In this Review Petition, the petitioner challenged an order directing promotion considering supersession under 2014 Rules. The Court held that since Recruitment Rules under Article 309 cannot be superseded by an Office Memorandum, the original order stands correct and the review is dismissed.
Review application stands dismissed being devoid of merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC040000072022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)
Case No. : Review Pet. 1/2022
1:Rubu Opo S/o Late Rubu Tana, Resident of Village Tajang (Lempia), PO and PS Ziro, District Lower Subansiri, Arunachal Pradesh
VERSUS
1:Millo Pugang and 2 Ors. Executive Engineer (EM), Office of the Chief Engineer (WZ), DHPD, Itanagar 791111, District Papum Pare, Arunachal Pradesh
2:THE STATE OF AP Represented by the Chief Secretary Govt. of Arunachal Pradesh Itanagar 791111
3:The Commissioner Department of Hydro Power Development Govt. of Arunachal Pradesh Itanaga
Advocate for the Petitioner : Indraneel Chowdhury, Sr. Advt
Advocate for the Respondent : GA (AP)
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BEFORE HONBLE MR. JUSTICE NANI TAGIA
ORDER
Date : 05-01-2022
Heard Mr. I. Chowdhury, learned Sr. Counsel for the petitioner and also heard Mr. I. Riram, learned Additional Senior Government Advocate representing the State respondents.
2. This Review Application has been filed seeking a review of the order dated 17.12.2020, passed by this Court in WP(C)459(AP)/2019 and WP(C)510(AP)/2019, whereby, direction was given to the respondent authorities to consider the case of the petitioners therein for promotion to the post of Superintending Engineer (E/M), in accordance with the “Superintending Engineer Common Recruitment Rules, 2014” (for short 'the Rules of 2014'), within a period of two months by convening a Departmental Promotion Committee (for short 'DPC'), after the representation dated 29.10.2020, submitted by the petitioner in WP(C)510(AP)/2019, is considered and disposed of by the Chief Secretary to the Government of Arunachal Pradesh. It may also be stated herein, the aforesaid direction was given by this Court in the writ petition on concessions and agreement reached between the learned counsel appearing for the contesting parties in both the writ petition.
3. The petitioner in the instant case while seeking a review of the aforesaid order dated 17.12.2020, passed in WP(C)459(AP)/2019 as well as WP(C)510(AP)/2019, contends that while the Superintending Engineer Common Recruitment Rules, 2014, permit supersession of the seniors in the grade of Executive Engineer, the Office Memorandum dated 08.02.2002, issued by the Deputy Secretary to the Government
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of India, vide No. F.No.35034/7/97-Esst(D), on the other hand, does not permit supersession in a promotion made by following the principle of selection by merit. The aforesaid office memorandum dated 08.02.2002, issued by the Deputy Secretary to the Government of India was adopted by the Government of Arunachal Pradesh for its application in the State by an office memorandum dated May 21st , 2008, issued by the Chief Secretary to the Government of Arunachal Pradesh, vide memo, F. No. OM-15/2001. Another office memorandum dated 28.08.2020, has also been issued by the Secretary to the Government of Arunachal Pradesh, Department of Administrations Reforms, vide F. No. AR.27/2020/243, whereby, Head of Office/Department was directed that, no supersession be allowed to occur while granting promotion, which further provided that the DPC shall not consider any proposal, which is contrary to the Office Memorandum dated 08.02.2002, issued by the Deputy Secretary to the Government of India, and further, that the DPC shall not consider any proposal in which the changed provision has not been incorporated by an amendment made in the Recruitment Rules/Service Rules.
4. By placing reliance on the aforesaid Office Memorandum the learned Senior counsel for the petitioner submits that grave injustice would be caused to the review petitioner if he is allowed to be superseded by his juniors in the event the department undertakes to promote the Executive Engineers of the department to the post of Superintendent Engineer (E/M) by following the Rules of 2014, as directed in the writ petitions.
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5. Submission made by the learned Sr. Counsel for the petitioner have received due consideration of this Court and the materials made available on record have also been perused.
6. Despite the Office Memorandum referred to herein above, it is not disputed by the petitioner that the Superintending Engineer Common Recruitment Rules, 2014, which permits supersession irrespective of the seniority in the grade of Executive Engineer in the matter of promotion to the post of Superintending Engineer has not yet been amended. The Superintending Engineer Common Recruitment Rule, 2014, is a Recruitment Rule framed in exercise of the power conferred by the proviso to Article 309 of the Constitution of India.
7. Since the Rule framed in exercise of the power conferred by the proviso to Article 309 of the Constitution of India cannot be superseded by an Office Memorandum issued by the Executive Authority, I find no error in the order dated 17.12.2020, passed in the WP(C)459(AP)2019 and WP(C)510(AP)2019, whereby, direction was given to the respondent authorities to consider the case of the petitioners therein for promotion to the post of the Superintending Engineer (E/M) in accordance with the Recruitment Rules in force namely, Superintending Engineer Common Recruitment Rules, 2014.
8. Though a judgment of the Hon'ble Supreme Court rendered in Lily Thomas & others Vs. Union of India & others (2000)6 SCC 224, has been pressed into service by the learned Senior counsel for the petitioner to contend that this Court has the power to review the order passed in order to correct accidental mistakes or the miscarriage of justice, I find neither accidental mistakes nor miscarriage of justice
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appears to have occurred in the order dated 17.12.2020, passed in WP(C)459(AP)/2019 and WP(C)510(AP)/2019, which directed the respondent authorities to consider the case of the petitioners of the two writ petitions for promotion to the post of Superintending Engineer (E/M), in accordance with the Superintending Engineer Common Recruitment Rule, 2014, which is the rule in force and applicable for consideration of promotion to the post of Superintending Engineer(E/M) from the grade of Executive Engineer, that too on the concessions made by the learned counsel appearing for the contesting parties including the Government counsel representing the Department .
9. In view of the above, no case for review of the order dated 17.12.2020 passed in WP(C)459(AP)2019 and WP(C)510(AP)2019, has been made out by the petitioner. Review application, accordingly, stands dismissed being devoid of merit.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether a Review Application is maintainable where the petitioner contends that an Office Memorandum prohibits supersession contrary to Recruitment Rules.
Whether an Office Memorandum issued by the Executive Authority can supersede Recruitment Rules framed under Article 309 of the Constitution.
Colour shows how this judgement treated each authority
Lily Thomas & others Vs. Union of India & othersReferred¶26
Lily Thomas & others Vs. Union of India & others (2000)6 SCC 224 · Who else cites this
Article 309 of the Constitution of IndiaReferred¶24
Rubu Opo S/o Late Rubu Tana
Millo Pugang and 2 Ors.
The State of AP
The Commissioner Department of Hydro Power Development Govt. of Arunachal Pradesh
Nani Tagia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
