S A BORA Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) HEARD Mr. P. K. Tiwari, assisted by Mr. A. K. Singh, learned counsel, appearing for the petitioners. Also heard Mr. R. H. Nabam, learned Senior Govt. Advocate, appearing for State respondents 1 and 2 and Mr. T. Jamoh, learned counsel appearing for private respondent No. 3.

(2.) THE brief facts leading to filing of this writ petition are that the petitioners No. 1 and 2 were initially appointed in the cadre of Junior Engineer (JE) in the Rural Works Department on 19. 06. 1978 and 14. 06. 1979 respectively. They were later on promoted to the next higher post of Technical Assistant on 01. 07. 1985 and 09. 12. 1986 respectively. Likewise, the private respondent No. 3 was also initially appointed in the cadre of Junior Engineer (JE) in the same Department on 04. 06. 1979 and subsequently promoted to the post of Technical Assistant on 17. 11. 1986. In the year 1995, the Department of RWD was trifurcated into 3 different departments namely (1) Rural Works Department, (2) Irrigation and Flood Control Department, and (3) Public Health Engineering Department. On trifurcation of the erstwhile Department of RWD, the petitioners opted for Irrigation and Flood Control Department (IFCD in short) which is again renamed as Water Resources Department. A final gradation list of Junior Engineers under the IFCD as on 02. 06. 2001 was circulated on 13. 06. 2001 wherein the names of the petitioners 1 and 2 were shown at serial Nos. 4 and 5 respectively while the name of private respondent No. 3 was shown at serial No. 6. Likewise, a final gradation list of Technical Assistants under the IFCD as on 16. 12. 1999 was circulated on 16. 12. 1999 and in the said list, the names of the petitioners 1 and 3 and the private respondent No. 3 found places at serial Nos. 4, 5 and 6 respectively. The petitioners, therefore, were shown senior to the private respondent No. 3 both in the cadre of Junior Engineer (JE) and Technical Assistant. In the year 2000, the post of Technical Assistant was abolished and the cadre of Technical Assistant was merged with the cadre of Junior Engineer (JE) and hence, since the year 2000, the cadre of Junior Engineer (JE) became the sole feeder cadre of Assistant Engineer. On the basis of recommendation of the Departmental Promotion Committee (DPC in short), the petitioners and the private respondent No. 3 were promoted vide order dated 18. 12. 2001 on regular basis alongwith 21 other Junior Engineers to the post of Assistant Engineer retrospectively with effect from various dates as specified in the said order. By the said order, the promotion of the petitioners 1 and 2 was regularized with retrospective effect from 11. 07. 1997 and 14. 07. 1997 respectively. By the same order, the promotion of respondent No. 3 to the post of Assistant Engineer was regularized with retrospective effect from 22. 07. 1997. The position of petitioners 1 and 2 and respondent No. 3 was shown in the said promotion order at serial Nos. 4, 5 and 6 respectively. It is, however, not specifically mentioned in the said promotion order as to whether the date of promotion/regularization as shown against the incumbents would be counted for the purpose of seniority in the post or whether the inter-se -seniority position would be determined subsequently in terms of the recommendation of the Departmental Promotion Committee (DPC) in the cadre of Assistant Engineer. However, by a corrigendum issued by the State Government on 02. 08. 2003, it has been clarified that the order of promotion dated 18. 12. 2001, i. e. the date of promotion/regularization shown against each officers is only for the purpose of regularization and the same shall not be counted for the purpose of seniority in the post. After the aforesaid promotion order was made, a provisional gradation list of Assistant Engineers in the Department of IFCD was circulated on 14. 06. 2004 showing the inter-se-seniority position of the Assistant Engineers as on 31. 03. 2004 wherein the position of petitioners 1 and 3 and private respondent No. 3 was shown at serial Nos. 13, 14 and 15 respectively. The private respondent No. 3 represented before the respondent authorities claiming seniority over the petitioners 1 and 2 and the respondent Secretary, Water Resources Department, vide Order No. SWRD-30/2007 dated 01. 10. 2007 re-fixed the date of regularization of petitioner No. 2 in the cadre of Assistant Engineer w. e. f. 14. 06. 1999 instead of 14. 07. 1997 and by the same order, the seniority position of private respondent No. 3 was re-determined and fixed at serial No. 13 in the provisional gradation list showing his name before one Sri D. K. Dutta and above the petitioner No. 1. This order is under challenge in this petition.

(3.) MR. Tiwari, learned counsel for the petitioners, submits that the impugned order dated 01. 10. 2007 was passed without providing any opportunity of hearing to the present petitioners. Moreover, the common order of promotion to the post of Assistant Engineer dated 18. 12. 2001 was made pursuant to the recommendation of the Departmental Promotion Committee (DPC) and under the then Recruitment Rules, the post of Assistant Engineer is a selection post wherein the promotion is to be made on the basis of merit-cum-seniority and hence, there is no reason to believe that the inter-se-seniority of the petitioners and the private respondent No. 3 was on the basis of their inter-se-seniority assessed by the DPC while recommending the promotion of the Junior Engineers. The further submissions of Mr. Tiwari, learned counsel, is that the inter-se-seniority of the petitioners 1 and 2 and respondent No. 3 and the effective date of promotion to the post of Assistant Engineer could not have been altered or re-determined contrary to the recommendation of the Departmental Promotion Committee (DPC ). No such alteration or re-determination could be done without constituting review DPC in conformity with the Recruitment Rules and order could be passed to the prejudice of the petitioners without affording them any opportunity of hearing.