Madhumati Mitra, J
This writ appeal has been initiated by the appellant challenging the impugned order dated February 8, 2019 in writ petition No. 170 of 2018.
By the impugned order the learned Single Judge quashed and set aside the impugned memorandum dated 18.07.2018.
The present appellant was the private respondent No. 6 in the writ petition 170 of 2018.
The factual matrix which has been disclosed from the materials placed on record as well as from the submission and rival submission advanced by the
learned Counsel for the parties may be summarized as under:
On 29th May, 2018 the Departmental Promotion Committee (DPC) held the meeting for considering promotion to the post of Executive Engineer
(Civil) in PBMC.
Rule 12 of the Andaman and Nicobar Islands (Port Blair Municipal Council) Recruitment Rules 2011, lays down the provision regarding promotion to
the post of Executive Engineer (Civil) as under:-
“Promotion from amongst the serving regular Assistant Engineer (Civil) of the Council in the Pay Band PB2 Rs. 9300-34800+GP Rs. 4600 with 7
years regular service in the grade possessing Degree in Civil Engineering from a recognized University or having passed Part A&B Examination of
the Institution of Engineers (India)
Promotion from amongst the serving regular Assistant Engineer (Civil) of the Council in the Pay Band PB 2 Rs. 9300-34800+GP Rs. 4600 with 10
years regular service in the grade possessing Diploma in Civil Engineering from a recognized University/Institution.â€
The writ petitioner and the present appellant (respondent No. 6 in the writ petition) entered in the regular service as Junior Engineer (Civil) on 2nd
January, 1997 and 17th July, 1998 respectively. Both of them were promoted to the post of Assistant Engineer with effect from 01.01.2006 (date of
notional promotion). Admittedly, the writ petitioner has a diploma in Civil Engineering whereas the present appellant has a degree in Civil Engineering.
In view of the Rules of 2011 as mentioned earlier, the appellant became eligible for the post of Executive Engineer as on 01.01.2013 and the writ
petitioner became eligible for the post of Executive Engineer on and from 01.01.2016.
The learned Trial Judge has passed the impugned order after observing that the writ petitioner is senior to the private respondent i.e. present appellant.
Accordingly, the learned Trial Judge has quashed the impugned memorandum dated 18th July, 2018.
The order dated February 8, 2019 in writ petition No. 170 of 2018 is under challenge.
During the course of hearing, the learned Counsel appearing for the appellant has contended that the learned Trial Judge has totally failed to
appreciate that the Departmental Promotion Committee considered the candidature of 3 candidates including the present appellant and respondent No.
6 vide its recommendation dated 29th May, 2018 and after considering the ACRS/APARS, vigilance clearance, integrity certificate, seniority list and
other relevant documents as well as the guidelines issued by the Ministry of Personnel, public grievance and personal training vide office memorandum
dated 28th September, 2016 and found the present appellant most suitable and recommended his name to be promoted to the post of Executive
Engineer (Civil). It has been specifically argued on behalf of the present appellant that the vacancy for the post of Executive Engineer (Civil) arose in
the year 2014 and at that time only the present Appellant was eligible for promotion to the said post as he became eligible as per the Andaman and
Nicobar Islands (Port Blair Municipal Council) Recruitment Rules 2011. Whereas the respondent No. 6 who is the writ petitioner became eligible for
promotion to the post of Executive Engineer (Civil) only on 1st January, 2016. Learned Counsel appearing for the appellant has submitted that the
learned Single Judge has committed an error in allowing the writ petition by holding that the writ petitioner was senior in rank. In support of his
contention, the learned Counsel for the appellant has placed his reliance on the decision of State of Bihar and Others vs. Chandreshwar Pathak
reported in (2014) 13 SCC 232 and on the decision of Union of India and Others vs. N.R. Banerjee and others reported in (1997) 9 SCC 287, On the
other hand, the learned Counsel appearing for the respondent No. 6 has submitted that the appellant cannot raise his claim regarding his eligibility in
the year 2013 as he had failed to raise this issue earlier. In support of his contention, the learned Counsel appearing for the respondent No. 6 has
placed his reliance on a decision of R.B. Desai and another Vs. S.K. Khandelkar and others reported in AIR 1999 SC 3306. Relying on the decision
cited above, the learned Counsel for the petitioner has vigorously argued that the date of seniority should prevail over the date of eligibility unless the
rule specifically gives an advantage to a candidate. It is the specific contention of the learned Counsel for the respondent No. 6 that the rule regarding
the promotion to the post of Executive Engineer (Civil) does not provide for any advantage to a candidate with earlier eligibility and as such the date of
seniority should prevail over the date of eligibility.
In the instant case from the submission made by learned Counsel for the appellant and respondent No. 6, it appears that the post of Executive
Engineer (Civil) was created in the year 2014. According to the recruitment rules of 2011 as mentioned earlier the appellant became eligible for the
post of Executive Engineer (Civil) in the year 2013. It is also an admitted fact that appellant himself did not approach before the authority concerned
for filling up the post of Executive Engineer (Civil). The Departmental Promotion Committee held its meeting on 29th May, 2018. In the mean time,
three candidates including the present appellant and present respondent No. 6 (writ petitioner) became eligible for the post of Executive Engineer
(Civil). As per the rule, an Assistant Engineer (Civil) with 7 years regular service in the grade possessing degree in engineering from a recognized
University and a regular Assistant Engineer (Civil) with 10 years regular service in the grade possessing diploma in Civil Engineering from a
recognized University are considered as eligible candidates for the post of Executive Engineer (Civil). Only an Assistant Engineer (Civil) is to be
considered for promotion to the post of Executive Engineer (Civil). Admittedly both the appellant and the respondent No. 6 got promotion to the post
of Assistant Engineer with effect from 01.01.2006. The seniority of the Assistant Engineers will be counted from the date of their promotion to the
post of Assistant Engineer not from the date of their initial appointment. The observation made by the learned Single Judge that admittedly the writ
petitioner is senior to the present appellant is not correct. Though in the initial appointment the writ petitioner was senior but both the writ petitioner
and the present appellant got promoted on 1st January, 2006. From the minutes of the DPC held on 29th May, 2018 it appears that at the time of
recommending the name of the appellant several factors were considered by the committee as reflected in the minutes of the DPC meeting. Seniority
was not the sole criteria for recommending the name of the Appellant for promotion to the Post of Executive Engineer (Civil).
In the decision of R. B. Desai & Anr. Vs. S. K. Khanolkar referred by the learned Counsel for the Respondent No. 6, the Appellants were promoted
for the Posts of RFOs cadre on a date anterior to that of the first Respondent, and as such the Apex Court observed that the appellants were seniors
to the first Respondent and unless the Rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail
over the date of eligibility.
The facts of the present case are different as both the Appellant and the Respondent No. 6 promoted to the post of Assistant Engineer (Civil) on the
same date i.e. 01.01.2006. As such, it cannot be said that the present Respondent No. 6 was senior to the Appellant in the Cadre of the Assistant
Engineer (Civil).
The grievance of the writ petitioner i.e. present Respondent No. 6 was that the Departmental Promotion Committee failed to consider that the
Petitioner was senior most in the Cadre of Assistant Engineer (Civil) and possessed the requisite eligibility on the date of consideration for promotion
to the Post of Executive Engineer (Civil) and the Departmental Promotion Committee considered the Writ Petitioner junior merely on the ground of
having acquired eligibility after the present Appellant.
In the present case it appears that both the Appellant and the Respondent No. 6 (writ petitioner) were promoted to the Post of Assistant Engineer
(Civil) on 01.01.2006. The claim of the writ petitioner that she is senior to the Appellant in the Cadre of the Assistant Engineer (Civil) is not correct.
From the minutes of the DPC held on 29.05.2018 it transpires that it had considered the candidature of all the eligible candidates who were within the
zone of consideration on that date. From the minutes of the DPC it also appears that several factors including ACRs, integrity etc. were considered by
the DPC and thereafter recommended the name of the Appellant for the Post of Executive Engineer. The claim of the writ petitioner (Respondent
No. 6) that the Appellant was recommended only on the basis of possessing eligibility earlier is not correct.
In view of the above, we are of the opinion that the decision referred by the learned Counsel for the Respondent No. 6 (the writ petitioner) in R.B.
Desai and Anr. Vs. S.K. Khanolkar and ors. is not applicable as the facts of the present case are not similar to that of the facts of the case before the
Apex Court.
For the reasons mentioned and narrated above, we are of the opinion that the present appeal deserves success. Hence, the appeal is allowed. The
judgement under appeal is set aside. The writ petition being No. 170 of 2018 shall stand dismissed.
Before parting with, it appears that one application being CAN No 112 of 2019 was filed by the appellant/petitioner praying for an appropriate order in
view of the facts that he had paid the cost of Rs.8,500/- to District Legal Services Authority on August 22, 2019 in compliance with the direction dated
August 14, 2019 passed in CAN No.101 of 2019. It also appears that the appellant/petitioner complied with the direction passed in CAN No.101 of
2019 by depositing the cost within the time stipulated by this Court. The direction passed in CAN NO.101 of 2019 has been complied with by the
appellant. No further order needs to be passed in connection with the CAN being No.112 of 2019. The CAN being 112 of 2019 stands disposed of.
