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Gauhati High Court · body

2018 DIGILAW 222 (GAU)

Sunni Lal v. Union of India

2018-02-06

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Mr. U.K. Nair, the learned Senior Counsel assisted by Ms. N. Shyamal for the writ petitioner. Also heard Mr. D.K. Saikia, the learned CGC for the respondent Nos.1 to 5. None appears for the respondent No.6 despite notice. Mr. U.K. Nair submits that though the respondent No.6 is impleaded in the writ petition, the petitioner seeks no relief against him. 2. By this writ petition, the petitioner has claimed his promotion to the post of Supervisor Store Grade-II w.e.f 20.11.2010 i.e., the date of seniority fixed persuant to the DPC of 2010 held w.e.f 08.11.2010 to 20.11.2010. The facts of the case in brief is that the petitioner was appointed as Storeman (Group-D) on 17.09.1991 pursuant to a selection process under the Border Roads Organization (BRO). Subsequently, he was promoted to the post of Storekeeper Technical on 07.11.1997. The next promotional post from the post of Storekeeper Technical is to the post of Supervisor Store Grade-II as per the General Reserve Engineering Force Group C and Group D Recruitment Rules, 1982 (Rules of 1982) . In terms of Rule 48 of the Rules of 1982, a Storekeeper Technical with 8 (eight) years of regular service in the grade is eligible to be promoted to the post of Supervisor Store Grade-II subject to passing Departmental Examination. 3. The petitioner passed the Departmental Examination in the year 2003, completed 8 (eight) years of regular service in the Grade of Storekeeper Technical as on 07.11.2005 and his name figured at serial No. 38 of the list of candidates who passed the Departmental Examination. The list was circulated vide communication dated 16.10.2003 by the Assistant Administrative Officer & Record Officer wherein, it was also stated that those personnels who have passed the Departmental Examination need not appear again. 4. As per the Rules of 1982, 75% of the posts in the cadre of Supervisor Store Grade-II are to be filled up by promotion and 25% by way of direct recruitment. Against the promotion quota, two modes of promotion are provided i.e., 50% of the total posts are to be filled up by incumbents in the post of Storekeeper Technical who have passed the Departmental Examination and the other 50% from incumbents in the cadre of Storekeeper Technical based on their seniority position in the Master Seniority List. 5. Against the promotion quota, two modes of promotion are provided i.e., 50% of the total posts are to be filled up by incumbents in the post of Storekeeper Technical who have passed the Departmental Examination and the other 50% from incumbents in the cadre of Storekeeper Technical based on their seniority position in the Master Seniority List. 5. Vide communication dated 11.03.2011, 26 (twenty six) incumbents in the cadre of Storekeeper Technical were promoted to the cadre of Supervisor Store Grade-II. It was indicated in the communication that the promotions were made pursuant to the recommendation of the Central DPC held on 08.11.2010 to 20.11.2010. Out of the 26 (twenty six) incumbents who were promoted, only 11 (eleven) of them had cleared Departmental Examination. The remaining 15 (fifteen) incumbents were promoted on the basis of their seniority position in the Master Seniority List. Thus, by seniority, two incumbents were promoted in excess while there was a shortfall of equal number from those who passed Departmental Examination. Thus there was a breach of the Rules of 1982. 6. Thereafter, on 26.12.2011, the respondent authorities on the basis of an Office Circular dated 22.05.2010 proceeded to conduct fresh a Departmental Examination for considering promotion to the cadre of Supervisor Store Grade-II despite the fact that vide communication dated 16.10.2003, it was already provided that personnels who had passed the Departmental Examination were not required to sit for the same examination again. The petitioner being aggrieved filed an application under the provisions of the Right to Information Act, 2005 before the authority concerned seeking certain informations with regard to the details of the DPC of 2011 amongst others. 7. A reply to the application was given vide communication dated 10.04.2012. In the reply, amongst others, it was stated that all candidates who passed the Departmental Examination in the year 2000 were promoted while those who passed in the year 2003 were considered for promotion up to the DPC of 2010 held w.e.f 08.11.2010 to 20.11.2010 for the vacancy fell up to 31.10.2011. It was further stated that as per the instruction of the Directorate dated 25.02.2010, Departmental Examination is to be conducted every year and no waiting list is to be maintained. Therefore, fresh Departmental Examination was conducted on 26.12.2011 for selecting candidates for promotion to Supervisor Store Grade-II in the DPC held w.e.f 30.03.2012 for the vacancies upto 31.12.2012. It was further stated that as per the instruction of the Directorate dated 25.02.2010, Departmental Examination is to be conducted every year and no waiting list is to be maintained. Therefore, fresh Departmental Examination was conducted on 26.12.2011 for selecting candidates for promotion to Supervisor Store Grade-II in the DPC held w.e.f 30.03.2012 for the vacancies upto 31.12.2012. Only those candidates who passed the Departmental Examination conducted on 26.10.2011 are to be considered for promotion in the DPC and the Departmental Examination cleared by the candidates from the previous list of 2003 were forfeited. The petitioner having not appeared in the Departmental Examination conducted on 26.12.2011 would be considered for promotion on the basis of his seniority from the category of the incumbents who had not cleared the Departmental Examination. 8. According to the petitioner, the communication dated 25.02.2010 sent by the Directorate of the Director General, Border Roads clearly provided that the existing Departmental Examination qualified Storekeeper Technical were first to be adjusted in the promotional post and it is only after exhausting the list concerned that consideration for those who appeared in the Departmental Examination was to be made. The list of candidates who cleared the Departmental Examination wherein the petitioner is one of the incumbent having not been exhausted, the petitioner has approached this Court through the instant writ petition. 9. In response to the writ petition, the respondent Nos.1 to 5 have filed their affidavit-in- opposition on 04.12.2013 wherein, it is stated that in the DPC of 2010 which was held w.e.f 08.11.2010 to 20.11.2010, there were 42 (forty-two) vacancies in the post of Supervisor Store Grade-II against the 75% of the post to be filed up by promotion. As per the Rules of 1982, 50% each out of the 42 (forty-two) vacancies were to be filed up from amongst those who had passed the Departmental Examination and from amongst those who were eligible on account of their seniority in the Master Seniority List. Therefore, the 42 (forty two) vacancies were divided into 21 posts each for the two modes of promotion. However, there were only 15 (fifteen) eligible candidates who were promoted to the cadre of Supervisor Store Grade-II from amongst those who did not passed the Departmental Examination while they were only 11 (eleven) eligible candidates from amongst those who had passed the Departmental Examination. 10. However, there were only 15 (fifteen) eligible candidates who were promoted to the cadre of Supervisor Store Grade-II from amongst those who did not passed the Departmental Examination while they were only 11 (eleven) eligible candidates from amongst those who had passed the Departmental Examination. 10. The respondents in terms of the order dated 15.09.2017 passed by this Court filed their additional affidavit on 03.11.2017 wherein at paragraph No.5, it has been indicated that in the promotion order that was issued on 11.03.2011, two incumbents viz; Shree Narayana Pillai and Rajendran S were considered in the DPC of 2010 against the 50% quota of the incumbents who did not pass the Departmental Examination. However, these two persons submitted their unconditional unwillingness to accept the promotion to the cadre of Supervisor Store Grade-II and therefore they were not promoted. Subsequently, Shree Narayana Pillai and Rajendran S were considered in the subsequent DPC of 2011 which was held on 30.03.2012 to 10.04.2012 and as a result they were promoted to the post of Supervisor Store Grade-II vide order dated 26.07.2012. While Shree Rajendran S accepted and assumed the promotional post on 17.09.2012 with the date of his seniority w.e.f 10.04.2012, Shree Narayana Pillai again refused to accept the promotion by submitting his unwillingness. However, when Shree Narayana Pillai was again considered in the DPC of 2012 held w.e.f 19.11.2012 to 24.11.2012 and promotion order issued on 30.07.2013, the incumbent eventually accepted his promotion and assumed the promotional post on 07.10.2013 with the date of his seniority in the promotional post as 24.11.2012. As for the petitioner, the respondent authorities upon coming to a finding that there has been a misrepresentation when the DPC of 2011 was convened although the petitioner had passed the Departmental Examination in the year 2003. Therefore, having regaed to the misrepresentation and the pendency of the writ petition, the respondent authorities convened a review DPC of the DPC of 2011 in which the petitioner as well as 2 (two) other incumbents junior to the petitioner were considered. Consequently, the review DPC recommended their promotion vide communication dated 04.01.2013 with the date of their seniority to be accounted retrospectively w.e.f 10.04.2012. Therefore, the official respondents contend that the grievances of the petitioner has been meet with his promotion. 11. Mr. Consequently, the review DPC recommended their promotion vide communication dated 04.01.2013 with the date of their seniority to be accounted retrospectively w.e.f 10.04.2012. Therefore, the official respondents contend that the grievances of the petitioner has been meet with his promotion. 11. Mr. U.K. Nair, the learned Senior Counsel for the petitioner however submits that in the DPC of 2010 which was held w.e.f 08.11.2010 to 20.11.2010, the two recommended incumbents viz; Shree Narayana Pillai and Rajendran S who were recommended from the 15 (fifteen) percent earmarked for incumbents who did not pass Departmental Examination declined their promotion unconditionally, the review DPC should have considered, the case of the petitioner by reviewing the DPC of 2010 and not the DPC of 2011 since there were 2 (two) clear vacancies. He submits that the 2 (two) other incumbents who were considered along with the petitioner by review DPC of 2011 are junior to the petitioner therefore, the promotion of the petitioner should be considered by reviewing the DPC of 2010 and his seniority counted w.e.f 20.11.2010. 12. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record. From the communication dated 25.02.2010 (Annexure-6 of the writ petition) , it can be seen that the instruction of the Directorate of the BRO was that the incumbents who have qualified in the Departmental Examination should be adjusted for consideration of their promotion before Departmental Examination were conducted again from the year 2010. The petitioner admittedly cleared the Departmental Examination in the year 2003 and in view of the two incumbents i.e. Shree Narayana Pillai and Rajendran S who had declined unconditionally despite their promotion issued vide promotion cum posting order dated 11.03.2011, two vacancies were created. Since it is also the case of the official respondents that the petitioner could not be considered for promotion in the DPC of 2010 for want of vacancy, there appears to be no grounds as to why he should not be considered for promotion to the post of Supervisor Store Grade-II by reviewing the DPC of 2010. Moreover, when a review of the DPC of 2011 was unilaterally conducted by the official respondents themselves on the ground of misrepresentation. Under the given circumstance, I am of the considered opinion that there is substance and merit in the grievance expressed by the petitioner warranting appropriate remedy. Moreover, when a review of the DPC of 2011 was unilaterally conducted by the official respondents themselves on the ground of misrepresentation. Under the given circumstance, I am of the considered opinion that there is substance and merit in the grievance expressed by the petitioner warranting appropriate remedy. 13. In that view of the matter, the writ petition is disposed of with a direction to the respondent authorities to convened a review DPC to review the DPC of 2010 and consider the case of the petitioner for his promotion to the cadre of Supervisor Store Grade-II along with other eligible candidates against the 2 (two) vacancies created on account of refusal of promotion by the 2 (two) incumbents as has been noticed despite being recommended by the DPC of 2010. Upon the finalization of the review DPC, consequential order of promotion shall be passed by the respondent authorities promoting the petitioner with the date of his seniority in the post of Supervisor Store Grade-II as 20.11.2010. The respondent authorities shall carry out the entire exercise as directed as expeditiously as possible and at any rate not later than 3 (three) months from the date of receipt of a certified copy of this order. 14. With the above observations and directions, the writ petition stands disposed as allowed. No cost.