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2021 DIGILAW 622 (GAU)

Obi Dai v. State of Arunachal Pradesh

2021-10-26

KALYAN RAI SURANA

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JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. M. Pertin, learned senior counsel, assisted by Mr. M. Pertin, learned counsel for the petitioners. Also heard Mr. R.H. Nabam, learned Additional Advocate General of the State, assisted by Ms. P. Pangu, learned Junior Government Advocate appearing for respondent Nos. 1 to 5 and Mr. R. Saikia, learned counsel for the private respondent Nos. 6 and 7. 2. By filing this writ petition under article 226 of the Constitution of India, the 10 petitioners herein, claiming common cause of action, have assailed the recommendations made by the Departmental Promotion Committee (‘DPC’) in its minutes dated 24.7.2012, to regularize the promotion made to the respondent Nos. 6 and 7 from the post of Junior Engineer (Civil) [‘JE(C)’] to the post of Assistant Engineer (Civil) [‘AE(C)’] from the date of officiating promotion, i.e. 21.5.2005 and 31.8.2005/respectively. The petitioners have also prayed for issuance of a direction upon the respondent-authorities to prepare a seniority list of AE(C) in the ratio of 50:50 (i.e. promotees and direct recruitees). 3. In this writ petition, it is projected that initially the Public Works Department was the only Engineering Department in the State of Arunachal Pradesh. Subsequently, Power as well as Electrical Department was bifurcated from the Public Works Department. Thereafter, in the year 2004, Power Department and the Electrical Department were bifurcated and the Power Department was renamed as Department of Hydro Power Development (‘DoHPD’). On 24.8.2006, the petitioners were selected and appointed as direct recruitees in the post of AE(C) in the DoHPD. It is projected that when DoHPD was created, no direct recruitment was held, but 16 AE(C) were appointed in the DoHPD on officiating promotions made in the year 1997. A DPC dated 23.7.2003 was held for promotion to the post of AE(C), and the minutes of the DPC was challenged by the aggrieved persons by filing WP (C) 238(AP)/2003 and WA No. 449/2005, which were subsequently withdrawn. Thus, the DPC held on 23.7.2003 was implemented and 9 Nos. of JE(C) were promoted to the next higher post of AE(C). The provisional seniority list of AE(C) was published on 21.8.2007, wherein the names of the petitioners were at Serial Nos. 23 to 32, respectively. Subsequently, by DPC minutes dated 24.7.2012, the names of the respondent Nos. Thus, the DPC held on 23.7.2003 was implemented and 9 Nos. of JE(C) were promoted to the next higher post of AE(C). The provisional seniority list of AE(C) was published on 21.8.2007, wherein the names of the petitioners were at Serial Nos. 23 to 32, respectively. Subsequently, by DPC minutes dated 24.7.2012, the names of the respondent Nos. 6 and 7 were recommended for promotion to the post of AE(C) with retrospective effect from 21.5.2005 and 31.8.2005, respectively, which was implemented and the said actions of the State have been assailed in this writ petition. 4. The learned senior counsel for the petitioners has submitted that no service rules has been framed for the JE(C) and AE(C) in the DoHPD and, therefore, the DoHPD was following the Assistant Engineer (Civil) (Group ‘B’) Recruitment Rules, 1991 (‘1991 Rules’) which envisaged filling up 50% posts of AE(C) by way of direct recruitment and 50% posts were to be filled up by promotion from eligible JE(C), out of which it was envisaged that 80% of vacancies would be reserved for Arunachal Pradesh Scheduled Tribe candidates. By referring to the affidavit-in-opposition filed by the State respondents in connection with WP (C) No. 543(AP)/2005 - D. Ete vs. State of Arunachal Pradesh, it is submitted that the stand of the State was to the effect that (i) in the year 2005, the cadre strength of AE(C) in DoHPD was 31, (ii) that year-wise vacancy was 12 in the year 1994; 8 in the year 1997 and 11 in the year 2005, (iii) that as per recruitment rules, 50% of 31 posts will be 15+1=16 as first vacancy goes to promotees and 15 posts will go to Direct Recruitment and (iv) that in the year 1997, 20 vacant posts of AE(C) were filled up on officiating basis in exigency of work. Accordingly, it is submitted that the State respondents had already filled up more than 50% posts of AE(C) by ad hoc promotions in the year 1997 and, therefore, illegality was committed in further promoting the respondent Nos. 6 and 7 by promotion with retrospective effect from the year 2005, which was in excess of the then available quota. The learned senior counsel for the petitioners has placed reliance on the following cases viz. Sunaina Sharma vs. State of Jammu and Kashmir, (2018) 11 SCC 413 , State of Maharashtra vs. Sanjay Thakre, 1995 Supp. 6 and 7 by promotion with retrospective effect from the year 2005, which was in excess of the then available quota. The learned senior counsel for the petitioners has placed reliance on the following cases viz. Sunaina Sharma vs. State of Jammu and Kashmir, (2018) 11 SCC 413 , State of Maharashtra vs. Sanjay Thakre, 1995 Supp. (2) SCC 407, Keshav Chandra Joshi vs. Union of India, 1992 Supp. (1) SCC 272, Direct Recruit Class-II Engineering Officer's Association vs. State of Maharashtra, (1990) 2 SCC 715 and A.K. Subraman vs. Union of India, (1975) 1 SCC 319 . 5. Per contra, the learned Additional Advocate General as well as the learned counsel for the respondent Nos. 6 and 7 have submitted that when the DoHPD was created, due to exigency of service and in public interest the State had given ad hoc promotion to 20 JE(G) to the next higher promotional post of AE(C). Out of these 20 promotees, one AE(C) had died and the service of one AE(C) was terminated and in the resultant two vacant position, the DPC in its minutes dated 247.2012, had recommended the names of the respondent Nos. 6 and 7 for promotion to the post of AE(C). It is also submitted that the DPC dated 24.7.2012 was held pursuant to the directions contained in the judgment and order dated 6.2.2009 passed by this court in WP (C) No. 53(AP)/2008 (Yimi Angu vs. State of Arunachal Pradesh) and judgment and order dated 17.1.2006, passed by this court in WP (C) No. 543(AP)/2005 (Dormar Ete vs. State of Arunachal Pradesh). It has been submitted that the present respondent Nos. 6 and 7 were the two writ petitioners in WP (C) No. 53(AP)/2008 and the direction in the judgment and order passed therein was to quash the promotion given to 18 AE(C) with further direction to the State respondents to hold DPC and place the cases of 18 AE(C) including private respondents therein along with the petitioners, i.e. the respondent Nos. 6 and 7 in this writ petition under the provisions of Recruitment Rules of 2005, 80 : 20 reservation policy and 100 point roster adopted by the Government as a measure of rectification/modification of the regularisation/promotion order dated 29.6.2007. 6. It is submitted that as per the stand of the State respondents, in the year 2002, the respondent Nos. 6 and 7 in this writ petition under the provisions of Recruitment Rules of 2005, 80 : 20 reservation policy and 100 point roster adopted by the Government as a measure of rectification/modification of the regularisation/promotion order dated 29.6.2007. 6. It is submitted that as per the stand of the State respondents, in the year 2002, the respondent Nos. 6 and 7 had become eligible for being considered for promotion in the next higher post of AE(C), but the DPC dated 24.7.2012 had recommended the promotion of the respondent Nos. 6 and 7 from the date of officiating promotion, i.e. 21.5.2005 and 31.8.2005, respectively. It is also submitted that as the petitioners had bom in the cadre of AE(C) in the year 2006, the petitioners had no, locus standi to assail the promotion made to the respondents with effect from the date of officiating promotion, i.e. 21.5.2005 and 31.8.2005, respectively. It is also submitted that as because the cases of 18 AE(C) who were given ad hoc or officiating promotions in the year 1995-1997 were also being considered by the DPC, the 1991 Rules was applicable. 7. It is also submitted by the learned counsel for the respondent Nos. 6 and 7 that the said respondents were the first batch of direct recruitees in the post of JE(C) and the respondent No. 6 joined as JE (C) on 12.2.1997 and the respondent No. 7 had joined the said post of JE(C) on 27.11.1997 and as the respondent Nos. 6 and 7 were degree holders/as per the 1991 Rules, they had become eligible in the year 2002 for being considered for promotion after 5 years of continuous service as JE(C), but the DPC had recommended their promotion with effect from 213.2005 and 31.8.2005, respectively. It is submitted that from the statements made and documents appended to the writ petition it would be apparent that out of 18 JE(C) (excluding the respondent Nos. 6 and 7), who were given officiating promotion to the post of AE(C) by order dated 26.9.2017, the persons whose names appear at serial Nos. 1 to 10 were APSC appointees and the persons whose names appear in serial Nos. 11 to 18 were non-APSC appointees. It is also submitted that the petitioners had admitted in paragraph 8 of the writ petition that 7 AE(C) were appointed against direct recruitment quota. 1 to 10 were APSC appointees and the persons whose names appear in serial Nos. 11 to 18 were non-APSC appointees. It is also submitted that the petitioners had admitted in paragraph 8 of the writ petition that 7 AE(C) were appointed against direct recruitment quota. Accordingly, it is submitted that the promotions made to the respondent Nos. 6 and 7 is not liable to be interfered with. It is also submitted that the issue of inter se seniority can be taken care of when the final gradation list is prepared by the State respondents. 8. It is not in dispute at the Bar that the Assistant Engineer (Civil) (Group B) Recruitment Rules, 1991 was adopted by the DoHPD vide Government order dated 18.6.19% till framing of its own recruitment rules. Thereafter, vide notification dated 15.12.2005, published in the Arunachal Pradesh Gazette, Extraordinary, dated 19.12.2005, the Recruitment to the posts of Assistant Engineer Rules, 2005 was brought into force under article 309 of the Constitution of India to regulate the method of recruitment to the posts of Assistant Engineer, Group B in the Department of PWD, Power (Electrical), RWD, IFC, PHE, Power (Civil), etc. under the Government of Arunachal Pradesh. The said 2005 Rules envisage recruitment of 50% post by promotion and 50% by direct recruitment from the select list prepared on the basis of written examination followed by viva voce test by the Commission, i.e. Arunachal Pradesh Public Service Commission. The said 2005 Rules were amended by the Recruitment to the posts of Assistant Engineer (Amendment) Rules, 2008, by which it was provided as follows - “by promotion from amongst the Junior Engineers of the department who have rendered 8 years of regular service in the grade and passed in accounts examination as Junior Engineer”. 9. By filing affidavit-in-opposition, the stand of the respondent No. 2 is to the effect that the statement made in the paragraph 9 of the writ petition was admitted wherein it was alleged that the authorities had promoted many JE(C) to the vacant direct recruited post of AE(C) and that the authorities had appointed 7 AE(C) out of 16 posts of AE(C) without considering the direct recruitment quota but it is stated that the same was done in exigency of work and in the interest of public service. The further stand is to the effect that in the year 2005, 10 posts of AE(C) was filled up by direct recruitment through APPSC and that in the years 2007, 2010 and 2013, requisition was made to the APPSC for making direct recruitment to 4, 8 and 5 AE(C), respectively, being 50% posts meant for direct recruitment quota and accordingly it is projected that at present, ratio of 50:50 for direct and promotion quota has been maintained. 10. It is seen that in no uncertain words it has been mentioned in the affidavit-in opposition filed by the State respondents in WP (C) No. 543(AP)/2005 that as on the date when the said affidavit-in-opposition was filed, the sanctioned strength of AE(C) under DoHPD under the Government of Arunachal Pradesh was 31 and that vacancy position year-wise in the said post for the year 1994 was 12, for the year 1997 it was 8 and for the year 2005 it was 11 posts. It was the further stand of the State respondents that as per recruitment rule, 50% of 31 post would be 16 because normally first vacancy goes to promotee and 15 will go to direct recruitment and that due to exigency of work, 20 posts of AE(C), which were vacant during 1997, had been filled up on officiating basis, but due to pending court case, the officiating promotion could not be released and, therefore, on withdrawal of the court cases and on recommendation of the DPC held on 23.7.2003, the officiating service of 9 persons named therein had been regularized. The further stand of the Stale respondents was to the effect that now 7 more posts are being regularized against promotion quota and that out of 15 posts against direct recruitment quota, the regularization for 10 posts have already been sent to the APPSC. The stand taken in paragraphs 5, 7 and 8 of the affidavit-in-opposition has been reproduced in the judgment and order dated 17.1.2006, passed by this court in WP (C) No. 543(AP)/2005. 11. The DPC held on 24.7.2012 had recommended promotion/regularization of officers whose name appeared at SI. Nos. 1 to 4 and 6 to 20. The promotion to the private respondent Nos. 6 and 7 was w.e.f. 25.5.2005 and 31.8.2005, respectively, whereas the person whose name appeared at SI. Nos. 1 to 4 and 6 and 7 were regularized w.e.f. 24.6.1997, person at SI. Nos. 1 to 4 and 6 to 20. The promotion to the private respondent Nos. 6 and 7 was w.e.f. 25.5.2005 and 31.8.2005, respectively, whereas the person whose name appeared at SI. Nos. 1 to 4 and 6 and 7 were regularized w.e.f. 24.6.1997, person at SI. No. 8 was regularized w.e.f. 9.7.1997, person at SI. No. 9 was regularized w.e.f. 15.5.2002, person at SI. No. 10 was regularized w.e.f. 06.2.1998, persons at SI. No. 11 was regularized w.e.f. 177.1998, person at SI. No. 12 was regularized w.e.f. 25.6.1998, persons at SI. Nos. 13 and 14 were regularized w.e.f. 9.6.1999, person at SI. No. 15 was regularized w.e.f. 15.6.2002, person at SI. No. 16 was regularized w.e.f. 15.9.1999, person at SI. No. 17 was regularized w.e.f. 15.11.1999 and person at SI. No. 18 was regularized w.e.f. 23.11.1999. 12. No document has been produced by the State respondents regarding the nature of reference which was made to the DPC and moreover, no document has been brought on record by the State respondents to show the cadre strength of AE(C) in the DoHPD as on 21.5.2006 and 31.8.2005, the date on and from which the officiating promotion to respondent Nos. 6 and 7 were regularized. Therefore, the only material available before this court is the affidavit-in-opposition filed by the State respondents in connection with WP (C) No. 543(AP)/2005 which was filed on 11.11.2005, wherein it has been stated specifically that as on the said date, the sanctioned strength of AE(C) under DoHPD was 31 and that the vacancy position in the year 2005 was only 11. As indicated above, the said fact is also reproduced in the judgment and order dated 17.1.2006, passed in WP (C) No. 543(AP)/2005. Therefore, the inevitable conclusion of the court is to the effect that the recommendation made by the DPC held on 24.7.2012 had failed to consider the relevant recruitment rules in force while recommending regularization of officiating promotion given to the respondent Nos. 6 and 7 from 21.5.2005 and 31.8.2005, respectively. In view of the challenge made only to the regularization of officiating promotion given to the respondent Nos. 6 and 7, the court is of the considered opinion that the promotions of respondent Nos. 6 and 7 were recommended by the DPC in excess of the quota for promotion as per the Recruitment Rules of 1991 as well as 2005. 13. 6 and 7, the court is of the considered opinion that the promotions of respondent Nos. 6 and 7 were recommended by the DPC in excess of the quota for promotion as per the Recruitment Rules of 1991 as well as 2005. 13. Resultantly, in view of the observation made by the hon'ble Supreme Court of India in the case of Keshav Chandra Joshi (supra), promotions of respondent Nos. 6 and 7, made in excess of promotional quota without adherence to the ratio of 50:50 for direct recruitment and promotional quota, in the opinion of the court, the respondent Nos. 6 and 7 would have to be treated as if on officiating/ad hoc promotion and they would become entitled for regularization of their promotion with effect from such dates on which the appropriate promotional quota becomes available for being filled up by the respondent Nos. 6 and 7. In the present case in hand, notwithstanding the projection that the respondent Nos. 6 and 7 had become qualified in the year 2002 for being considered for promotion, but as quota for promotional post of AE(C) was not available, their claim can only be considered on and from the date on which the promotional quota becomes available for the regularisation of promotion of the respondent Nos. 6 and 7. 14. In the case of Direct Recruit Class II Engineering Officer's Association (supra), it has been observed by the Supreme Court of India that where appointment was only ad hoc and made as a stop gap arrangement and in accordance to the rules, the officiation in such posts cannot be taken into account for considering the seniority. 15. In view of the discussions above, the writ petition succeeds and accordingly the writ petition stands allowed. Resultantly, the recommendation of the DPC, i.e. Departmental Promotion Committee, held on 24.7.2012 is set aside in so far as it concerns the recommendations made for regularization of officiating promotion made to respondent Nos. 6 and 7 from 21.5.2005 and 31.8.2005, respectively, without effecting any other recommendations made thereunder and consequently it would be open to the State respondents to prepare a fresh seniority list of AE(C) in the Department of DoHPD. 16. There shall be no orders as to cost.