Bibhuti Bhusan Mishra vs Paradip Port Trust and Others

Dr. B.R. Sarangi, J—The petitioner, a Diploma Holder, who was appointed as Junior Engineer (Mechanical) and subsequently was allowed to continue as Assistant Engineer under the Paradeep Port Trust, has filed this writ petition claiming for promotion to the post of Executive Engineer (Mechanical) w.e.f. 15.9.2005 and grant of consequential service benefits and also claims for quashing of office order dated 15.9.2005 by which the opposite parties 3 to 5 have got promotion to the post of Executive Engineer (Mechanical) on ad hoc basis and subsequently their ad hoc promotion was regularized on 5.8.2010 vide Annexure-7.

The short fact of the case, in hand, is that the petitioner being a Diploma Holder was initially appointed as Junior Engineer (Mechanical) on 9.8.1976 and thereafter his post was upgraded to the post of Assistant Engineer (Mechanical) vide letter dated 4.5.1993 in the Paradeep Port Trust and from that date, he has been continuing as Assistant Engineer (Mechanical). Accordingly, a gradation list of Assistant Engineers (Mechanical) was prepared on 8.8.2007 wherein the name of the petitioner finds place at Sl. No. 29 and the names of the opposite parties 3 to 5 find place at Sl. Nos. 36, 37 and 38 respectively. The opposite parties 3 to 5 being the direct recruits were appointed as Assistant Engineer (Mechanical), and subsequently, they were promoted to the post of Executive Engineer (Mechanical) w.e.f. 15.9.2005 ignoring the seniority of the petitioner whose name finds place at Sl. No. 29. Claiming promotion to the post of Executive Engineer (Mechanical) from the date his juniors were promoted, i.e. w.e.f. 15.9.2005, the petitioner has approached this Court by filing the present writ petition.

Mr. D.K. Mohapatra, learned counsel for the petitioner strenuously urged that while preparing the gradation list of Assistant Engineers (Mechanical) since the petitioner''s name finds place above the opposite parties 3 to 5, he should have been given promotion earlier to the said opposite parties and without considering his candidature, his juniors have been considered and more so, by the time the petitioner''s case was considered, he has already completed 12 years of service as Assistant Engineer (Mechanical) whereas the opposite parties 3 to 5 have rendered only 7 years of service. In view of such position, the action taken by the authorities being illegal, arbitrary and unreasonable, the petitioner seeks for interference of this Court.

Mr. S. Mohanty, learned counsel appearing on behalf of Mr. S.K. Padhi, learned Senior Counsel for the opposite party No. 3 - Paradip Port Trust strenuously urged that no illegalities or irregularities have been committed by the authorities by not considering the case of the petitioner along with opposite parties 3 to 5. It is urged that as per the recruitment rule referred to in Annexure-8 by the petitioner with regard to the post of Executive Engineer (Mechanical), it stipulates that promotion is to be made from two feeder grade; (i) Degree Holder with five years of experience and (ii) Diploma Holders with 12 years of experience. Since two categories of Assistant Engineers, i.e. Degree and Diploma were being considered with different years of experience and are eligible for promotion to the post of Executive Engineer (Mechanical), it was decided to arrive at inter se seniority amongst the candidates by deducting five years from the total length of services rendered by the Graduate engineers in the cadre of Assistant Engineer and 12 years in respect of Diploma Engineers holding the post of Assistant Engineers in the said cadre and to arrange the Degree and Diploma holders in order of length of service rendered. In accordance with the same, 12 Diploma Holders and 8 Degree Holders Assistant Engineers were considered for 4 Nos. of vacancies in the post of Executive Engineer (Mechanical), pursuant to which the DPC was held on 27.8.2005. Since the petitioner''s name found place at Sl. No. 15 in the list of Diploma Holder Assistant Engineers, he was not under the zone of consideration. Accordingly, he has not been considered by the DPC held on 27.8.2005. It is stated that the validity of the Rule for promotion was challenged before this Court in W.P. (C) No. 13108 of 2006 along with batch of matters, which have been disposed of vide judgment dated 25.6.2010, in which the said Rule has been declared intra vires and this Court held that the PPT authorities had not committed any illegalities or irregularities and the decision taken to promote the eligible candidates to satisfy the mandatory requirement to the post of Executive Engineer (Mechanical) was just and proper. Therefore, it is stated that this Court may not interfere with the decision taken as the same has been done by the authorities in conformity with the provisions of Rules.

Considering such submission of the learned counsel for the parties and on perusing the materials available on record, it appears that admittedly the petitioner is a Diploma holder Engineer and his post has been upgraded to the post of Assistant Engineer (Mechanical) on 4.5.1993 and as such he has been discharging his duties as Assistant Engineer (Mechanical) from that date. It further appears that the opposite parties 3 to 5 are degree holder direct recruits and they were appointed by following due procedure of selection and are continuing in service as Assistant Engineer (Mechanical). As per the Rules, annexed as Annexure-8 to the writ petition, for promotion to the post of Executive Engineer (Mechanical), consideration has to be made from two feeder grades, namely, Degree Holder with 5 years of experience and Diploma holders with 12 years of experience. Since two categories of Assistant Engineers (Mechanical), i.e. Degree and Diploma holders were being considered with different years of experience as eligibility criteria for promotion to the post of Executive Engineer (Mechanical), in order to arrive at inter se seniority amongst the candidates, it was decided to deduct five years from the total length of service rendered by a Graduate Engineer in the cadre of Assistant Engineer and 12 years in respect of Diploma Holder Assistant Engineer in the said cadre and thereafter to arrange the Degree and Diploma holders in order of length of service rendered, which is in consonance with the Rules governing the field. In view of such criteria, in order to fill up four posts of Executive Engineer (Mechanical), 8 Degree Holder Assistant Engineers and 12 Diploma Holder Assistant Engineers were considered by the DPC held on 27.8.2005. The petitioner has not been considered for promotion to the post of Executive Engineer (Mechanical) in the year 2005 along with the opposite parties 3 to 5 as he did not come within the zone of consideration followed by the Paradeep Port Trust in which the present petitioner''s rank was at Sl. No. 15. Therefore, the petitioner''s case was not placed before the DPC as he did not come within the zone of consideration, i.e. for four vacancies 12 cases were to be considered. Challenging the Rules of promotion in Annexure-8, a batch of writ petitions were filed before this Court bearing W.P. (C) Nos. 13108 of 2006 and batch and after due adjudication, this Court held as follows:

"The foregoing decisions thus reveal that most of the petitioners have no right to claim for promotion. This Court further holds that PPT authorities have not committed any illegality and irregularity and the decision taken to promote eligible candidates who have satisfied the mandatory requirements to the post of Executive Engineers was just and proper. It is well settled that if the post of Executive Engineers are kept vacant for considerable time it puts a dent in smooth administration of the establishment. In view of the fact that the promotions to he post of Executive Engineers were given in consonance with the Regulation, 1967 as well as the Rules and guidelines issued time and again by the Government of India, this Court finds no reason to interfere with the same in these Writ Petitions. However, the PPT authorities are directed to consider the cases of those of the petitioners, who have put in minimum required service and are otherwise eligible to get promotion at an early date."

Taking into account the ratio decided in the above mentioned judgment, since this Court has already held that no illegalities or irregularities have been committed by the Paradeep Port Trust authorities in taking a decision for promotion of eligible candidates in conformity with the Rules governing the field, applying the same analogy to the present context, the petitioner having not come within the zone of consideration, the authorities have rightly not extended the benefit at par with his counterparts, i.e., opposite parties 3 to 5 on 27.8.2005. However, on 25.1.2011 the petitioner has been promoted to the post of Executive Engineer (Mechanical) on ad hoc basis following a DPC and his service has been duly regularized with effect from 3.8.2011. In that view of the matter, since the petitioner has already got promotion with effect from 25.1.2011 to the post of Executive Engineer (Mechanical) and discharging the duties, the only consideration left to the Court is whether benefit can be extended from a retrospective date, i.e. from the date the opposite parties 3 to 5 have been promoted to the post of Executive Engineer (Mechanical), i.e. with effect from 15.9.2005. In view of the Rules governing the field, if the petitioner did not come within the zone of consideration when the DPC was held on 27.8.2005 even though opposite parties 3 to 5 have got promotion w.e.f. 15.9.2005, the petitioner is not entitled to get the same from that date.

The writ petition fails and the same is dismissed.