High Court · 2009

2. We have heard Sri DK Mishra, learned senior counsel for the peti tioner in WP(C) No. 1335/2006; Sri RP Sarmah, learned senior counsel for the pet itioners in WP(C) No. 1382/2006 and Sri B. Chakraborty, learned counsel for the petitioners in WP(C) No. 145/2009. We have also heard Sri B. Banerjee, learned G ovt. Advocate, Arunachal Pradesh. The facts are long but at attempt must be made to summarize and 3. recite only what would be strictly required for the purposes of the present adju dication. It would be convenient to state the facts of WP(C) No. 1335/2006 at th e first instance and, thereafter, to re-capitulate the facts involved in the oth er two writ petitions. The petitioner in WP(C) No. 1335/2006 was appointed as Junior En gineer in the Public Works Department of the present day State of Arunachal Prad esh sometime in the year 1986. He was promoted on ad-hoc basis to the post of As sistant Engineer on 31.3.94. As the petitioner was reverted to his substantive p ost of Junior Engineer by order dated 27.4.2001, he had instituted a writ procee ding before this Court registered and numbered as WP(C) No. 881(AP)/2001. The qu estion that eventually arose in the writ petition was whether the petitioner is a Scheduled Tribe of the State of Arunachal Pradesh the answer to which question would have determined his entitlement for promotion in the channel of reserved or general category candidates, as the case may be. By order dated 24.5.2002 passed by a learned Single Judge of thi 4. s Court, WP(C) No. 881(A)/2001 was disposed of by answering the aforesaid questi on in the positive i.e. that the writ petitioner belongs to a Scheduled Tribe of Arunachal Pradesh. The petitioner, it may be noticed, belongs to the ’Deori’ tr ibe. Following the aforesaid finding arrived at, the learned Single Judge by the order dated 24.5.2002 directed that in terms of the relevant Government Notific ation in force his case for regular promotion is to be considered by the concern ed Departmental Promotion Committee (DPC). Aggrieved by the aforesaid order dated 24.5.2002, the State of A 5. runachal Pradesh instituted an appeal i.e. WA No. 361/02. By order dated 26.5.20 03 the said appeal was disposed of by upholding the directions issued by the lea rned Single Judge for consideration of the case of the petitioner for regular pr omotion by the concerned DPC. However, in so far as the Scheduled Tribe status o f the petitioner is concerned, the question was kept open to be answered by the Government at the time of sending of the name of the petitioner for consideratio n of his regular promotion by the DPC. Thereafter, it appears that the petitione r was regularized in the post of Assistant Engineer by order dated 15.7.2003.

6. Contending that the aforesaid regularization of the petitioner w as without any reference to the DPC, a show cause notice was issued to the petit ioner on 6.5.2004 asking him to show cause as to why his regular promotion made by the order dated 15.7.2003 should not be cancelled and he should not be revert ed to the status of officiating Assistant Engineer. The petitioner duly submitte d his reply. Thereafter, it appears that the matter was not finally determined by the concerned authority of the State which led to filing of another set of wr it petitions by the aggrieved parties leading to an order dated 23.3.2005 requir ing the concerned authority of the State to dispose of the matter. Pursuant ther eto, the impugned order dated 15.2.2006 has been passed holding that the petiti oner is not entitled to regular promotion and, in effect, paving the way for his reversion. Specifically it must be noticed that in the order dated 15.2.2006 th e concerned authority did not come to any conclusion with regard to the Schedule d Tribe status of the petitioner notwithstanding the order dated 26.5.2003 passe d in WA No. 361/2002. In WP(C) No. 1382/2006, there are four petitioners all of whom a 7. dmittedly belong to APST. The four petitioners were also promoted on regular bas is by order dated 15.7.2003 as in the case of the petitioner in WP(C) No. 1335/2 006. By the impugned order dated 15.2.2006, their regular promotions have been f ound to be without reference to the DPC and, therefore, were cancelled and direc tions have been issued for their reversion to the substantive post of Junior Eng ineer. The case of the petitioner in WP(C) No. 145/2009 is also similar save and except that the date of his regular promotion is 16.9.2003. The argument advanced by Sri DK Mishra, learned senior counsel f 8. or the petitioner in WP(C) No. 1335/2006 has been short and precise. Sri Mishra has argued that by the order dated 26.5.2003 passed in WA No. 361/02 this Court had required the concerned authority of the State to determine the status of the petitioner i.e. whether he belongs to APST. This was required to be done before sending his name for consideration for regular promotion by the DPC. Sri Mishra has submitted that, at no point of time, any such determination was made nor hi s case has been sent to the DPC for consideration in terms of the order dated 26 .5.2003 passed in WA No. 361/02. Sri Mishra has drawn the attention of the Court to the relevant part of the impugned order dated 15.2.2006 wherein the departme ntal Commissioner who had passed the said order had recorded that the determinat ion of the Scheduled Tribe status of the petitioner cannot be made and once the petitioner produces any certificate from the competent authority certifying his caste status the said question can be re-opened. Sri Mishra has submitted that i n view of the clear and categorical direction of this Court in the order dated 2 6.5.2003 passed in WA No. 361/02, the departmental Commissioner could not have r efused to determine the status of the petitioner. Accordingly, he has submitted that the present is a fit case for a direction for de novo consideration of the case of the petitioner. Alternatively, Sri Mishra has submitted that the materia ls on record would clearly go to establish that the petitioner belongs to ’Deori ’ tribe recognized as a Scheduled Tribe in Arunachal Pradesh and, therefore, his promotion should be governed on that basis, in which event, the petitioner is c learly eligible for promotion, his admitted seniority position being at serial N o. 225. In so far as the petitioners in WP(C) Nos. 1382/2006 and 145/200 9. 9 are concerned, Sri RP Sarmah and Sri Chakraborty, learned counsels for the pet itioners have submitted that in the event the petitioner are found to be junior to persons who are yet to be promoted to the cadre of Assistant Engineer, as the petitioners have been continuing as Assistant Engineer for long, they should be allowed to so continu on officiating basis until regular promotions are made. I n this regard, the learned counsels have been emphatic in their submissions that by the show cause notice dated 6.5.2004 the action contemplated was their rever sion to an officiating basis as Assistant Engineer whereas by the impugned order they have been reverted to their substantive post of Junior Engineer.

10. The arguments advanced on behalf of the petitioners in each of t he cases have met with stiff resistance offered by the learned Govt. Advocate. I n so far as the argument advanced in WP(C) No. 1335/2006 is concerned, Sri B Ban erjee, learned Govt. Advocate has placed before the Court an order of the Apex C ourt in WP(C) No. 694/1990 (enclosed as Annexure-P to M.C. No. 1752/2006). Accor ding to Sri Banerjee, by the said order the status of the petitioner as member o f the Scheduled Tribe has been determined against him. Sri Banerjee has also pla ced before the Court the proceedings of the DPC dated 25.6.2002 (Annexure-G to M .C. No. 1752/2006) which would indicate due consideration of the case of each of the petitioners. Sri Banerjee has further submitted that the petitioners havin g been found to be ineligible for promotion to the cadre of Assistant Engineer, by virtue of their seniority in the cadre of Junior Engineer, the order dated 15 .2.2006 recording the said fact is fully justified. Sri Banerjee has further sub mitted that in the minutes of the DPC held on 25.6.2002, following the order of the Supreme Court in WP(C) No. 694/1990 a conclusion was reached that the petiti oner in WP(C) No. 1335/2006 is not entitled to be reckoned as a member of the Sc heduled Tribe of Arunachal Pradesh.

11. Continuing further, Sri Banerjee has drawn the attention of the Court to the relevant parts of the impugned order dated 15.2.2006 to show that a ll the petitioners have superceded several of their seniors while holding the po st of Assistant Engineer, both on officiating as well as regular basis; that the orders of regular promotion of the concerned petitioners had been made without any reference to the DPC and further that the proceedings of the DPC dated 25.6. 2002 being pursuant to the order passed by the learned Single Judge in WP(C) No s. 881(A)/2001, 882(A)/2001, 883(A)/2001 and 273(A)/2001 which had already been affirmed by the Division Bench in WA No. 361/2002, reference to any further DPC was not necessary. Sri Banerjee has argued that as the facts of the cases under consideration had revealed that the petitioners were junior to persons still hol ding the feeder post, they are not entitled to be promoted to the next higher po st of Assistant Engineer. Therefore, their reversion to the cadre of Junior Engi neer has been right made by the impugned order dated 15.2.2006.

12. We have considered the rival submissions advanced on behalf of t he parties with due care. In so far as the Scheduled Tribe status of the petitio ner in WP(C) No. 1335/2006 is concerned, naturally, in view of the order of the Division Bench in WA No. 361/2002 there is a duty and obligation on the responde nt State to determine such status of the petitioner at the stage indicated in th e order of the Court. Clearly and evidently the same was not done. However, notw ithstanding the said order, if ex facie and on the strength of the order of the Supreme Court this Court can come to the conclusion that the status of the said petitioner has already been determined against him, perhaps, it would not be cor rect on our part to insist on formal implementation of the directions of the Div ision Bench. However, as opposed to the above, if on the materials laid before t he Court it is unable to come to any ex facie conclusion and the matter would re quire indepth scrutiny, naturally, the Court has to take the view that the direc tions of the Division Bench will have to be followed.

13. In this regard, we have noticed the order of the Apex Court in W P(C) No. 694/1990 (enclosed as Annexure-P to M.C. No. 1752/2006) which has been brought on record by the State. The aforesaid order merely states that the petit ion under consideration of the Apex Court had been withdrawn as materials had be en brought on record to show that the National Commission for Scheduled Castes a nd Scheduled Tribes had intimated that ’Deori’ is not an original tribe of Aruna chal Pradesh and had migrated to the State of Arunachal Pradesh from Assam. We h ave also noticed that while dismissing the writ petition the Apex Court allowed the petitioner therein to avail of such other remedies that may be permissible i n law. Our reading of the order of the Apex Court leaves us satisfied that the s aid order cannot be understood to be a conclusive determination of the status of the petitioner. The fact that the State Government had also entertained a simil ar understanding in the matter is amply revealed by a communication dated 14.8.2 002 of the Secretary, Social Welfare, Govt. of Arunachal Pradesh [Annexure-8(A) to the writ petition) which clearly reiterates such a view. Not only the order o f the Apex Court has to be read in the manner indicated by us, we have noticed t hat under the Constitution (Scheduled Tribes)(Union Territories) Order, 1951, as amended by Section 26(2) of the North Eastern Areas (Re-organization) Act, 1971 in so far as the State of Arunachal Pradesh is concerned, the schedule of the t ribes appearing in the Presidential Order includes sixteen tribes of Arunachal P radesh as Scheduled Tribe. However, the aforesaid schedule begins with the expre ssion (cid:28)all tribes in the State including (cid:29). In such a situation, a question would arise whether ’Deori’ is a tribe included in the Presidential Order. In this re gard, we have also been taken to certain other documents on record including a r eport of census of different tribes in the Lohit district wherein ’Deori’ is inc luded in the list of the local Scheduled Tribes of the said district. That apart , materials have been laid before the Court to show that the petitioner had unde rgone studies on the basis of a scholarship awarded to him as a Scheduled Tribe candidate by the Govt. of Arunachal Pradesh.

14. All the aforesaid materials are sufficient to generate satisfact ion in the Court that the question whether the petitioner is a member of the APS T is required to be considered upon an exhaustive consideration of the relevant facts and circumstances and after personal hearing of the concerned parties. As the Division Bench of this Court in WA No. 361/2002 had already directed the sai d exercise to be done, which evidently was not undertaken in the present case[WP (C) 1335/2006], we are of the view that we should not supplant our views in plac e of the one already recorded in WA No. 361/2002. Such a course of action would be contrary to judicial propriety. We, therefore, arrive at the conclusion that the impugned order dated 15.2.2006, in so far as the petitioner in WP(C) No. 133 5/2006 is concerned, is legally infirm as the said order does not comply with th e directions of this Court in WA No. 361/2002. We, therefore, set aside the said order in so far as the petitioner in WP(C) No. 1335/2006 is concerned and direc t the competent authority of the State to undertake the required exercise before sending the name of the petitioner to the DPC for consideration of his promotio n. Until the aforesaid exercise is completed, the present status of the petition er shall be maintained. In so far as the petitioners in WP(C) Nos. 1382/2006 and 145/200 15. 9 are concerned, a reading of the impugned order dated 15.2.2006 indicates that the petitioners in the said writ petitions were placed at Serial Nos. 461, 477, 480 and 500 of the seniority list of Junior Engineers. What is the position toda y is not known, though assertions have been made by the learned counsels for the petitioners that the petitioners have reached higher levels of seniority leavin g a very few people above them and they are eligible for promotion to the post o f Assistant Engineer. The order dated 15.2.2006 indicates that in so far as APST candi 16. dates are concerned, regular promotions have been made upto serial No. 379 of th e seniority list of Junior Engineers. The above facts amply demonstrate that th e petitioners are not due for regular promotion and, in fact, such promotions co nferred to them had the affect of causing supersession of a large number of seni ors. 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 petitio ners have worked as Assistant Engineer for long, in fact, over a decade.

18. The aforesaid facts, though not altogether irrelevant, cannot ov erride the determination that has already been made to the effect that the petit ioners by virtue of their seniority in the cadre of Junior Engineer were not ent itled to promotion either on officiating or on regular basis to the next higher post of Assistant Engineer. The petitioners are presently continuing in the pos t of Assistant Engineer under orders of the Court. As the petitioners have conti nued for long and they must have come up to higher levels of seniority, while af firming 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 t he post of Assistant Engineer on officiating basis is a matter that should be le ft to be determined by the authorities of the State. The authorities of the Stat e in doing so will take into account the fact as to whether if the petitioners a re to be allowed to continue on officiating basis any prejudice will be caused t o any of their seniors. If such prejudice is caused to any senior, naturally, su ch officiating arrangement will not be allowed. However, in the event no such pr ejudice results, the authorities will be at liberty to allow the petitioners to continue in the post of Assistant Engineer on officiating basis.

19. bove. All the writ petitions shall stand disposed of in terms of the a