Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 1023

IN THE HIGH COURT OF GAUHATI, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH), (ITANAGAR BENCH)
NELSON SAILO, J.
Er. Dulom Tago and Ors. – Petitioners
Versus
The State Of A.P., Represented Through Chief Secretary, Govt. Of AP. Itanagar and Ors. – Respondents
WP(C) No.12 of 2015, WP(C) No.210 Of 2013, WP(C) No.85 Of 2013
Decided On : 06-09-2022

Advocates Appeared:
For the Petitioners: Mr. M Pertin, Mr. R Saikia, Mr. K Dabi, Mr. L Perme K. Dubey, Mr. H Hallang, Mr. C. Gongo, Mr. T. Leriak.
For the Respondents: Mr. P. Taffo, Ms. N. Danggen, O. Perme, Mr. O. Duggong, T. Tatak GA, I. Chowdhury, P. Sangeeta, A. Panor, B. Gadi, Ms. J. Doji, Mr. S. Tsering, Mr. B. Yari.

The eligibility for promotion to the post of AE as per the Rules of 1997, the absence of specific provisions mandating completion of 5 years of regular service as JE after obtaining a Degree in Engineering while in service, and the inapplicability of the authorities relied upon by the petitioners.

Headnote:
Seniority Dispute - Assistant Engineer - Rules of 1997, Rules of 2005 - The court dismissed the writ petitions challenging the seniority of the private respondent No. 6 in the inter-se-seniority list of Assistant Engineer (A.E), Public Health Engineering (PHE) & Water Supply Department (PHE & WS Department). The court found that the private respondent No. 6, having acquired a B. Tech Degree prior to the DPC held on 05.03.2001, was eligible for promotion to the post of AE after completing 5 years of regular service as per the Rules of 1997. The court also noted that the Rules of 1997 did not prescribe counting of 5 years of service in the grade after obtaining a Degree in Engineering while in service and did not provide for an option to be exercised by the employee concerned upon acquiring a Degree in Engineering while in service. The court found that the authorities relied upon by the petitioners were distinguishable and not applicable to the present case.
Fact of the Case:

The petitioners, serving as Assistant Engineers (AE) under PHE & WS Department, challenged the placement of the private respondent No. 6 above them in the inter-se-seniority list of AE. The private respondent No. 6, a Diploma holder JE, was placed above the petitioners, who were degree holder JEs, in the provisional and final seniority lists. The private respondent No. 6 was recommended for notional promotion w.e.f. 05.03.2001 by a Review DPC held on 06.11.2012, which the petitioners challenged as illegal and arbitrary.
Finding of the Court:

The court found that the private respondent No. 6, having acquired a B. Tech Degree prior to the DPC held on 05.03.2001, was eligible for promotion to the post of AE after completing 5 years of regular service as per the Rules of 1997. The court also noted that the Rules of 1997 did not prescribe counting of 5 years of service in the grade after obtaining a Degree in Engineering while in service and did not provide for an option to be exercised by the employee concerned upon acquiring a Degree in Engineering while in service. The court found that the authorities relied upon by the petitioners were distinguishable and not applicable to the present case.
Issues: The court considered the maintainability of the writ petitions and the eligibility of the private respondent No. 6 for promotion to the post of AE as per the Rules of 1997.
Ratio Decidendi: The court held that the private respondent No. 6 was eligible for promotion to the post of AE after completing 5 years of regular service as per the Rules of 1997. The court also found that the Rules of 1997 did not prescribe counting of 5 years of service in the grade after obtaining a Degree in Engineering while in service and did not provide for an option to be exercised by the employee concerned upon acquiring a Degree in Engineering while in service.
Final Decision: The court dismissed the writ petitions, finding them without merit.

JUDGMENT :

1. Heard Mr. M. Pertin, learned Senior counsel assisted by Ms. T.Y Bhutia for all the petitioners in the 3 (three) writ petitions, Mr. R.H Nabam, learned Addl. Advocate General for the State respondents and Mr. I. Choudhury, learned Senior counsel assisted by Mr. S. Biswakarma for the private respondent No. 6 in WP(C) No. 12(AP)/2015, private respondent No. 3 in WP(C) No. 85(AP)/2013 & WP(C) No. 210(AP)/2013. The private respondent in all the 3 writ petitions is one and the same person and will be referred to as respondent No. 6 for convenience. Since the grievance of the petitioners is with regard to the placement of the private respondent above them in the inter-se-seniority list of Assistant Engineer (A.E), Public Health Engineering (PHE) & Water Supply Department (PHE & WS Department), all the 3 writ petitions are taken up together for final disposal.

2. In WP(C) No. 85(AP)/2013, there are 2 writ petitioners i.e., Er. Dulom Tago and Er. Mirik Bagra. In WP(C) No. 210(AP)/2013, there are 10 writ petitioners namely Er. Binga Gara, Er. Nyong Paloh, Er. Vipin Kr. Malik, Er. Gepiam Mize, Er. John Lego, Er. Kago Habung, Er. Dani Lampung, Er. Bamang Tasung, Er. Gebuk Burang and Er. Dari Vinod. In WP(C) No. 12(AP)/2015, there are 12 petitioners and they comprise of all the petitioners of the other 2 writ petitions. For the sake of brevity and convenience, the facts set out in WP(C) No. 12(AP)/2015 is being referred to as hereunder.

3. The case of the petitioners is that they are serving as Assistant Engineer (AE) under PHE & WS Department, Govt. of Arunachal Pradesh and are posted in different places. The petitioner Nos. 1 & 2 were appointed as Junior Engineer (JE) in the erstwhile Rural Works Department (before trifurcation) through the recruitment process held on 10th& 11th of March, 1994. After trifurcation of Rural Works Department, they joined PHE & WS Department. According to the gradation list dated 24.09.1998, the private respondent No. 6 was placed at serial No. 97 while the petitioner Nos. 1 & 2 were placed at serial Nos. 100 & 101 respectively. However, the petitioner Nos. 1 & 2 being a degree holder Junior Engineer (JE) and the private respondent No. 6 being a Diploma holder J.E, the petitioner Nos. 1 & 2 attained the qualifying service for promotion to the next higher post of Assistant Engineer (AE) after their completion of 5 years of service. As for the private respondent No. 6, he being a Diploma holder, the qualifying years of service will be completed only after 8 years in terms of the Assistant Engineer (Civil)/Assistant Surveyor of Works Recruitment Rules, 1997 (Rules of 1997) and also as per the recruitment to the post of Assistant Engineer Rules, 2005 (Rules of 2005). In the proviso to column No. 12 of the Schedule to the Rules of 2005, it is provided that irrespective of the seniority in the cadre of JE, the promotion of AE shall be considered in order of seniority on completion of respective qualifying years of service.

4. Accordingly, upon completion of 5 years of regular service, the petitioner Nos. 1 & 2 were given adhoc promotion to the post of AE on 01.07.1999. As for the respondent No. 6, he did not have the qualifying years of service since he was a Diploma holder JE. Thereafter, vide Order dated 22.05.2001, the adhoc promotion of the petitioner Nos. 1 & 2 was regularized w.e.f. 02.07.1999 on the recommendation of the Departmental Promotion Committee (DPC).

5. On the recommendation of the DPC, the petitioner No. 3 was appointed as AE vide Order dated 22.05.2001. In the provisional inter-se-seniority list of AE issued vide Memorandum dated 23.10.2002, the petitioner Nos. 1 & 2 were placed at serial Nos. 43 & 44 respectively while the petitioner No. 3 was placed at serial No. 50. However, as for the respondent No. 6, his name was not to be found in the provisional seniority list. The petitioner