BIJENDRA PRATAP SINGH Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) It is not uncommon to have litigation over the question of seniority amongst the employees. A model employer is one, who minimizes such litigations by giving consistent, fair and transparent deal to his employees and desists from undertaking ad-hoc exercises instead of giving regular promotion. When a state indulges in ad-hocism, it not only invites litigation with its own employees, but also creates causes and generates litigations among its employees, which results in bitterness among the employees and is bound to affect the organizational efficiency of the institution concerned, for such acts of ad-hocism lead to animosity, jealousy and anguish among the employees inasmuch as those, who do not receive the benefit of ad- hocism, consider themselves dealt with unjustly and discriminated against those, who have been the beneficiary of such ad-hocism. Thus, adhocism creates litigations not only between the employer and the employees, but also between those, who receive the benefits of ad-hocism, and those, who feel aggrieved for not being given the benefit of such ad-hocism, Such is the grim picture, which the present writ petition depicts.

(2.) Can an issue or issues settled in a judicial decision by the High Court, in exercise of its powers under Article 226 of the Constitution of India, be re-opened or shall be treated to have been re-opened, superseded, revised, changed or modified by the directives issued or recommendations made by the National Commission for Scheduled Caste and Scheduled Tribes constituted under Article 338 of the Constitution of India is one of the core issues raised in this writ petitions. Can a Government servant be transferred, against his consent, to a post outside the cadre of his service or to a post lesser in status than what he is, as an ad- hoc appointee, occupying substituting him by an officer junior to him an allegations of misconduct or with ulterior motive or as a measure of penalty or in a manner which may leave stigma on the officer without giving him any opportunity of showing cause and /or hearing are the other vital issues, which have been raised in the present writ petitions. On the anwer to the issues, so raised, rests the fate of this writ petition.

(3.) The material facts required for effective disposal of the present writ petition may in a nutshell, be stated as follows: (i) The writ petitioner, who holds a degree of B. Sc. Engineering (Mechanical), was appointed as an Assistant Engineer (Electrical) on ad-hoc basis on 12.06.1980. the respondent No. 3, who holds a degree of B. Tech. (Electrical) was appointed on 20.07.1984 on ad-hoc basic as an Asstt. Engineer. Both these appointment were made in the Department of power, Govt. of Arunachal Pradesh. The petitioner was promoted to the post of Executive Engineer on ad-hoc basis on 12.06.1988. The respondent No. 3 was also promoted on ad- hoc basis to the post of Executive Engineer on 20.07.92. On 25.08.1993, respondent No. 3 along with one Shri P. Deb was promoted on ad-hoc basis as Superintending Engineer (Electrical). As according to the petitioner, both these persons, namely, respondent No.3 as well as Shri P. Deb were junior to the petitioner right from the grade of the Asstt. Engineer (Electrical) the petitioner, feeling aggrieved, filed Civil Rule No.2551/93 in this Court. This writ petition was disposed of on 24.01.94 and though in this civil Rule, the learned Single Judge held that the Petitioner was Senior to the respondent No. 3 and Shri P. Deb aforementioned and that ad-hoc promotion given to the respondent No. 3 and Shri P. Dev was arbitrary and not sustainable, the impugned order, dated 28.05.93, aforementioned was not interfered with on the ground that the impugned order was to expire by lapse of time. Against the order, Writ Appeal No. 94/1994 was preferred by respondent No. 3. This writ appeal was disposed of on 22.01.1994, on the basis of the submissions made by the learned Advocate General. Arunachal Pradesh that the State respondents would consider the cases of all the three persons concerned, namely, the present writ petitioner, the present respondent No. 3 and the said Shri P.Deb for ad-hoc promotion to the post of Superintending Engineer (Electrical) on the basis of draft service rules and that the State govt. would take appropriate steps to accommodate all the three persons on ad- hoc basis on the post of Superintending Engineer (Electrical) till the entire matter was finalized. (ii) Thereafter vide Government order, dated 22.08.94, the services of eighteen Assistant Engineers including that of the respondent No. 3 were regularized against direct quota on the recommendation of the Arumachal Pradesh Public Service Commission (hereinafter) referred to as "the APPSC") retrospectively with effect from their respective dates of the ad-hoc appointments. The service of the respondent No. 3, thus, stood regularized in the grade of Assistant Engineer (Electrical) with effect from 20.07.1984 i.e. with effect from the date of his initial appointment on ad-hoc basis. By order, dated 12.03.1997, the petitioner was promoted to the post of Superintending Engineer (Electrical) on ad-hoc basis and by an order, dated 13.04.1999, the service of the petitioner was also regularized in the grade of Assistant Engineer, on the recommendation of the APPSC, with effect from 12.6.1980, i.e.. w.e.f. the date of his ad-hoc appointment against direct quota. By another order passed an the same date, that is, on 13-04-1999, the services of both the present writ petitioner as well vs of respondent No. 3 along with some others were regularized in the grade of Executive Engineer (Electrical). By this order, dated 13.4.1999, while the service of the writ petitioner was regularised in the grade of Executive Engineer (Electrical) with effect from 12.06.1988, the service of the respondent No. 3 was regularized in the said grade that is in the grade of Executive Engineer (Electrical, with effect from 20.07.1992. (iii) Both the orders, dated 13.04.1994, aforementioned were challenged by respondent No. 3 in WP (C) 1922/99, which was renumbered as WP (C) No. 113 (AP)/2001 contending, inter alia, that he was always senior to the present writ petitioner and his service ought to have been regularized in the grade of Executive Engineer holding him senior to the writ petitioner. While this writ petition was pending, the Government, acting upon the orders passed in the said Civil Rule No. 2551/93 and Writ Appeal No. 14/94, considered the entire controversy over the question of seniority and passed an order, dated 28.09.1999, giving the present writ petitioner seniority in the grade of Superintending Engineer (Electrical) over his juniors, namely, Sri P. Deb aforementioned and the present respondent No. 3. Thereafter, on 17.11.2000, the Government published the final seniority list of Assistant Engineers (Electrical) placing the present petitioner at SI. No. 3 and putting Sri P. Deb aforementioned and sri A. Perme (that is the present respondent No. 3) at SI Nos. 4 and 9 respectively. Treating thus, the petitioner as senior to Sri P. Deb aforementioned and respondent No. 3, the Government, vide order, dated 28.02.2001, allowed the petitioner to hold the charges of the Chief Engineer (Power) in addition to his own duty without any financial benefit till the alternative arrangement was made, the arrangement being temporary without bestowing on him right to claim regular promotion and seniority. The patitioner accordingly took over the charge of Chief Engineer (Power). (iv) Feeling aggrieved by the order of the Government allowing the present petitioner to hold the charge of the office of the Chief Engineer (Power), the respondent No. 3 filed in his pending writ petition, namely, WP (C) No. 113 (AP) 2001, a miscellaneous application praying for interim order. Based on this application, Misc. Case No. 135 (AP)/2001 came to be registered. By order, dated 17.08.2001, passed in this Miscellaneous application (that is, Misc. Case No. 135(AP)/2001), learned Single Judge held to the effect that in case of temporary arrangement also, senior most person should be given preference and since the respondent No. 3 was senior to the present writ petitioner, the respondent No. 3 be allowed to hold the charge of the office of the Chief Engineer (Power). Against this direction, the petitioner preferred an appeal-bearing writ Appeal No. 335/2001. The Division Bench of this Court, while disposing of the writ appeal vide order, dated 09.10.2001, held to the effect that in the face of the order, dated 13.04.1999, aforementioned, it cannot be said that the respondent No. 3 is senior to the present writ petitioner and accordingly, the said interim order passed, on 17.08.2001, was set aside. The respondent No. 3, however, challenged the said two orders, dated 28.09.1999 and 28.02.2001, whereby the petitionerwas given seniority as Superintending Engineer and was also allowed to hold the charge of Chief Engineer (Power), and this challenge resulted into the institution of WP(C) No. 56(AP)/2002. Thereafter, the Govt., by order, dated 07.02.2002, appointed Shri Tomy Ete, the then Addl. Chief Engineer, PWD, as the Chief Engineer, (Power) on deputation for a period of one year and in consequence thereof, the present writ petitioner was relieved of the charge of Chief Engineer (Power). This order was challenged by respondent No. 3 by WP(C) 68 (AP)/2002 and by order, dated 11.02.2002, passed therein, the operation of the impugned order, dated 07.02.2002, aforementioned was suspended. Thereafter, the Govt. by order, dated 14.02.2002, reverted back Shri Tomy Ete to his parent department. But by another order passed on the same date, Sri Tomy Ete was allowed to function as link Officer of Chief Engineer of Power. Subsequently, the Govt. withdraw the order, dated 14.02.2002, aforementioned too and by another order passed, on 05.03.2002, the Court allowed Shri P.Deb to look after the works of the Chief Engineer in addition to his own duty. In the meanwhile, the Govt. published the seniority list dated. 25.02.2002, of Executive Engineer (Electrical) under the Department of Power. In this seniority list, the petitioner stood at the serial No. 1. Whereas Shri P. Deb was put at serial No. 2 and the present respondent No. 3 was placed at serial No. 3. (v) The present writ petitioner challenged the order, dated 05.03.2002, aforementioned, whereby Shri P.Deb aforementioned was allowed to look after the works of the Chief Engineer (Power), in WP (C) 107(AP)/2002. By order, dated 21.03.2002, this writ petition was disposed of with directions that Shri S.K. Chakraborty, then working as OSD (Technical) attached to the office of the Chief Minister, be appointed as Chief Engineer (Power) for two months or till the post is substantially filled up in accordance with the relevant Rules from amongst the eligible Superintendent Engineers. Whichever is earlier, in compliance with this order, the Govt., by order, dated 22.03.2002, appointed Shri S.K. Chakraborty aforementioned to hold the charge of the Chief Engineer (Power). Thereafter, all the three pending writ petitions, namely, WP (C) 113(AP)/2001, WP (C) 56 (AP)/2002 and WP (C) 68(AP)/2002 were disposed of by a common judgment and order, dated 27.3.2002, setting aside the order, dated 13.04.99 (whereby the service of the writ petitioner was regularized in the grade of Assistant Engineer, w. e. f. 12-06-1980), the order dated 13.04.99 (whereby the services of 14 Executive Engineers including that of the writ petitioner was regularized in the grade of Executive Engineer, the service of the petitioner having been regularized as Executive Engineer with effect from 12-06-88) and the order, dated 28.09.99 (whereby notional seniority and promotion was accorded to the petitioner). Against the aforesaid judgment and order, the writ petitioner preferred two appeals being W.A. No. 160/2002 and W.A. No 162/ 2002. By an order, dated 10.04.2002, the appeals were admitted and interim order was passed. In the meanwhile, although the period of appointment of Shri S.K. Chakraborty was over, he was allowed by order, dated 27.05.2002, passed by the Government to continue until further orders as the Government was not in a position to make regular appointment of the Chief Engineer (Power). However, the Government, again, considered the entire matter and allowed, vide order, dated 28-10-2002, the present writ petitioner to hold the charge of Chief Engineer (Power) until further orders. The order reveals, inter alia, that it was passed considering the exigency of work and public interest and the writ petitioner accordingly took the charge. (vi) Thereafter, both the writ appeals mentioned hereinabove were disposed of, on 12.12.2002, by modifying the order, dated 26.07.2003. As observed in this appellate order, the order was passed in terms of the agreement reached between the parties. As per this order, the order, dated 13.04.99 passed by the Government regularizing the services of 14 persons in the post of Executive Engineer including the present petitioner and the respondent No.3 was to remain as it is, but the order, dated 28.09.99, giving ad hoc promotion to the present petitioner was set aside and the Government was directed to consider the case of the present petitioner as well as of respondent No.3 along other persons named in the order, dated 13.04.99 for regularization and promotion in the post of Superintending Engineer. In short, the order, dated 13.04.99, passed by the Government regularizing the services of the writ petitioner as Assistant Engineer and also the order, dated 13.04.99, regularizing the services of 14 Executive Engineers including the present petitioner were maintained, but the order, dated 28.09.99, giving notional promotion to the petitioner was set aside and the State Government was directed to undertake the exercise for regularization and promotion in the post of Superintending Engineer in accordance with the relevant Rules and to prepare seniority list of Superintending Engineers accordingly. If was further directed by this appellate order that until this exercise was completed, the Government shall not take steps to make regular promotion to the post of Chief Engineer (Power). Thereafter, the State Government, on the basis of the recommendation of the DPC, passed an order, on 18.06.2003 (Annexure xvi to the writ petition), giving regular promotion to the writ petitioner as well as shri P Deb and the respondent No.3 in the grade of Superintending Engineer with effect from the dates shown against their names. In the order so passed, while the date of regular promotion of the present petitioner was shown as 01.01.94, the date of regular promotion of Shri P Deb and the respondent No.3 were shown as 01.01.94 and 01.01.98 respectively. (vii) In the meanwhile, the State Government constituted Arunachal Pradesh State Electricity Regulatory Commission (hereinafter referred to as "the APSERC") under Section 17(1) of the Electricity Regulatory Commission Act, 1998, without, however, appointing any Chairman or Member and an Officer on special Duty (in short, OSD) was appointed only to organize the same. This APSERC is not a functioning authority. Before the order, dated 18.062003, aforementioned was passed giving regular promotion to the petitioner and the respondent No.3, the respondent No.3 was sent, on deputation, as Director, Arunachal Pradesh Energy Development Agency and on completion of his deputation period, he was repatriated to the parent department i.e. Department of power with effect from 05.06.2002 and consequent upon the repatriation, he was posted vide order, dated 16.05.2002, as OSD, APSERC. Now, by the impugned order, dated 07.10.2003(Annexure xxi to the writ petition), the respondent No.3 has been directed to hold the charge of Chief Engineer and the petitioner has been posted as OSD, APSERC. The respondent No.3 has lodged a claim with the National Commission for scheduled Caste and scheduled Tribe, New Delhi, (hereinafter referred to as "the National Commission for SCST") which is constituted under Article 338 of the Constitution of India, regarding denial of his seniority and the National Commission for SCST has opined that the seniority position of the respondent No.3 has not till, now, been determined and recommended that exercise for fixing the seniority of the officers in the Department of power be undertaken and relevant reservation policy be taken into account, while making the promotion. The respondent No.3 has also filed a special Leave petition before the Hon'ble Supreme Court being SLP (Civil) No. 18396/2003, wherein the respondent No.3 has claimed to the effect, inter-alia, that though the order of the Division Bench passed, on 12.12.2002, in writ Appeal Nos.160/2002 and 162/2002, shows that the order was an agreed order, the said order could not have been passed on agreement inasmuch as the respondent No.3 never gave any consent for such order and no such instruction was given to his counsel. The Supreme Court, while issuing notice for hearing on the question of condonation of delay in making the application, has also directed issuance of notice as to why matter had not been decided by the High Court on merit.