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Judgment
[1] This writ petition has been filed by the petitioners to issue a Writ of Certiorari calling for the proceedings of the Special Departmental Promotion Committee (hereinafter after referred to as "Special DPC") held on 28.12.2016 and also the impugned order dated 16.3.2017 as far as it relates to respondent Nos.3 to 7 and quash the same and also to direct the official respondents to convene a review/fresh DPC to consider the cases of the petitioners under their quota and reservation policy and appoint them thereafter.
[2] The case of the petitioners is that they are Members of the Scheduled Tribe community and they were initially appointed to the post of Section Officer Grade-II in the Department of Works, Government of Manipur with effect from 4.9.1987 and thereafter, they were promoted to the post of Section Officers, Grade-I with effect from 13.12.1994. Since then they were serving in the said posts without any adverse remarks with the hope and trust that they will be promoted to the higher posts including the post of Assistant Engineers.
[3] The State of Manipur, with the aims and objectives to uplift the status of Scheduled Caste and Scheduled Tribes, enacted an Act viz., Manipur Reservation of Vacancies in Post and Service (for Scheduled Caste and Scheduled Tribes) Act, 1976 and a Rule thereunder was framed and published on 17.5.2011. As per the said Act, as may as 31% of posts and services are to be reserved for Schedule Tribe candidates. As per 200 point roster as applicable in the State as many as 42 posts are required to be filled up by Schedule Tribe candidates. The seats required to be filled up by Schedule Caste candidates are only 2. However, as many as 4 candidates, who are all Diploma holders have been promoted. Out of 138 incumbents having been promoted vide impugned order, only 22 Scheduled Tribe candidates have been promoted and there is a shortfall of as many as 20 posts.
[4] The appointment on promotion to the post of Assistant Engineer (Civil/Mechanical)/Assistant Surveyor of Works of the Department of Works and other departments are regulated by the Recruitment Rule published on 2.9.2013. The petitioners being Diploma Holders in Civil Engineering are eligible for promotion to the post of Assistant Engineer (Civil) since long time back and they have been waiting for promotion to the said post as per the quota provided for them. Their names appeared at Serial Nos.180, 181, 82 and 221 of the seniority list of Section Officer Grade-I published on 30.4.2015. Number of Section Officers Grade-I have retired from service on superannuation and also some persons have died after publication of the said seniority list. Therefore, the seniority position of the petitioners will have to come up automatically.
[5] The authorities concerned held a Special DPC under the Manipur Public Service Commission (Exemption from Constitution) Amendment Regulation 2016 on 28.12.2016 and on the recommendation of the said DPC, the private respondents have been appointed on promotion to the said post. There are as many 12 persons in the said select list who have retired from service prior to the issuance of the said order as well as died before issuance of the said order were also included in the list apart from inclusion of a number of persons who are not even within the zone of consideration. On the other hand, the names of the petitioners, who are not only eligible but also entitled to be promoted were not included in the list though there are sufficient number of vacancies which has fallen under their quota. Therefore, the entire proceedings of the Special DPC as well as the impugned order of promotion are liable to be set aside.
[6] Respondent No.1 med affidavit-in-opposition stating that on the recommendation of the Special DPC constituted under the Manipur Public Service Commission (Exemption from Consultation) Amendment Regulations, 2016 held on 28.12.206, appointed 138 Section Officers Grade-I (Civil) in PWD with effect from 29.12.2016 on the expiry of Model Code of Conduct on 15.3.2017 and DPC for promotion of Section Officers Grade-I to Assistant Engineers/Assistant Surveyor of Works of PWD, Manipur could not be held till the present DPC held on 28.12.2016 as their promotional avenues were blocked in consequence of non-holding of any DPC for promotion for a long time due to non-finalization of seniority list of Assistant Engineers/Assistant Surveyor of Works of PWD till June, 2016 on account of long pending Court cases. As such, many of Section Officer Grade-I incumbents, including the petitioners and the private respondents had served/have been serving for more than 25 years and above.
[7] It is stated that during the period, all the higher posts i.e., from Executive Engineer to Chief Engineer, PWD were manned by the Assistant Engineers on in-charge basis. Even if the seniority of Assistant Engineers/Assistant Surveyor of Works were finalized, promotions could be made to the posts of Executive Engineers/Surveyor of Works/Engineer Officers as further promotion would take several years as the then Recruitment Rules. To mitigate the grievances faced by the Engineers of PWD, in supersession of the earlier Recruitment Rules, the Manipur Civil Engineering Service (PWD) Rules, 2016 was framed and published on 20.10.2016.
[8] It is stated that due to non-availability of Degree Holders, 6 Diploma Holders were recommended for filling up against the 6 reserved quota of ST candidates by following the existing Recruitment Rules, 2016 and as per the existing Rules, the total 18 number of ST quota i.e., 10 Degree Holders and 8 Diploma Holders were exhausted.
[9] It is further stated that as per the qualifying service of the then Section Officer Grade-I (Civil) In PWD for promotion to Assistant Engineers/Assistant Surveyor of Works (Civil), all Section Officer Grade-I (Civil) from Serial No.1 up to Serial No.222 of the seniority list published on 30.4.2015 were qualified for the purpose and the last person who listed at Serial No.222 was appointed on 7.3.2001 in the grade i.e.. length of service in the grade as on 28.12.2016 was 15 years 9 months approximately. On applying the 50/50 sub quotas of Degree/Diploma under the Recruitment Rules, 2016 and principles of on strictly on seniority as per the decision taken by the Cabinet, out of 36 posts for Degree Holders, only 34 candidates were available. As such all the 34 candidates were recommended and it remains un-filled of 2 posts which may be filled up from Diploma Holders as per the Recruitment Rules.
[10] According to the first respondent, for filling up the 72 posts of Assistant Engineers/Assistant Surveyor of Works (Civil), all the eligible persons including the petitioners based on the minimum qualifying service were considered and only the persons who were qualified in respect of both minimum qualifying service and seniority were recommended and appointed. Therefore, there will not be any question for violation of the provision of DPC and thus, the present DPC held on 28.12.2016 does not deprive the right of the petitioners. Hence, prayed for dismissal of the writ petition.
[11] Assailing the proceedings of the Special DPC and the impugned order dated 16.03.2017, the learned counsel for the petitioners submitted that they being the Diploma Holders in Civil Engineering are eligible for promotion to the post of Assistant Engineer (Civil) and they have been waiting for promotion as per the quota provided for them. He would submit that without knowledge of the petitioners, the authorities purportedly held the Special DPC on 28.12.2016 and on the recommendation of the Special DPC, respondent Nos.3 to 7 were appointed on promotion to the post of Assistant Engineers vide impugned order dated 16.03.2017. According to the learned counsel, the petitioners were not considered and included in the impugned order though there are sufficient number of vacancies which has fallen under their quota. Arguing so, the learned counsel for the petitioners submitted that the entire proceedings of the Special DPC as well as the impugned order of promotion are to be interfered with by this Court on the ground that the Section Officers Grade-I whose name appeared down below the names of the petitioners and even belong to unreserved category were included in the impugned order of promotion. Since the names of the petitioners were intentionally not included and considered by the Special DPC, the proceedings of the Special DPC dated 28.12.2016 and the consequential promotion order dated 16.03.2017 are liable to be set aside.
[12] Per contra, the learned counsel for the State submitted that as Rule 7(ii) read with Schedule III of Manipur Civil Engineering Service (PWD) Rules, 2016, promotion in the grade of Assistant Engineers are to be filled by selection from amongst Section Officers Grade- I and the said Rule further provides that 50% of the vacancies within promotion quota shall be from officers holding Degree/AMIE in Civil Engineering, failing which, by officers holding Diploma in Civil Engineering and the remaining 50% of the promotion vacancies shall be filled by officers holding Diploma in Civil Engineering and officers who are not in possession of Degree/AMIE or Diploma.
[13] The learned counsel further submitted that in the year 2016, for filling up of 66 vacant posts, the State Government constituted the Special DPC under Manipur Public Service Commission (Exemption from Consultation) (Amendment) Regulations 2016 vide Notification dated 24.12.2016 for promotion of Section Officers Grade-I to Assistant Engineers. He would submit that for filling up 72 posts of Assistant Engineers/Assistant Surveyor of Works, all the eligible persons including the petitioners based on the minimum qualifying service were considered and only the persons who were qualified in respect of both minimum qualifying service and seniority were recommended and appointed. The learned counsel further submitted that there is no irregularities in holding the Special DPC and the consequential impugned promotion order and thus, prayed for dismissal of the writ petition.
[14] Heard the submissions of the learned counsel for the private respondents 3 to 7, who supports the impugned Special DPC and the impugned promotion order dated 16.03.2017. He would submit that there is no arbitrariness and/or procedural violations in promoting the private respondents 3 to 7 and the writ petition is totally misconceived and therefore, the same is liable to be dismissed.
[15] This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.
[16] It appears that by way of impugned order dated 16.3.2017, the Government of Manipur, was pleased to appoint on promotion nearly 138 officers of the grade of Section Officer-I (Civil) to the grade of Assistant Engineer/Assistant Surveyor of Works of Manipur Civil Engineering Service (PWD) with effect from 29.12.2016. The impugned order states that the same was issued based on the recommendation of the Special DPC constituted under the Manipur Public Service Commission (Exemption from Consultation) Amendment Regulations, 2016 held on 28.12.2016.
[17] According to the petitioners, the Special DPC is full of irregularities and as such the proceedings of the said Special DPC meeting as well as the impugned order dated 16.03.2017 in relation to respondent Nos.3 to 7 are ab-initio, null and void and liable to be reviewed. According to the petitioners, the promotional posts for the post of Section Officer Grade-I of the Department of Works is the post of Assistant Engineer. The procedure for direct appointment as well as appointment on promotion to the said post of Assistant Engineer are regulated by the Recruitment Rules and the said Recruitment Rules superseded the earlier Rules.
[18] As per Recruitment Rules, the post of Assistant Engineers have to be filled up from two sources i.e., promotion and direct recruitment at the ratio of 60:40 i.e., 60% of the vacancies available in the Department have to be filled up by promotion and 40% of the vacancies have to be filled up by direct recruitment. The said quota of promotion are further subdivided into two categories viz., quota of Degree/AIME in CiviI/Mechanical Engineering and Diploma holders who obtained Diploma after doing a minimum three years course from a recognized Institutes in equal share and promotion have to be made from Section Officer Grade-I/equivalent declared by the Government. The Recruitment Rules also contained various other terms and conditions regarding the matter including the condition that 50% each of the promotion quota has to be filled up by Degree and Diploma holders respectively.
[19] The petitioners, who are members of the Scheduled Tribe community were initially appointed to the post of Section Officers Grade-II in the Department of Works and thereafter, they were promoted to the post of Grade-I Section Officers and since then they have been serving in the said posts with the hope that they will be promoted to higher posts including the post of Assistant Engineer.
[20] It is seen that as per 200 point roster as applicable in the State as many as 42 posts are required to be filled up by Scheduled Tribe candidates and the seats required to be filled up by the Scheduled Caste candidates are only 2. However, as many as 4 candidates all Diploma holders have been promoted. Further in the case on hand, out of 138 incumbents having been promoted, only 22 Scheduled Tribe candidates have been promoted and therefore, there is a shortfall of 20 posts.
[21] According to the petitioners, they being Diploma Holders in Civil Engineering are eligible for promotion to the post of Assistant Engineer (Civil) since long time back and they have been waiting for promotion to the post as per the quota provided for them. Though their names appeared in the seniority list of Grade-I Sections Officers published vide a letter dated 30.4.2015, on the recommendation of the Special DPC and by way of impugned order, respondent Nos.3 to 7 were appointed on promotion to the said post.
[22] The case of the petitioners is that 31% of the vacancies have to be reserved/earmarked for the candidates belonging to Scheduled Tribes, however, as per the impugned order, there are only 22 candidates belonging to the Scheduled Tribe though at least 42 candidates belonging to the Scheduled Tribe are required to be promoted to the post of Assistant Engineers. Therefore, the proceedings of the Special DPC and on the basis of which the impugned order of promotion issued violates the mandatory provision of the Act and Rules framed thereunder. The respondent State was not able to rebut the said contention of the petitioners.
[23] The learned counsel for the petitioner argued that vested or accrued right cannot be taken away by reason of a policy/amendment of policy and in support, he has placed reliance upon the following decisions of the Hon'ble Supreme Court:
(i) Union of India and others v. Asian Food Industries, (2006) 13 SCC 542;
(ii) Poonam v. State of Uttar Pradesh and others, (2016) 2 SCC 779;
(iii) State of Uttar Pradesh v. Dayanand Chakrawarty and others, (2013) 7 SCC 595;
(iv) Public Service Commission, Uttaranchal v. Jagdish Candra Singh Bora and another, (2014) 8 SCC 644;
(v) State of Punjab and others v. Anita and others, (2015) 2 SCC 170.
[24] In Asian Food Industries, supra, the Honble Supreme Court held:
"48. The Delhi High Court, however, in our view correctly opined that the Notification dated 4-7-2006 could not have been taken into consideration on the basis of the purported publicity made In the proposed change In the export policy In electronic or print media. Prohibition promulgated by a statutory order In terms of Section 5 read with the relevant provisions of the policy decision In the light of sub-section (2) of Section 3 of the 1992 Act can only have a prospective effect. By reason of a policy, a vested or accrued right cannot be taken away. Such a right, therefore, cannot a fortiori be taken away by an amendment thereof. "
[25] In Poonam, supra, the Hon'ble Supreme Court held:
"37. In Public Service Commission v. Mamta Bisht [Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204 : (2011) 1 SCC (L&S) 208] it was held by a two-Judge Bench that the first respondent therein wanted her selection against a reserved category vacancy and, therefore, the last selected candidate in that category was a necessary party and without impleading her the writ petition could not have been entertained by the High Court, for if a person challenges a selection process, successful candidates or at least some of them are to be arrayed as parties they being necessary parties. To appreciate the controversy, we must reproduce two paragraphs from the said authority:
"9. In case Respondent 1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh Malpaharia v. Board of Revenue [Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786] , wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, the proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called CPC‟) provides that non-joinder of necessary party would be fatal. Undoubtedly, the provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat [Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153], Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706] and Sarguja Transport Service v. STAT [Sarguja Transport Service v. STAT, (1987) 1 SCC 5 : 1987 SCC (Crl) 19]).
In Prabodh Verma v. State of U.P. [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] and Tridip Kumar Dingal v. State of W.B. [Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119], it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties."
The said decision, as we understand, clearly spells out that in the absence of a necessary party, no adjudication can take place and, in fact, the non-joinder would be fatal to the case. "
[26] In Dayanand Chakrawarty, the Apex Court held:
"37. The State Government's Order dated 29-6-2009 prescribing a uniform age of superannuation at 58 years for the employees working in the government companies and government corporations cannot prevail over statutory Regulation 31 framed by the Nigam under Section 97(2)(c) of the 1975 Act with the previous approval of the State Government. Therefore, the employees of the Nigam shall not be guided by the State Government‟s Order dated 29-6-2009 but will continue in the services up to the age of 60 years, in view of Regulation 31, having not yet amended or repealed.
In Harwindra Kumar case [Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 : 2006 SCC (L&S) 1063] this Court already held that it is not possible for the Nigam to take an administrative decision pursuant to the direction of the State Government in the matter of policy Issued under Section 89 of the Act and directing that the age of superannuation of 60 years applicable to the government servants shall not be applicable to the employees of the Nigam. In view of such finding of this Court, the Nigam cannot act on the basis of the State Government‟s Order dated 29-6-2009 providing uniform age of superannuation at 58 years."
[27] In Jagdish Candra Singh Bora, the Apex Court held:
"28. However, we find substance in the submission made by Mr. C.U. Singh that 2004 clarification would not have the effect of amending the 2003 Rules. Undoubtedly, 2004 clarification is only an executive order. It is settled proposition of law that the executive orders cannot supplant the Rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders/instructions can only supplement the Rules framed under the proviso to Article 309 of the Constitution of India. In spite of accepting the submission of Mr. C.U. Singh that clarification dated 29-4-2004 would not have the effect of superseding, amending or altering the 2003 Rules, it would not be possible to give any relief to the respondents. The criteria under the 2003 Rules govern all future recruitments. We have earlier already concluded that no vested right had accrued to the respondents, the trained apprentices, under the 2001 Rules. We do not accept the submission of Mr. C.U. Singh that the claim of the respondents (trained apprentices) would be covered under the 2001 Rules by virtue of the so-called amendment made by the 2003 Rules. We are of the opinion that the High Court committed an error, firstly, in holding that the 2003 Rules are applicable, and secondly, not taking into consideration that all the posts had been filled up by the time the decision had been rendered. "
[28] In Anita and others, supra, the Hon'ble Supreme Court held thus:
"18. Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the private respondents, based on the Government Instructions dated 20-12-1995, we are of the view, that the private respondents do not satisfy the precondition of valid appointment expressed therein, inasmuch as, it was imperative for the Selection Committee, in the first instance, to consider only those candidates who possessed the qualification of JBT/ETT, and thereupon, posts that remained unfilled could be filled up with persons possessing higher qualifications i.e. graduate/postgraduate qualifications along with B.Ed that was not the procedure which came to be adopted in the present controversy. Therefore per se, no benefit can flow to the private respondents, from the government Instructions relied upon by the learned counsel. Be that as it may, it needs to be emphasised that Para 6 of the Government Instructions dated 20-12-1995, is in clear violation of the statutory process of selection and appointment postulated under the 1981 Rules. Even if the above government instructions would have bestowed validity on the selection process, through which the private respondents came to be appointed, the same could not have been acceded to, since government instructions in violation of the statutory rules are a nullity in law. In view of the foregoing reasons, it is not possible for us to bestow legitimacy/legality to the appointment of the respondents as JBT/ETT Teachers. "
[29] On the other hand, the learned counsel for the respondent State, by placing reliance on the decisions of the Hon'ble Supreme Court in the cases of (i) Cot. A.S. Sangwan v. Union of India and others, 1980 (Supp) SCC 559; (ii) Ajit Singh and others (I) v. State of Punjab and others, (1999) 7 SCC 209 and (iii) State of Uttar Pradesh and others v. Chaudhari Ran Beer Singh and another, (2008) 5 SCC 550 submitted that so long as infringement of fundamental rights is not shown, Courts will have no occasion to interfere under Article 226 of the Constitution of India.
[30] In Cot. A.S. Sangwan, the Hon'ble Supreme Court held:
"4. The policy statement of 1964 was, as we have earlier stated, not issued under any rules or regulations or statute. The executive power of the Union of India, when it is not trammelled by any statute or rule, is wide and pursuant to its power it can make executive policy. Indeed, in the strategic and sensitive area of Defence, courts should be cautious although courts are not powerless. The Union of India having framed a policy relieved itself of the charge of acting capriciously or arbitrarily or in response to any ulterior considerations so long as it pursued a consistent policy. Probably, the principle of equality which interdicts arbitrariness prompted the Central Government to formulate its policy in 1964. A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations. We cannot, as court, give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitution and not over it. In this view, we agree with the submission of the Union of India that there is no bar to its changing the policy formulated In 1964 if there are good and weighty reasons for doing so. We are far from suggesting that a new policy should be made merely because of the lapse of time, nor are we inclined to suggest the manner in which such a policy should be shaped. It is entirely within the reasonable discretion of the Union of India. It may stick to the earlier policy or give it up. But one imperative of the Constitution implicit in Article 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. This object is achieved if the new policy, assuming Government wants to frame a new policy, is made in the same way in which the 1964 policy was made and not only made but made known. After all, what is done in secret is often suspected of being capricious or mala fide. So, whatever policy is made should be done fairly and made known to those concerned. So, we make it clear that while the Central Government is beyond the forbiddance of the court from making or changing its policy in regard to the Directorate of Military Farms or in the choice or promotion of Brigadiers, it has to act fairly as every administrative act must be done. "
[31] In Ajit Singh and others, the Hon'ble Supreme Court held:
"27. In our opinion, the above view expressed in Ashok Kumar Gupta[(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] and followed in Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and other cases, if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] right from 1950. Articles 16(4) and 16(4-A) do not confer any fundamental right to reservation
We next come to the question whether Article 16(4) and Article 16(4-A) guaranteed any fundamental right to reservation. It should be noted that both these articles open with a non obstante clause "Nothing in this Article shall prevent the State from making any provision for reservation..." (emphasis supplied) There is a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4-A) on the other. There is no directive or command in Article 16(4) or Article 16(4-A) as in Article 16(1). On the face of it, the above language in each of Articles 16(4) and 16(4-A) is in the nature of an enabling provision and it has been so held In judgments rendered by Constitution Benches and In other cases right from 1963. "
[32] In Chaudhari Ran Beer Singh, the Apex Court held:
"13. Cabinet's decision was taken nearly eight years back and appears to be operative. That being so there is no scope for directing reconsideration as was done in Ram Milan case, though learned counsel for the respondents prayed that such a direction should be given. As rightly contended by learned counsel for the State, in matters of policy decisions, the scope of interference is extremely limited. The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all relevant aspects from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown, courts will have no occasion to interfere and the court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the court cannot interfere even if a second view is possible from that of the Government."
[33] On a careful perusal of the decisions cited by the learned counsel for the respondent State, this Court Is of the view that those decisions will not help the case of the official respondents.
[34] The Recruitment Rules clearly provides that 50% of vacancies shall be filled up by selection from Officers holding Degree/AMIE in Civil/Mechanical Engineering or its equivalent from a recognized University/Institute with regular service as specific in Column 11. The Rules further provided that if sufficient number of Officers holding Degree/AMIE or its equivalent are not available for promotion, the remaining vacancies in these sub-quota are to be filled by persons possessing Diploma in CiviI/Mechanical Engineering with service as specified in Column 11. The Rules also stipulates that 50% by selection from Diploma Holder in Civil/Mechanical Engineering who obtained Diploma after doing a minimum 3 years course from a recognized Institute with service as specified in Column 11 from Officer, who were not in possession of a Degree or Diploma in Civil/Mechanical Engineering with service record. Admittedly, the petitioners possessed the requisite qualification for appointment on promotion to the post of Assistant Engineers, as they possessed the qualification of Diploma in Civil Engineering and also they attained the eligibility criteria as and when they completed 8 years regular service as Grade-I Section Officer.
[35] According to the official respondents, the Rules provide that 50% of the vacancies within promotion quota shall be from the Officers holding Degree/AMIE in Civil Engineering, failing which, by Officers holding Diploma in Civil Engineering and the remaining 50% of the promotion vacancies shall be filled by Officers holding Diploma in Civil Engineering and officers who are not in possession of Degree/AMIE or Diploma. It is also stated by the official respondents that in the year 2016-17, there were 57 vacant posts of Assistant Engineers in PWD and 6 anticipated vacancies would be before the end of the then recruitment year. As such, the State Government is capable to hold a DPC for promotion of Section Officer Grade-I to Assistant Engineer for filling up the 66 vacancies and the total reserved quota in respect of Scheduled Tribe candidates out of 66 vacant posts is 18. According to the official respondents, due to non-availability of Degree Holders, 6 Diploma Holders were recommended for Filling up against the 6 reserved quota of Scheduled Tribe candidates by following the existing Recruitment Rules.
[36] It is the case of the official respondents that sub-quota of Diploma Holders Including the anticipated vacancies became 30 i.e., General-21, Scheduled Caste-1 and Scheduled Tribe-8. Regarding 8 Nos. of Schedule Tribe quota, the DPC has recommended eight candidates and as per the existing Recruitment Rules, the total 18 numbers of Scheduled Tribe quota i.e., Degree Holders-10 and Diploma Holders-8 were exhausted.
[37] The contention of the official respondents is that the State Cabinet approved for newly creation of 72 posts Assistant Engineers/Assistant Survey Works (Civil) in P.W.D. for giving promotion to Section Officers-I (Civil) based on strictly on seniority by realization of the method of recruitment and also waiving the provision of reserved seats/quota for SC/ST candidates as per 200 point roster subject to the condition to be abolished once the incumbent retires or gets promoted.
[38] Further contention of the official respondents is that filling up the posts of 38 posts of Diploma Holders i.e., 36 reserved for Diploma Holders and 2 remains from Degree Holders by applying the principle of on strictly on seniority as per the decision taken by the Cabinet stated above, out of the Diploma Holders, the panel can be reached to the extent of Serial No.179 and Serial No.178 is Section Officer Grade-I (Diploma). As such the petitioners who are Diploma Holders and whose Serial numbers are 180, 181, 182 and 221 were not eligible for promotion in the seniority list.
[39] It is pertinent to note that the petitioners being Diploma Holders in Civil Engineering are eligible for promotion to the post of Assistant Engineers (Civil) since long time back and they have been waiting for promotion to the post as per the quota provided for them. Though their names appeared in the seniority list of Grade-I Sections Officers published, on the recommendation of the Special DPC, their names were not considered. The case of the petitioners is that they fulfilled all the requirements, however, they have not been considered by the Special DPC and the Special DPC has violated the mandatory provision of the relevant Office Memorandum dated 15.5.2014.
[40] On a perusal of the final seniority list of Diploma/Degree/AMIE Section Officer Grade-I (Civil Engineering) of PWD as on 01.3.2015 drawn up, it is seen that persons whose name appeared down below the names of the petitioners and even belong to unreserved category candidates are included in the order of promotion.
Therefore, the contention of the petitioners that their names have been intentionally not included and considered by the Special DPC and on the recommendation of which, the impugned order of promotion came to be passed is sustainable and the same has to be reviewed by the official respondents by holding fresh/review DPC so as to consider the case of the petitioners.
[41] It is brought to the notice of this Court that as many as 13 persons, who have already been retired from service on attaining the age of superannuation prior to the issuance of the impugned order and also expired prior to the impugned order as well as holding of the Special DPC were included in the impugned order. The petitioners have pointed out the names of such persons appeared at Serial Nos.1, 13, 16, 25, 26, 39, 41, 45, 47, 48, 52, 56 and 57 respectively. In fact, the said aspect has not been considered by the official respondents while issuing the impugned order.
[42] Annexure A‟ to the Office Memorandum dated 15.5.2014 provides for review of DPC in case of DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. In the instant case, as stated supra, persons whose name appeared down below the names of the petitioners and even belong to unreserved category candidates are included in the order of promotion. Therefore, this Court is of the view that the official respondents are required to be directed to hold a fresh/review the DPC.
[43] According to the petitioners, there are contradictions qua date of effect of promotion. On a reading of the impugned order, this Court finds that the effective date of promotion was made with effect from 29.12.2016 on the expiry of Model Code of Conduct on 15.3.2017 and the date of holding of Special DPC was on
28.12.2016. Thus, the dates indicated in the impugned order are contradictory to each other.
[44] As stated supra, the effective date of promotion was made with effect from 29.12.2016 on the expiry of Model Code of Conduct on 15.03.2017 and the date of holding of the said Special DPC was on 28.12.2016 and thus, the dates indicated in the impugned order are contradictory to each other and the same has not been properly explained by the respondent State. Nothing on record to show urgency in conducting the Special DPC. There should not be any urgency in holding the Special DPC as holding of DPC for appointment on promotion of the employees are routine matter. But in the instant case, as stated supra, nothing on record has been shown for such hurried conducting of Special DPC by the respondent State.
[45] The learned counsel for the private respondents 3 to 7 submitted that out of 138 promotees, 45 were retired. As stated supra, in case of eligible persons were omitted to be considered and where ineligible persons were considered by mistake and also where some procedural irregularity was committed by the DPC, the proceeding of any DPC may be reviewed. In the case on hand, the specific case of the petitioners is that the Special DPC meeting purportedly held on 28.12.2016 was full of irregularities and therefore, the same is liable to be set aside and the petitioners have also demonstrated the same. This Court also in the earlier paragraphs held that the petitioners have been deprived of promotion as they possessed qualification and down below the names of the petitioners have been considered and included in the order of promotion.
[46] It is to be noted that in the Special DPC, person who are no more in service i.e., retired from service on superannuation and also person who died long time back prior to the holding of Special DPC have been considered for promotion. The said aspect has also not been demonstrated by the respondent State. The petitioners, who belong to the reserved category and who are eligible for appointment on promotion to the post of Assistant Engineers and also within the zone of consideration have the right for appointment on promotion to the said posts and therefore, this Court is of the view that their case has to be reviewed and reconsidered by the respondent authorities by holding a fresh DPC and/or review the DPC.
[47] In the result,
(i) The writ petition is allowed.
(ii) The proceedings of the Special DPC held on 28.12.2016 and the consequential order of promotion dated 16.03.2017 are set aside insofar as not considering the names of the petitioners.
(iii) The respondent authorities are directed to convene/hold a fresh DPC or review the DPC and consider the case of the petitioners under their quota and reservation policy in accordance with law and the relevant Rules thereof, and promote them to the post of Assistant Engineers after affording sufficient opportunity to all parties, within a period of eight weeks from the date of receipt of a copy of this order.
(iv) The respondent authorities shall assign reasons that weighed with the authorities for promoting respondents 3 to 7 prior to the petitioners.
(v) No costs.