Uttarakhand High Court
Aditya Kumar Dinkar vs State Of Uttarakhand And Others on 4 July, 2017
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 200 of 2016
Aditya Kumar Dinkar ............ Petitioner
Versus
State of Uttarakhand and others ............. Respondents
Mr. Rakesh Thapliyal and Mr. Ravi Babulkar, Advocates for the petitioner.
Mr. Hari Mohan Bhatia, Brief Holder for the State/respondent nos. 1 and 2.
Mr. A.S. Rawat, Senior Advocate assisted by Ms. Indu Sharma, Advocate for respondent
no. 3.
Dated: 04th July, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
K.M. JOSEPH, C.J. (Oral) Prayers sought in the amended writ petition are as follows:
"I. Issue a writ, rule, order or direction in the nature of certiorari calling for the records and quashing the impugned D.P.C. dated 24-4- 2016 (Annexure no. 8 to this writ petition) and order dated 29-4-2016 (Annexure no. 7) issued by respondent no. 2.
II. Issue a writ, rule, order or direction in the nature of mandamus commanding and directing the respondents no. 1 & 2 to implement the recommendation of D.P.C. dated 29-5-2015 and issue the promotion/appointment order promoting the petitioner as Chief Engineer Level-I/Head of Department, Irrigation Uttarakhand w.e.f. 1-5- 2016 with consequential benefit. V. Issue a writ, rule, order or direction in the nature of certiorari calling for the record and quashing the impugned Office Memorandum dated 26-4-2016 (contained as Annexure No. 2 11 to the writ petition) issued by Respondent no. 2."
2. Briefly put, the case of the petitioner is as follows:
The petitioner was appointed as Assistant Engineer in Irrigation Department in the year 1983. He came to be promoted to the post of Executive Engineer on 17.05.2000.
Thereafter, he was promoted to the post of Superintending Engineer on 01.03.2007. Still later, he came to be promoted as Chief Engineer Level-II on 31.05.2013.
3. As far as the party respondent is concerned, he was appointed in the year 1979 as Assistant Engineer. He was originally promoted as Executive Engineer on 05.02.2005 but he was given notional promotion as Executive Engineer on 24.02.2004. In the next higher cadre of Superintending Engineer, he was originally granted promotion with effect from 31.05.2013. Later, however, he was given notional promotion with effect from 24.02.2010 as a Superintending Engineer. As far as the next higher post of Chief Engineer is concerned, the party respondent was given promotion as Chief Engineer Level-II by order dated 25.02.2016. The bone of contention relates to the right to promotion to the post of Chief Engineer Level-I.
4. By Annexure No. 5 dated 29.07.2015, it is the case of the petitioner that being eligible, the DPC recommended his name to be promoted to the post of Chief Engineer Level-I. According to him, there was one vacancy in the recruitment year 2015-16 3 in the cadre of Chief Engineer Level-I. One Shri Jugran, senior to the petitioner was recommended to that vacancy but since Shri Jugran was due to retire during the recruitment year on 30.04.2016, the name of the petitioner was recommended against the retirement vacancy. However, by the impugned proceedings dated 27.04.2016 (Annexure No. 8), the DPC recommended the name of the party respondent for the post of Chief Engineer Level-I and by Annexure No. 7 dated 29.04.2016, the party respondent was ordered to be appointed as Chief Engineer Level-I. Petitioner originally filed the writ petition challenging both these proceedings. It is while so that in the counter affidavit filed, respondents took a contention that the party respondent was given the benefit of Rule 10 (5) of the Uttaranchal Irrigation Department Engineers Services (Civil/Mechanical) Group "A" Service Rules, 2003 (hereinafter referred to as the "Rules"). It is accordingly that the said proceedings dated 26.04.2016 came to be challenged by the petitioner by amending the writ petition.
5. We heard Mr. Rakesh Thapliyal and Mr. Ravi Babulkar, learned counsel for the petitioner, Mr. A.S. Rawat, learned Senior Counsel assisted by Ms. Indu Sharma, learned counsel for the party respondent and Mr. Hari Mohan Bhatia, learned Brief Holder on behalf of the State.
6. Learned counsel for the petitioner would submit that under the Rules, unless a person is Chief Engineer Level-II as on the first day of the recruitment year and he has a requisite service, he cannot be considered for promotion. The petitioner 4 had already been Chief Engineer Level-II. He was considered and found eligible and recommended accordingly for promotion to the post of Chief Engineer Level-I in the retirement vacancy of Shri Jugran, who was also recommended by the same proceedings. As far as the party respondent is concerned, the party respondent was not eligible to be considered for the post of Chief Engineer Level-I in terms of the Rules. He comes into the cadre of Chief Engineer Level-II on 25.02.2016 whereas, the relevant date is 01.07.2015. He would next point out that the invocation of the power under Rule 10 (5) of the Rules is legally flawed and impermissible. According to him, the party respondent was not given an appointment within the meaning of Rule 9 (3) and if appointment has not been given under Rule 9 (3) of the Rules, there is no jurisdiction to invoke the power under Rule 10 (5) of the Rules, which is what has been done by the impugned proceedings, which is last attacked. He would also submit that the impact of invoking Rule 10 (5) cannot, in fact, have effect on the actual date of promotion of the party respondent into the cadre of Chief Engineer Level-II. In other words, even taking what is done under Rule 10 (5) of the Rules, the date of promotion of the party respondent remains as 25.02.2016. Learned counsel for the petitioner would also submit that the party respondent has acquiesced in the promotion of Shri Jugran though Shri Jugran is also junior to the party respondent and it is only the right of the petitioner to be promoted in accordance with the recommendations of the DPC, which is being interfered by the impugned order.
5
7. Per contra, the learned Senior Counsel for the party respondent Shri A.S. Rawat would submit that the party respondent was senior to the petitioner, as he was appointed as Assistant Engineer prior to the petitioner. The matter engaged the attention of this Court in regard to the effect of the creation of the Hill Cadre and allocation of the officers from the State of U.P. and this Court considered the matter in the judgment dated 17.09.2015 produced as Annexure No. C.A.2. This Court found that the party respondent is entitled to notional promotion as Chief Engineer Level-II with effect from 13.02.2013. He would submit that therefore, the Governor realized that the party respondent is entitled to notional promotion and it is accordingly that the matter was set right by the last impugned order and he was given the benefit of Rule 10 (5) of the Rules.
8. Mr. A.S. Rawat, learned Senior Counsel also pointed out that the Court may note that in the representation given, which led to the last impugned order being passed, there is reference to his right to be considered for notional promotion for the post of Chief Engineer Level-II with an anterior date and it must be taken that Governor has considered all aspects and therefore, the Court may not interfere with the matter.
9. Mr. Hari Mohan Bhatia, learned Brief Holder would also point out the terms of the order dated 25.02.2016. He would submit that the order recites that the party respondent would begin his period of probation from the date of assuming the 6 charge. He pointed out that the party respondent assumed charge in December, 2014 and therefore, he would submit that he must be treated as eligible.
10. We have already referred to the relevant dates on which both the parties, namely, the petitioner and the party respondent have been promoted starting with the post of Executive Engineer right up to the post of Chief Engineer Level-II. The time is now ripe for us to allude to the statutory Rules, which admittedly govern the parties. Rule 3 (a), which is the definition clause defines the Appointing Authority as Governor. We may now pass on to Rule 9, as we cannot appreciate Rule 10 without understanding the scope of Rule 9. Rule 9 provides as follows:
"9. Appointment-
(1) The appointing authority shall make appointment by taking the names of candidates in the order in which they stand on the list prepared under sub-rule (5) of rule 8. (2) If more than one orders of appointments are issued in respect of any one selection a combined order shall also be issued, mentioning the names of the persons in order of seniority as it stood in the cadre from which they are promoted.
(3) The appointing authority may make appointments in temporary or officiating capacity also from the list referred under sub-
rule(1). If no candidate borne on this list is available he may make appointments in such vacancy from amongst persons eligible for appointment under these rules. Such appointments shall not last for a period exceeding one year or beyond the next 7 selection under these rules, whichever be earlier."
11. Rule 10 of the Rules reads as follows:
"10. Probation-
(1) A person appointed by promotion on different categories of posts in the service shall be placed on probation in a period of one year.
(2) The appointing authority may for reasons to be recorded extend the period probation in individual cases specifying the date up to which the extension is granted:
Provided that, save in exceptional circumstances, the period of probation shall not be extended beyond one year and in no circumstance beyond two year.
(3) If it appears to appointing authority at any time during or at the end of the period of probation or extended period of probation that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction he may be reverted to his substantive post if any.
(4) A probationer who is reverted under sub-rule (3) shall not be entitled to any compensation.
(5) The appointing authority may allow continuous service rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post to be taken into account for the purpose of computing the period of probation."
12. Last but not the least, we may refer to the year of recruitment, which has been defined in Rule 3(j) and 8 substantive appointment, which has been defined in Rule 3(i). Rule 3(i) and Rule 3(j) reads as under:
"3(i) "Substantive Appointment" means an appointment not being an adhoc appointment on a post in the cadre of the service made after selection in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.
3(j) "Year of recruitment" means a period of twelve months commencing from the first day of July of a calendar year."
13. Rule 5(4) of the Rules reads as follows:
"5(4) Chief Engineer, Civil or Mechanical-Level-I--
By promotion from amongst the substantively appointed Chief Engineers (Level-II) in the Civil or Mechanical Branch, as the case may be, who have completed twenty seven years service on the first day of the year of recruitment."
14. Since we are concerned with right to be promoted to the post of Chief Engineer Level-I and we have adverted to Rule 5(4), we may begin by considering who is entitled to be promoted to the post of Chief Engineer Level-I. It is crystal clear to us that in order to be promoted to the post of Chief Engineer Level-I, a person must be a substantively appointed Chief Engineer Level-II in the Civil or Mechanical Branch, as the case may be. The further requirement is that he must have completed twenty seven years of service. Again, last but not the least and of crucial significance in the facts of this case is the last limb of Rule 5 (4), insofar as it mandates the crucial point of time at which the eligibility is determined. A person must have 9 been Chief Engineer Level-II and must have completed 27 years service as on the first day of the recruitment year. The year of recruitment has been defined, as already noted, in Rule 3(j) as the period of twelve months commencing from the first day of July of a calendar year. We are concerned with the recruitment year 2015-16; therefore, we can crystallize the crucial date in this case as 1st July, 2015. The question we pose and answer is whether the party respondent was eligible as on the 1st of July, 2015 to be considered for promotion to the post of Chief Engineer Level-I. Admittedly, the party respondent came to be promoted by order dated 25.02.2016. We set out the translation of the said order, which reads as follows:
"Government of Uttarakhand Irrigation Section-1 Number: 335 /II-2016-01(84)/2003 T.C.I. Dehradun: Date 25 February 2016 Notification/Promotion His Excellency The Governor grants with pleasure sanction to regular promotion of the following personnel to the post of Chief Engineer Level-2, Pay Scale Rs. 37400-67000, similar Grade Pay Rs. 8900, from the date of assumption of charge under Irrigation Department :-
1- Shri Rajendra Chalisgaonkar
2- Shri Rajendra Kumar Gupta
3- Shri Nand Kishor Sharma
4- Shri Subhash Mitra
2- The said promoted personnel shall be under probation for a period of one year from the date of assumption of charge.10
The said order shall be subject to the decision to be passed in Special Leave Petition Number 16718-19/2014 R.R. Bhatt versus Ramesh Chandra Saxena and others filed in Hon'ble Supreme Court.
Sd.
(Anand Vardhan) Secretary Number- 335/II-2016-01(84) 2003 T.C.I. above dated."
15. A perusal of this order would show that the Governor, as the appointing authority has given regular promotion to four persons including the party respondent. In the order, it is of crucial significance to note that it does not bear retroactive operation; it is prospective. The second paragraph of the said order provides that the promoted person shall be under probation for a period of one year from the date of assumption of charge. This is a routine clause, which is incorporated in orders of promotion in cases where probation is predicated under the Rules or Government Orders. The party respondent, admittedly, on receipt of this order made a representation to the Governor dated 04.03.2016. Apparently, the party respondent has set out his grievances, which includes reference to his claim that he should have been promoted as Chief Engineer Level-II with effect from 31.05.2013. He refers to the judgment of this Court. The relief which he sought was that in terms of Rule 10 (5), the period of continuous service from 15.012.2014 may be counted towards his probation. The further prayer that he has sought is that he may be considered for promotion into the cadre of Chief Engineer Level-I in the 11 vacancy arising out of the retirement of Shri Jugran, by having the review DPC.
16. The time is now ripe for us to refer to another development, which took place, which is apparently the basis for the representation and what followed. The party respondent discharged the duties of Chief Engineer Level-II w.e.f. 15.12.2014. This was done in terms of order dated 15.12.2014. It is necessary to refer to the order, as much may turn on the terms of the order and as to who passed it. Order dated 15.12.2014 reads as under:
"Office of Chief Engineer and Head of the Department (Head of the Department Section) Irrigation Department Dehradun Letter No. 3181/Mu.A.Vi/Vibha.Anu./E-2, Samanya Date: 15 December 2014
-Office Memo-
As result of Shri Ramesh Chandra Saxena, Chief Engineer, Project (Garhwal) Dehradun going on medical leave due to his illness, orders are issued hereby to hand over the charge of Chief Engineer Project till further provisions temporarily to Shri R. Chalisgaonkar, Senior Staff Officer (Planning) Office of the Chief Engineer and Head of the Department along with his own work as dual charge. For this purpose no additional allowance/ pay shall be payable to Shri R. Chalisgaonkar, Senior Staff Officer.
The said order shall be deemed to be revoked automatically on resumption of charge by Shri Ramesh Chandra Saxena, Chief Engineer.12
(P.K. Tamta) Chief Engineer and Head of the Department Letter No. 3181/Mu.A.Vi/Vibha.Anu. above dated"
17. Now, we will consider the acceptability of the arguments of the petitioner with reference to Rule 9 (3) and Rule 10 (5) of the Rules. The scheme of the Rules appears to be that for the post of Chief Engineer Level-I, inter alia, being a post of significance to the Department, a merit list is to be prepared, which is called a select list. This is contemplated in Rule 8 of the Rules. Rule 9 provides for appointment. Rule 9 (1) provides for regular appointment from the select list. Rule 9 (3) deals with appointments, which are termed as temporary or officiating. It is now necessary to correlate Rule 9 (3) to Rule 10 (5) of the Rules under which the last impugned order has been passed. Rule 10 deals with probation. Rule 10 (5) confers power on the appointing authority to allow continuous service rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post to be taken into account for the purposes of computing the period of probation. Admittedly, it is invoking the said Rule that the Governor has passed the order and directed that the period of continuous service rendered by the party respondent apparently in terms of order dated 15.12.2014 be reckoned for the purpose of his probation. What strikes the Court is the identity between the words used in Rule 10 (5) and the words used in Rule 9 (3). Rule 9 (3) and Rule 10 (5) employ the words temporary or officiating. Therefore, the rule maker apparently intended that 13 it may so happen that a person may be appointed from the properly prepared select list under Rule 8 in a temporary or officiating capacity prior to his regular appointment. In such a situation, it is open to the appointing authority to reckon the period of such continuous service rendered pursuant to an appointment made under Rule 9 (3) either in temporary or officiating capacity for the purpose of computing the period of probation. Now, applying this to the facts of this case, we have to examine whether there was an order of appointment, which can be characterized as either temporary or officiating in regard to the party respondent with respect to the post of Chief Engineer Level-II. We have extracted the order dated 15.12.2014. It is an order passed by the Chief Engineer. One of the contentions of the petitioner is that it is not an order passed by the appointing authority. The appointing authority under the Rules is the Governor. That apart, it is clear to us that it cannot be treated as an order under Rule 9 (3) for at least two reasons. Firstly, the express language used in the order makes it unambiguously clear that only an arrangement was made by which the Chief Engineer, in view of the fact that the regular incumbent had gone on leave. He gave additional charge to the party respondent in the cadre of Chief Engineer Level-II. It is a case of dual charge where the party respondent continued on the post on which he was regularly appointed and he was also given additional charge as Chief Engineer Level-II. The order recites that the said order will stand revoked automatically on resumption of charge by the regular incumbent. We find it hard to accept the argument of the party respondent that this order 14 can be treated as an order within the meaning of Rule 9 (3) or that this order suffices for the official respondents to confer the benefit of Rule 10 (5) on the party respondent. It is crystal clear reading Rule 10 and Rule 9 together that what is permissible under Rule 10 (5) is to be gleaned from what is contemplated under Rule 9 (3). In other words, unless there is an appointment made by the appointing authority, which is of a temporary or officiating nature from the select list, which is prepared under Rule 8, the power cannot be invoked under Rule 10 (5).
18. The second circumstance, which militates against the availability of power under Rule 10 (5) is that an order of appointment under Rule 9 (3) can continue only for a period of one year or till the new select list is prepared, whichever is earlier. This is clearly provided in the Rule. Apart from the fact that the order relied on by the party respondent only countenances giving additional charge as Chief Engineer Level- II, it is not in dispute that he continued by virtue of that order for a period of one year and three months. This is a vital circumstance which persuades us to hold that this is not a case of invocation of power under Rule 9 (3) but is purely a temporary arrangement resorted to by the Head of the Department, who is also not shown to be the appointing authority under any delegation of power by the Governor. The learned Senior Counsel for the party respondent has not been able to bring to our notice any document, by which the power of the Governor has been delegated. In fact, the order dated 25.02.2016 has been issued by the Governor. Still later on, the order by which power under Rule 10 (5) is invoked under the 15 authority of the Governor, whereas no such element where the Governor was involved is reflected in the order dated 15.12.2014. Therefore, for all these reasons we would think that the order passed invoking the power under Rule 10 (5) cannot be sustained.
19. We may now also consider the matter assuming that the order is valid. What is the effect even if the order is valid? It does not appear to give retrospective effect to the order of promotion dated 25.02.2016. In fact, it is significant to notice that the party respondent had specifically in his representation adverted to his right to be given notional promotion w.e.f. 31.05.2013 but that prayer was not granted. It is now apposite to refer to the judgment relied on by the learned Senior Counsel. That is the judgment, in which the party respondent was also a party (as a petitioner in Writ Petition (S/B) No. 02 of 2014). It essentially related to the post of Superintending Engineer. While disposing of the writ petition, this Court held, inter alia, as follows:
"26. We would think that in the context of the facts and the law applicable and which principle has been applied, in fact, even in the matter of granting them notional promotion with regard to the post of Executive Engineer, petitioners would appear to be entitled to be considered for notional promotion. We have already noted the order of the Government, which says that in regard to notional promotion, the question of suitability also must be considered, which will be done by the DPC. In this regard, it is to be noted that the petitioners have already been recommended for promotion by the DPC and, therefore, the question is one of applying the principle. We would think that the petitioners 16 cannot be held to be disentitled for being considered for notional promotion as Superintending Engineer on the basis of the notional promotion as Executive Engineer in 2004, accordingly, and we reject the argument of Sri M.C. Pant, learned counsel for party respondents that unless the actual service is rendered in the post of Executive Engineer for a period of six years, they cannot be considered for further notional promotion as Superintending Engineer. Accordingly, in the light of the above discussion, Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014 will be disposed of by directing that the petitioners will be considered for notional promotion as Superintending Engineer with reference to the date of completion of 6 years from the date of notional promotion as Executive Engineer. It appears that in the case of Writ Petition (S/B) No. 23 of 2014, such an order has already been passed. The effect will be given to that order. [In the case of Writ Petition (S/B) NO. 2 of 2014 and 23 of 2014 orders have been passed on the basis of the interim order of this Court, which according to Sri MC Pant, was directed not to be implemented pending final disposal.] In Writ Petition (S/B) No. 2 of 2014, the order to the effect that the petitioners will get notional promotion from 2007 cannot be given effect to as they would not complete 6 years as in 2007 and they would complete six years only in 2010. Accordingly, petitioners will be entitled for notional promotion as Superintending Engineer with effect from the date on which they complete six years, as in the other case, as in Writ petition (S/B) No. 23 of 2014. As far as for the post of Chief Engineer, Level-II is concerned, petitioners will be entitled to be considered for the same in accordance with law."
20. Though, the Court was specific in regard to the post of Superintending Engineer, as to when a party would be entitled to notional promotion in regard to the post of Chief Engineer Level-II, the Court only directed that the petitioners will be 17 entitled to be considered for the same in accordance with law. If the party respondent was entitled to be promoted from an anterior date on the basis of the said judgment and when the order dated 25.02.2016 was passed and it did not give effect to the promotion from an anterior date, the party respondent should have taken up the matter in the appropriate forum and sought redress in regard to the same. Admittedly, this was not done. He made a representation, no doubt, which we have adverted to, wherein he adverts to this aspect but in the relief portion he does not seek retrospective promotion in regard to the post of Chief Engineer Level-II. He only gets the benefit under Rule 10 (5), which we have found impermissible. We have also found that even if the benefit may have been given, it may not advance his case to the point where he could be rendered eligible in terms of the statutory Rules. The fact that the party respondent was senior in the cadre and therefore, injustice was caused to him cannot advance his case. Injustice is not a matter, which can be divorced from the law. Injustice must be understood in the context of statutory Rules ordinarily and therefore, we do not see any reason why the petitioner, who was the person found eligible by the DPC at the relevant point of time acting in accordance with the statutory Rules should be denied the benefit which he is entitled under law. The fact that the respondent became qualified on the basis of his promotion given on 25.02.2016 must be considered in the context of the Rule, which we have adverted to, namely, Rule 5 (4) which posits that the person should be qualified as on the first day of recruitment year. Therefore, taking the order of 18 promotion of Chief Engineer Level-II as 25.02.2016, the party respondent was not eligible in terms of the statutory Rules. The petitioner is admittedly eligible. He was denied promotion, though the DPC recommended his name. The holding of the review DPC in regard to the party respondent and the subsequent promotion is found to be illegal. Consequently, the writ petition will necessarily have to be allowed. The writ petition is accordingly allowed. Annexure No. 8 proceedings of the DPC recommending the name of the party respondent to the post of Chief Engineer Level-1 and the order of promotion Annexure No. 7 promoting the party respondent will stand quashed. The impugned Office Memorandum dated 26.04.2016 Annexure No. 11 will also stand quashed.
21. Regarding the prayer of implementation of proceedings of the DPC dated 29.07.2015, Mr. A.S. Rawat, learned Senior Counsel would point out that it is not necessary under the Rules to fill up a vacancy and the Governor can keep the post unfilled. Ordinarily, we are conscious of the fact that the recommendation of the DPC is not binding on the Governor and that there is no indefeasible right to a person, who is recommended to be appointed by the Governor. It is true as the learned Senior Counsel said that the Governor may decide not to fill up the vacancy. But even there, the Governor cannot act arbitrarily. In this case, the very fact that the party respondent was appointed in the retirement vacancy caused by the retirement of Shri Jugran, who was recommended incidentally in the DPC proceedings dated 29.07.2015 (which means that the said recommendation was acted upon by the Governor) shows 19 that it is not a case where it was decided to keep the vacancy unfilled. The retirement vacancy was filled. Therefore, it was filled as we have found illegally by appointing the party respondent. Therefore, we would think that in the facts of this case, the petitioner is entitled to a direction that the DPC dated 29.07.2015 be implemented. Accordingly, we direct that the respondent nos. 1 and 2 will implement the proceedings of the recommendation of the DPC dated 29.07.2015 and promote the petitioner.
22. In regard to consequential benefits, we leave it open to the petitioner to represent the matter before the respondent and respondent will take a decision within a period of four weeks from the date of production of a certified copy of this order.
23. The petition is allowed as above. No order as to cost.
(Alok Singh, J.) (K.M. Joseph, C. J.)
04.07.2017 04.07.2017
Rahul