WP(C)/29/2014 of SHRI SHIV NARAIN SINGH Vs THE STATE OF A.P. on 22 December 2014

WP(C) 29/2014BEFORE

THE HON' BLE MR. JUSTICE M.R. PATHAHeard Mr. R. Saikia learned counsel for the petitioner. Atso heard Mr. K. Ete ltearned Additional Advocate General assisted by Ms. G. Deka, learned Additional Senior Government Advocate, Arunacnat Pradesh appearing for tne State respondentNos. 1 & 2 and Mr. T. Jamon, learned counsel for the private respondent No. 3Tne petitioner, namely, Sniv Narayan Singh, Higher Secondary (Inter mediate) passeq and tnree years diploma holder in Tube Welt Engineering, was appointed as aJunior Engineer on 19.09.1981, in the Water Resources Department Government of Arunachal Pradesn. The petitioner is tne senior most Junior Engineer in the saidaqepartment of the State, presently serving at Kanubari Water Resource Sub-Divison, Longding District, Arunachal Pradesn, rendering services for last 33 years 1n tne same capacity in tne Department concerned without being afforded a singlepromotion to the next higher grade and ne will be retiring from service on 31.12.2015 on attaining the age of Superannuation at the age of 58 years.|The petitioner submitted that the Govt of India in the then Arunachal Pragesn administration vide Notification No. AGRI/ENG/EST/148/74 dated 30.05.1975,notified that tne Professional Examination shall be neld twice a year for evaluation of the Departmental candidates namely, Tecnnicat Assistance, Sectional OTTi1cers under Agriculture and Rurat Engineering Cell to qualify themselves for (aCrossing Efficiency Bar, (b) Promotion in the Arunachal Pradesh Recruitment Rules circulated earlier under notification No. AGRI/E-22//3/VOL-I1/12 dated 05.03.1974 and (c) Permanency etc. as per the rules, guidelines and the syllabus attacned with the said notification, providing tnat tne same would come in to force w1th effect from 01.04.19/5.

The State Government in the department Rural Works vide Notification No.RWD/ESTT/99/79 C dated 14th January 1986 issued on 04.04.1986 Tramed a Rule, namely, “Tne Recruitment Rules, 1984 to (Centrat Civit Service Group-B) Post’ under the Rurat Works Department in the State, a rule under Articte 309 of the Constitution of India, regulating tne metnod of recruitment to the post of AssistantEngineer/Assistant Surveyor of Works (Civil/Agri. Engg.) Arunacnal Pradesh (Central Civil Service Group-B) in the Rurat Works Department, Government of ArunacnhtL Pradesn.

Rule 3 of the said 1986 Rules provides that the method of recruitment to the salaq posts, age limit, qualifications and other matters relating to the said postsare specified in the Column Nos. 5 to 13 of the Scnedule attached to the said 1986 Rules. Column 2 to the Schedule of the said 1986 Rules provides for 48 numberSs of post of Assistant Engineer/Assistant Saviour of Work (Civil /Agricultural ngineering) in the department of Rural works department, Arunachal Pradesh and Column 11 to the Schedule of the said 1986 Rules provides that the 50 % of the post of Assistant Engineer/Assistant Saviour of Work (Civil/Agricultural Engineerlng) shall be by promotion, failing wnicn by deputation and 50 % by direct recrultment. Column 12 to the Schedule of tne said 1986 Rules provides tnat in case ofrecruitment by promotion to the post of Assistant Engineer/Assistant Saviour ofWork (Civil /Agricultural Engineering) - 4 (four) years Tecnnicat Assistant (Engineering) of Rural Works Department of the State Naving a regular service for D1ploma Holders and 5 (five) years for Degree nolders, taking into services of botn tne Grades, subject to passing of the Departmental Professional Examination 1n tne subjects (a) Engineering Theory - Fult Marks-200, Pass Marks-120, (b) Englneering Practical - Fult Marks-60 and Pass Marks-30 and (c) Accounts - Full Marks-50 and Pass Marks-30 proving that the Graduates are required to pass in accounts only. As tne petitioner did not pass in the Engineering Practicat Examination, ne did not qualify in the said Departmental Professionat Examination as per 19S86 Rules for promotion to the post of Assistant Engineer/ Assistant Saviour of ork Rural Works Department of the State.The petitioner stated that he appeared in tne Departmental ProfessionalExamination neld during December 1989 and as per Order dated 22.03.1990, passedby Cnief Engineer of the Rurat Works department, ne passed in the Engineering Practicalt and Accounts Papers.

The State Government in the department of Rurat Works vide NotificationNo. RWD/SECTT/93/94 dated 21.04.1997, in sSupersession of the earlier 1986 Recrutment Rules framed another Rule under proviso to Article 309 of the Constitutionof India to regulate tne metnoda of recruitment to the post of Assistant Enginer (Civil Engineering) in the Rural Works Department in the State, namely, “Assistant Engineer (Civil) Group ‘B', Recruitment Rules, 1997.Rule 3 of the said 1997 Rules provides that the method of recruitment to the salaq posts, age limit, qualifications and other matters relating to the said post re specified in the Cotumn Nos. 5 to 14 of the Schedule attached to the said 1997 Rules. Cotumn 2 to the Schedule of the said 1997 Rules provides for 53 numbersof posts of Assistant Engineer (Civil) in the Department. Column 11 to the Scnedule of tne said 1997 Rules provides tnat the 50 % of the post of Assistant Engineer (Civil) shalt be by promotion and 50 % by direct recruitment as per 100 points roster. Column 12 to the Schedule of tne said 1997 Rules provides that incase of recruitment by promotion to the post of Assistant Engineer (Civil) - Technical Assistant (Engineering) of Rurat Works Department of the State naving 3 (tnree) years regular service in the Grade of Diploma in Civil Engineering/Agriculture Engineering and also having passed in the Accounts Examination as Junior Engineer, falling which from amongst the Junior Engineer of the Department with 38(eight) years of regular service in the Grade nNaving Minimum Qualification of Dploma in Civil Engineering/Agriculture Engineering also nNaving passed in the Acounts Examination as Junior Engineer.As per the Finat Gradation List of Junior Engineers under the Irrigation and Flood Control Department, Govt of Arunacnalt Pradesn dated 02.06.2001; the petitionr's name appeared at Seriat No. No. 29 and the private respondent No. 3's name fi1gured at Seriat No. 54, in the said list.Tne respondent No. 3, qualified in tne Departmental Professional Examination, containing 3 papers/subjects, as prescribed in the aforesaid 1986 Rules. The Screening Committee of the Department constituted vide order No. SWRD-54/2009 dated23.07.2012 in its meeting held on 01.02.2013 found 42 Nos. of posts of AssistantEngineers vacant in tne Water Resources Department Trom the year 1994 to 1997 ana accordingly decided to fill up 50% 1.e. 21 Nos. of posts of Assistant Engineer in tne said Department on promotion from amongst the Tecnnicat Assistant of tne Department. Tne Screening Committee came to the conclusion that the appointing autnority of tne aifferent period considered appointment of Assistant EngineerTrom Technical Assistant who did not qualify the Departmental Professional Examinations containing 3 (tnree) papers but did not consider the Junior Engineers wno nad successfully qualify tne said Departmental Professional Examinations whocomes under the zone of consideration, wnicn nave caused undue nardsnip and embarrassment to the Government wnhicn requires correction by considering the represntation of the qualified Junior Engineers under the 1986 Rules although they nave not been appointed as Technical Assistant and moreover, tne post of Technical Assistant stood abolished from tne year 2000 vide order No. SIFCD-160/98 adted 11.09.2000. Considering tne same and as the aforesaid 42 posts fell vacantprior to the 1997 Rules coming into the force and since the respondent No. 3 passeq the 3 (tnree) papers of the Departmental Professionat Examinations as per 19S86 Recruitment Rules, the said Screening Committee considered the case of the rspondent No. 3 and recommended him for his promotion to the post of Assistant Engineer in the Department and accordingly, the respondent No. 3 was promoted to tne post of Assistant Engineer vide order dated 19.07.2013 1Ssueq by the Respondent No. 1, the Secretary Water Resource Department, Arunachal Pradesh thougn he 1S junior to the petitioner in seniority

. SIFCD-160/98 adted 11.09.2000. Considering tne same and as the aforesaid 42 posts fell vacantprior to the 1997 Rules coming into the force and since the respondent No. 3 passeq the 3 (tnree) papers of the Departmental Professionat Examinations as per 19S86 Recruitment Rules, the said Screening Committee considered the case of the rspondent No. 3 and recommended him for his promotion to the post of Assistant Engineer in the Department and accordingly, the respondent No. 3 was promoted to tne post of Assistant Engineer vide order dated 19.07.2013 1Ssueq by the Respondent No. 1, the Secretary Water Resource Department, Arunachal Pradesh thougn he 1S junior to the petitioner in seniority. Tne petitioner stated that ne 1S qualif1ed and eligible for promotion to the post of Assistant Engineer as per 1997 Recruitment Rules in force, since he nas already passed the Accounts Examination asJunior Engineer conducted by the Department in the year 1989-90. But ne statedthat since the year 2001, the State Respondents in the Department did not const1tute any DPC for promotion to the post of Assistant Engineer. AS such he 1S deprived of alt his rights for his promotion in service as he 1s going to retire Trom service on 31.12.2014. Tne petitioner further stateq tnat tnough in April 2013 the State respondents catleda Tor the outstanding ACRs of tne 18 senior most J

nior Engineers of the Department including the petitioner, put as stated above no DPC has been held in the department titlt date. Tne petitioner submitted tnatne nas no grievances against tne respondent No. 3 for his promotion to the postof Assistant Engineer, as he qualified as per 1986 Recruitment Rules.Therefore, the petitioner prays that the State respondents be directed to hold tne DPC Tor the promotion to the post to Assistant Engineer at the earliest so that he can get the benefit before nis retirement, more so, as the official responagent had already collecteq tne ACRs of the petitioner and other eligible JuniorEngineers of the department in Aprit 2013 itself and to give him all such service and Tinancial benefits. The petitioner also submits that ne on 24.10.2013 Tileqd a representation before the Secretary Rural Works Department, the respondent o. 1 ana the same is yet to be disposed of.The State respondents nave filed their affidavit Tilted in tnis matter on 01.08.O14. Mr. K. Ete, learned Additionat Advocate General of the State submitted that the Screening Committee recommended the promotion of atl the Junior Engineersin tne Department including the respondent No. 3 to the post of Assistant Engineer as tney have passed the pre requisite tnree papers in the Departmental Professionat Examination as required in the 1986 Recruitment Rules and they, includingtne respondent No. 3, were accordingly promoted to the post the Assistant Engineer in the Department since they were within the zone of consideration. But theScreening Committee did not consider the case of the petitioner, to the higher post of Assistant Engineer in the Department, as ne was not eligible as per the l986 Recruitment Rules. Tne State respondents aamit tnat the last DPC for Assistant Engineer in the Department concerned was neld way back in the year 2001. TheState respondents clarified that the seniority position of tne incumbents of the department will be fixed after regular review of the DPC of 2001. The State respondents aamit that the petitioner was under tne zone of consideration Tor promotion to the post of Assistant Engineer amongst the non Arunacnat Pradesh ScheduLed (non-APST) Junior Engineers as his case as placed during the promotion of NlSs seniors Jacob Verkey and Sri S. C. Dey to the post of Assistant Engineer on oTiciating basis and tnat the petitioner's name in the Department figures amongsttne non APST Junior Engineers.|

Mr. T. Jamon, learned counsel appearing for the respondent No. 3 submitted thatSince the petitioner nas no grievances witn regard to the promotion of the respondgent No. 3, as sucn he nas nothing mucn to submit. But the respondent No. 3 also submitted that since the year 2001 the Department did not conduct any DPC forpromotion to the post of Assistant Engineer for which many Junior Engineers nave been deprived of their promotional rights in service including nimself and thepetitioner.Tne Hon'ble Apex Court in the case of Union of India -Vs- N. R. Banerjee reporteaq in (1997) 9 SCC 287 has neld that the Departmental Promotion Committee, D.P.Cin short, shoulda be convened every year, if necessary, ona fixed date. Hon'ble Apex Court in the said case observed that very often action for nolding D. P.C. meeting 1S initiated after the vacancy nas arisen and this results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eLigible for promotion. Tne Hon'ble Court farther observed that it may be indicateq tnat regular meeting of D. P. C. should be held every year for eacn categoryof posts so that approved select panel 1S available in advance for making promot10ns against vacancies arising every year. The required material snould be collectedq in advance and merit List finalised by the appointing authorities and placaq before tne D. P. Cs. for consideration. This requirement can be dispensed witonly after a certificate 1S issued by the appointing authority that tnere are no vacancies to be filled by promotion, or that no officers are due for conTfirma10n, during the year in question.Tne Hon'ble Apex Court in the case of State of U.P. & Another -Vs- Krisnna Lal Sengal reported in (2005) 12 SCC 193 nas held that -“9, However, the appellant 1S rignt in its Submission that the High Court couldnot have directed that the respondent should be promoted with retrospective efTfct. It 1S well-settled principle and has been clearly enunciated in the case ofState of Mysore v. Syed Manmood [(1968) 3 SCR 363: AIR 1968 SC 1113] that the H1

gn Court ought not to issue any writ directing promotion witnout giving the State Government an opportunity in the first instance to consider the candidate's T1tness Tor promotion. We may note that in tnat case, as in tnis, promotion to thepost of Executive Engineer was on the basis of seniority- cum-fitness. Tnis Court, in that case had directed that the State Government snould consider the candidate in tnat case for promotion and if found fit all tne consequential monetarybenefits snould be allowed to nim. Tnis exposition of the Law nas been subsequently followed ina series of decisions wnicn are not necessary to be aaverted to. We also note that in the respondent's writ petition ne had himself prayed forconsideration for promotion at the first instance before being appointed as Executive Engineer.”

From the facts and circumstances stated above and as per the Law laid dawn by the Hon'ble Supreme Court of India tnis Writ Petition 1S disposed of witntne following directions to the State Respondents No. 1l and 2 -(1)The State Respondents 1 & 2 shall prepare year-wise panel Tor promotionto tne post of Assistant Engineers in the Rurat Works Department of the State who fall witnin the zone of consideration for such promotion specifying the numberof total vacancies and vacancies available for promotion to the post of Assistant Engineer (Civil) under the Rural Works Department of the State, every year from tne year 1997 to 2014 1.e. from tne 1997 Recruit Rules coming in to the force

(11) The State Respondents No. 1 & 2 shalt constitute a Departmental Promotion Committee (DPC) on or before 31.01.2015 for promotion of the petitioner anad similarly placed Junior Engineers / Tecnnical Assistant (Engineering) under ne Rural Works Department of tne State to the post of Assistant Engineer (Civil)of the Rurat Works Department of the State.(111 ) The State Respondents snall place tne panel prepared as mentioned abovepefore tne said DPC to pe constituted as directed apove(1V) Tne said DPC, so constituted snall consider the cases of persons concerned in accordance witn the panels that 1S prepared by the State Respondents |(v) |If the petitioner comes under the zone of consideration for his promotion to the post of Assistant Engineer of the Rural Works Department of the State anad if found fit by the DPC Tor such promotion, the Respondents No. 1 & 2 Snall rovide him all the service, monetary, retirement and consequential benefits snouLd pe allowed to him on the basis of sucn promotion.(V1).Tne wnole exercise by the DPC so constituted by the respondents snallt bcompleted within 31.03.2015. |Witn the aforesaid observations and directions tnis writ petition standsdisposed of. No order as to costs.)