schedule attached to the Rules of 2006, wherein, it is provided that promotion to the post of UPO shall be from amongst the AUPO of the Department who have completed 8 years of regular service for Diploma holders and 5 years of regular service for Degree holders. 3. Mr. Panging, learned counsel, referred to column 12 of the Schedule attached to the Rules of 2006, wherein, it is provided that promotion to the post of UPO shall be from amongst the AUPO of the Department who have completed 8 years of regular service for Diploma holders and 5 years of regular service for Degree holders. Learned counsel submitted that the petitioners were eligible for promotion to the post of UPO in terms of this Rule on the day the deputation order, under challenged, was issued. 4. Thereafter, the learned counsel referred to the U.O. Note of the concerned Minister, dated 03.10.2016, wherein the Minister after having stated that private Respondent No. 4 had submitted an application to him, requesting him to appoint him to the post of UPO on deputation requested the Chief Engineer to appoint the respondent as requested. The learned counsel further referred to the action taken by the Dealing Officer of the Department on the Note of the Minister. The Dealing Officer, at Sl. Nos. 322 and 323 of NSP-59, pointed-out that as per the Recruitment Rules, in case any vacancy arises, and if nobody in the line of promotional zone in the lower grade is available, the vacant post under promotional quota is to be advertised in the print media for filling up the same by deputation by persons who had 8 years experience as Junior Engineer. The Dealing Officer, thereafter, also pointed out that 8(eight) posts of UPO which were temporarily vacated by the officiating DDs will be lying vacant after regularization of the officiating DDs in their respective posts and the DPC for the same was in process. The Dealing Officer also stated therein that at present, there were AUPOs who have already completed the qualifying length of regular service for promotion to the post of UPO. And added also that out of 8 vacant posts, 4(four) posts are for direct recruitment and 4(four) posts are for promotional quota. Mr. The Dealing Officer also stated therein that at present, there were AUPOs who have already completed the qualifying length of regular service for promotion to the post of UPO. And added also that out of 8 vacant posts, 4(four) posts are for direct recruitment and 4(four) posts are for promotional quota. Mr. Panging also referred to the Note written by the Joint Director, Urban Development Department, Government of Arunachal Pradesh, on the same note sheet which stated as follows: "It is not advisable to appoint UPO on deputation as the RRs specifies recruitment of 50% vacancy by way of direct recruitment through Public Service Commission and another 50% of vacancy by promotion from amongst the AUPOs who have completed minimum 8 years of regular service." 5. It is submitted by Mr. Ranging, that despite these Notes of the Officers of the Department, the concerned Minister went ahead and approved appointment of respondent No. 4, as UPO, on deputation till the regular DPC is held. And accordingly, the impugned order, dated 02.12.2016, was issued. The learned counsel also submitted that from all this process it appears that the authorities inspite of being aware of the existence and implications of the Rules of 2006, brought the respondent No. 4 on deputation to the post of UPO, therefore, the impugned order is liable to be quashed and set aside. 6. In order to demonstrate that the petitioners were eligible for promotion to the post of UPO, learned counsel referred to the seniority list of the AUPOs wherein the educational qualifications, dates of appointments in the post, besides other particulars of the officers in the cadre of AUPOs are given. 6. In order to demonstrate that the petitioners were eligible for promotion to the post of UPO, learned counsel referred to the seniority list of the AUPOs wherein the educational qualifications, dates of appointments in the post, besides other particulars of the officers in the cadre of AUPOs are given. According to the seniority list, Petitioner No. 1 is a B.Tech.(C) and he was appointed to the post of AUPO, on 22.01.2010; Petitioner No. 2 is a DCE and he was appointed to the post of AUPO, on 19.08.2009; Petitioner No. 3 is a DCE and he was appointed to the post of AUPO, on 15.12.2009; Petitioner No. 4 is a B.Tech.(C) and he was appointed to the post of AUPO, on 15.12.2009; Petitioner No. 5 is a B.Tech.(C) and he was appointed to the post of AUPO, on 22.01.2010; Petitioner No. 6 is a DCE and he was appointed to the post of AUPO, on 22.01.2010; Petitioner No. 7 is a B.Tech.(C) and he was appointed to the post of AUPO, on 22.01.2010; Petitioner No. 8 is a DCE and he was appointed to the post of AUPO, on 22.01.2010; and Petitioner No. 9 is a DCE and he was appointed to the post of AUPO, on 10.12.2010. It is submitted by Mr. Panging that as per the seniority list, petitioners No. 1, 4, 5 and 7, had completed qualifying length of service as AUPO for promotion to the post of UPO. He further submitted that Rules of 2006 was framed and enacted under Article 309 of the Constitution of India, therefore, the authorities has to adhere to it in matters concerning service conditions of the UPO. Therefore, as per the provision given in the Schedule of Rules of 2006, as long as there are persons serving in the post of AUPO who are eligible for promotion to the post of UPO, no other person from outside the Department can be brought to such post on deputation. Therefore, it is clear that the impugned order was issued in violation of the Rules. 7. Mr. Ete, learned Senior Addl. Therefore, it is clear that the impugned order was issued in violation of the Rules. 7. Mr. Ete, learned Senior Addl. Advocate General, Arunachal Pradesh, submitted that in order to bring in parity amongst the Engineers of the Engineering Departments of the State, a policy decision was taken by the State Government by which it was decided that "the recruitment to the posts of Assistant Engineers Rules 2005", be made applicable to all the Engineering services of all the Departments. It was at that relevant point of time that the impugned order was issued as per "the recruitment to the posts of Assistant Engineers Rules 2005". The learned Senior Advocate General further submitted that "the recruitment to the post of Assistant Engineer Recruitment Rules of 2005", provides 8 years length of regular service and 5 years length of regular service for Diploma and Degree holders, respectively, for eligibility to promotion to the post of AE but the Rule was amended in the year 2008 pursuant to a Cabinet Decision vide Office Memorandum, dated 24.10.2008. In that Memorandum qualifying length of service was made 8(eight) years for both the Degree and Diploma holders and the same was extended in the case of UPO in the Department of Urban Development & Housing, Government of Arunachal Pradesh. Therefore, by application of this Rule, none of the petitioners were eligible at the time when the consideration for bringing the Respondent No. 4 to the post of UPO on deputation was taken, as such, the petitioners have no locus standi to file this writ petition. 8. Mr. Ete, by way of reinforcing his submission as stated above submitted that since the petitioners were not eligible for promotion to the post of UPO at the relevant point of time, the Respondent No. 4 was brought on deputation as permitted by the Rules of 2006. Therefore, no illegality has been committed in the issuance of the impugned deputation order. 9. Mr. Ete, further submitted that in the year 2006, the Rules of 2005 was amended and it was notified by the Department of Personnel, A.R. & Training, Government of Arunachal Pradesh, vide Notification, dated 14.08.2006. And in that Column 3 of that Rules in particular was amended and the words "Arunachal Engineering Service, Group B" has been substituted with the words "Arunachal Engineering Service, Group A". And in that Column 3 of that Rules in particular was amended and the words "Arunachal Engineering Service, Group B" has been substituted with the words "Arunachal Engineering Service, Group A". This benefit has been extended to the UPOs of the Department of Urban Development & Housing, Government of Arunachal Pradesh. Mr. Ete, also referred to another Notification, dated 12.08.2007, wherein Column 12 of Rules of 2005 was amended by adding the words "and passed in Accounts Examination as Junior Engineer" and submitted that the same has been extended to the service condition of the AUPO. Having stated, as above, Mr. Ete, submitted that in practice the Rules of 2005 particularly the qualifying length of service has been extended and applied in the case of UPO also. Mr. Ete, concluded his argument by referring to the judgments of the Hon'ble Supreme Court as rendered in the following cases:- (1) (1970) 2 SCC 484 : Adi Pherozshal Gandhi Vs. H.M. Seervai, Advocate General of Maharashtra, Bombay) (2) (1975) 2 SCC 702 : (Bar Council of Maharashtra Vs. M.V. Dabholkar & Ors.) (3) AIR 1976 SC 578 : Jasbhai Motibai Desai Vs. Roshan Kumar & Ors. 10. Mr. Panging, learned counsel for the petitioners, submitted that Rules of 2005 is not applicable in the case of the petitioners, firstly, because the Rules of 2005 was enacted only for the Departments of PWD, Power (E), Rural Works Department, IFC, PHE, Power(C), and does not include Department of Urban Development & Housing as per the introduction of the Rules. Secondly, when there is a Rule in existence for a particular service, there is no reason why a Rule foreign to such service, should be applied. Learned counsel also submitted that Rules of 2006 came into force only in the year 2006 where as "the Recruitment to the posts of Assistant Engineers Rules 2005 was already in existence, therefore, the 2005 Rules could not have superseded the 2006 Rules. The learned counsel also submitted that there was no amendment of the Rules of 2006 by which the relevant provision of the Rules of 2005 have been extended. The learned counsel went on and submitted also that the latest amendment to Rules of 2006 was notified only in the year 2017, precisely, on 28.08.2017. The learned counsel also submitted that there was no amendment of the Rules of 2006 by which the relevant provision of the Rules of 2005 have been extended. The learned counsel went on and submitted also that the latest amendment to Rules of 2006 was notified only in the year 2017, precisely, on 28.08.2017. As per that amendment, somebody outside the service/cadre can be brought on deputation, however, this Rule cannot be applied in the case of the Respondent No. 4 since the same was not in existence when the impugned order, was issued. 11. Mr. Panging, further submitted that Office Memorandum, dated 24.10.2008, issued by the Department of Personnel, A.R. & Training, Government of Arunachal Pradesh, cannot supersede the Rules of 2006 because it is a settle principle of law that Rules framed and enacted under Article 309 of the Constitution of India, cannot be superseded by any rule framed by executive and issued in the form of Memorandum or Notification. He also added that the said OM cannot be applied in this case because the OM was issued specifically in regard to Rules of 2005. In support of his submissions, learned counsel has referred to the following decisions:- (1) (1989) 2 SCC 541 : Paluru Ramkrishnaiah & Ors. Vs. Union of India & Ors. (2) (1989) supp (1) SCC 393 : State of Maharashtra Vs. J.A. Karandikar (3) (2007) 2 SCC 491 : Punjab Water Supply & Sewerage Board Vs. Ranjodh Singh & Ors. (4) (2005) 8 SCC 394 : Union of India Vs. V. Ramakrishnan & Ors. 12. Mr. Tama, learned counsel for Respondent No. 4, submitted that the Respondent No. 4 has been brought into the Department of Urban Development & Housing, Government of Arunachal Pradesh, on deputation, in the exigency of service for temporary period, in his own scale of pay, as Junior Engineer. Therefore, the Respondent No. 4 may be sent back any time when the Government decides that his service is required in the parent Department or elsewhere. As such, by his deputation in the post of UPO has not affected the rights of the petitioners. Learned counsel also submitted that unless the Respondent No. 4 is absorbed in the Department of Urban Development & Housing, Government of Arunachal Pradesh, there is no question of violating the rights of the petitioners for promotion to the post of UPO. As such, by his deputation in the post of UPO has not affected the rights of the petitioners. Learned counsel also submitted that unless the Respondent No. 4 is absorbed in the Department of Urban Development & Housing, Government of Arunachal Pradesh, there is no question of violating the rights of the petitioners for promotion to the post of UPO. In support of his submission and to make clear the position or status of a person on deputation, the learned counsel cited the 2(two) judgments of the Apex Court given hereunder :- (1) AIR 1998 SC 7 : State of Punjab & Ors. Vs. Inder Singh & Ors. (2) (2005) 8 SCC 394 : Union of India Vs. V. Ramakrishnan & Ors. 13. After having heard the learned counsels representing the parties, in this case, and also after having gone through the relevant Rules to which the learned counsels have referred to and the judgments relied upon by them, this Court has come to the following conclusions: (i) There is no denial of the fact that there is a service Rule for the post of UPO in the Department of Urban Development & Housing, Government of Arunachal Pradesh, and the same was duly enacted under Article 309 of the Constitution of India. There is also no dispute on the interpretations of the relevant provisions of the Rules to which we are concerned. In view of this fact, I am unable to agree with the argument that the provisions of Rules of 2005 governing the service conditions of the Engineers in the Departments of PWD, Power(E), Rural Works Department, IFC, PHE, Power(C), can be extended or has been extended to the service conditions of the Department of Urban Development & Housing, Government of Arunachal Pradesh, to the post of AUPO. When specific Rules have been enacted, for a particular service which is different and distinct from the other the provisions of the service Rules enacted for the other service, cannot be simply extended to it unless there is a provision allowing the same in the Rules enacted for that particular service. If such a situation is permitted to happen that would create chaos in the administration and not only that but arbitrariness and nepotism would also creep in the service. Rules are enacted after proper consideration and after having gone through a long process of vetting and approving. If such a situation is permitted to happen that would create chaos in the administration and not only that but arbitrariness and nepotism would also creep in the service. Rules are enacted after proper consideration and after having gone through a long process of vetting and approving. If it was the intention of the Government to apply the Rules of 2005 in the service conditions of the UPO, they would have never enacted the Rules of 2006. It is not the case of the respondents that there was a Clause in the Rules of 2006 or in the General Rules of service which permits extension of the provisions of the Rules of 2005 in the service conditions of UPO, on and above, the provisions of the Rules of 2006. In view of the above, the case of the respondents with due respect I would conclude is illogical, untenable and not permissible in law. Therefore, it is dismissed. 14. Now, coming back to the next question as to whether the petitioners were eligible for promotion to the post of UPO, it has been pointed-out by Mr. Panging, learned counsel for the petitioners from the seniority list of the AUPOs, that at least, petitioners No. 1, 4, 5 & 7, were eligible for promotion to the post of UPO as per the Rules of 2006. And the same has been found to be true. As such, I am of the view that the petitioners were eligible for promotion to the post of UPO at the time when the Respondent No. 4 was brought into the Department of Urban Development & Housing, Government of Arunachal Pradesh, on deputation, therefore, they certainly have locus standi to file this writ petition. Mr. Tama, learned counsel for Respondent No. 4, submitted that Rules of 2006 has been amended in 2017 and as per the amendment, the petitioners are no longer eligible for promotion to the post of UPO, therefore, they have no locus standi to file this writ petition. The submission of learned counsel for Respondent No. 4, I am afraid, is a little misplaced because this amendment came only in the year 2017 as apparent whereas the impugned order was issued on 02.12.2016. 15. In view of the conclusions arrived at it hereby held that the impugned order, dated 02.12.2016, was issued in clear violation of the Rules of 2006. 15. In view of the conclusions arrived at it hereby held that the impugned order, dated 02.12.2016, was issued in clear violation of the Rules of 2006. A settled Principle of law is that when an Act/Statute provides a thing to be done in a particular manner it has to be done in that manner only. Since the Rules of 2006 was enacted to govern the service conditions of the UPO in the Department of Urban Development & Housing, Government of Arunachal Pradesh and that Rules provides as to when a deputationist can be brought in, the respondent No. 4 could have been brought in only when such a situation as provided in that Rule arises. But since the respondents instead of applying the same has applied the Rules of 2005 in bringing the respondent No. 4 to the Department of Rural Development & Housing the same is liable to be set aside. Therefore, the impugned deputation order, dated 02.12.2016, is hereby quashed and set aside. Needless to say but the Respondent No. 4 should be sent back to his parent Department at the earliest and the Department of Urban Development & Housing, Government of Arunachal Pradesh, should conduct the Departmental Promotion Committee (DPC) for promotion of eligible AUPOs to the post of UPO as per the existing RR expeditiously. With the above directions, this writ petition stands disposed of. There is no order as to costs. In view of the above order the connected LA. filed by Respondent No. 4, stands dismissed.