AI Structured Summary
Not yet generated for this judgment
Judgment
01/ The writ petitioners, appointed as Junior Engineers in the respondent department in the year 2009, were placed as Incharge Assistant Engineers in
terms of various orders passed in the light of the Cabinet Decision No. 128/2014 dated 16-07-2014, having the effect of creating 177 posts of
Assistant Engineers in the Rural Development Department. It is stated that the last seniority list of Junior Engineers (Civil) was updated in the year
1996, which was notified vide Govt. order No. 225-PW(R&B) of 2012 dated 11-05-2012. However, to the utter dismay of the petitioners, the
respondents issued the Govt. order No. 319-PW(R&B) of 2015 dated 01-12-2015 & order No. 321-PW(R&B) of 2015 dated 01-12-2015, by the dint
of which, the placement of the petitioners has been revoked/rescinded and the orders of their placement came to be cancelled, as they were found
junior to the private respondents and, therefore, not entitled to be placed as Incharge Assistant Engineers. It is stated that the decision to cancel the
placement of the petitioners was taken after one of the Junior Engineers, namely Danish Iqbal filed a writ petition (SWP 2298/2014), challenging the
promotion of the petitioners. In the said writ petition, the Court passed an interim direction directing the respondents to consider the claim of the
petitioner therein. It is further stated that the respondents issued the impugned order No. 321-PW(R&B) of 2015 dated 01-12-2015, promoting one
Danish Iqbal, the petitioner â€" in SWP 2298/2014, along with eleven others as Assistant Engineers.
02/ The  orders aforementioned have been questioned on the grounds, inter alia, that the same have been passed at the back of the petitioners and
they have not been given any prior notice, thereby the orders are violative of the articles 14 & 16 of the Constitution. Petitioners have further stated
that revoking their order of placement as Assistant Engineers would tantamount to discrimination against them. It is further stated that the petitioners
have been placed as Incharge Assistant Engineers more than a year back and ever since they have been discharging their duties with honesty and
dedication and their demotion to the previous position would be equivalent to punishment, since they cannot be made to suffer due to the negligence of
the Department. Petitioners have further stated the action on the part of the respondents is bound to stigmatize them as their goodwill in the society
will be seriously lowered and damaged. It is further stated that by issuance of a writ of certiorari, the impugned orders aforementioned be quashed and
the respondents be directed to allow the petitioners to continue on the posts of Assistant Engineers.
03/ In the objections filed by the respondents, it is stated that the petitioners have no cause of action to file this writ petition as the same is grossly
misconceived and they cannot invoke the extra ordinary jurisdiction of this Court. It is further stated that none of the rights of the petitioners have been
violated and there arises no occasion for them to approach this Hon’ble Court. It is pleaded that the Department mooted a proposal for placement
of eligible Junior Engineers as Incharge Assistant Engineers in accordance with the recruitment rules. Accordingly, 177 posts of Assistant Engineers
were distributed amongst direct/degree and diploma holders. It is further pleaded that sanction was accorded to the placement of the Junior Engineers
(degree holders) as Incharge Assistant Engineers vide Government order No. 362-PW(R&B) of 2014 dated 14-08-2014 and No. 409PW(R&B) of
2014 dated 29-09-2014. However, some Junior Engineers filed representations before the Department and one Mr. Danish Iqbal, filed SWP No.
2298/2014, challenging the placement of the Junior Engineers as Incharge Assistant Engineers. It is stated that the direction of the Court dated 16-12-
2014, passed in the said writ petition, was complied with and the representations of the Junior Engineers were examined and it was found that some
discrepancy had actually taken place due to non availability of the final seniority list of Junior Engineers and non inclusion of the category certificates
in favour of some reserved category candidates. It is also stated that after the record was scrutinized, it was found that the petitioners should not have
been placed as Incharge Assistant Engineers, being lower in merit than the claimants (private respondents) as per recommendations of the Service
Selection Board (SSB). In this view of the matter the placement of the petitioners as Incharge Assistant Engineers was decided to be
rescinded/revoked. The discrepancy that had occurred was rectified by the respondents by issuing the Government order No. 319-PW(R&B) of 2015
dated 01-12-2015. It is also submitted that all those candidates who have been placed as Incharge Assistant Engineers in terms of Govt. order No.
321-PW(R&B) of 2015 dated 01-12-2015 are senior to the petitioners as per the merit-cum-select list furnished by the SSB from time to time.
Accordingly in view of the above narrated facts, which is based on the available record, the Govt. order No. 361-PW (R&B) of 2014 dated 14-08-
2014 and Govt. order No. 409-PW(R&B) of 2014 dated 29-09-2014, which placed the petitioners as Incharge Assistant Engineers, were
revoked/rescinded and were deemed to be void ab initio. It is stated further that in view of the above, the writ petition be dismissed as not
maintainable.
 04/ Heard & considered.
05/ Annexure (A), attached to the petition, is a Government order bearing No. 362-PW(R&B) of 2014 dated 14-08-2014, issued on the subject
“placement of Junior Engineers (degree holders) of R&B (Civil), as Incharge Assistant Engineersâ€. It provides that pending clearance from the
DPC/PSC, sanction is hereby accorded to the placement of Junior Engineers (Civil) â€" Degree Holders as Incharge Assistant Engineers (Civil) in
their own pay and grade. After detailing the identity of the persons, who were placed as Incharge Assistant Engineers (Civil), the order further
stipulates that these placements shall be subject to the following conditions :
i. “ that these placements are purely on temporary basis and the concerned engineers shall not have any preferential claim to hold the post on
substantive basis as and when the same are filled up on the recommendations of the DPC/PSC in accordance with the rules ;
ii. that these placements are subject to out come of writ petition(s), if any pending before any competent court(s) of law.â€
06/ Vide Annexure (B), attached to the petition, which is an order bearing No. 387-PW(R&B) of 2014 dated 29-08-2014, another batch of Junior
Engineers (degree holders), were placed as Incharge Assistant Engineers in their own pay and grade with a further condition that such placement as
Incharge Assistant Engineers shall be bound by the clauses laid down in the Government order No. 362PW (R&B) of 2014 dated 14-08-2014.
07/ Annexure (C), attached to the petition, bearing No. 409PW(R&B) of 2014 dated 29-09-2014, is a sequel to the fact that Â
23 Junior Engineers (degree holders) were placed as Incharge Assistant Engineers in their own pay and grade and in terms of annexure (D) attached
to the petition, which is an order bearing No. 42-PW(R&B) of 2015 dated 25-02-2015, another group, comprising 11 Junior Engineers (degree
holders), were placed as Incharge Assistant Engineers in their own pay and grade.
08/ The pith and core of the petition of the petitioners is that after the aforesaid arrangement made by the department, the petitioners had a hunch that
the department intends to revoke/rescind the orders issued in favour of the petitioners, placing them as Incharge Assistant Engineers. It proved to be
correct as the Government, by an order bearing No. 319-PW (R&B) of 2015, dated 01-12-2015, revoked/rescinded the orders of the placement of the
petitioners on the ground that these did not withstand the test of the rules governing the field. Soon after this, the concerned department issued an
order bearing No. 321-PW (R&B) of 2015 dated 01-12-2015, in terms of which the petitioner in SWP 2298/2014, along with 11 other - Junior
Engineers Civil, (degree holders) were placed asIncharge Assistant Engineers, Civil (degree holders) on the basis of merit/select list and the
recommendations of the SSRB.
09/ The simple question that arises for consideration herein this  case, is whether a person, who is placed as an Incharge to man and hold a
particular post on such an analogy, can be said to have been promoted or appointed to the post and the answer to this question is a big ‘no’ in
view of the law laid down in the case of Ramakant Shripad Sinai Advalpalkar - Appellant versus Union of India and others - respondents, reported in
AIR 1991 Supreme Court 1145, the relevant excerpts of which are reproduced below verbatim :
 “……………… The arrangements contemplated by this order plainly does not amount to a promotion of the appellant to the post of
Treasurer. The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to
discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to
discharge the duties of a higher post cannot be treated as a promotion. In such a case he doe not get the salary of the higher post ; but gets only that in
service parlance is called a “charge allowanceâ€. Such situations are contemplated where exigencies of public service necessitate such
arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the
duties of the higher post essentially as a stop â€" gap arrangement.â€
10/ The same view has been repeated and reiterated by the apex Court of the country in case titled State of Haryana â€" Appellant
versusS.M.Sharma and others - respondents, reported in AIR 1993 SC 2273, paragraph 09 of which is relevant to the issue raised for consideration
herein this case and it reads as under :
“09/  It is only a posting order in respect of two officers. With the posting of Ram Niwas as Executive Engineer Sharma was automatically
relieved of the current duty charge of the post of Executive Engineer. Sharma was neither appointed/promoted/posted as Executive Engineer nor was
he ever reverted from the said post. He was only holding current duty charge of the post of Executive Engineer. The Chief Administrator never
promoted Sharma to the post of Executive Engineer and as such the question of his reversion from the said post did not arise. Under the
circumstances the controversy whether the powers of the Board to appoint/promote a person to the post of an Executive Engineer were delegated to
the Chairman or to the Chief Administrator, is wholly irrelevant.â€
11/ Applying the ratio of the law laid down above  to the instant case, the petitioners and even those, who have been subsequently promoted as
Incharge Assistant Engineers, have never been appointed or promoted to the post of Assistant Engineers and, therefore, the question of their reversion
from the said post does not arise at all, when on the face of the orders detailed above, they were holding these posts in the capacity of the Incharge
Assistant Engineers. They were not holding these posts substantively but held them in the exigencies of public service. They continued to hold their
lower posts on substantive basis but were only discharging the duties of a higher post, which, in the ordinary parlance, is termed as a stop-gap
arrangement.
They were never promoted/appointed to the post of Assistant Engineers but simply held them on the terms and conditions that they shall not have any
preferential claim to hold the post on substantive basis. They cannot now turn around and change colors like a chameleon. The contention of the
petitioners that the department had no power to rescind/revoke the orders, whereby they were placed as Incharge Assistant Engineers, therefore, is a
specious argument, when tested on the touchstone of law. It is devoid of any merit and substance and entails rejection on the face of it.
12/ Looking at the petition of the petitioners from yet another angle, in Suraj Prakash Gupta & others versus State of J&K and others, reported in
2000 Air (SC) 2386, the apex Court held as under :
“Apart from the above specific directions, we think this is an occasion to issue certain general directions to the State of Jammu & Kashmir. As
pointed out earlier, the State of Jammu and Kashmir has been flouting basic rules of recruitment by granting relaxation of the rules of direct
recruitment as also the rules requiring consultation with PSC/DPC for promotions/ recruitment by transfer. In order to ensure that this is not done in
future, the following directions shall also issue.
(A) The State of Jammu and Kashmir shall appoint a high level Committee within a month from today to go into the question as to whether in any
department in Government service, direct recruitment of existing vacancies has not been made and if there was unreasonable delay, the State will
consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors. But it will ensure that no promotees
are put in the direct recruitment quota, temporarily or on stop gap or ad hoc basis unless simultaneously proceedings are initiated for direct recruitment
through the Service Commission. The Committee will recommend in what manner the direct recruitment could keep pace with promotions as
contemplated by rules.
(B) Similarly, the Committee will find out in which department the ad hoc/stopgap promotees are languishing without their cases being referred to the
Service Commission/DPC for regularization within their quota.
(C) The State of Jammu and Kashmir will ensure that no relaxation of basic recruitment rules is made for direct recruitment through P.S.C., or for
purposes of regular promotions/recruitment by transfer. The recommendations of the Committee referred to above may be considered by Government
and implemented in accordance with the rule and in accordance with law without unreasonable delayâ€.
 13/  It pains one to see that the persons, holding the posts of Junior Engineers on substantive basis, are placed as Incharge Assistant Engineers
without adhering to the rules and the law evolved on the subject, although the Supreme Court has not only deprecated this practice but has also
directed the State of J&K to ensure that such an exercise should be carried into effect only after seeking clearance from the PSC/DPC. Such
arrangements give the employees the fodder and grub to knock at the portals of the Court and enter into unnecessary litigations that could have been
avoided. The official respondents shall, therefore, make every endeavor to see that the directions of the Supreme Court, extended in Suraj Prakash
Gupta’s case, are complied with in their letter and spirit and the promotion to the post of the Assistant Engineers is made in accordance with the
law and the rules governing the field. Interim arrangements cannot sustain for long
14/ In view of all that has been said and done above, the petitioners cannot lay any claim on the posts of Assistant Engineers which they never held
substantively. The writ petition sans merit and is, accordingly, dismissed along with the connected IAs.