High Court · 2012

Heard Mr. B.C. Das, learned Senior counsel, for the writ petitioner, and Mr. A.M. Buzarbaruah, learned Senior Govt. Advocate, Arunachal Pradesh, for the State respondents.

3. In order to correctly appreciate what the grievance of the present petit ioner is, it is apposite to take note of the facts with which respondent Nos.4 a nd 5 came to this Court with the writ petition made under Article 226, which gav e rise to WP(C) No.196(AP)/2001, and the reasons, which impelled the Court to is sue directions to the State respondents to count the promotion of the respondent Nos.4 and 5 herein to the post of AE with effect from 10.06.1999, i.e., the dat e on which they had, admittedly, become eligible for promotion to the post of AE .

4. As noted in the judgment and order, dated 11.11.2002, which the petition er seeks to get reviewed, the case of the writ petitioners, in WP(C) No.196(AP)/ 2001, was, in brief, thus: (cid:28)Both the petitioners are degree-holders in Engineering and both of them were ap pointed as Junior Engineers in the RWD, Govt. of Arunachal Pradesh, way back on 10.06.94. By order, dated 30.04.97, issued by the said Department, the petitione rs were promoted to the post of Technical Assistants. By 6th July, 1987, both th e petitioners had passed Professional Accounts Examination. By order, dated 30.0 3.2001, issued by the RWD, both the petitioners along with 11 others have been p romoted to the post of AE and both the petitioners are presently working as AEs, petitioner No.1 being the AE, RWD, at Ziro Division and petitioner No.2 being A E, RWD, at Lumla, Tawang. According to the relevant Recruitment Rules contained in Memo No.RWD/SECTT/95/94, dated 10th October, 1997, issued by the Secretary (R WD), Govt. of Arunachal Pradesh, the petitioners, being degree holders in Engine ering are eligible for promotion as AEs on completion of 5 years of regular serv ice. The petitioners, thus, became eligible for promotion as far back as on 10.0 6.99, but they have been granted promotion only by order, dated 30th March, 2001 issued by the Secretary, RWD, Govt. of Arunachal Pradesh, with effect from 30.0 3.3001, though clear vacancies existed for granting promotion to the petitioners on 10.06.99 (when they had become eligible for promotion to the post of AEs as hereinbefore mentioned) and despite the fact that some persons junior to the pet itioners have been made AEs before the petitioners were regularly promoted as AE s. (cid:29)

5. As the respondents, in the earlier writ petition, did not file any affid avit and Mr. R.H. Nabam, learned Additional Senior Govt. Advocate, appearing on In the circumstances indicated above, this Court observed and directed a behalf of the State respondents, submitted to the Court that the writ petition b e disposed of on merit, this Court, as noted in the judgment and order under rev iew, proceeded on the premises that the facts, as had been averred in the writ p etition, were undisputed. In fact, the facts, averred in the earlier writ petiti on, are, even today, not in dispute inasmuch as it is not in dispute that the wr it petitioners became eligible for promotion to the post of AE on 10.06.99 and a t the time, when they became so eligible for promotion to the post of AEs, more than two posts in their department, i.e., Rural Works Department, were lying vac ant, which were to be filled up by promotion. 6. s under: (cid:28)6. Upon hearing learned counsel for the parties and upon perusal of the materia ls on record, what I notice is that both the petitioners are degree-holders in E ngineering and both of them were appointed on 10.06.94 as Junior Engineers in th e Department aforementioned. There is no dispute before me that being degree-hol ders in Engineering, the petitioners became, according to the relevant recruitme nt Rules, eligible for promotion to the post of Assistant Engineers in the same Department as far back as on 10.06.99. There is also no dispute before me that t he petitioners were, eventually, promoted to the post of AE as late as on 30.03. 2001 despite the fact that clear vacancies in the promotional posts of AE did ex ist even on 10.06.99. 7. Situated thus, there is, I find, no cogent and justified reason for the omiss ion of the department concerned not to accord promotion to the petitioners with effect from 10.06.99, particularly, when the petitioner Nos.1 and 2 have been wo rking as ad-hoc AE since 07.03.91 and 11.07.96 respectively. 8. Considering, therefore, the matter in its entirety, this writ petition is all owed with direction that the petitioners’ promotion to the posts of Assistant En gineer shall be counted with effect from 10.06.99, that is, the date on which th e petitioners became, admittedly, eligible for promotion to the posts of Assista nt Engineer subject to the condition that the promotion of the petitioners to t he posts of Assistant Engineer with effect from 10.06.99 shall not adversely aff ect the position in the gradation list of any person(s), who may be senior to th e petitioners. (cid:29)

7. It is contended by Mr. BC Das, learned Senior counsel, appearing on beha lf of the present petitioner, that merely because of the fact that a person beco mes eligible for promotion, it does not necessarily mean that the Government mus t give him promotion, for, according to Mr. Das, it is open to the Government no t to fill up a promotional post, but to keep it lying vacant, because it would d epend on the Government, its resources and requirement whether it shall fill up a promotional post or not.

8. While there can be no dispute with the proposition of law as advanced by Mr. Das, learned Senior counsel, what must be borne in mind is that the right t o be considered for promotion is no longer an ordinary right, but it is as momen tous as a fundamental right in the sense that, on becoming eligible for promotio n, a person has the right to be considered, ordinarily, for promotion, provided he falls within the zone of consideration. Hence, when such a person has a right to be considered for promotion, there has to be clear and conscious decision by the Government not to fill up the post by way of promotion if the Government ha s to deny to such a person his right to be considered for promotion.

9. It is, therefore, incumbent, on the part of the Government, to ensure th at DPC is constituted and the DPC considers the eligibility and suitability of a person for promotion depending upon the conditions of promotion as may have bee n embodied in the relevant recruitment rules. When a person, thus, becomes eligi ble for promotion, right to be considered for promotion by the DPC is an invalua ble right. What, therefore, logically follows from this proposition is that when a person becomes eligible for promotion and post is available for making the pr omotion, Government cannot avoid considering such a person’s case for promotion unless it takes a decision, consciously and clearly, not to fill up the promotio nal post. In the case at hand, there was, admittedly, no decision by the Governmen 10. t for not filling up the promotional post. The posts, though were available, had been left lying vacant, because of Government’s sheer negligence, which means n othing but dereliction of duty by those, who had the responsibility to consider the cases of the respondent Nos.4 and 5 herein for promotion.

11. Depending upon the date of the DPC, the effective date of promotion of a person cannot be decided, because DPC is required to meet every year. Therefore , the fact that DPC had not been constituted or did not sit at the time, when re spondent Nos.4 and 5 had become eligible for promotion, cannot be made a ground to deny to the respondent Nos.4 and 5 herein promotion with effect from the date , when they had become due for promotion, particularly, when the posts of AE, in order to be filled up by promotion, were, admittedly, lying vacant and there wa s no conscious decision by the Government not to fill up the said posts.

12. Situated thus, it becomes clear that though the present writ petitioner was a direct recruit to the post of AE in the year 2001, the fact remains that p romotion of respondent Nos.4 and 5 herein ought to relate back to the date, when they had become due for promotion, i.e., on 10.06.1999.

13. Having, perhaps, noticed that granting of promotion, with effect from 10 .06.99 to the respondent Nos.4 and 5, may not be incorrect, Mr. Das, learned Sen ior counsel, points out that this Court has, while directing promotion of respon dent Nos.4 and 5 with effect from 10.06.99, clarified that the promotion of the writ petitioners to the posts of AE, with effect from 10.06.99, shall not advers ely affect the position in the gradation list of any person(s), who may be senio r to the petitioners. I am constrained to observe that such a reading of the obs ervations of this Court is not correct by Mr. Das inasmuch as this Court, while directing promotion to be granted to the respondent Nos.4 and 5, with effect fro m 10.06.99, to the posts of AE, clearly stated thus: (cid:28)8. Considering, therefore, the matter in its entirety, this writ petition is al lowed with direction that the petitioners’ promotion to the posts of Assistant E ngineer shall be counted with effect from 10.06.99, that is, the date on which t he petitioners became, admittedly, eligible for promotion to the posts of Assist ant Engineer subject to the condition that the promotion of the petitioners to the posts of Assistant Engineer with effect from 10.06.99 shall not adversely af fect the position in the gradation list of any person(s), who may be senior to t he petitioners. (cid:29)

14. The above observations mean that the promotion of the petitioners shall not adversely affect promotions of those persons in the gradation list, who were , otherwise, senior to the respondent Nos.4 and 5. The granting of promotion, wi th effect from 10.06.99, did not deny to any of the promotees his seniority in t he seniority list. As the respondent Nos.4 and 5 ought to have been given promot ion as far back as 10.06.2009, but they were illegally and unjustifiably denied promotion and the fact, that in the meanwhile, the present petitioner was recrui ted directly to the post of AE in the year 2001, cannot be made a ground, sustai nable in law, to deny to respondent Nos.4 and 5 promotion with effect from 10.06 .99. As a last resort, Mr. Das, learned Senior counsel, points out that in th 15. e earlier writ petition, which respondent Nos.4 and 5 had filed, the present pet itioner had not been impleaded as a party, though he had become AE before the re spondent Nos.4 and 5 became AEs.

16. While considering the above submission of Mr. Das, it needs to be noted that the right of being impleaded in a proceeding before a Court, in a case of present nature, is the demand of the principles of natural justice that a person ’s right shall not be made to be adversely affected without giving him an opport unity of being heard; but if such a denial has taken place, the person, who chal lenges a judicial order on the ground that he had not been heard, must be able t o show as to what prejudice has been caused to him by such denial. For this purp ose, he is duty bound to show as to what he would have stated, had he received t he opportunity.

17. In the case at hand, the writ petitioner has, admittedly, submitted, now , whatever he would have submitted, had he been impleaded as a party in the earl ier writ petition. What he submits, now, could not have stopped the Court from t aking the decision, which it took in the earlier writ petition inasmuch as the d ecision, taken earlier in the face of the admitted facts and the law contained i n that behalf, cannot be said to be wrong or incorrect.

18. What emerges from the above discussion is that the petitioner herein has not been able to make out any case warranting this Court’s interference with it s own directions, given by judgment and order, dated 11.11.2002, nor has the pet itioner been able to make out any case for obtaining directions that he shall be treated as senior to the respondent Nos.4 and 5. In the result and for the reasons discussed above, this writ petition fa

19. ils and the same shall accordingly stand dismissed. 20. 21. No order as to costs. Send back the records.