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2024 DIGILAW 842 (GAU)

Kago Doni S/o Lt. Kago Tana v. State Of A. P.

2024-06-11

KARDAK ETE

body2024
JUDGMENT : Heard Ms N. Danggen, learned counsel for the petitioner. Also heard Mr. D. Kamduk, learned Standing Counsel, Land Management Department for the respondents No. 1, 2 and 3 and Mr. T. T. Tara, learned counsel for the respondent No.4. 2. By filing this writ petition, the petitioner has challenged the Departmental Promotion Committee (herein after referred to as DPC) dated 13.11.2017 and the consequent impugned order No.LM-65/2006/91 dated 09.03.2018 (issued on 26.04.2018) issued by the Chief Secretary, Government of Arunachal Pradesh, whereby, the respondent No.4, namely, Shri James N.T. has been promoted to the post of District Revenue and Settlement Officer, DLR&SO (herein after referred to as DLR&SO) and the petitioner has been reverted back to his original post of Supervisor Kanungo (herein after referred to as SK), and also for a direction to consider the grievance of the petitioner by way of review DPC for promotion to the post of DLR&SO in terms of 100 point roster and the reservation policy of the State. 3. The case of the petitioner, in brief, is that he was appointed as SK in the department of Land Management, Government of Arunachal Pradesh on 16.03.2001. In the seniority list of SK in the department, the name of the petitioner is placed at serial No.6. 4. The next promotional post of the SK is DLR&SO. The Government of the Arunachal Pradesh has framed the recruitment rules, namely, the Land Revenue and Settlement Officer, Group-B (Gazetted) Recruitment Rules, 2006 (herein after referred to as Rules 2006) which regulates the appointment/promotion of the post of DLR&SO. According to the petitioner, for promotion to the post of DLR&SO, the petitioner is the most eligible and qualified person to be promoted to the post of DLR&SO as all the other persons holding the feeder post are either been promoted or not eligible as per the Rules. 5. One Shri Rana Ngadong, whose name is at serial No.7 of the seniority list of SK, filed a writ petition being WP(C) No. 162(AP)/2015, claiming for promotion to the post of DLR&SO in the year 2013. The said writ petition was disposed of on 11.06.2015 with a direction to the respondent authorities to dispose of his representation with a reason and Speaking Order. The respondent authorities disposed of the representation of Shri Rana Ngadong and rejected his claim while admitting the existence of vacancy of the post of DLR&SO. The said writ petition was disposed of on 11.06.2015 with a direction to the respondent authorities to dispose of his representation with a reason and Speaking Order. The respondent authorities disposed of the representation of Shri Rana Ngadong and rejected his claim while admitting the existence of vacancy of the post of DLR&SO. Shri Rana Ngadong again filed the WP(C) No. 405(AP)/2015 and the said writ petition was disposed of by setting aside the said impugned order, and directed the respondent to consider the entire matter afresh. 6. In the meantime, Rules 2006 was amended in the year 2015 and re-designated as the District Revenue and Settlement Officer Recruitment (Amendment) Rules 2015. By the said amendment, in column 12 of the Rules 2006, the qualifying years of service for promotion to the post of DLR&SO from SK was increased to 15 years and also the minimum qualification was increased to Bachelor Degree. 7. The respondent authority, in compliance of the order dated 17.09.2015, passed in WP(C) No. 405 (AP)/2015, conducted a DPC meeting on 23.10.2015 for filling up of one post of DLR&SO from amongst the eligible candidates which includes one Shri Rana Ngadong and James N.T, herein respondent No.4, and others. In the minutes of the meeting of the said DPC, it clearly indicates that the post of DLR&SO is reserved for APST candidate and accordingly, the name of the petitioner was recommended for the promotion to the post of DRL&SO. On the recommendation of the said DPC, the petitioner was promoted to the post of DLR&SO on an officiating basis vide order dated 03.11.2015. 8. Shri Rana Ngadong being not recommended by the DPC, again filed WP(C) No. 175(AP)/2016, challenging the promotion order of petitioner. The challenge was mainly on the ground that the post of the DLR&SO has been filled up by following the amended Rules 2015 despite the post being vacant prior to 01.09.2015, when the Rules 2006 was in vogue. The writ petition was disposed of vide an order dated 15.05.2017, with an observation that the post of DLR&SO was to be filled up in accordance with the Rules 2006 (old Rules) and not in terms of the amended Rules 2015. The writ petition was disposed of vide an order dated 15.05.2017, with an observation that the post of DLR&SO was to be filled up in accordance with the Rules 2006 (old Rules) and not in terms of the amended Rules 2015. The order of promotion of the petitioner was set aside on the ground that the DPC recommendation dated 23.10.2015, was on the basis of the amended Rules 2015 (new Rule) and directed the respondent authority to construed a new DPC for considering the eligible departmental candidates for regular promotion to the post of DLR&SO, as per the rules applicable in the case. 9. The petitioner came to know from the reliable source that the DPC vide order dated 15.05.2017, passed in WP(C) 170(AP)/2017, has recommended the name of respondent No.4, who is a non-APST SK. Being aggrieved, the petitioner filed a representation for a review DPC, mainly on the ground that the post in question was declared to be a reserved post for APST in the earlier DPC proceeding dated 23.10.2016. Its status as such could not have changed overnight. Consequently, the impugned order dated 09.03.2018 issued on 26.02.2018, the private respondent No.4 has been promoted to the post of DLR&SO on the recommendation of the DPC meeting held on 13.11.2017 and the petitioner has been reverted back to the post of SK. Being aggrieved, the present petition has been instituted. 10. Ms. N. Danggen, learned counsel for the petitioner submits that in the department of Land Management, initially the sanctioned posts of DLR&SO was 16(sixteen), all of which have been filled up equally by both promotion and direct recruits. The post in question is newly created post and if counted to be amongst the post earmarked for promotion, it would be the 9th post. As the 100 point model roster and reservation policy of 80:20 ratio is being followed, the 9th post would have to be earmarked for reserved candidate (i.e. APST). Therefore, if 100 point model roster is to be followed, the post in question is a reserved post and it has been rightly declared in the DPC meeting held on 23.10.2015. She submits that for the very same post, the earlier DPC dated 23.10.2015, has already declared to be a reserved one. It is not understood how the character of the post can be changed with a subsequent DPC. She submits that for the very same post, the earlier DPC dated 23.10.2015, has already declared to be a reserved one. It is not understood how the character of the post can be changed with a subsequent DPC. She submits that the respondent authorities have no authority to change the character of the post depending upon convenience and are expected to maintain a clear stand. DPC minutes dated 13.11.2017 does not reveal as to how the post became un-reserved post and also it does not indicate what is the roster point allocated to the said post. 11. Ms N. Danggen, learned counsel, submits that as per the 100 point model roster and reservation policy in place, the post clearly falls in the reserved category as the post is 9th in its slot and the same has never been discussed and as such, declaring the post in question as un-reserved is arbitrary and unjust. The petitioner is eligible and most suitable as per the seniority list and qualification. Thus, the impugned order of reverting the petitioner on the basis DPC dated 13.11.2013 is not sustainable. Therefore, she submits that the impugned order may be set aside and quashed and the respondent authority may be directed to conduct a review DPC and to consider the petitioner for promotion to the post of DLR&SO in terms of 100 point model roster and reservation in place. 12. Mr. D. Kamduk, learned Standing Counsel while referring to the affidavit-in-opposition filed on behalf of the State respondents, submits that Government of Arunachal Pradesh vide notification dated 15.10.2010, has introduced Post Based Roster in place of 100 point Roster. The said notification, interalia, provides that starting with the earliest when roster point No.2 is filled by a candidate belonging to general category candidate it shall be remarked "utilized by general category candidate against point No.5" and point No.5 shall be remarked "transferred to reserved point" and so on and so forth till all appointments are adjusted in the respective roster. In the present case, the roster point No.5 is un-reserved point which has been filled by a candidate belonging from APST likewise the roster point 6, 7 and 8 were also filled by candidates belonging to APST thereby the un-reserved point at No.5 has been carried forwarded to next roster point No.9. In the present case, the roster point No.5 is un-reserved point which has been filled by a candidate belonging from APST likewise the roster point 6, 7 and 8 were also filled by candidates belonging to APST thereby the un-reserved point at No.5 has been carried forwarded to next roster point No.9. Therefore, the said vacancy is a un-reserved post and Shri James NT, a general candidate was qualified in all respect, therefore, he submits that the recommendation of DPC is in conformity with all the existing rules and guidelines. 13. Mr. D. Kamduk, learned Standing Counsel, on being directed to produce the records by this Court, while producing the scanned copy of the records submits that post of DLR&SO have been filled up by a promotion by 8 (eight) APST candidates, at a relevant point of time, since there is no un-reserved candidates for promotion to the post of DLR&SO at slot No. 5 and the same was utilised and promoted one Shri Pumek Ronya. Though the slot No.9 post is a reserved post, however, since the respondent No.4 is eligible and qualified to be promoted in terms of Post based Roster and also the reservation policy of the State, the un-reserved post which was utilised earlier for filling up the reserved candidate has been carried forward and DPC has recommended the respondent No.4 and accordingly, the respondent No. 4 was appointed as DLR&SO. Therefore, he submits that there is no illegality in the recommendation of DPC and consequential promotion by the impugned order to the respondent No.4. 14. Mr. T. T. Tara, learned counsel for the respondent No.4, while referring to the Office Memorandum dated 15.10.2010, whereby the Post Based Roster has been introduced in place of running 100 point model roster, he submits that at any point of time the number of employee recruitment on the basis of the promotion or direction recruitment should not exceed the ratio prescribed. In case, it is found that the either of the promotee or the direct recruit exceeds the ratio prescribed, the vacancy which has occurred in the cadre should be filled by promotion or direct recruitment till the ratio prescribed is achieved, thereafter, the vacancy should be filled up by promotion if it is vacant against promotion quota and the vacancy should be filled up direct recruit if it is vacant from direct recruit quota. The ratio is prescribed in the relevant recruitment service rules. The recruitment service rules must be maintained strictly. He further submits that the percentage of reservation in the ratio is 80% of post reserved for the APST and 20% of post for general category candidates and such ratio as prescribed in the recruitment rules for particular post should be worked out in relation to the number of post in direct recruitment quota. He refers to the examples provided in the said Office of Memorandum and submits that the APST person holding the post of roster point 1, 6, 11 retires then those slots are to be filled up from amongst the person belonging to the APST, similarly, the person holding the post at 5, 9 and 15 retires than those slots are to be filled up from amongst the general candidates or by APST candidates on their own merits. In case, it is found that either of the reserved or un-reserved categories exceeds the ratio prescribed, the vacancy which has occurred in cadre should be filled up from either of reserved or un-reserved categories till the ratio of 80:20 is achieved. He submits that in the department out of 9 promotional quotas, the authorities have filled up 8 candidates from the reserved APST candidates, whereas, the reservation is 50:50 ratio, which exceeds much more than 100%. The respondent No.4 is the only candidate, who is un-reserved candidate being non-APST. Therefore, the promotion of respondent No.4 is perfectly in accordance with the Post Based Roster as well as the reservation policy adopted by the State. 15. Mr. T. T. Tara, learned counsel for the respondent No.4 has placed reliance on the case of R.K.Sabharwal and others Vs. State of Punjab and others reported in (1995) 2 SCC 745 . 16. Ms N. Danggen, learned counsel for the petitioner fairly submits that she does not have any dispute as to the applicability of the Post Based Roster as well as the reservation policy of the State. The petitioner was only aggrieved to the extent that when he was considered for promotion, the DPC has declared the post in question as reserved for APST candidates to which the petitioner belong. The petitioner was only aggrieved to the extent that when he was considered for promotion, the DPC has declared the post in question as reserved for APST candidates to which the petitioner belong. And by the impugned DPC, the name of the respondent No. 4 has been recommended by simply showing that the post is an un-reserved post and consequentially, the respondent No.4 has been promoted to the post of DLR&SO. 17. Having considered the submissions of learned counsel for the parties and on the fair submission made particularly by the learned counsel Ms N. Danggen, for the petitioner, this Court finds that no serious issue remains to be adjudicated. However, since certain issues have been raised, this Court would proceed to determine the same for a limited purpose involved in this writ petition. 18. There is no dispute that initially 100 point model roster system was followed in the State of Arunachal Pradesh and subsequently Post Based Roster was introduced. 19. As per the Rules 2006 at column 12, the post of DLR&SO is to be filled up 50% by promotion and 50% by direct recruitment on the basis of APPSC combined competitive examination having bachelors degree in any discipline from any recognised university. As per the Rules 2006, the post of DLR&SO is to be filled up as under: 1. Education Qualification as Bachelor Degree in any discipline from any a recognised university, 2. 50% by promotion and 50% by direct recruit on the basis of APPSC Combined Competitive Examination. 3. Promotion from Plant Tabler, Surveyor, Recorder Kanungo, Supervisor Kanungo of Department who have rendered 8 years of regular service and possessing the following qualification as Class-XII passed certificate and Certificate course in survey and Settlement from any recognised institution. 20. Undisputably, the petitioner is at serial No.6 and the respondent No.4 is at serial No.4 in the seniority list of SK. It is also not disputed that both the petitioner and the respondent No.4 are eligible and qualified to be promoted to the post of DLR&SO. What needs to be determined is as to whether the post in question is a reserved post or un-reserved post. 21. It is also not disputed that both the petitioner and the respondent No.4 are eligible and qualified to be promoted to the post of DLR&SO. What needs to be determined is as to whether the post in question is a reserved post or un-reserved post. 21. The Government of Arunachal vide Office Memorandum No. AR-39/2010 dated 15.10.2010, whereby, the Post Based Roster has been introduced in place of running 100 point model roster and issued a clarification thereof, the relevant paragraph is reproduced herein below: “The undersigned is directed to refer to this Department's Notification No.OM- 38/26 (Vol-11) dated 1-2-2001, 4-5-2001 and various OM introducing 100 point roster for promotion, direct recruitment, and notifications on reservation of post in all the posts/ services under the Government of Arunachal Pradesh and to invite a reference to the Supreme Court Judgment passed in the case of R K Sabharwal vs State of Punjab and after examination of the issue in detail, the Governor of Arunachal Pradesh has decided to introduce "Post Based Roster" in place of existing 100 point roster followed in the departments/offices under the Government of Arunachal Pradesh and clarified as below for attention of the appointing/cadre controlling authorities:- A. The ratio for promotion and direct recruitment quota should be worked out on the basis of total number of posts In a cadre/grade. Accordingly, a roster In the ratio of 50:50, 80:20, 75:25 or as prescribed in the rules for promotee and direct recruit should be drawn in relation to the number of 'posts' in the respective cadre/grade. At any point of time, the number of employee recruited on the basis of promotion or direct recruitment should not exceed the ratio prescribed in the respective Recruitment Rules. In case, it is found that either of the promotee or direct recruit exceeds the ratio prescribed, the 'vacancy' which has occurred in the cadre should be filled by promotion or by direct recruitment till the ratio prescribed is achieved. Thereafter, the vacancy should be filled by promotion If it is vacant against promotion quota and the vacancy should be filled by direct recruit if it is vacant from direct recruit quota. Thereafter, the vacancy should be filled by promotion If it is vacant against promotion quota and the vacancy should be filled by direct recruit if it is vacant from direct recruit quota. The ratio as prescribed in the relevant Recruitment Rules /Service Rules must be maintained strictly B. The percentage of Reservation in the ratio of 80% of posts reserved for APST and 20% of Un-reserved posts for general category candidates or such ratio as prescribed in the Recruitment Rules for particular posts should be worked out in relation to the number of 'posts' In the direct recruitment quota. The vacancies arising in a cadre against direct recruitment quota, after the initial posts are filled as per the reservation order should be filled from amongst the category to which the post belonged in the roster. For example, the APST persons holding the posts at roster points 1, 6, 11 retire then these slots are to be filled from amongst the persons belonging to the APST. Similarly, If the persons holding the post at 5, 9 & 15 retire then these slots are to be filled from among the general category candidates or by APST candidates on their own merit. In case, it is found that either of the reserved or un-reserved categories exceeds the ratio prescribed, the 'vacancy' which has occurred in the cadre should be filled from either of reserve or unreserved category till the ratio of 80:20 is achieved.” 21. On perusal of the above Office Memorandum, it is noticed that the ratio for promotion and direct recruitment quota should be worked out on the basis of total number of posts in a cadre/grade. Accordingly, a roster in the ratio of 50:50, 80:20, 75:25 or as prescribed in the rules for promotee and direct recruit should be drawn in relation to the number of 'posts' in the respective cadre/grade. At any point of time, the number of employee recruited on the basis of promotion or direct recruitment should not exceed the ratio prescribed in the respective Recruitment Rules. In case, it is found that either of the promotee or direct recruit exceeds the ratio prescribed, the 'vacancy' which has occurred in the cadre should be filled by promotion or by direct recruitment till the ratio prescribed is achieved. In case, it is found that either of the promotee or direct recruit exceeds the ratio prescribed, the 'vacancy' which has occurred in the cadre should be filled by promotion or by direct recruitment till the ratio prescribed is achieved. Thereafter, the vacancy should be filled by promotion if it is vacant against promotion quota and the vacancy should be filled by direct recruit if it is vacant from direct recruit quota. The ratio as prescribed in the relevant Recruitment Rules /Service Rules must be maintained strictly. The percentage of Reservation in the ratio of 80% of posts reserved for APST and 20% of Un-reserved posts for general category candidates or such ratio as prescribed in the Recruitment Rules for particular posts should be worked out in relation to the number of 'posts' in the direct recruitment quota. The vacancies arising in a cadre against direct recruitment quota, after the initial posts are filled as per the reservation order should be filled from amongst the category to which the post belonged in the roster. It is seen that if either of the reserved or un-reserved categories exceeds the ratio prescribed, the vacancy which has occurred in the cadre should be filled from either of reserve or un-reserved category till the ratio of 80:20 is achieved.” 22. The department has clarified that out of total 9 promotional posts of DLR&SO, 8 (eight) posts have been filled up by reserved candidates. The slot No.5, which is for un-reserved candidate has been utilised due to non availability of un-reserved candidate. Though both the petitioner and the respondent No.4 are eligible for promotion to the post of DLR&SO and the respondent No.4 being senior to the petitioner and being un-reserved candidate, the post in question is a post for un-reserved post, which has been carried forward and has been recommended and filled up by the respondent No.4 in terms of the Post Based Roster and the reservation policy of the State. It is evident from the records that out of 9 (nine) posts, 8 (eight) posts have been filled up from the reserved category, exceeding the prescribed ratio of reservation clearly is in the teeth of settled law. However, this Court would not embark on the issue in the present proceeding which is, in my view, not warranted. 23. The above position has not been seriously disputed by the learned counsel for the parties. However, this Court would not embark on the issue in the present proceeding which is, in my view, not warranted. 23. The above position has not been seriously disputed by the learned counsel for the parties. Considering that the DPC has recommended the name of respondent No.4 and consequently, the respondent No.4 has been appointed to the post of DLR&SO in accordance with the Post Based Roster as well as the reservation policy, no illegality has been committed by the respondent authorities in recommending the respondent No.4 and consequently, promoting him to the post of DLR&SO. 24. It is settled that when all the roster post in the cadre is filled, the required percentage of reservation is achieved. Once the total cadre has full representation of scheduled caste/scheduled tribes and backward caste in accordance with the reservation policy, then the vacancy arising thereafter, in the cadre had to be filled from amongst the category of the person to whom the respective vacancies belong. 25. In view of the discussion made herein above, I am of the considered view that there is no illegality in recommendation of the respondent No.4 for promotion to the post of DLR&SO dated 13.11.2017 and the consequent impugned order dated 09.03.2018 (issued on 26.04.2018) and same are in accordance with the Post Based Roster as well as the reservation policy. 26. Accordingly, the writ petition stands dismissed being devoid of merit. No order as to costs. 27. It is however, provided that dismissal of the writ petition shall not preclude the respondent authorities to consider the case of the petitioner for promotion to the post of DLR&SO, in accordance with the law. 28. It is also provided that the respondent No.4 shall be treated as promoted to the post of DLR&SO from the date of his promotion on the recommendation of the DPC, if not allowed to retired as DLR&SO, for the purpose of pensionary and other benefits.