High Court · 2012

1. This appeal has been preferred against order of learned Single Judge di smissing the writ petition of the appellant challenging the order giving tempora ry charge of Director of Geology and Mining to Respondent No.4.

2. The appointment in question is governed by the Assam Geology and Min ing (Recruitment and Conditions of Service) Rules, 1988. According to the petiti oner, under Clause 5, the post of Director was to be filled up by promotion f rom the cadre of Joint Director/Chief Geologist. The incumbent was required to have 20 years service experience. The respondent No.4 though he had rendered service only for eight years, was given temporary charge of the post of Director vide order dated 20.1.1996 by giving relaxation under Clause 15 of the Rules. Since, the respondent No.4 did not have the requisite experience and the petit ioner had longer service experience, appointment of Respondent No.4 was illegal .

3. The respondents filed an affidavit defending the appointment and stated that on retirement of earlier Director on 30.4.2004, respondent No.4 was the onl y officer in the rank of Joint Director/Chief Geologist to hold the current char ge of Director and in doing so, there was no violation of the rules. The respon dent No.4 was appointed as Joint Director by giving relaxation of requirement o f length of service for promotion to the post of Joint Director. The case of the petitioner, who was having longer experience in service was not at the same fo oting as he did not belong to mining wing, whereas the respondent No.4 belonge d to the mining wing.

4. On due consideration, the learned Single Judge dismissed the writ pet ition holding that the appellant did not belong to mining wing and could not ch allenge the promotion of candidate from mining wing by relaxing the length of se rvice on account of non availability of a qualified candidate in the said wing . Once it was so, there was nothing wrong in respondent No.4 being allowed to hold the post of Director. The observations of the learned Single Judge are as f ollows :- (cid:28) 5. The Service Order in force contemplates our different wings of the Service which includes Geology and Mining, Assistant Geologists and Assistant Mi ning Engineers are the entry-level posts in the two Wings with distinct channels of promotions finally leading to promotion to the post of Director for which in cumbents in both categories are eligible. In between, there are several distinc t and separate promotional posts for the two streams. For instance, the Service Order contemplates that from Assistant Geologist promotion can be made to the post of Geologist and then to Sr. Geologist and further to the post of Chief Geo logist. The chief Geologists are also entitled to be promoted to the post of Di rector. From Assistant Mining Engineers there is a channel of promotion to the p ost of Mining Engineer and thereafter, to the post of Joint Director (Mineral A dministration) and from the said post of joint Director to the post of Director. What is sought to be emphasized by the above recital of the channels of promo tions provided by the provisions of Service Order is that the two streams i.e. G eology and Mining have been kept distinct and separate with definite channels of promotions to the higher post in the respective streams. The promotional posts in the two streams are distinct and different and not inter-changeable. The abo ve position is not being disputed on behalf of the petitioners in the course of hearing of the cases.

6. The petitioners who belong to the stream of Geology assail the promotion o f the Respondent No.4 to the post of Mining Engineer and to the post of Joint Di rector( Mineral Administration). Under the Service Order in force, the aforesai d two posts of Mining Engineer and Joint Director (Mineral Administration) are e armarked for incumbents in the stream of Mining. Geologists are not entitled fo r promotion to either of the said posts. If the incumbents in the stream of Geo logy are not entitled for promotion to the posts of Mining Engineer and Joint Di rector (Mineral Administration) to which the posts the Respondent No.4 has been promoted, it is difficult to visualize as to how the petitioners can legitima tely maintain a challenge to the promotion of the Respondent No.4 to the said posts in the Mining Wing. If any person is to be aggrieved by the said promotion s, it has to be an incumbent in the Mining wing. However, no such incumbent in the Mining wing is before the Court in the present cases to assail the promotion s made. (cid:29)

5. We have heard learned counsel for the parties.

6. It is not disputed by learned counsel for the appellant that the stream for promotion to the post of Joint Director is not common, but different . As the appellant did not belong to the stream of Mining he could not claim parity w ith respondent No.4. Thus, in appointment of respondent No.4 who belonged to mining stream, by relaxing the length of service for promotion to the post of J oint Director, there was no illegality. Once it is so, no fault can be found wi th the view taken by the learned Single Judge.

7. Learned counsel for the appellant relies upon a judgment of the Hon’b le Supreme Court in Ashok Kumar Uppal and Ors vs. State of J & K and Ors, (199 8) 4 SCC 179, to the effect that power of relaxation should be exercised only to meet a particular situation where injustice is caused to an individual emplo yee and such power should not be exercised arbitrarily to give undue advantage to an individual. While said proposition is unexceptionable, the same does not a pply to the present situation. In the present case, it cannot be held that pow er of relaxation has been exercised for giving undue benefit to the respondent No.4. Respondent No.4 being the only eligible candidate from mining stream, he was given promotion to the post of Joint Director. Thus, no objection could be t aken to giving of temporary charge of the post of Director to him. 8. Reliance has also been placed on the judgment of the Single Bench of t his Court in Narendra Kumar vs. Union of India and Ors, 2000(1) GLT 507. There in, the issue of promotion based on the principle of seniority-cum-merit was go ne into and it was held that once a candidate reaches the prescribed bench mark, seniority was to prevail. We are not concerned with that principle in the pr esent case. Having regard to the fact that there are different streams for pr omotion, seniority of the appellant was not comparable to that of candidates in the other wing. Thus, we do not find any error in the view taken by learned Sin gle Judge. 9. The appeal is dismissed .