Gauhati High Court
WA/317/2019 on 28 March, 2023
GAHC010156722018
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT APPEAL NO.317 OF 2019
1. Shri Tarak Gongo,
Son of Late D. Gongo,
Resident of Gongo Village, PO:
Daporijo, District: Upper Subansiri,
Arunachal Pradesh, presently serving
as Assistant Engineer, Office of the
Executive Engineer, Sagalee Division,
District: Papumpare, Arunachal
Pradesh.
2. Shri Pema Norbu Khrime,
Son of Late Dorjee Khrime,
Resident of Rupa, District: West
Kameng, Arunachal Pradesh,
presently serving as Assistant
Engineer, Highway Sub-Division, PWD
Khonsa, District: Tirap, Arunachal
Pradesh.
........Appellants
-Versus-
1. The State of Arunachal Pradesh,
represented by the Chief Secretary to
the Government of Arunachal
Pradesh, Itanagar, Arunachal
Pradesh.
2. The Commissioner & Secretary to
the Government of Arunachal
Pradesh, Public Works Department,
Itanagar, Arunachal Pradesh.
-2-
3. The Chief Engineer, Eastern Zone,
Public Works Department, Highway,
MOWB II, Itanagar, Arunachal
Pradesh.
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Appellants : Mr. B.C. Das, Senior Advocate
assisted by Mr. D.N. Bhattacharya,
Advocate.
For the Respondents : Mr. B.D. Goswami, Additional
Advocate General, Arunachal Pradesh
assisted by Mr. A. Chandran,
Additional Senior Government
Advocate, Arunachal Pradesh.
Date of Judgment & Order : 28th March, 2023.
JUDGMENT & ORDER (ORAL)
[Sandeep Mehta, C.J.]
This intra-Court writ appeal is directed against the
common judgment & order dated 21.06.2018 passed by
the learned Single Bench in WP(C) No.266(AP)/2016 (Tarak
Gongo -Vs- State of Arunachal Pradesh & Ors.) and WP(C)
No.267(AP)/2016 (Pema Norbu Khrime -Vs- State of
Arunachal Pradesh & Ors.).
2. The writ petitioners/appellants, who joined
services in the Public Works Department (PWD),
Government of Arunachal Pradesh as Junior Engineers in
the year 1992, seek a direction for counting their officiating
services as Assistant Engineer (Civil) from 19.03.1996 to
14.02.2013 as regular service. Pursuant to the judgment &
final order dated 16.10.2015 passed by this Court in the
previous round of litigation, i.e. WP(C) No.339(AP)/2014
and WP(C) No.340(AP)/2014, the DPC meeting was
convened to consider the representations of the writ
petitioners/appellants and after deliberating upon the
issues, DPC decided not to count the period during which,
the writ petitioners/appellants were performing duties as
officiating Assistant Engineers towards regular service and
consequently their claim for seniority by counting the said
period was turned down. The writ petitions preferred by
the writ petitioners/appellants stand rejected by the
learned Single Bench vide common order dated
21.06.2018, which is assailed in the present writ appeal.
3. Heard Mr. B.C. Das, learned senior counsel,
assisted by Mr. D.N. Bhattacharya, learned counsel
representing the appellants. Also heard Mr. B.D. Goswami,
learned Additional Advocate General, Arunachal Pradesh,
assisted by Mr. A. Chandran, learned Additional Senior
Government Advocate, Arunachal Pradesh, representing
the respondents.
4. Mr. Das, learned senior counsel representing the
writ petitioners/appellants drew the Court's attention to the
observations (infra) made by the learned Single Bench in
the earlier round of litigation, i.e. WP(C) No.339(AP)/2014
and WP(C) No.340(AP)/2014, and urged that by virtue of
these observations, it is no longer a matter of dispute that
the seniority of the writ petitioners/appellants is required to
be counted from the respective dates of ad-hoc/officiating
appointments as Assistant Engineer and not from the date
of their regularization in services and that officiating period
has to be counted for considering seniority. The learned
senior counsel contended that the findings recorded by the
DPC and the consequential order dated 29.04.2016 passed
by the State of Arunachal Pradesh, runs in gross
contravention to the observations made and the directions
given by the learned Single Bench in the order dated
16.10.2015. Operative portion of the order dated
29.04.2016 reads as under:-
"6. AND WHEREAS, the DPC has also taken note of
the fact that when they were appointed on adhoc basis
as Assistant Engineer, both were far below in the
seniority list and did not come even within the zone of
consideration. Their appointment as Assistant Engineer
on adhoc basis was not done according to provisions of
Recruitment Rules. If both Shri Tarak Gongo and Shri P.N.
Khrimey are allowed seniority from the date of
appointment, it will amount to double jeopardy to his
seniors who have been given regular promotion as per
recommendation of the DPC that met on 21/01/2013 on
the basis of seniority cum fitness reservation policy of the
Government etc. with effect from the date of DPC
recommendation.
7. NOW THEREFORE, the Governor of Arunachal
Pradesh is of the considered view that the
recommendation of Group-A DPC which met on
21/01/2013 is just and fair and there is no ground to
depart from their recommendation. The representation of
Shri Tarak Gongo, Assistant Engineer and Shri P.N.
Khrimey, Assistant Engineer for counting of their
seniority from the date of his adhoc appointment are
without merit and therefore rejected."
5. Mr. Das urged that the learned Single Bench while
rejecting the present two writ petitions, has virtually
reviewed its own decision dated 16.10.2015 thereby
affirming the grossly arbitrary order passed by the
Government whereby, the services of the writ petitioners/
appellants while they officiated as Assistant Engineers were
not counted as regular services and were not reckoned for
the purposes of determining seniority. He thus, urged that
the impugned order passed by the learned Single Bench
and the order dated 29.04.2016 passed by the State
Government deserve to be reversed/suitable modified and
a direction be issued to the respondents to grant seniority
to the writ petitioners/appellants from the date they started
serving in the cadre of Assistant Engineers on officiating
basis. In support of his contentions, Mr. Das has placed
reliance on the judgments of the Apex Court in the cases of
Narender Chadha & Ors. -Vs- Union of India & Ors. ,
reported in (1986) 2 SCC 157 and Direct Recruit Class-
II Engineering Officers' Association -Vs- State of
Maharashtra & Ors., reported in (1990) 2 SCC 715.
6. Per contra, Mr. B.D. Goswami, learned Additional
Advocate General, Arunachal Pradesh vehemently and
fervently opposed the submissions advanced by the learned
senior counsel for the appellants. He pointed out that vide
order dated 16.10.2015 passed in the earlier round of
litigation, the learned Single Bench, gave the following
directions to the State authorities:-
"26. In views of all above, matter is referred to the
respondent authorities to appreciate all the aspects by
holding proper DPC by taking into account that seniority
of the petitioners will be counted from the date of
appointment and not from the date of regularization, and
officiating period is to be counted for considering
seniority. Qualifying period for promotion shall be
considered as per recruitment rules. The respondent
authority will prepare a seniority list/gradation list
positively and place the same before the DPC for
determining all aspect of controversy. It is also noted that
the petitioners have already filed their representation
immediately after the aforesaid order vide application
dated 17-06-2013 and 18-03-2014 but the same are yet
to be adjudicated by the respondent authorities."
7. Mr. Goswami contended that the observations
made in the initial part of Paragraph 26 of the judgment &
order cannot be read in isolation and must be considered in
context to the actual factual position emanating from
record. He urged that while making a superficial
observation that the DPC shall be held by taking into
account that seniority of the writ petitioners/appellants will
be counted from the date of appointment, the learned
Single Judge further clarified that qualifying period for
promotion shall be considered as per Recruitment Rules. It
is submitted that the DPC meeting convened on 21.01.2013
for considering the representations of the writ petitioners/
appellants pursuant to the said judgment & order,
considered the applicable Rules and the ratio of the
judgment of the Apex Court in the case of Direct Recruit
Class-II Engineering Officers' Association (supra)
[Paragraphs 47(A) & 47(B)] and thereafter, arrived at a
considered conclusion that when the writ petitioners/
appellants were appointed as Assistant Engineers on
officiating basis, both were far below in the seniority list
and did not come even within the zone of consideration.
Their appointment on ad-hoc/officiating basis was not done
as per the provisions of the Recruitment Rules. If these
2(two) Engineers were allowed seniority from the date of
appointment, it would adversely impact the seniority of
their seniors, who had been given regular promotion vide
recommendations of the DPC convened on 21.01.2013.
The State Government granted its imprimatur to the DPC's
findings by order dated 29.04.2016.
8. Mr. Goswami further contended that as many as
467 persons in the parent cadre of Junior Engineers were
senior to the appellants. Without impleading them as party
in the writ petition, the writ petitioners/appellants could not
have sought revision of the seniority list because that
precisely would be the consequence of treating the writ
petitioners/appellants to be in regular service from the date
of their ad-hoc/officiating appointment as Assistant
Engineers. He has further submitted that as a matter of
fact, the learned Single Judge has clearly explained the
earlier order passed in the writ petitions preferred by the
writ petitioners/appellants and that there is no anomaly in
the 2(two) orders. He thus, implored the Court to dismiss
the writ appeal.
9. We have given our thoughtful consideration to the
submissions advanced at Bar and have gone through the
impugned order/materials placed on record.
10. At the outset, we may note that the foundation of
relief sought for by the writ petitioners/appellants in this
appeal is the observation made by the learned Single Judge
in Paragraph 26 of the judgment & order dated 16.10.2015
passed in the earlier round of litigation, which has been
reproduced (supra). We may also note that before this
order came to be passed, the DPC for considering
promotion of the writ petitioners/appellants had been
convened and recommendation dated 21.01.2013 was
made promoting the writ petitioners/appellants from the
date of the recommendation.
11. Pursuant to the said recommendation, WP(C)
No.339(AP)/2014 and WP(C) No.340(AP)/2014 were filed
praying that the respondents may be directed to count the
seniority of the writ petitioners/appellants by counting their
officiating period of uninterrupted service as Assistant
Engineers with effect from 19.03.1996. While deciding the
earlier round of litigation vide order dated 16.10.2015, the
learned Single Judge at Paragraph 22 observed thus:-
"22. It is well settled that the matter of promotion will
only be considered by the DPC, which will be final for the
Department concerned and it can be challenged only
there appears in perversity and illegality in the decision
of the DPC. The petitioners have brought noting on record
to show the findings of the DPC neither it has been
challenged. Similarly, the petitioners have not furnished
any sorts of list about other employees in the
establishment who may be junior or senior to them so as
to assess that their seniority has been denied by the
respondent authority........."
12. From a bare perusal of the aforesaid
observations, it is clear that the findings of the DPC were
never challenged by the writ petitioners/appellants in the
writ petitions filed in the year 2014. Likewise, they did not
furnish the details of other employees in the establishment
with reference to their seniority position. The learned
Single Bench, thereafter, proceeded to refer to certain
observations made by the Division Bench in WP(C)
No.1382/2006 filed by the petitioners. We are of the firm
view that these observations of the Division Bench, which
we shall advert to later, would conclude the issue against
the writ petitioners/appellants beyond all manner of doubt.
On an overall appraisal, we find that the learned Single
Judge, while deciding the previous set of writ petitions,
seems to have overlooked the pertinent findings recorded
in Paragraphs 16, 17 & 18 of the order dated 22.05.2009
passed in WP(C) No.1382/2006 (DB) filed by the
petitioners. Paragraphs 16, 17 & 18 of the order dated
22.05.2009 read as under:
"16. The order dated 15.2.2006 indicates that in so
far as APST candidates are concerned, regular
promotions have been made upto serial No. 379 of the
seniority list of Junior Engineers. The above facts amply
demonstrate that the petitioners are not due for regular
promotion and, in fact, such promotions conferred to them
had the affect of causing supersession of a large number
of seniors. Besides such promotions were made without
any reference to the DPC. If the above are the undisputed
facts of the case, we do not find any infirmity in the order
dated 15.2.2006 in so far as interference with regular
promotion orders of the petitioners in WP(C)
Nos.1382/2006 and 145/2009 are concerned.
17. In so far as the reversion of the said petitioners
to the cadre of Junior Engineer is concerned, arguments
have been advanced to the effect that the show cause
notice dated 6.5.2004 had contemplated that in the event
regular promotions are to be cancelled, the petitioners
would continue to hold the same posts on officiating
basis. Furthermore, it has been submitted that the
petitioners have worked as Assistant Engineer for long,
in fact, over a decade.
18. The aforesaid facts, though not altogether irrelevant,
cannot override the determination that has already been made
to the effect that the petitioners by virtue of their seniority in
the cadre of Junior Engineer were not entitled to promotion
either on officiating or on regular basis to the next higher post
of Assistant Engineer. The petitioners are presently
continuing in the post of Assistant Engineer under orders
of the Court. As the petitioners have continued for long
and they must have come up to higher levels of seniority,
while affirming the order dated 15.2.2006 in so far as
the petitioners in WP(C) Nos.1382/2006 and 145/2009
are concerned, we are of the view that their continuance
in the post of Assistant Engineer on officiating basis is a
matter that should be left to be determined by the
authorities of the State. The authorities of the State in
doing so will take into account the fact as to whether if
the petitioners are to be allowed to continue on officiating
basis any prejudice will be caused to any of their seniors.
If such prejudice is caused to any senior, naturally, such
officiating arrangement will not be allowed. However, in
the event no such prejudice results, the authorities will be
at liberty to allow the petitioners to continue in the post of
Assistant Engineer on officiating basis."
(Emphasis supplied)
13. A bare perusal of the aforesaid observations
completely negates the contentions advanced on behalf of
the writ petitioners/appellants that they are entitled to
claim seniority from the date they started officiating on the
post of Assistant Engineers. The Division Bench, recorded a
clear finding in the order dated 22.05.2009 that the writ
petitioners/appellants were not due for regular promotion
and that their ad-hoc promotion had the effect of causing
supersession of large number of seniors; that they were
not entitled for promotion either on officiating or on regular
basis to the next higher post of Assistant Engineers. Thus,
no further litigation on this aspect could have been
entertained on behalf of the writ petitioners/appellants at
least in this Court. While adjudicating upon the issue, the
learned Single Judge, extracted the later part of the
observations made by the Division Bench in Paragraph 18
of the order dated 22.05.2009 while omitting the preceding
eight lines (highlighted supra). These findings, completely
demolish the claim of the writ petitioners/appellants to
have their ad-hoc/officiating services counted for the
purpose of seniority in the cadre. As a matter of fact, the
challenge laid by the writ petitioners/appellants in WP(C)
No.339(AP)/2014 and WP(C) No.340(AP)/2014 was
misconceived and baseless and the petitions merited
rejection in liminie had the order dated 22.05.2009 passed
by the Division Bench been construed objectively.
14. Thus, there is no merit in the contention
advanced by Mr. B.C. Das, learned senior counsel
representing the appellants that the appellants are entitled
to be considered as regularly appointed Assistant Engineers
and consequent seniority in the cadre from the date they
were allowed to initiate in the said capacity. The view
taken by the learned Single Bench in rejecting the writ
petitions filed by the writ petitioners/appellants vide
judgment & order dated 21.06.2018 does not suffer from
any infirmity warranting interference.
15. Hence, the writ appeal fails and is dismissed as
being devoid of merit.
JUDGE CHIEF JUSTICE
Comparing Assistant
