Hage Gumto & Ors vs Ninya Bagra & Ors

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 Subsequent to the appointment of Ninya Bagra as junior Engineer, the 1983 Rules were repealed and the Arunachal Pradesh Power Engineering Service Rules, 1993 (hereinafter called the 1993 Rules) came into force on Ist November, -2- 1993.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 11 th 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on 6th September, 2002 and the stand taken was that with the enforcement of 1993 Rules, the -3- 1983 Rules stood repealed and that Ninya Bagra would be eligible for promotion after 8 years of regular service as Junior Engineer.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:

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.

We reproduce herein the relevant part of the order dated 16.7.1997:

This officiating arrangement may be terminated/removed to their original post at any time without assigning any reason thereof."

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 -9- the observations in this matter his position will not be touched in any manner.

The appeals are allowed accordingly.

..................J. (J.M.PANCHAL) New Delhi, September 15, 2009.