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2009 Supreme(Cal) 157
IN THE HIGH COURT AT CALCUTTA
SUBHRO KAMAL MUKHERJEE & R.N. BANERJEE, JJ.
Shajan T. Oommen
Versus
Lieutenant Governor & other
MAT No. 030 & 031 of 2008 with CAN No. 132 of 2008
Decided on : 27.2.2009
For the Appellant: Kalyan Kumar Bandopadhyay & Binnu Kumar.
For the Respondent: Anjili Nag, Mohammed Tahraiz, Vijay Narayan & Vijay Kumar.
Recruitment rules not providing for promotion are unreasonable and violative of Articles 14 and 16 of the Constitution of India.
Headnote:
ANDAMAN AND NICOBAR ISLANDS EXECUTIVE ENGINEER (CIVIL), ZILLA PARISHAD IN PANCHAYATI RAJ INSTITUTIONS GROUP-A RECRUITMENT RULES, 2003 - PROMOTIONAL OPPORTUNITIES - UNREASONABLE RULES - MODIFICATION DIRECTED - PROMOTION AVENUES FOR ASSISTANT ENGINEERS - COURT'S DIRECTION - POWER OF LIEUTENANT GOVERNOR TO FRAME RECRUITMENT RULES - LIMIT OF POWER - SUBORDINATE LEGISLATION - SCOPE OF POWER - POWER TO AMEND RULES - COURT'S DIRECTION TO LIEUTENANT GOVERNOR TO CONSIDER PROPOSAL FOR PROMOTIONAL QUOTA - VALIDITY OF RECRUITMENT RULES - COURT'S DIRECTION TO LIEUTENANT GOVERNOR TO AMEND RULES - REASONABLENESS OF RULES - COURT'S MODIFICATION OF SINGLE JUDGE'S ORDER - COURT'S DIRECTION TO LIEUTENANT GOVERNOR TO TAKE DECISION WITHIN SIX WEEKS - APPEALS DISPOSED OF.
Fact of the Case:
Oommen, a Junior Engineer under the Andaman Public Works Department (APWD), was promoted to the post of Assistant Engineer on a purely temporary and ad hoc basis. He was later appointed as Assistant Engineer of Zilla Parisad for a period of one year or till the posts are filled up on a regular basis. The Lieutenant Governor made the Andaman and Nicobar Islands Executive Engineer (Civil), Zilla Parisad in Panchayati Raj Institutions Group-A Recruitment Rules, 2003, regulating the methods of recruitment to the Group-A posts of Executive Engineer (Civil) borne in the establishment of Zilla Parisad under the Panchayati Raj Institutions of Andaman and Nicobar Islands. Oommen was permanently absorbed in the post of Assistant Engineer (Civil) against the post of Assistant Engineer (Civil), Zilla Parisad, with immediate effect. He was appointed in the group-A gazetted post of Executive Engineer of Zilla Parisad on an ad hoc basis for a period of one year, which was extended from time to time. However, his tenure in the post of Executive Engineer (Civil) was not extended after January 27, 2008.
Finding of the Court:
1. The Lieutenant Governor has no authority under Article 309 of the Constitution of India to frame rules in case of services and posts in the local authority like Zilla Parisad. 2. The Lieutenant Governor is vested with the power of making subordinate legislation and, therefore, is the rule maker under the said regulation and he is to act within the limits of the power conferred upon him. 3. The said recruitment rules of 2003 are correctly framed. 4. Rules are defective only to the extent of an erroneous quoting of the provisions of Article 309 of the Constitution of India. 5. The recruitment rules not providing for promotion will certainly result in reducing efficiency in public service, which is the essential part of the machinery of the state. Such rules are, therefore, unfair, unjust and against the public policy. Such rules violate Articles 14 and 16 of the Constitution of India. 6. The said recruitment rules of 2003 suffer from defects of arbitrariness as those rules do not provide for any promotional avenues for the Assistant Engineers of the Zilla Parisad. 7. The recruitment rules for recruitment of Executive Engineer (Civil) in Zilla Parisad is unreasonable and violative of the principles enshrined in Articles 14 and 16 of the Constitution of India.
Issues: None
Ratio Decidendi: 1. A system of promotion is an essence of modern management and when a person is recruited in an organization, he must be given an opportunity to advance. 2. The recruitment rules must not be arbitrary, but it must be reasonable. 3. The recruitment rules not providing for promotion will certainly result in reducing efficiency in public service, which is the essential part of the machinery of the state. Such rules are, therefore, unfair, unjust and against the public policy. Such rules violate Articles 14 and 16 of the Constitution of India.
Final Decision: 1. The appeals are disposed of. 2. The connected application being CAN No. 132 of 2008, also, stands disposed of. 3. The parties are directed to bear their costs in the appeals.
SUBHRO KAMAL MUKHERJEE, J.
1. Two applications under Article 226 of the Constitution of India (hereinafter referred to as the said writ petitions) were heard analogously by the Hon'ble Single Judge. His Lordship disposed of both the said writ petitions by a common judgment, which has been impugned by filing these two appeals.
2. The writ petition no. 27 of 2008 is filed by Shajan T. Oommen (Oommen in short) and writ petition no. 93 of 2008 is filed by Government Employees' Joint Co-ordination Committee.
3. On January 07, 1987 Oommen, who holds a degree in civil engineering, is appointed as a Junior Engineer under the Andaman Public Works Department (APWD in short).
4. On December 14, 1999 Oommen is promoted to the post of Assistant Engineer on purely temporary and ad hoc basis. On the recommendations of the Screening Committee, the Lieutenant Governor, Andaman and Nicobar Islands, extends the benefit of first financial up gradation under the Assured Career Progression Scheme in favour of the junior engineers under the APWD, who had completed 12 years of service, with effect from August 09, 1999. Oommen, also, gets the benefit of Assured Career Progression Scheme. The 0rder is issued on October 05, 2000.
5. The Secretary, Local Self-Government, Andaman and Nicobar Administration, on July 24, 2001, requests the Chief Engineer, APWD, to forward the names of eligible officers for appointment in the post of Superintendent Engineers, Executive Engineers, Assistant Engineers and Junior Engineers in the Zilla Parisad on promotion-cum-deputation basis. He, further, requests the Chief Engineer to circulate the said information amongst the eligible workers under the control of the said Chief Engineer. The name of Oommen along with ten other junior engineers are forwarded and those eleven junior engineers, including Oommen, are appointed as Assistant Engineers of Zilla Parisad for a period of one year or till the posts are filed up on regular basis.
6. The Lieutenant Governor, in purported exercise of his power conferred under the proviso to Article 309 of the Constitution of India, makes the Andaman and Nicobar Islands Executive Engineer (Civil), Zilla Parisad in Panchayati Raj Institutions Group-A Recruitment Rules, 2003, regulating the methods .)f recruitment to the Group-A posts of Executive Engineer (Civil) borne in the establishment of Zilla Parisad under the Panchayati Raj Institutions of Andaman and Nicobar Islands. The methods of recruitment, age limit and qualifications are specified in paragraphs 5 to 14 of the schedule to the said rules.
7. The paragraph 11 of the schedule to the said rules provides that the Executive Engineers are to be appointed on deputation only.
8. By an order dated May 27, 2005 Oommen is permanently absorbed in the post of Assistant Engineer (Civil) against the post of Assistant Engineer (Civil), Zilla Parisad, with immediate effect. The Chief Executive Officer, Zilla Parisad, takes Oommen on the strength of Zilla Parisad as an Assistant Engineer (Civil) with effect from May 27, 2005, inter alia, recording that Oommen had tendered his technical resignation from the post of Junior Engineer (Civil), APWD, with effect from May 27, 2005.
9. Oommen is appointed on July 21, 2005 in the group-A gazetted post of Executive Engineer of Zilla Parisad on ad hoc basis for a period of one year. The ad hoc appointment of Oommen is extended from time to time. However, his tenure in the post of Executive Engineer (Civil) has not been extended after January 27, 2008.
10. On December 27, 2006 Oommen makes a representation to the Zilla Parisad to take steps for amendment of the said recruitment rules of 2003 to enable Oommen to get an opportunity of promotion to the post of Executive Engineer (Civil) of Zilla Parisad.
11. The Zilla Parisad, in its meeting held on December 03, 2007, resolves that at least 50% per centum of the posts of Assistant Engineers, Executive Engineers and Superintendent Engineers in the Zilla Parisad sh
