Sumanta Nandi, Junior Engineer, Grade-I (Degree holder category) Agriculture Department v. Apurba Chakraborty, Junior Engineer (Mechanical)
2021-08-31
AKIL KURESHI, S.G.CHATTOPADHYAY
body2021
DigiLaw.ai
JUDGMENT : Akil Kureshi, J. The appellant has challenged a judgment of the learned Single Judge dated 10.03.2017 passed in WP(C) No.310 of 2014 filed by the respondent No.1 herein. [2] Brief facts are as under : The respondent No.1 was appointed on the post of Extension Officer(Engineering) in the Department of Agriculture under an order dated 15.12.1989. The petitioner was holding the degree of Engineering(Mechanical), though he was selected and appointed on a post which did not require the degree in Engineering. Over a period of time the Government of Tripura re-designated and at times amalgamated some of its cadres. Under an OM dated 12th September, 1991 it was provided that a Junior Engineer Grade-II (Diploma holder) who has completed 4(four) years of service including service as Overseer as on 31.12.1987 shall be designated as Junior Engineer Grade-I in the pay scale of Rs.2000-4410/-and those who complete such period after coming over to the revised scale also likewise shall be designated as Junior Engineer Grade-I in such revised scale of Rs.2000-4410/-from the date of completion of four years in service. On 29.10.2005 the Government of Tripura decided to amalgamate various posts of LUDC (Engineering), Technical Officer(Engineering), Workshop Foreman, Instructor(Engineering), Extension Officer(Engineering) under the Department of Agriculture into the post of Junior Engineer Grade-I in the pay scale of Rs.6500-12300/-with effect from 01.01.1996. It appears that pursuant to the said decisions of the Government of Tripura, the name of the petitioner was also included in the seniority list of Junior Engineer(Mechanical) Degree holder Grade-I in a final seniority list which was published on 07.08.2006. On the basis of the date of joining service the petitioner was shown at serial No.1 in the seniority list. Yet another seniority list was published by the department in the said cadre on 06.11.2010 in which also the petitioner was shown at serial No.1. [3] In the meantime, the present appellant had applied for the direct recruitment to the post of Junior Engineer Grade-I (Mechanical) for which selection was undertaken by TPSC in the year 2005. The appellant was selected and placed in serial No.2 of select list and appointed on the said post which he joined on 02.02.2005.
[3] In the meantime, the present appellant had applied for the direct recruitment to the post of Junior Engineer Grade-I (Mechanical) for which selection was undertaken by TPSC in the year 2005. The appellant was selected and placed in serial No.2 of select list and appointed on the said post which he joined on 02.02.2005. Significantly, in the final seniority lists dated 07.08.2006 and 06.11.2010 for the cadre of Junior Engineer(Mechanical) Degree holder Grade-I where, as noted above, the petitioner was shown at serial No.1, the appellant was shown at serial No.6. Thus, in the seniority lists of 2006 and 2010 the petitioner was shown junior to the appellant. [4] On 30.04.2014 the Government of Tripura published a fresh seniority list in the grade of Junior Engineer(Mechanical) Degree holder Grade-I in which the name of the petitioner was missing and the appellant was shown at serial No.2. The petitioner, thereupon, filed the above numbered writ petition and prayed for insertion of his name in the seniority list dated 30.04.2014. The petitioner did not join the present appellant as one of the respondents. The Government officials appeared in the writ petition and filed a detailed reply. Their stand was that though the petitioner possessed the degree in Mechanical Engineering, he was selected and appointed on the post of Overseer which did not require such qualification. The petitioner, therefore, cannot stake his claim in the cadre of Junior Engineer(Degree holder). Inclusion of the name of the petitioner in the seniority lists of 2006 and 2010 was a pure error and which was corrected in the fresh seniority list which was published in the year 2014. It was averred that to safeguard the interest of Degree holder Engineers the department maintains two separate seniority lists of Degree holders and Diploma holders. The petitioner should not have been shown in the seniority list of Degree holders. [5] The learned Single Judge allowed the writ petition by the impugned judgment holding that the department had discriminated the petitioner in terms of being accommodated in the cadre of Junior Engineer Grade-I. The learned Judge referred to a case of one Ganendra Chandra Pal who was similarly situated and whose case was considered as special case and who was absorbed in the cadre of Degree holder Junior Engineers. On the ground of parity, directions were issued for amending the seniority list in question.
On the ground of parity, directions were issued for amending the seniority list in question. [6] The Government did not challenge this judgment and corrected the seniority list including the name of the petitioner in the cadre of Junior Engineer Degree holder. The present appellant who was not joined as one of the respondents in the writ petition, thereupon, filed this writ appeal and sought leave of the Court to pursue the appeal. His ground was that by inserting the name of the petitioner in the cadre his seniority was being affected. His advocate would point out that post the judgment of the High Court, in the later seniority list the name of the petitioner appears at serial No.1 whereas the appellant’s name is shown at serial No.2. Despite strong resistance from the original petitioner we had allowed the application for leave to appeal. After entertaining the appeal we had given time to the original petitioner to file reply and to the appellant to file rejoinder, if any. After completion of such formalities the appeal was taken up for final disposal today. [7] Learned counsel Shri Biswas for the appellant vehemently contended that the appellant was a necessary party despite which he was not joined as a respondent in the writ petition. He, therefore, did not have opportunity to present his case before the Single Judge. Only on this ground the writ appeal should be allowed and the proceedings should be remanded to the Single Judge. In the alternative he contended that the learned Single Judge has committed a serious error in allowing the writ petition. The petitioner was appointed as an Overseer which post did not require a degree in Mechanical Engineering. Merely because the petitioner possessed such qualification would not qualify him to be included in the seniority list of Junior Engineer Degree holder. As against this, the appellant was selected and appointed as a direct recruit to the post of Junior Engineer Grade-I Degree holder. [8] On the other hand, learned counsel Shri Somik Deb for the original petitioner opposed the appeal contending that the petitioner was included in the seniority list of Junior Engineer Grade-I (Degree holders) in the seniority list published in the years 2006 and 2010. Several years later the Government unilaterally and without any notice to the petitioner excluded his name from the seniority list which was published in the year 2014.
Several years later the Government unilaterally and without any notice to the petitioner excluded his name from the seniority list which was published in the year 2014. This was wholly impermissible and illegal. Even otherwise, the petitioner was correctly included in the seniority list in question. The appellant cannot oppose his inclusion on the principles of delay and latches as well as on merits. [9] Learned Additional Government Advocate merely reiterated the stand taken by the Government before the learned Single Judge, though he agreed that the Government had not challenged the judgment of the Single Judge. [10] Certain events are undisputable. The petitioner was appointed as an Overseer in the year 1990. For the reasons which we would elaborate later, he was shown at serial No.1 in the final seniority list of Jr. Engineer (Degree Holder) published in the year 2006. This was reiterated in a seniority list which was re-published in the year 2010. In both the seniority lists name of the appellant was shown at serial No.6. There is nothing on the record to suggest that the appellant or any other person objected to this seniority position assigned to the petitioner. The contention of the counsel for the appellant that not being a party to the writ petition, the appellant could not bring on record any such document even if they are existed, is not a valid argument. We have granted liberty to the appellant to appeal against the judgment of the Single Judge, recognizing his locus standi insofar as the relative seniority is concerned. This would include filing of appeal along with all necessary documents in support of his case. He could not expect second innings for production of documents and for making averments after the appeal is heard and decided. We have, therefore, proceeded on the basis that there was no opposition to the seniority lists published by the department in the years 2006 and 2010. [11] Even assuming that the appellant raised any objection at the draft or final seniority stages, it is an admitted position that he never filed any proceedings before the Court to challenge those seniority lists. In other words, the final seniority lists of the years 2006 and 2010 were not challenged by the appellant or any other person before any Court.
In other words, the final seniority lists of the years 2006 and 2010 were not challenged by the appellant or any other person before any Court. It is well settled through series of judgments of Supreme Court that the seniority position in a cadre should not be disturbed after a long period of time and should be allowed to be settled after a reasonable period of time. It is not necessary to refer to large number of judgments on the point. Reference to the decision in case of Dr. Akshya Bisoi and another versus All India Institute of Medical Sciences and others reported in (2018) 3 SCC 391 would be sufficient. This was a case in which where the seniority position which was being questioned after 12 years of its final settlement, the Supreme Court observed that without any explanation such seniority cannot be questioned after such long delay. This legal proposition would apply not only to individuals but also to the Government. The Government of Tripura having included the petitioner in the seniority list and repeated the same position four years later, could not have overturned this position after a gap of eight years. The Government committed a serious error in dropping the name of the petitioner from the seniority list published in the year 2014, that too without any notice to the petitioner, presumably relying on the new recruitment rules published in the year 2011. The record would show that the Government of Tripura under notification dated 04.05.2011 had promulgated the Recruitment Rules of 2010. These rules provided that separate seniority list shall be maintained for Degree holder Engineering and Diploma holder Engineering posts respectively. The rules also provided for distribution of such posts for Degree holder and Diploma holder Junior Engineers Grade-I. These rules, however, had prospective applicability. By the time these rules were promulgated, the petitioner was already included in the seniority list of Junior Engineer Grade-I Degree holder. His position could not have been altered with the aid of these rules. [12] Additionally, we also find that by virtue of series of office orders and office memoranda the Government of Tripura had taken certain decisions and as a result of which the petitioner first got the benefit of absorption in the cadre of Junior Engineer Grade-I and after completion of four years thereof, got the benefit of the designation of Junior Engineer Grade-I (Degree holder).
His inclusion in the final seniority list of 2006 in the said cadre was thus neither an error nor an oversight. On merits also the Government committed an error in deleting the name of the petitioner from the seniority list published in the year 2014. [13] Under the circumstances, for the reasons somewhat different from those recorded by the learned Single Judge, the appeal is dismissed. Pending application(s), if any, also stands disposed of.