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2021 DIGILAW 695 (GAU)

Kago Bath v. State of A. P.

2021-11-16

ROBIN PHUKAN

body2021
JUDGMENT : ROBIN PHUKAN, J. 1. In this writ petition, under Article 226 of the Constitution of India, the petitioners, namely - Shri Kago Bath and Shri Tarik Nyitan, who are presently serving in Industries Department as Asstt. Director of Industries, have put to challenge the decision of the respondent authorities, to conduct Departmental Promotion Committee meeting on 30.08.2021, for filling up two posts of Deputy Director of Industries in Industries Department from amongst the serving officers of Skill Development and Entrepreneurship Department, which has already been bifurcated, vide Order Dated 17.06.2016, and also maintaining of one seniority list, by the respondent authorities of the officers serving in the department of Industries and in the new department of Skill Development and Entrepreneurship, even after bifurcation. 2. The factual background leading to filing of this writ petition is adumbrated herein below:- "In the year, 2016, vide notification No. IND/ESTT/41/2001(Pt.), dated 17.06.2016, the Govt. of Arunachal Pradesh has created a new department i.e. the Department of Skill Development and Entrepreneurship, bifurcating the parent department, i.e. Department of Industries. After creation of the new Department, a circular vide Memo No. IND/ESTT/BIFURCATION/55/2017, option was invited from the serving officers and staffs of Industries Department to state either to continue in the Department of Industries or to shift to the newly created Department of Skill Development and Entrepreneurship. Thereafter, several officers and staffs staked their choice and the same was considered and duly approved by the authority. Thereafter, vide order dated 24.02.2020, Memo No. SIND(Estt.) Bifurcation/203/2019, 4 (four) persons, namely, 1) Shri Geto Ori, 2) Shri Gyati Kacho, 3) Shri Jumbom Riba & 4) Shri Toyi Rakshap who were serving in the Industries Department, opted for the post of Assistant Director of Industries in the Department of Skill Development and Entrepreneurship and they were permanently transferred to the new department. Thereafter, in the Department of Industries there existed 2 (two) vacant posts of Deputy Director of Industries, which may soon be filled up from amongst the serving Assistant Director of Industries and the date of conducting of DPC is scheduled to be held on 30.08.2021. Thereafter, in the Department of Industries there existed 2 (two) vacant posts of Deputy Director of Industries, which may soon be filled up from amongst the serving Assistant Director of Industries and the date of conducting of DPC is scheduled to be held on 30.08.2021. The contention of the petitioners is that in those 2 (two) vacant posts of Deputy Director of Industries, the officers, who have earlier been released and transferred from the Industries Department to the Department of Skill Development and Entrepreneurship can no longer be considered for promotion under the Industries Department, as on 24.02.2020, they have already been transferred and released permanently from the Industries Department by the authority on their own choice. It is the further contention of the petitioner that their names can no longer be maintained in the seniority list of the Department of Industries also, and only those officers who have been serving in the Industries Department should be considered. Thereafter, the petitioners submitted a representation on 09.06.2021, to the Director of Industries, Govt. of Arunachal Pradesh seeking clarification on the issue of seniority list and requested to exclude the name of officers of Skill Development and Entrepreneurship from the seniority list, under the Industries Department and not to consider them for promotion to the post of Deputy Director of Industries. But, the same has not been considered till date. Being highly aggrieved, the petitioner approached this Court by filing the present writ petition for interference and to direct the respondent authority not to conduct DPC for promotion amongst the officers of Industries Department and not to allow the officers of other department which was already bifurcated in the year, 2016." 3. The respondent authorities entered appearance through their respective counsel and submitted affidavit-in-opposition denying the averments made in the petition by the writ petitioners. It is stated that vide order dated 24.02.2020, the respondent Nos. 4 to 7 were sought to be transferred from the Department of Industries to the newly created department to Skill Development and Entrepreneurship. The respondent authorities entered appearance through their respective counsel and submitted affidavit-in-opposition denying the averments made in the petition by the writ petitioners. It is stated that vide order dated 24.02.2020, the respondent Nos. 4 to 7 were sought to be transferred from the Department of Industries to the newly created department to Skill Development and Entrepreneurship. Thereafter, one Shri Bulo Apa, the then ADI, being aggrieved by the cancellation of his candidature from being transferred to the department of Skill Development and Entrepreneurship, has preferred one writ petition, being WP (C) 152 (AP) 2020, before this Court challenging the legality of the transfer order, dated 24.02.2020, and in the said case, this Court was pleased to grant stay of the transfer order, dated 24.02.2020, and as such, the private respondent Nos. 4 to 7 are continuing and discharging their duties in the Department of Industries as ADI and drawing their salaries from the parent Department. It is also stated that since no fresh appointment of ADI's has been made, the respondent Nos. 4, 5, 6 & 7 who are serving in the Skill Development and Entrepreneurship Department, prior to bifurcation, are being engaged there on interim arrangement basis. It is also stated that since the transfer order, dated 24.02.2020, is stayed by this Court, the private respondents have not yet been released from the Industries Department, and consequently, serving in the Department of Industries, and their service books are being maintained by the Department of Industries and they are also drawing their salaries from the same Department and still they are officers of the Department of Industries and as such, seniority list of the private respondents are still being maintained in the Industries Department and the said list maintained by the Industries Department is just and proper and as such, the writ petition is not at all maintainable and is liable to be dismissed. 4. The private respondent No. 7 also filed separate affidavit-in-opposition denying the averments made in the writ petitioner by the petitioner. It is stated that still he has been an employee of the Industries Department and that his seniority is being maintained in the parent department. It is also stated that he has filed one representation before the authority withdrawing his willingness go to the new department, and therefore, it is contended to dismiss the petition. 5. Heard Mr. It is stated that still he has been an employee of the Industries Department and that his seniority is being maintained in the parent department. It is also stated that he has filed one representation before the authority withdrawing his willingness go to the new department, and therefore, it is contended to dismiss the petition. 5. Heard Mr. K. Taja, the learned counsel for the petitioners and Mr. R.H. Nabam, the learned Addl. Advocate General representing the state respondent Nos. 1 to 3. Also, I heard Mr. D. Kamduk, the learned counsel for the respondent No. 4, 5 & 6, and Mr. K. Bogo, the learned counsel for the respondent No. 7. 6. Mr. Taja, the learned counsel for the petitioner submits that since the Department of Skill Development and Entrepreneurship was bifurcated from the parent Department i.e. the Department of Industries and since the private respondent Nos. 4 to 7 have been permanently transferred from the Department, maintaining of their seniority list in the parent Department is illegal and they cannot be considered for the post of Deputy Director of Industries, which are lying vacant, and for which DPC is scheduled to be held on 30.08.2021. It is further submitted that those officers, who are working in the Department of Industries can only be considered for the aforementioned posts and therefore, the petitioners have filed one representation to the Director of Industries, but, no response has been given to the said representation. Therefore, Mr. Taja, the learned counsel for the petitioner contended that the respondent authorities have to conduct DPC for promotion from amongst the officers serving the Department of Industries only, not from the officers of the Department of Skill Development and Entrepreneurship. 7. On the other hand, Mr. R.H. Nabam, the learned Addl. Advocate General submits that the respondents Nos. 4 to 7 are still serving the Department of Industries. Mr. Nabam further submits that though they have been transferred vide order dated 24.02.2020, to the newly created Department of Skill Development and Entrepreneurship, yet, they could not be released from the parent Department as one of the ADI of the department, namely- Shri Bulo Apa, whose name has not been consider for transfer to the newly created Department, has preferred one writ petition being WP (C) 152 (AP) 2020, and this Court was pleased to grant stay of the said order dated 24.02.2020. It is further submitted that those officers are still serving in the Department of Industries and they are drawing their salaries from the parent Department and as such, one seniority list is being maintained in the Department of Industries and therefore, Mr. R.H. Nabam, the learned Addl. Advocate General submitted that this petition is devoid of merit and the same is liable to be dismissed. In support his submission, Mr. R.H. Nabam, the learned Addl. Advocate General has produced one Pay Slip of Shri Toyi Rakshap, respondent No. 7, who has been transferred to the newly created Department of Skill Development and Entrepreneurship from the parent Department. 8. Having heard the submissions of Ld. Advocates of both sides, I have carefully gone through the pleadings of the parties and also the documents placed on record. It appears that vide notification No. IND/ESTT/41/2001 (PT), dated 17.06.2016, a new Department known as Department of Skill Development and Entrepreneurship has been created after bifurcation of Department of Industries and thereafter, vide circular No. IND/ESTT/BIFUR CATION/55/2017/2214-37, dated 28.06.2019, options were invited from the serving officers and staff of Industries Department stating their willingness to continue in Industries Department or to shift to the establishment of Skill Development and Entrepreneurship Department in their respective posts within one month from the date of issue of the aforesaid circular by the Commissioner (Industries) and thereafter, vide order dated 24.02.2020, vide Memo No. SIND/(Estt.)Bifurcation/203/2019/23, the Govt. of Arunachal Pradesh has ordered transfer of some officers and staff including 4 (four) serving Assistant Director of Industries, namely, 1) Shri Geto Ori, 2) Gyati Kacho, 3) Shri Jumbom Riba & 4) Shri Toyi Rakshap, to join in the newly created Department of Skill Development and Entrepreneurship as Assistant Director and thereafter, vide order dated 01.07.2020, Memo No. IND/ESTT/BIFURCATION/55/2017/1918, the Secretary (Industries) has released some of the officers. Thereafter, one Shri Bulo Apa, who was serving as ADI in Industries Department, has preferred a writ petition, being WP (C) 152 (AP) 2020, dated 23.06.2020, before this Court for non consideration/cancellation of his candidature for the post of ADI in the newly created Department of Skill Development and Entrepreneurship and in the said writ petition, this Court was pleased to grant stay of the order dated 24.02.2020. 9. It also appears from the pleadings of the parties and the documents annexed therewith that the respondent Nos. 9. It also appears from the pleadings of the parties and the documents annexed therewith that the respondent Nos. 4 to 7 are still serving in the Department of Industries and drawing their salaries from Department of Industries. And since their transfer order cannot be given effect to, because of the stay order granted in the writ petition filed by Shri Bulo Apa, being WP(C) 152(AP) 2020, as such, the respondent Nos. 4 to 7 are still serving in the Department of Industries and drawing their salaries and their seniority list is being maintained in the parent Department. The pay slip of respondent No. 7 Shri Toyi Rakshap, dated 27.09.2021, which is produced before this Court at the time of hearing by the learned Addl. Advocate General, also reveals that he is still serving in the Department of Industries and drawing salary from the parent Department. Since the respondent Nos. 4 to 7 are still serving in the parent Department and drawing their salaries, maintaining of their senior list in the parent department i.e. Department of Industries, by no stretch of imagination can be said to be illegal. That being so, the DPC cannot be debarred from consideration of the names respondent No. 4, 5, 6 & 7 for promotion to the post of Deputy Director of Industries Department which are going to be filled up soon. 10. In the result, I find this writ petition devoid of merit and dismissed the same accordingly. No order as to cost.