Leave granted.
The appeals are allowed,
Signed
order is
placed
on the
file.
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6293-6294 OF 2009
(Arising out of SLP(C) Nos. 19589-19590/2008)
Hage Gumto & Ors. ...Appellant(s)
Versus
Ninya Bagra & Ors. ...Respondent(s)
Leave granted.
The writ petitioner-respondent herein, Ninya,
Bagra was appointed as a Junior Engineer on 11th August,
1992, under the Arunachal Pradesh Administration (Public
Works Department) Group `B' Post, Recruitment Rules,
1983, (hereinafter called 1983 Rules). The Rules
aforesaid provided that for promotion to the post of Assistant Engineer from the post of Junior Engineer, a
degree holder had to have atleast five years and a
diploma holder 10 years of regular service. Subsequent
to the appointment of Ninya Bagra as junior Engineer,
the 1983 Rules were repealed and the Arunachal Pradesh
Power Engineering Service Rules, 1993 (hereinafter
called the 1993 Rules) came into force on Ist November,
1993. The 1993 Rules (in so far as we are presently
concerned) fixed the period of service required for
promotion to the post of Assistant Engineer at 8 and 10
years from amongst degree and diploma holders respectively. Concededly under the 1993 Rules Ninya
Bagra could have become eligible for promotion only on
11th August, 2000, though he was given officiating
promotion vide order dated 16th July, 1997. The
appellants herein were appointed as Assistant Engineers
under the direct recruitment quota between the years
1998-1999 on regular basis after due process of
selection as Assistant Engineers under the 1993 Rules,
and Ninya Bagra was promoted as Assistant Engineer on
regular basis on the recommendation of the DPC on 12th
July, 2001 as he had completed 8 years of service on 11th
August 2000. He thereupon filed a writ petition before
the Gauhati High Court claiming promotion with
retrospective effect on the basis of the 1983 Rules
claiming seniority from the date that he had completed
five years of service as Junior Engineer as on 16th July, 1997. A reply affidavit was filed by the State of
Arunachal Pradesh on 6th September, 2002 and the stand
taken was that with the enforcement of 1993 Rules, the
1983 Rules stood repealed and that Ninya Bagra would be
eligible for promotion after 8 years of regular service
as Junior Engineer.
The writ petition was taken up for hearing by the
single Bench and the Bench observed that admittedly the
1993 Rules alone governed the case of Ninya Bagra-
respondent No.1 herein and he was therefore entitled to
promotion with effect from the date of completion of 8
years of service as Junior Engineer i.e. from 11/8/2000.
The writ petition was allowed to the limited
extent that the benefit of 8 years of service be taken
as on the date when he had completed 8 years of service
and not on the date when the DPC had met. The matter
was thereafter taken before the Division bench in appeal
by Ninya Bagra. The Division Bench relying almost
exclusively on the statement made by the Advocate
General that the 1983 Rules would be applicable to the
case set aside the order of the single Bench and held
that:
“We are of the firm opinion that the
appellant was entitled to regular promotion to the
post of Assistant Engineer with effect from
11.8.97. The Rules framed in 1993 as well as in
2005 have no bearing on the case at hand. Since
the appellant has already been regularized in
service with effect from the date of
recommendation of the DPC, we see no bar in
issuing as direction to the respondent. State to modify the impugned order dated 12.3.2001 and to pass a fresh order regularizing the promotion of the appellant what effect from 11.8.1997. Accordingly, we dispose of the writ appeal calling upon the respondent State to pass appropriate
orders in the light of the direction given above. The judgment under appeal accordingly stands modified.
Before parting with, we feel it necessary to observe that if any senior engineer junior in service to the appellant was promoted subsequent to 11.8.97, his case may be reconsidered and appropriate orders may be passed by the respondent State without adversely affecting the right of the appellant.”
It is this situation that the matter is before
us by way of special leave at the instance of Hage
Gumto, the respondent in the writ petition.
Mr. Sanjay Parikh, the learned counsel for the
appellant has pointed out that there were two factual
errors in the order of the Division Bench viz. that the
Rules of 1983 were no longer in operation in view of the
fact that 1993 Rules repealed the Rules 1983 and the
statement made by the Advocate General was thus contrary
to the record and was, therefore, not binding on the
appellant and secondly, the observation of the Division
Bench that the respondent had been selected by a
properly constituted Departmental Promotion Committee
was wrong in view of the order dated 16/7/1997 which
clearly provided that the arrangement was purely
temporary and the promotees (i.e. Ninya Bagra and
others) could not claim any benefit unless regularized
by a Departmental Promotion Committee. He has also
referred us to the various documents on record including
the categoric stand of the respondent-State Government
taken before the single Judge and the Division Bench, as
also the counter affidavit filed in this Court to
contend that the Rules of 1983 were not applicable.
The learned counsel for Ninya Bagra has, however,
submitted that some subsequent developments had taken
place in the matter as his client had been taken on
absorption by some other Governmental agency and he was no longer in the Department, and that as far as he was
concerned he would have no objection if the legal issues
were settled either way provided his present position
was not disturbed in any manner. The learned counsel
for the State has however pointed out that the stand of
the State was that the Rules of 1993 and not of 1983
were applicable to the present matter and as the
Government was feeling some difficulty in complying with
the broad directions of the Division Bench and a chain
reaction had ensued which made it imperative that the
judgment of the Division Bench be set aside.
We have heard learned counsel for the parties and gone through the record. It would be clear from the
positive stand of the respondent State that the
statement made by the Advocate General before the
Division Bench was not authorized and was contrary to
the record.
Equally the observation of Division Bench that
Ninya Bagra respondent herein had been selected on
16/7/1997 by a Departmental Promotion Committee was also
incorrect.
We reproduce herein the relevant part of the
order dated 16.7.1997:
“This Arrangement is purely on
temporary basis and will not bestow on them
any claim for regular appointment as AF-E)
unless their services are regularized by a
regular DPC in concerning with the provisions
of Recruitment Rules.
This officiating arrangement may be
terminated/removed to their original post at
any time without assigning any reason
thereof.”
A bare reading of the aforesaid clause makes it
evident that the promotion was de-hors the Rules & did
not confer any substantive right on the promotees.
We have also gone through the repealing clause in
the 1993 Rules. Rule 35 which is the repealing clause
reads as under:
“35. Repeal (1) All recruitment rules of post
(s)/grades included in the service, as in force,
prior to commencement of these rules, in the
department are hereby repealed.
(2) Notwithstanding such repeal, anything done or
any action taken under the provisions of
recruitment rules existing prior to commencement
of three rules in respect of post/grades included
in the service, shall be deemed to have been
validly done on taken under these rules.”
This Rule has to be read along with Rule 32 which
is the transitional clause. This Rule too is
reproduced below:
“32. Transitional provision: (1) On and
from the commencement of these rules and until
persons are appointed to hold the posts included
in the service in accordance with the provisions
of these rules, such post (s) may continue to be
held by officers appointed thereto as if these
rules had not come into force. Persons appointed
to posts included in the service, on regular basis
in accordance with the provisions of the
recruitment rules as existed prior to commencement
of these rules, shall be deemed to have been
appointed to post included in the service under
these rules.”
Sub-Rule (2) of Rule 32 subsequently provides
that the transitional clause would be operative for a
period of two years from the date of commencement of
the 1993 Rules which would thus be applicable in toto
with effect from 1995. The net result is that Ninya Bagra's ad hoc promotion which was made in the year 1997
was to be governed by the Rules of 1993 and not by the
1983 Rules. We accordingly feel that the judgment of
the Division Bench is erroneous both on fact and law. We
accordingly set aside the same. As pointed out by the
learned counsel, Ninya Bagra respondent herein had gone
on deputation to some other Department and has been
subsequently absorbed in that Organization, we are,
accordingly, of the opinion that notwithstanding
the observations in this matter his position will not be
touched in any manner.
The appeals are allowed accordingly.
(J.M.PANCHAL) New Delhi, September 15, 2009.