MOLITATU Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) This is a classic case, which reveals why law insists on making yearly panel against promotional vacancies. Supposing, 'X' and 'Y' are both Junior Engineers in the same department, 'X' being a diploma-holder and 'Y' being degree holder. The qualifying periods for consideration of promotion for degree-holders and diploma-holders are different. In the year 2001, though' Y' is junior to 'X' in the gradation list, he becomes, on account of the fact that he is a degree-holder, eligible for promotion. Despite the fact that there was one vacancy meant for filling up of the same in 2001 by making promotion, no panel for consideration of such promotional vacancy, which arose in 2001 was made. The promotion was considered in the year 2002 and by this time, 'X' also becomes eligible for promotion. If the promotional vacancy arising in 2001 is considered in 2002, 'X' and ' Y', both being eligible for promotion, and 'X', being senior to' Y', would be obviously given the promotion if they enjoy the same merit, but had the promotional vacancy been considered in 2001, it is 'X', who would have been considered for such promotion. Denial of promotion to ' Y' on account of delay in holding DPC is glaringly unjust. Since a writ Court abhorse denial of the principles of natural justice, it zealously protects the rights of the aggrieved person and it is for this reason that year-wise panel for consideration of promotional vacancy is insisted upon by Courts.

(2.) By making this application under Article 226 of the Constitution of India, the petitioners, who are serving as Juniors Engineers in the Department of Public Health Engineering and Water Supply, Government of Arunachal Pradesh, have approached this Court seeking issuance of appropriate writ/ writs setting aside and quashing the order, dated 22.05.2001, (Annexure P4 to the writ petition) and order, dated 21.08.2001 (Annexure P5 to the affidavit-in-reply of the petitioners) passed by respondent No. 2 namely, Commissioner and Secretary to the Government of Arunachal Pradesh, PHE & WS Department, promoting the private respondents No.4 to 10 to the posts of Assistant Engineer by allegedly denying lawfully due promotion to the petitioners, and commanding the State respondents to constitute a Departmental Promotional Committee(in short, "DPC") afresh for reviewing the cases of promotion of the petitioners to the posts of Assistant Engineer as on 1999 by applying the principles of Next Below Rule.

(3.) Described in a nut-shell, the case of the petitioners runs as follows:- Both the petitioners are degree holders in Civil Engineering and are presently working as Junior Engineer(in short, JE) in the Department of Public Health Engineering and Water Supply, Government of Arunachal Pradesh, the petitioner No. 1 having joined the said post on 29.06.1994 and the petitioner No. 2 having joined on 18.07.1994. The post of JE is a feeder post for promotion to the higher post of Technical Assistant and Assistant Engineer. The post of Technical Assistant, however, stands abolished since 1999. The relevant Rules, which govern the conditions of service pertaining to promotional appointment of Assistant Engineer(Civil) (in short, AE) is known as Assistant Engineer (Civil)/ASW Recruitment Rules, 1997(in short, Rules of 1997) (Annexure P/1). These Rules have been framed in exercise of the powers contained in the proviso to Article- 309 of the Constitution of India. As per the said Rules, recruitment to the post of AE is made both by direct recruitment and also by making promotion with 50:50 ratio. The Rules of 1997 make a distinction between JEs, who are decree-holders, and JEs, who are diploma-holders. Under the Rules of 1997, JEs, having diploma, become eligible for promotion as AE with 8 years of regular service as JE subject to their passing of departmental examination in accounts, whereas the JEs, holding degree in Civil Engineering, become eligible for promotion, when they complete 5 years of regular service as JE. The Gradation List(Annexure P/5) of JEs(Civil) which was published on 20.5.1999, depicts inter se seniority of JEs of the Department concerned as on 14.05.1999. As per this gradation list, the petitioners became eligible for being considered for promotions as far back as on 29.6.1999 and 18.7.1999 respectively, whereas the private respondents become eligible for promotion thereafter. No DPC was held in the year 1999, when the petitioners had become eligible for promotion. No DPC was held for considering promotion even in the year 2000. In fact, no DPC for considering promotion was held between the year 1996 and the year 2000. However, DPC was held in the year 2001 and on the strength of the recommendations of the DPC, by order, dated 22.5.2001 (Annexure P/4), the private respondent Nos. 4 to 8 were promoted to the posts of AE and, thereafter, by order, dated 21.08.2001(Annexure P/5), private respondents Nos. 9 and 10 were promoted to the posts of AE. Though these promotions have been accorded on the basis of the recommendations made by the DPC held in the year 2001, the fact remains that the DPC considered the question of promotion on the basis of the accumulated vacancies commencing from 1996 to 2001. Had the DPC considered the question of promotion on the basis of promotional vacancies arising each year separately, the petitioners would have been considered for promotion way back in 1999 itself, but because of the consideration of promotion, at a time, in the year 2001, against accumulated vacancies, the petitioners were allowed to be superceded by their juniors, namely, private respondents inasmuch as in 2001, the private respondents had acquired eligibility for such promotion, though they were not even within zone of consideration in 1999. The private respondents have been favoured by the authorities concerned and this is obvious from the fact that the private respondent No. 4 was allowed to officiate as AE with effect from 20.01.1998 and he continued in this capacity till 1999, though on 20.01.1998, he had not even qualified for being considered to the post of AE. Feeling aggrieved, the petitioners have approached this Court seeking reliefs as hereinabove indicated.