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2025 DIGILAW 1094 (GAU)

Toli Gamlin v. State of AP

2025-06-23

KARDAK ETE

body2025
JUDGMENT : KARDAK ETE, J. Heard Mr. D. Panging, learned counsel for the petitioner. Also heard Mr. B. Picha, learned Standing Counsel, Rural Development Department, for respondents No. 1, 2 and 4 as well as Mr. R. Saikia, learned counsel, for respondent No.5 and Ms P. Pangu, learned State counsel, for respondent No.3. 2. By filling this writ petition the petitioner has put to challenge the order dated 08.10.2024, passed by the DC-cum-CEO, Rural Development Department Leparada District, Basar, whereby, the respondent No.5, namely, Shri Karsen Basar Extension Officer (RE) CD Block Basar, is allowed to hold the charge of Assistant Project Officer (RE), Leparada District in his own grade and scale of pay in addition to his normal duty till posting of regular Assistant Project Officer (RE), in place of the petitioner. 3. Briefly put, the petitioner is working as Technical Assistant (IWDP), who has been allowed to look after the charge of Assistant Project Officer (RE) (in short APO (RE)) in Shi-Yomi District, DRDA, vide order dated 24.06.2020, initially for a period of 2(two) months and extended from time to time. Vide transfer and posting order dated 21.02.2024, issued by the Director, Rural Development Department, the petitioner was transferred and posted as APO (RE) from Shi-Yomi District to Basar in the District of Leparada. However, he was released from Shi-Yomi District only on 10.06.2024, in view of the simultaneous election of Parliamentary and State Legislative Assembly during the relevant point of time. Accordingly, the petitioner joined his service at Basar, Leparada District on 11.06.2024. The DC-cum- CEO, Leparada District issued an Order dated 26.06.2024 indicating the posting of the petitioner under the establishment of Project Director, DRDA, Basar, Leparada District, as APO (RE). 4. The Government of Arunachal Pradesh, vide an Order dated 22.02.2024 has absorbed 588 numbers of employees from the District Rural Development Agencies (DRDA) in the department of Rural Development wherein, at serial No.64, the petitioner has been shown to be absorbed as APO (RE) at Shi-Yomi District. 5. It is the case of the petitioner that while discharging his duties as APO (RE) at Basar, he came to know that the respondent No.5 who is Extension Officer (RE) Basar CD Block has applied for in-charge APO (RE). 5. It is the case of the petitioner that while discharging his duties as APO (RE) at Basar, he came to know that the respondent No.5 who is Extension Officer (RE) Basar CD Block has applied for in-charge APO (RE). On further inquiry, the petitioner has come to know that the Hon’ble MLA, 29- Basar (ST) Constituency vide its note dated 15.06.2024, has recommended the name of the private respondent, to allow the respondent No.5 to look after the charge of APO (RE), DRDA Basar. The petitioner has filed a representation dated 11.07.2024 before the respondent authority, praying for continuation of his service as APO (RE), DRDA Basar. 6. It is contended that vide an order dated 26.07.2024, signed on 05.08.2024, the respondent authority has approved for temporary charge of APO (RE) Basar, Leparada District in favour of the respondent No.5. Thereafter, the respondent No.5 submitted his joining report dated 08.08.2024 as APO (RE) in-charge. Thereafter, the DC-cum-CEO Rural Development Department, Leparada District vide order dated 08.10.2024, has allowed the respondent No.5 to hold the charge of APO (RE) Basar, Leparada District in his own grade and scale of pay in addition his normal duty as Extension Officer (RE) Basar CD Block, till the posting of regular APO (RE), completely ignoring that the petitioner has been allowed to served as APO (RE) Basar CD Block. 7. Mr. D. panging learned counsel for the petitioner submits that as per the order dated 21.02.2024, the petitioner was transferred and posted as APO(RE), Leparada District, Basar and arbitrarily vide order dated 26.07.2024, an approval was conveyed in favour of the private respondent No.5 to hold the temporary charge of APO (RE), Basar. He submits that the petitioner has been posted as APO (RE) vide order dated 21.02.2024, although, his substantive post is Technical Assistant (IWMP), the respondent No.5 whose substantive post is Extension Officer (RE), a lower in rank to the post of Technical Assistant, in which, the petitioner is serving cannot be allowed to be replaced by another in-charge that too, whose substantive post is lower in rank than the post of the petitioner. Mr. Mr. D. Panging, learned counsel submits that the action of the respondent authorities allowing the private respondent No.5 to hold the charge of APO (RE), at the behest of the local MLA, who is serving in the lower rank and the petitioner having been posted as APO (RE), is arbitrary and illegal. 8. He submits that the petitioner cannot be permitted to be replaced by another in-charge who is lower in rank than the petitioner. Therefore, the communication dated 26.07.2024 conveying the approval for look after the charge of APO (RE) in favour of private respondent No.5 and the impugned order dated 08.10.2024 are liable to be set aside and quashed being illegal and petitioner may be allowed to continue as APO(RE) Basar, Leparada District. 9. In support of his submissions, Mr. D. Panging, learned counsel for the petitioner has placed reliance upon the case of State of Haryana Vs. Piara Singh, reported in (1992) 4 SCC 118 to submit that “an ad hoc or temporary employee cannot be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee, to avoid arbitrary action”. 10. Mr. B. Picha learned Standing Counsel, Rural Development Department, submits that the petitioner is a Technical Assistant (IWDP) who has been only allowed to look after the charge of APO (RE) for a specific period of time. The reason being that as per the Office Memorandum dated 20.05.2003, issued by the Secretary, RD & PR, Government of Arunachal Pradesh, governing erstwhile DRDA, the Technical Assistant (IWDP) are not authorised to hold the charge of APO (RE). It is the Extension Officer (RE) who are authorised to hold the charge of APO (RE). Initially, vide an order dated 24.06.2020, the petitioner was allowed to look after the charge of APO (RE) Shi-Yomi District for a period of 2(two) months and then has been allowed for a period of 2(two) years. The petitioner was transferred as Technical Assistant (IWDP) to Shi-Yomi District and allowed to look after the charge of APO (RE) Shi-Yomi District for a period of 1(one) year. The last approval to look after the charge of APO (RE) in favour of the petitioner was on 20.03.2023. Thereafter, no extension has been granted to the petitioner and accordingly, he continued to serve as Technical Assistant (IWDP). 11. Mr. The last approval to look after the charge of APO (RE) in favour of the petitioner was on 20.03.2023. Thereafter, no extension has been granted to the petitioner and accordingly, he continued to serve as Technical Assistant (IWDP). 11. Mr. B. Picha learned Standing Counsel, submits that there was a mistake in the transfer order dated 21.02.2024, where the petitioner is shown to have been transferred as APO (RE) to Basar CD Block, Leparada District. In this regard, the Project Director, Leparada District vide letter 23.08.2024 has sought for clarification. Accordingly, vide letter 20.09.2024, the authority has clarified the issue to the effect that inadvertent error had occurred in 2(two) documents of the petitioner regarding the designation as APO (RE), as there was no record indicating any Government approval for the petitioners’ appointment or promotion to the post of APO (RE), except for a temporary arrangement to look after the charge of APO (RE) of Shi-Yomi District for a limited period of time. He submits that unless there is an approval, the petitioner is to serve in the post of Technical Assistant (IWDP), as his substantive post is the Technical Assistant (IWDP). 12. The petitioner and one Er. Sai Kotin, who are Technical Assistant (IWDP) have been allowed to look after the charge of APO (RE) for a specific period. Due to mistake on the part of respondent authority, the transfer order 21.02.2024 has wrongly shown the petitioner as APO (RE), whereas, he is a Technical Assistant (IWDP). He submits that the said mistakes have been rectified by the authority by following the due process of law. Accordingly, vide an order dated 01.05.2025, the Government of Arunachal Pradesh has corrected the list of employees of DRDA absorbed in Rural Development Department, which has been published on 16.05.2025. Accordingly, the petitioner is correctly shown as Technical Assistant (IWDP). 13. Mr. B. Picha, learned Standing Counsel submits that since the petitioner has been wrongly shown as APO (RE) while transferring him from Shi-Yomi to Leparada District, Basar as a APO (RE), the post of APO (RE) remained vacant. And accordingly, the respondent No.5 has been allowed to hold the charge of APO (RE), who is an Extension Officer (RE) senior to the petitioner in service. And accordingly, the respondent No.5 has been allowed to hold the charge of APO (RE), who is an Extension Officer (RE) senior to the petitioner in service. While referring to the Office Memorandum dated 20.05.2003, issued by the Secretary, RD & PR, Government of Arunachal Pradesh, he submits that it is the Extension Officer (RE) who can hold the charge of APO (RE). On thorough examination of the matter, including the vacancy of post and seniority of the private respondent No.5 and appreciating the Office Memorandum dated 20.05.2003, the authorities deem it appropriate to allow the respondent No.5 to hold the charge of APO (RE) Leparada District. Since, the post of APO (RE) Leparada District was vacant, on the application of the respondent No.5, the local MLA has forwarded the same. However, it is not at her behest to accommodate the respondent No. 5, the respondent No.5 has been allowed to hold the charge of APO (RE) rather at a relevant consideration including the seniority position been taken into account. 14. Mr. B. Picha, learned Standing Counsel has placed reliance upon the judgment of Hon’ble Supreme Court in the Case of Union of India vs. Narendra Singh reported in (2008) 2 SCC 750 , to show that mistakes are mistakes and they can always be corrected by following due process of law. 15. Mr. R. Saikia, learned counsel for the respondent No.5 submits that the petitioner has misrepresented himself before this Court by claiming to have been absorbed as Assistant Project Officer (RE) in the department of Rural Development, which is not correct as the petitioner was never absorbed as Assistant Project Officer (RE). The petitioner is a Technical Assistant (IWDP) who has been absorbed in the Rural Development department. He submits that the post of APO (RE) is only allowed to be manned by deputatonist from the cadre of Extension Officer (RE) Rural Development Department. The respondent No.5 having been directly recruited as an Extension Officer (RE), is eligible to hold the charge of APO(RE), who is much senior to the petitioner and who is eligible to hold the post of APO (RE) as the petitioner has not been absorbed as APO (RE). The respondent No.5 having been directly recruited as an Extension Officer (RE), is eligible to hold the charge of APO(RE), who is much senior to the petitioner and who is eligible to hold the post of APO (RE) as the petitioner has not been absorbed as APO (RE). The wrong orders of absorption and the consequence transfer, where the petitioner has been shown to be APO (RE) has been subsequently, rectified by the State respondents, having found that petitioner has been absorbed as Technical Assistant (IWDP) and not as APO (RE). Therefore, the petitioner has no right to claim to hold the charge of APO (RE) who is Technical Assistant (IWDP), without there being any adverse consequence to the service condition of the petitioner and cannot agitate such order of allowing the respondent No.5 to hold the charge of APO (RE) who is much senior to the petitioner and serving as Extension Officer (RE), the private respondent is eligible to hold the said post of APO (RE). Therefore, writ petition is liable to be dismissed. 16. I have considered the submissions advanced by the learned counsel for the parties and the materials available on record. 17. The petitioner has been allowed to serve and look after the charge of APO (RE) Shi-Yomi District initially for a period of 2(two) month and thereafter, on extension, continued to hold the charge of APO (RE) at Shi- Yomi District. The petitioner is a Technical Assistant (IWDP) who has been absorbed along with 587 employees from the District Rural Development Agencies in the Rural Development Department, wherein, the petitioner is shown to be absorbed as APO (RE) at Shi-Yomi District vide order dated 22.02.2024. The order of absorption, inter alia, provides that the approval in the post of Technical Assistant (RE) and Technical Assistant (IWMP) shall be posted as an Extension Officer (RE) in block establishment. The petitioner, admittedly, is a directly recruited Extension Officer (RE) of the year 2023. 18. Vide communication dated 21.02.2024, the Secretary (RD) Government of Arunachal Pradesh, conveyed the approval whereby, 12 persons, including the petitioner has been transferred and posted. The petitioner has been shown to be transferred and posted as APO (RE) from DRDA, Shi-Yomi to DRDA, Basar. The petitioner, admittedly, is a directly recruited Extension Officer (RE) of the year 2023. 18. Vide communication dated 21.02.2024, the Secretary (RD) Government of Arunachal Pradesh, conveyed the approval whereby, 12 persons, including the petitioner has been transferred and posted. The petitioner has been shown to be transferred and posted as APO (RE) from DRDA, Shi-Yomi to DRDA, Basar. The petitioner was released by the DC- cum-CEO, District Rural Development Agency, Shi-Yomi on 10.06.2024 and on his joining, vide the order dated 26.06.2024, the DC-cum-CEO, DRDA, Leparada District, Basar has shown the petitioner as APO (RE). While he was serving, the Director Rural Development department has conveyed for approval for look after discharge of APO (RE), Leparada District, vide its communication dated 26.07.2024, in favour of the respondent No.5, who is working as Extension Officer (RE) Basar, CD Block to temporarily hold the charge of APO (RE) under Basar, Leparada District in addition to his own duty till the posting of regular APO (RE). Accordingly, respondent No.5 has also joined as in-charge APO (RE), pursuant to the approval of his temporary charge. 19. The Project Director, vide communication dated 23.08.2024, had written a letter to the Director Rural Development Department seeking clarification as the Government has approved to look after the temporary charge of APO (RE) in favour of the respondent No.5, who is working as Extension Officer (RE) at Basar CD Block and as per the transfer order dated 21.02.2024, the petitioner being APO (RE) has been posted in the Office of Project Direction, DRDA Office, Basar Leparada District, pursuant to which, the petitioner has been formally appointed as APO (RE). On receipt of the said communication seeking clarification, the Director, Rural Development Department has clarified the same, which is reproduced herein under:- “DRD-11/4/2024-DRD-RD/59 GOVERNMENT OF ARUNACHAL PRADESH DEPARTMENT OF RURAL DEVELOPMENT To, The Project Director (RD) Leparada District, Basar Arunachal Pradesh Sub: Clarification on the Posting of 2 (two) APO (RE) in Leparada District. Ref: Your letter No. BSR/RD/Estt-02/2023-24 dated 23.08.2024 Sir, I am to invite a reference to your letter and subject quoted above and to say that as per the "Personal Policies for Recruitment and Engagement of Staff for Administration of DRDAS", formal appointment orders for posts such as APO can only be issued by the DRDA upon government approval being conveyed by the Rural Development Department, AP. Upon reviewing the records, it appears that inadvertent errors occurred in two documents related to Shri Toli Gamlin's designation as APO (RE). However, there is no record available in the office indicating that government approval for his appointment or promotion to APO (RE) was ever communicated. Therefore, unless there is relevant record or communication indicating such approval, Shri Toli Gamlin should be considered as TA (IWMP). In this regard, Shri Karsen Basar, EO (RE), may be allowed to hold the charge of APO (RE) for Leparada District, in accordance with the approval conveyed vide our letter No. DRD-11015/7/2021 DRD RD/402 dated 26.07.2024. This is issued with the approval of the competent authority. Yours faithfully, Signed by Kanto Danggen Date: 20-09-2024 10:46.13 (Kanto Danggen) Director Rural Development Department Itanagar” 20. Perusal of the above clarification indicates that there was an inadvertent error with regard to the petitioners’ designation as APO (RE) and there is no record available indicating the Government’s approval for his appointment or promotion to the post of APO (RE) and thus, has clarified that the petitioner is Technical Assistant (IWDP) and the private respondent No.5 who is serving as Extension Officer (RE) has been allowed to hold the charge APO (RE) for Leparada District as per the approval conveyed to the petitioner vide order dated 26.07.2024. Accordingly, vide impugned order dated 08.10.2024, the private respondent No.5 has been allowed to hold the charge of APO (RE), Basar CD Block in his own grade and scale of pay in addition to his normal duty i.e Extension Officer (RE) till the regular posting of APO (RE). 21. It appears that the respondent No.5 has approached the local MLA, who in her turn has forwarded the application, seeking for look after charge of APO (RE) DRDA, Basar. The local MLA has requested the Director, Rural Development Department to consider the case of the respondent No.5 to allow to look after the charge of DRDA Leparada District as APO (RE). Although, there may not be a bar to approach the political functionaries, including the local MLA, in any other matter, but certainly not for transfer and posting as the same is not permissible under the law. Although, there may not be a bar to approach the political functionaries, including the local MLA, in any other matter, but certainly not for transfer and posting as the same is not permissible under the law. The employee should not take the help of political functionaries, and the executive authorities too equally should not mortgage their discretion while allowing transfer and posting and also for holding the charge of particular post by replacing the other employees without there being any administration exigencies. However, in the present case, no specific allegation has been made by the petitioner against the local MLA, who has forwarded the application of the private respondent No.5 nor any materials placed before this court which indicate legal malice. In fact, the petitioner has not pressed for. Thus, this Court refrains from making further discussion and determination with regard to the forwarding of application of the respondent No.5 by the local MLA. 22. Record reveals that petitioner has been absorbed along with other employees of DRDA in the Rural Development Department by showing him as APO (RE). However, subsequently, having detected the mistake, the same has been rectified by showing the petitioner as Technical Assistant (IWDP) of Leparada District. Therefore, the admitted position is that, that substantive post of petitioner is Technical Assistant (IWDP) and the respondent No.5 is an Extension Officer (RE) in the department of Rural Development. 23. Nothing is placed on records which regulates the appointments/promotion to the post of APO (RE) except the Office Memorandum dated 20.05.2003, issued by the Secretary, RD & PR, Government of Arunachal Pradesh, which provides the Personal policies of recruitment and engagement of staff for administration of DRDAs. The said Office Memorandum, inter alia, provides Wage Employment Wing and the relevant Clause IV, is abstracted herein below: “IV. WAGE EMPLOYMENT WING (i) The post of Assistant Project Officer (Rural Engineering) in the pay-scale of Rs. 8,000-13,500 shall be manned by taking deputationist from the cadre of Extensión Officer (Rural Engg) of Rural Development Deptt. Having minimum service of 11 (eleven) years in their grade of Rs.4500-7500 or (eight) years in the grade of Rs. 5500-9000 or 5 (five) years in the grade of Rs 6500-10,500. OR Failing above, direct recruitment may be done on contract basis with consolidated salary. The candidates shall possess minimum qualification of degree in civil engineering with field experience, if any. 5500-9000 or 5 (five) years in the grade of Rs 6500-10,500. OR Failing above, direct recruitment may be done on contract basis with consolidated salary. The candidates shall possess minimum qualification of degree in civil engineering with field experience, if any. (ii) The posts of Technical Assistant (IWDP) in the pay scale of Rs.6,500-10,500 and Technical Assistant (RE) shall be manned by deputationist drawn from the cadre of Extension Officer(RE) of Rural Development Department having minimum 5(five) years service in their grade. OR Failing above, direct recruitment may be resorted to on contract basis with consolidated, salary. The candidates shall possess a degree in civil engineering from a recognized university.” 24. Bare reading of the above policy shows that the post of Assistant Project Officer shall be manned by deputationist from the cadre of Extension Officer (RE) of Rural Development Department having minimum service of 11 (eleven) years in their grade of Rs.4500-7500 or 8 (eight) years in the grade of Rs.5500-9000 or 5(five) years in the grade of Rs.6500-10,500. It also shows that the post of Technical Assistant (IWDP) in pay scale of Rs. 6,500-10,500 and Technical Assistant (RE) shall be manned by deputationist drawn from the cadre of Extension Officer (RE) of Rural Development Department having minimum 5 (five) years service in the grade. On the pointed query to the Standing Counsel, it is submitted that although the above Office Memorandum is for the ertswhile employees of DRDAs, the principle is still followed by the Rural Development Department. And if it is followed, in my view, APO (RE) is to be manned by the deputationist from the cadre of Extension Officer (RE), and the Technical Assistant (IWDP) is also to be manned by the deputationist from the cadre of Extension Officer (RE) of Rural Development Department having minimum 5(five) years of regular service in their grade. In order words, APO (RE) is to be manned by the Extension Officer (RE) having the particular pay scale with minimum service of 11, 8 and 5 years in the grade and for Technical Assistant (RE) from Extension Officer (RE) having minimum 5(five) year of service in the grade. In order words, APO (RE) is to be manned by the Extension Officer (RE) having the particular pay scale with minimum service of 11, 8 and 5 years in the grade and for Technical Assistant (RE) from Extension Officer (RE) having minimum 5(five) year of service in the grade. Therefore, it is not clear as to whether the APO (RE) is to be manned by the Technical Assistant, who appears to be higher in grade to the Extension Officer as both the APO (RE) and the Technical Assistant (RE) are to be manned from the deputationist from the Extension Officer having different length of service and grade and scale of pay. However, since there is no clarity under which rules /regulation/office memorandum, actually the post of APO (RE) is to be filled up, it appears that a certain amount of discretion to the authority is given so far as the post of APO (RE) is concerned, which is to be followed as per the law and not with the whims and fancies of the authorities. 25. The order allowing the petitioner to hold the charge of APO (RE) for a specific period by extending from time to time cannot be said to be a mistake, however, there appears to be an inadvertent mistake in the order of absorption where the petitioner is shown to be absorbed as APO (RE) and the transfer of the petitioner from Shi-Yomi to Leparada District as APO (RE) as if the petitioner is working as a APO (RE), which has been corrected subsequently. 26. Regard being had to the settled position of law as held by the Hon’ble Supreme Court in the case of Piara Singh (Supra) that an ad hoc employee or temporary employee should not be replaced by another ad hoc or temporary employee, and he must be replaced only by regularly selected employee to avoid arbitrary action on the part of appointing authority, there would not be any quarrel to the said proposition, however, in the present case, it is not a case of replacing the ad hoc or temporary employee but allowing an employee who appears to be more deserving to be allowed to look after the charge of APO (RE), in view of the fact that the respondent No.5 is working as Extension Officer (RE). 27. 27. Having considered the fact that the respondent authorities have inadvertently shown the absorption and transfer of petitioner as APO (RE), and the same having been corrected by the respondent authorities, it would be difficult to hold that the petitioner has the right to continue to hold the post of APO (RE), on the basis of such mistake, although the holding of charge for specific period may not be illegal. On the other hand, on consideration of the specific stand of the respondent authorities that the respondent No.5 being one of the senior most Extension Officers (RE) of the department, who has been allowed to hold the charge of APO (RE) by following the principle of Office Memorandum dated 20.05.2003, it would equally be not appropriate to say that the impugned approval and order in favour of respondent No.5 is arbitrary and illegal. 28. In view of what has been discussed herein above, I am of the considered view that the approval and order allowing the respondent No.5 to hold the charge of APO (RE), Basar Leparada District cannot be said to be illegal and thus, no interference is called for. Accordingly, writ petition stands dismissed being devoid of merits. Costs made easy.