YUMLAM KAHA Vs. TABAK HANKER

JUDGEMENT

(1.) Heard Mr. D. Das, learned Senior counsel assisted by Mr. H.K. Nath, for the appellant. Also heard Mr. B.D. Goswami, learned Additional Advocate General, State of Arunachal Pradesh, appearing for respondent Nos. 2--4 and Mr. M.H. Laskar, learned counsel appearing for the respondent No. 1/writ petitioner.

(2.) In this appeal, the appellant has challenged the order dtd. 11/6/2019 passed by the learned Single Judge in WP(C) No. 319(AP)/2016, by which the absorption of the appellant vide order dtd. 21/12/2015 issued on 31/12/2015 vide Memo No. DSJE-90/2014(E)/284 to the post of Deputy Director in the Department of Social Justice, Empowerment and Tribal Affairs, Government of Arunachal Pradesh was set aside with further direction to the respondent authorities to consider the case of the respondent No. 1/writ petitioner for promotion to the post of Deputy Director in accordance with the Deputy Director (SW) Group-A, Recruitment Rules, 1998.

(3.) The aforesaid writ petition was filed by the present respondent No. 1 primarily on the ground that the initial deputation of the appellant to the Department vide order dtd. 26/9/2014 and his subsequent permanent absorption vide order dtd. 21/12/2015 was dehors the Recruitment Rules and also by ignoring the claim of the respondent No. 1/writ petitioner. It was also submitted that though there was an office memorandum issued by the State Government on 28/1/2014 specifying that the minimum qualification for appointment by way of promotion to the said post of Deputy Director would be graduate, which also recommended making amendments in the relevant Recruitment Rules, it was contended that the said office memorandum could not have the effect of superseding the Recruitment Rules, in which no such educational qualification was provided, till the Recruitment Rules were amended. It was contended that at the time of deputation and absorption of the appellant, the Recruitment Rules had not been amended. Accordingly, the learned Single Judge also held that the said office memorandum dtd. 28/1/2014 issued by the Chief Secretary, Government of Arunachal Pradesh is a general office memorandum fixing basic educational qualification as graduation from a recognized university for promotion to Group-A, Group-B post. In the present case, the Deputy Director post is a Group-A post. It was also observed that the said memorandum provided for initiating the process for amendment of the existing service rules. According to the learned Single Judge, however, it was found that no amendment to the Recruitment Rules pertaining to the post of Deputy Director, Social Justice, Empowerment and Tribal Affairs Department was carried out and in absence of such corresponding amendment made to the Recruitment Rules, the decision taken by the office memorandum dtd. 28/1/2014 prescribing the minimum qualification as graduation for promotion to Group-B and Group-A being merely an executive order, could not have the effect of superseding the Recruitment Rules. As such, since the respondent No. 1/writ petitioner had already 3 years of regular service, which is also provided in the Recruitment Rules and as it did not stipulate the educational qualification, the respondent No. 1/writ petitioner was also eligible and the absorption of appellant to the post of Deputy Director without considering the claim of the respondent No. 1 was not valid and accordingly, the learned Single Judge passed the aforesaid order setting aside the absorption of the appellant vide order dtd. 21/12/2015 issued on 31/12/2015.