Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 325 (RAJ)

Mahendra Kumar Gupta v. State of Rajasthan

2017-01-30

ALOK SHARMA

body2017
ORDER : Alok Sharma, J. 1. Under challenge is the letter dated 29-1-2004 whereby the Chief Engineer Irrigation was required by the State Government to remove the name of petitioners, initially engaged as Junior Engineer (Diploma) (Civil) on temporary/ad hoc basis but regularised as Junior Engineer (Degree) (Civil) from the Seniority list of Junior Engineers (Degree) (civil). Facts: 2. The petitioners were appointed as Junior Engineers (Diploma) (civil) in the Irrigation Department on urgent temporary basis under Rule 27 of the Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1967 (hereinafter 'the Rules of 1967') from time to time between 1987 and 1997. The appointments were initially in each case for six months, but were however extended. Albeit appointed Junior Engineers (Diploma) (civil), in view of the petitioners' educational qualification of BE/AMIE, the Finance Department vide letter dated 5-7-1997 allowed the petitioners higher pay. 3. Vide notification dated 28-7-1998 clause 10 was added to Rule 6 of the Rules of 1967. This newly added clause provided that those inter alia appointed as Junior Engineers on ad hoc/urgent/temporary basis upto 28-2-1997 and had continuously worked as such on the date the amendment came into force would be screened by a Committee constituted under Rule 24 of the Rules of 1967 for adjudging their suitability on post of Junior Engineer, if they possessed the requisite qualification and experience as prescribed in the Rules either for direct recruitment or for promotion. Similarly clause 13 to Rule 28 of the Rules of 1967 was added by way of the said amendment dated 28-7-1998 and provided that inter se seniority of Junior Engineers screened and found suitable for appointment by regularisation under Rule 6(10) would be on the basis of their length of service on urgent/temporary basis on the posts held and such persons would rank junior to those persons appointed on regular basis on the post of Junior Engineers upto the date of amendment i.e. 28-7-1998. 4. Following the introduction of clause 10 and clause 13 of the Rules of 1967, a Screening Committee under Rule 24 of the Rules of 1967 was constituted and the petitioners along with others including those working on ad hoc/temporary basis also under Rule 27 of the Rules of 1967 as Junior Engineer (Degree) (Civil) thereupon came to be regularised as Junior Engineer (Degree) (Civil) by the Chief Engineer Irrigation. The inter se seniority of the petitioners came to be accordingly determined in the cadre of Junior Engineer (Degree) (Civil) purportedly on the basis of the date of their having been acquired the qualification of BE/AMIE, albeit they were at the time relevant to the screening working as Junior Engineers (Diploma) (civil). A provisional seniority list of Junior Engineers (Degree) (civil) including the petitioners then came to be issued on 1-4-2003 reflecting the petitioners' seniority in terms of Rule 28(3) of the Rules of 1967. 5. The case of the petitioners is that subsequently under letter dated 29-1-2004, the Government has directed the Chief Engineer Irrigation that those who had initially been appointed as Junior Engineers (Diploma) (civil) on ad hoc/temporary basis under Rule 27 of the Rules of 1967 through the Man Power Department (such as the petitioners) could not be regularised and included in the seniority list of Junior Engineers (Degree) (civil) and instead had to be included in the list of Junior Engineers (Diploma) (civil) and be so then conferred seniority in the said cadre under Rule 28(13) of the Rules of 1967. 6. Aggrieved, the petitioners have approached this court. 7. The case of the petitioners is that the said impugned letter dated 29-1-2004 is adverse to their rights of petitioners. Already regularised as Junior Engineers (Degree) (civil), their cadre cannot be peremptorily be changed. The letter dated 29-1-2004 is hence vitiated inter alia for contravention of the principles of natural justice. It has been submitted that despite having been regularised as Junior Engineers (Degree) (civil) by the Screening Committee constituted under the Rules of 1967 effective 28-7-1997 and each of the petitioners then having been shown in the provisional seniority list dated 1-4-2003 of the said cadre, they cannot be excluded therefrom and instead borne on the cadre of Junior Engineers (Diploma) (civil). It was submitted that in any event the Chief Engineer being the appointing authority under the Rules of 1967, the State Government had no jurisdiction to issue the impugned letter dated 29-1-2004, and the same is also illegal on that count. It was submitted that the petitioners were rightly regularised as Junior Engineers (Degree) (civil) as at the time of regularisation by the Screening Committee as they had the requisite qualification of BE/AMIE. 8. It was submitted that the petitioners were rightly regularised as Junior Engineers (Degree) (civil) as at the time of regularisation by the Screening Committee as they had the requisite qualification of BE/AMIE. 8. The respondents in reply to the petition have submitted that the petitioners on their own say were appointed as Junior Engineers (Diploma) (civil) in the Irrigation Department on ad hoc/temporary basis, albeit they may have at the relevant time possessed the qualification of BE/AMIE. This apparently and logically was for the reason that they were unable to find on merit appointment as Junior Engineers (Degree) (civil). Be as it may, the petitioners having got appointment as Junior Engineers (Diploma) (civil) on ad hoc basis, they so worked in that capacity and not as Junior Engineers (Degree) (civil). Even if granted higher pay on the said post of Junior Engineers (Diploma) (civil) based on their BE/AMIE degrees, if had no effect on the nature of their appointment. It was submitted that the Screening Committee under Rule 6(10) of the Rules of 1967 appears to have overlooked the above facts for reason of error/oversight/plain manipulation. It had no mandate under Rule 6(10) of the Rules of 1967 to change the birthmark of the petitioners in service from Junior Engineers (Diploma) (civil) to Junior Engineers (Degree) (civil) at the time of regularization--no matter what their academic qualification i.e. BE/AMIE at the time of screening. The plain language of Rule 6(10) of the Rules of 1967 under which regularisation was done mandated that it could only be so done on the post on which the incumbent had been appointed on ad hoc/temporary basis. The State Government has under the impugned order dated 29-1-2004 only sought adherence to Rule 6(10) of the Rules of 1967 and rectify the error benefitting the petitioners, all Junior Engineers (Diploma) (civil) and illegally regularised as Junior Engineers (Degree) (civil). The petitioners in the circumstances have no legal right which has been contravened. Petitions under Article 226 of the Constitution of India are not instruments for perpetuating illegalities as the petitioners would have this court do by quashing the impugned letter dated 29-1-2004. There is no illegality or arbitrariness attributable to the impugned order dated 29-1-2004 and it has to be sustained. Petitions under Article 226 of the Constitution of India are not instruments for perpetuating illegalities as the petitioners would have this court do by quashing the impugned letter dated 29-1-2004. There is no illegality or arbitrariness attributable to the impugned order dated 29-1-2004 and it has to be sustained. Further the State Government is quite competent to issue necessary directions to the Chief Engineer Irrigation, its employee where illegalities in orders passed by him are ex facie or otherwise evident. And the Chief Engineer is under an obligation to comply with such directions. 9. The private respondents have opposed the writ petition on the ground that the State has power to rectify any illegality. It has further been submitted that the unlawful regularisation of the petitioners all, at the relevant time, appointed and working as Junior Engineers (Diploma) (civil), as Junior Engineers (Degree) (civil) puts the respondents--all Junior Engineers (Degree) (civil) to disadvantage in the seniority list of Junior Engineers (Degree) (civil) and adversely affects their right to consideration for promotion to the next higher post of Assistant Engineer. 10. Mr. Prahlad Singh appearing for the petitioners has submitted that the petitioners were screened and thereafter appointed as Junior Engineers (Degree) (civil) under Rule 6(10) and not under Rule 6(1A) of the Rules of 1967, where migration from Junior Engineers (Diploma) (civil) to Junior Engineers (Degree) (civil) would entail such transferees being put below the junior most Junior Engineers (Degree) (civil). He submitted that in fact the petitioners were screened as Junior Engineers (Degree) (civil) on the basis of their BE/AMIE qualification despite then holding the post of Junior Engineers (Diploma) (civil). This for the reason that the Finance Department, Government of Rajasthan, vide order dated 5-7-1997 had sanctioned higher pay to the petitioners because of their holding qualification of BE/AMIE. Resultantly the petitioners were practically treated as Junior Engineers (Degree) (civil). Counsel submitted that the petitioners have come to have a vested right on the post of Junior Engineers (Degree) (civil) pursuant to their screening and the order dated 14-5-1998, which cannot be set at naught peremptorily, without an opportunity of the hearing, as sought to be done by the impugned letter dated 29-1-2004. It therefore be set aside, submitted counsel for the petitioners. 11. Mr. It therefore be set aside, submitted counsel for the petitioners. 11. Mr. Ashok Bansal, counsel for private respondents has submitted that the petitioners had been appointed as temporary/ad hoc Junior Engineers (Diploma) (civil) under Rule 27 of the Rules of 1967. They were not admittedly appointed Junior Engineers (Degree) (civil), even if they might have also had at the relevant time or subsequently acquired while working as Junior Engineers (Diploma) (civil) the qualification of BE/AMIE. Migration from the cadre of Junior Engineers (Diploma) (civil) to that of Junior Engineers (Degree) (civil) could only be under Rule 6(1A) of the Rules of 1967 for those in regular service. That exercise of migration was never done as it could not be done prior to regularisation. The petitioners therefore could not lawfully become part of the cadre of Junior Engineer (degree) (Civil) in the process of regularisation under Rule 6(10) of the Rules of 1967. It was submitted that based on the amendment dated 28-7-1998 whereby Rule 6(10) was incorporated in the Rules of 1967 the petitioners could not change their cadre from Junior Engineer (diploma) (Civil) to Junior Engineer (degree) (Civil). In the circumstances, the petitioners were wrongly and unlawfully regularised shown in the seniority list dated 1-4-2003 relating to be Junior Engineer (degree) (Civil). The impugned order dated 29-1-2004 is one of necessary rectification as required by law. It is thus wholly legal and valid to ensure that the petitioners do not perpetuate for themselves the undue/illegal benefits. The court therefore should not interfere with the order dated 29-1-2004 and instead dismiss the petition. 12. Heard. Considered. 13. In my considered view there is no substance in the contentions of Mr. Prahlad Singh counsel for the petitioners. A Junior Engineer (diploma) (civil) working on urgent temporary/ad hoc basis under Rule 27 of the Rules of 1967 could not be screened and regularised in terms of plain language of Rule 6(10) of the Rules of 1967 as a Junior Engineer (degree) (civil). The words of importance in Rule 6(10) aforesaid are "continuously been working AS SUCH (capital for emphasis) on the date the amendment comes into force. The words of importance in Rule 6(10) aforesaid are "continuously been working AS SUCH (capital for emphasis) on the date the amendment comes into force. The Committee constituted under Rule 24 of the Rules of 1967 to screen the petitioners under the then newly added Rule 6(10) and appoint them by regularisation was to consider their case for regularisation on the post on which they were then working i.e. Junior Engineer (diploma) (civil) and on no other post. I am of the considered view that the words "as such" in Rule 6(10) are conclusive, consequent to which the process of regularisation and appointment under the Rule could not extend to a post on which the concerned ad hoc employees were not working on the date of screening by the Committee. It is not in dispute that the petitioners were all appointed on temporary/ad hoc between 31-12-1982 and 28-2-1997 to the post of Junior Engineers (diploma) (civil) and were working as such on the date of the screening. Under Rule 6(10) of the Rules of 1967 they could have been screened and regularised only on the post of Junior Engineers (Diploma Holder) (civil) and not Junior Engineers (Degree Holder) (civil). Their qualification in BE/AMIE was irrelevant to screening process under Rule 6(10) of the Rules of 1967. Yet having so been appointed the petitioners cannot use the forum of the writ court and invoke its extraordinary jurisdiction to perpetuate the illegality of which they have been fortuitous beneficiaries. No equity can sustain palpable illegality. Equity can only supplement law not supplant it. Law mandates correction of an illegality, as does justice. Equity thus has no place in the instant case, more so when invoking it would be prejudicial to the private respondents with regard to their seniority in the cadre of Junior Engineer (degree holder) (Civil) and subsequent promotion therefrom to the higher post of Assistant Engineer. Hence no interference with the impugned letter/order dated 29-1-2004 is warranted. Quashing the impugned letter would revive the illegal order dated 14-5-1998 whereby the petitioners were illegally regularised in the face of the plain language and mandate of Rule 6(10) of the Rules of 1967 as Junior Engineer (degree) (Civil) despite at the relevant time having been engaged and working as ad hoc Junior Engineer (diploma) (Civil) under Rule 27 of the Rules of 1967. 14. 14. Further the State Government is the superior authority and the Chief Engineer Irrigation its subordinate officer. Any illegality by way of appointment by regularisation is administrative in nature and can always be reviewed and corrected at the instance of the State Government. I am thus unable to hold to the contrary, as argued by the counsel for the petitioners, that the State Government had no jurisdiction to issue order dated 29-1-2004. The petitioners having wrongly been regularised as Junior Engineers (Degree) (civil) and so reflected in the seniority list of Junior Engineers (Degree) (civil) should be excluded therefrom as has rightly been directed by the impugned inter department letter dated 29-1-2004. 15. Submissions of counsel for the petitioners' that the impugned order dated 29-1-2004 is vitiated for reasons of contravention of the principles of natural justice is without force in the facts of the case. For one, the impugned letter dated 29-1-2004 is only inter governmental correspondence. No adverse order had been conveyed to the petitioners as on the date of the said letter. There is no warrant to conclude that the petitioner would not have been allowed an opportunity to show cause prior to any order adverse to their interest being conveyed to them. Further it is well settled that the principles of natural justice are neither strait jacket nor an idle and empty formality. Where it is evident that no plausible defence obtains, there is no warrant to mechanically comply with the principles of natural justice or provide an opportunity of hearing. On the admitted facts of the case and operating law, particularly Rule 6(10) of the Rules of 1967, there is no conceivable manner in which the petitioners can be entitled as of right or even in equity to claim regularisation as Junior Engineer (degree) (Civil) under Rule 6(10) of the Rules of 1967, even while they were appointed as Junior Engineer (diploma) (Civil) on ad hoc basis under Rule 27 of the Rules of 1967 and were working "as such" on the date of their regularisation. 16. Mr. Prahlad Singh finally submitted that the impugned letter dated 29-1-2004 had been stayed by this court on 9-9-2005. He submitted that since then, the petitioners have been promoted from the cadre of Junior Engineers (Degree) (civil) to higher posts as also have been the respondents. 16. Mr. Prahlad Singh finally submitted that the impugned letter dated 29-1-2004 had been stayed by this court on 9-9-2005. He submitted that since then, the petitioners have been promoted from the cadre of Junior Engineers (Degree) (civil) to higher posts as also have been the respondents. I find the submission and the aforesaid fact also brought on record by way of an additional affidavit, quite irrelevant to the issue in the petition. In view of the pending dispute before this court all subsequent events including promotions to higher posts have per force to be subject to the outcome of the writ petition--on the doctrine of lis pendes. 17. The writ petition is without force and accordingly dismissed. Consequences to follow.