Chief Engineer & Another vs Ghanshyam Ram & Another

Ramesh Ranganathan, CJ

The application, seeking condonation of delay, is not opposed by Sri Nandan Arya, learned counsel for respondent no. 1-writ petitioner and the delay is, therefore, condoned.

Heard Sri D.S. Patni, learned counsel for the petitioners, Sri Nandan Arya, learned counsel for respondent no. 1-writ petitioner and Mrs. Prabha Naithani, learned Brief Holder for the State of Uttarakhand.

This appeal is preferred by the Chief Engineer Pey Jal Nigam Dehradun aggrieved by the order passed by the learned Single Judge in WPSS No. 874 of 2014 dated 23.05.2018. Facts, to the limited extent necessary, are that respondent-writ petitioner was appointed as a Draftsman on 11.10.1989. In terms of then office memorandum (executive instructions referable to Article 162 of the Constitution of India) dated 22.12.1988, the respondent-writ petitioner was entitled to be considered for promotion to the post of Junior Engineer. Contending that his claim for promotion was not being considered, the petitioner filed WPSS No. 1977 of 2013 which was disposed of, by order dated 17.12.2013, directing the appellants herein to decide the respondent-writ petitioner's representation.

On a representation being submitted by the respondent-writ petitioner, the appellants herein rejected his claim holding that, in terms of the 2011 Promotion Rules, appointment to the post of Junior Engineer could only be made by way of direct recruitment, and not by way of promotion. It is not in dispute that the 2011 Rules are statutory in character as they have been made in the exercise of the powers conferred under the provisions of the Severage Act, 1975. These statutory rules do not prescribe a channel of promotion to the post of Junior Engineer, much less from the post of Draftsman. As the statutory rules enable appointment to be made to the post of Junior Engineer only by way of direct recruitment, and not by promotion, the learned Single Judge was not justified in directing the appellants herein to consider the representation of the petitioner for promotion to the post of Junior Engineer holding that old vacancies have to be considered in accordance with the old rules, and new vacancies have to be considered as per the new rules.

As noted herein above, the office memorandum dated 22.12.1988 is merely in the nature of administrative/ executive instructions and does not have the force of law. While executive instruction would prevail in the absence of any statutory rules having been made in this regard, once statutory rules are made, the earlier executive instructions cease to remain in force; and it is the statutory rules which would then govern appointment to different posts in the appellant corporation, including that of a Junior Engineer.

Sri D.S. Patni, learned counsel for the appellants, would submit that, even under the 1979 Rules which were in force till the 2011 Rules were made, the mode of appointment to the post of Junior Engineer was only by way of direct recruitment; and since the office memorandum dated 22.12.1988 was issued in administrative exigencies even during the period when the 1979 Rules were prevalent in the corporation, reliance placed on the said executive instructions is misplaced.

Since, both under the earlier 1978 Rules and the subsequent 2011 Rules, appointment to the post of Junior Engineer is only by way of direct recruitment, the learned Single Judge was not justified in relying on the executive instructions dated 22.12.1988, and in directing the appellants to consider the respondent-writ petitioner's claim for promotion to the post of Junior Engineer. The order under appeal must therefore be, and is accordingly, set-aside.

Before parting with the case, we must take note of the submission of Sri Nandan Arya, learned counsel for the respondent-writ petitioner, that, ever since 11.10.1989 when he was appointed as a Draftsman till date, the respondent-writ petitioner continues to work as a draftsman for a period of nearly three decades; and the employer is obligated to provide a channel of promotion to its employees, and thereby avoid stagnation and consequent loss of morale. It does appear from the record that the respondent-writ petitioner has been continuing in the very same post, to which he was initially appointed, for the past nearly three decades, without even being given an opportunity of promotion even once. While no mandamus can be issued directing the appellants to frame statutory rules, as these are all matters for the rule making authority to decide, suffice it to direct the appellants to consider the feasibility of providing promotional avenues to its employees with a view to avoid stagnation, and consequent loss of morale. The appeal is, accordingly, disposed of. No costs.