YOGENDRA PRASAD PANDEY Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) This appeal by the unsuccessful writ petitioner is directed against the order dated 26.04.2002 passed by the learned Single Judge in W.P. (c) No. 493 (A.P.) of 2001, {W.P. (C) No. 4323 (Ghy.) of 2001} dismissing the writ petition filed by the petitioner and refusing to interfere with the proceeding of the Departmental Promotion Committee (in short the DPC) held on 27.4.2001, whereby the DPC recommended the names of three non-Arunachal Pradesh Scheduled Tribe (non APST) and twelve Arunachal Pradesh Scheduled Tribe (APST) Jr. Engineers for promotion to the posts of Asstt. Engineer against 15 vacancies; order dated 25.5.2001 passed by the Commissioner & Secretary (PWD) Itanagar, Govt. of Arunachal Pradesh to the effect that the writ petitioner will cease to function as adhoc Asstt. Engineer in P. W.D. with immediate effect and will continue to work as Jr. Engineer and also order dated 23.3.2001 by which 13 (thirteen) Jr. Engi- neers were promoted to the posts of Asstt. Engineer (Civil), pursuant to the recommendation of the DPC held on 27.4.2001.

(2.) Mr. C. Baruah, learned Sr. counsel for the appellant submits that there were altogether 71 (seventy one) numbers of vacant posts of Asstt. Engineer (Civil) available, which occurred in the year 1990 and therefore those posts, are to be filed up in accordance with the recruitment rules as well as reservation policy prevailing at that point of time. Mr. Baruah has further contended that at the relevant point of time the reservation policy requires filling up of the post in the ratio of 60% and 40% in respect of APST and non-APST candidate respectively and there- fora, 40% of the said vacancies ought to have been filled up by non-APST candidate and had the Government filled up all the 71 vacancies by following the said ratio of reservation, the petitioner would have come within the zone of consideration for the purpose of consideration for promotion against the quota meant for the non-APST candidate. According to the Mr. Baruah, the Government by deciding to fill up 15 (fifteen) vacancies and that too by following reservation policy adopted in the year 2001 has committed illegality thereby depriving the petitioner from being considered for promotion though the vacancies occurred prior to formulation of such policy of reservation. Mr. Baruah, learned Sr. counsel therefore, submits that the proceeding of the DPC held on 27.4.2001 and the consequential order of promotion dated 23.5.2001 as well as the order dated 25.5.2001 by which the appellant was in- formed that he caused to be the Asstt. Engineers are bad in law. The learned Sr. counsel in support of his contention has placed reliance on the judgment of the Apex Court in Y. V. Rangaiyya Vs. J. Srinivasan Rao; reported in 1983 (3) SCC 284 and Union of India & Ors. Vs. N. R. Bannerjee; reported in 1997 (9) SCC 287.

(3.) Mr. C. K. Sharma Baruah, learned Advocate General, Arunachal Pradesh, appearing on behalf of the respondents in support of the judgment passed by the learned Single Judge has submitted that there were only 15 (fifteen) vacancies available against the promotional quota of Asstt. Engineer (Civil) and all the vacancies were taken up for consideration by the DPC in its meeting dated 27.4.2001; pursuant to the direction issued vide order dated 24.5.2000 in W.P. (C) No. 693-695 of 1999 for selection of candidate on regular basis. Though those vacancies occurred after 1999, the cabinet took a decision to freeze all promotions for a period of one month or till an alternative to 40 point roster is found, with a view to ensure that the substantial promotional posts goes to APST candidates and therefore, the Government has decided not to fill up those vacancies till a decision is taken in that regard. Mr. Sharma Baruah, also submits that the Government on 1.2.2001 has decided to increase the reservation for APST from 60% to 80% in the said promotional quota and accordingly the DPC was held for filling up of all the fifteen posts and cases of all the eligible officers who came within the zone of consideration were considered for promotion against the quota meant for non-APST as well as APST candidates. The further submission of the learned Advocate General is that the Jr. Engineers, who are non-APST candidates up to S1. No. 118 in the seniority list were considered for promotion and the appellant's position in the seniority list being 182 he cannot come within the zone of consideration as the Government is required to consider the cases of 9 (nine) non-APST candidates for promotion against three posts available to them. According to the learned Advocate General there are 80 persons above the writ petitioners in the rank of Jr. Engineer and therefore, the petitioner cannot claim that he is to be promoted by ignoring the claim of all the other persons above him. Mr. Sharma Baruah, learned Advocate General further submits that the promotion of the appellant being on adhoc basis the Government had no alternative but to revert him to the post of Jr. Engineer after the regular selection and appointment was made against the said post. The learned Advocate General, in support of his contention has placed reliance in Dr. K. Ramulu & Anr. Vs. Dr. S. Surya Prakash Rao & Ors; reported in 1997 (3) SCC 59.