VIRENDRA KUMAR GUPTA Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) Heard Mr. P. K. Tiwari, learned counsel appearing on behalf of the petitioners, and Mr. C.K.Sarma Baruah, the learned Advocate General, assisted by Mr. B. L. Singh, learned Senior Government Advocate, Arunachal Pradesh on behalf of the State respondents. None appeared for the private respondents at the time of hearing.

(2.) The petitioners who are five in numbers were appointed as Junior Engineer (In short, JE) in the Rural Works Department (In short, RWD) of the State of Arunachal Pradesh. The said RWD was trifurcated in the year 1995 into : (1) Rural Works Department (RWD), (2) Irrigation & Flood Control Department (IFCD) & (3) Public Health Engineering Department (PHED). On such trifurcation the petitioners opted for IFCD and accordingly since 1995, the petitioners became member of the said IFCD. During the relevant time, the recruitment rules relating to the recruitment/promotion to the Post of Assistant Engineer (In short, AE) in the IFCD were regulated and guided by a set of rules known as the Recruitment Rules, 1984 to (Central Civil Service Group-B) Posts. The case of the petitioners is that, they having passed the required departmental professional examination as required under the said 1984 Rules and having possessed the necessary eligibility criteria for being promoted to the next higher cadre of AE, were entitled to be so considered, but the Departmental authority did not consider the same. Consequently the petitioners approached this Court in WP(C) No. 735 (AP) 2001, wherein this Court vide judgment and order dated 12/12/01 disposed of the said writ petition with certain directions. It is the further case of the petitioner that in spite of the aforesaid direction passed in WP(C) No. 735 (AP) 2001, the petitioners are not favoured with the promotion to the next higher grade and by the impugned order No. SIFCD-48/96(pt)/I dated 18-12-01, the authority promoted as many as 24 numbers of JE including the private respondents, but not the petitioners. Thereafter, vide another order in the form of a memorandum being No. SIFCD-55/2000 dated 07-05-02, the Secretary, IFCD rejected the prayer made by the petitioner No. 1 & 2 for promotion to the Rank of AE and the grounds of rejection is applicable to all the petitioners. The petitioners allege that the aforesaid two order have been passed without considering and taking note of the directions/orders of this Court passed in WP (C) No. 735 (AP) 2001 on 12/12/01. The petitioners allege that the vacancies of AE having arisen in the Department in the year 1995-97, the cases of the petitioners should be considered in terms of the 1984 Rules and not in terms of the subsequent rules namely the 1997 Rules, which came into effect on being adopted the same vide notification No. SIFCD-109/97 (pt) dated 09.07.97 as claimed by the Department. Challenging the aforementioned impugned orders dated 18.12.01 & 07.05.02, the petitioners have filed this writ petition praying for quashing of the impugned orders and for a mandamus directing the respondents to convene a review Departmental Promotion Committee (DPC) showing year wise break up of vacancies that arose during the period of 1995-97 i.e. during the prevalence of 1984 Rules and to consider the case of the petitioners by the said review DPC for promotion to the rank of AE in those vacancies.

(3.) The State respondents and the private respondent Nos. 7 & 8 have submitted their respective affidavits in opposition denying the contentions made by the petitioner and denying their claim for promotion to the rank of AE in terms of 1984 Rules. The contentions of the respondents inter alia are that the post of AE to which the petitioners are claiming for promotion are promotional posts. Pursuant to the trifurcation of the erstwhile RWD, the Government, vide order No. RWD-Sectt. 10/95 dated 11/09/96, the Group A,B,C & D Posts of the parent Department were also trifurcated to three different Departments so created and certain posts were alleged to the IFCD. Till the adoption of the Recruitment Rule for the post of AE (Civil) of RWD by the IFCD vide notification No. SIFCD-109/ 97 (PT) dated 09.12.97, the earlier rule prevalent in the RWD was followed. Consequently, the existing rule in the erstwhile RWD, viz. the Recruitment Rules, 1984 to (Central Civil Service Group-B) Posts under the RWD continued to prevail in the IFCD. As per the 1984 Rules, to qualify for promotion to the rank of AE, a person in the feeder cadre is required to pass departmental professional examination in: 1. Engineering Theory, 2. Engineering Practical and 3. Accounts; provided that the persons having graduation will have to pass only in account. However, there is no time limit fixed for passing the departmental professional examination. It is also stated in the affidavit that in the meantime the 1984 Rule was superseded by a new set of rules namely the Assistant Engineer (Civil) Group 'B' Recruitment Rules, 1997 having framed and published vide notification No. RWD/SECTT/ 93/94 dated 21.04.97, with further amendment vide No. RWD/ SECTT/93/94 dated 24/10/97. Thereafter the matters for consideration of the eligible candidates for promotion to the post of AE were taken up by the IFCD. In 1997 Rules, the requirement of passing departmental examination in engineering subjects was done away with and the requirement is to pass departmental professional examination in accounts only. The departmental promotion committee there after considered the cases of eligible candidates corning within the zone of consideration for promotion to the rank of AE. But the petitioners not having possessed the necessary eligibility criteria were not recommended by the DPC for promotion. After passing of the judgment and order dated 12.12.01 in WP(C)No. 735/2001, the cases of the petitioners were considered and vide memorandum No. SIFCD-55/2000 dated 07.05.02, a detailed order was passed rejecting the prayer of the persons concerned as they did not come within the zone of considerations for promotion, their position in the seniority list being much below to promote them to the existing 11 numbers of vacancies against none APST category up to 20.04.97, as per the recruitment rules. It is also stated in the affidavit that although the petitioners cleared their departmental professional examination in the year 1986,1989 & 1992, but the claim of the petitioners for promotion during the year '86-'92 could not be considered as the IFCD came into function after trifurcation of the composite RWD only in the year 1996. It is further stated that the petitioners were serving only as JE (Diploma Holder) and they were not promoted to the Technical Assistant (in short, TA), which is the feeder grade for promotion to the rank of AE, and there is no provision in the Rules for promotion of JE directly to the post of AE sweeping over the post of TA, as per the 1984 Rules. At para 8 of the affidavit it is stated that, as per the Recruitment Rules of 1986, no provision exists for promotion of JE directly to the post of AE without getting promotion to the post of TA, which provision was, however, to some extent relaxed by the 1997 Rules, issued vide notification No. RWD/SECTT/93/94 dated 21.04.97. The further case of the State respondent is that the IFCD having come into existence only in the year 1995, and actual functioning since the year 1996, the claim for promotion in the said Department made by the petitioner during the year '86-'92 does not arise. It is stated that the order dated 18/12/01 was passed before getting the copy of the order passed by this Court in WP(C) No. 735 (AP) 2001 on 12.12.01,which was however again reconsidered and a fresh order was passed on 07/05/02 in compliance with the order of the High Court. The private Respondents in their affidavit denied the claim of the petitioners on the count that the petitioners not having essential eligibility criteria by holding the feeder post of TA, were not entitled to be promoted during the relevant time and their cases were eligible for consideration only after the 1997 Rules.