Shajan T. Oommen Vs The Lieutenant Governor and Others <BR> The Lieutenant Governor and Others Vs Shajan T. Oommen and Another

Subhro Kamal Mukherjee, J.@mdashTwo applications under Article 226 of the Constitution of India (hereinafter referred to as "the said writ petitions") were heard analogously by the Hon''ble single Judge. His Lordship disposed of both the said writ petitions by a common judgment, which has been impugned by filing these two appeals.

2. The writ petition No.27 of 2008 is filed by Shajan T. Oommen (Oommen in short) and writ petition No.93 of 2008 is filed by Government Employees'' Joint Co-ordination Committee.

3. On January 07, 1987 Oommen, who holds a degree in civil engineering, is appointed as a Junior Engineer under the Andaman Public Works Department (APWD in short).

4. On December 14, 1999 Oommen is promoted to the post of Assistant Engineer on purely temporary and ad hoc basis. On the "recommendations of the Screening Committee, the Lieutenant Governor, Andaman and Nicobar Islands, extends the benefit of first financial up gradation under the Assured Career Progression Scheme in favour of the junior engineers under the APWD, who had completed 12 years of service, with effect from August 09, 1999. Oommen, also, gets the benefit of Assured Career Progression Scheme. The order is issued on October 05, 2000.

5. The Secretary, Local Self-Government, Andaman and Nicobar Administration, on July 24, 2001, requests the Chief Engineer, APWD, to forward the names of eligible officers for appointment in the post of Superintendent Engineers, Executive Engineers, Assistant Engineers and Junior Engineers in the Zilla Parisad on promotion-cum-deputation basis He, further, requests the Chief Engineer to circulate the said information amongst the eligible workers under the control of the said Chief Engineer The name of Oommen along with ten other junior engineers are forwarded and those eleven junior engineers, including Oommen, are appointed as Assistant Engineers of Zilla Parisad for a period of one year or till the posts 1 are filled up on regular basis.

6. The Lieutenant Governor, in purported exercise of his power conferred under the proviso to Article 309 of the Constitution of India, makes the Andaman and Nicobar Islands Executive Engineer(Civil), Zilla Parisad in Panchayati Raj Institutions Group-A Recruitment Rules, 2003, regulating the methods of recruitment to the Group-A posts of Executive Engineer (Civil) borne in the establishment of, Zilla Parisad under the Panchayati Raj Institutions of Andaman and Nicobar Islands. The methods of recruitment, age limit and qualifications are specified in paragraphs 5 to 14 of the schedule to the said rules.

7. The paragraph 11 of the schedule to the said rules provides that the Executive Engineers are to be appointed on deputation only.

8. By an order dated May 27, 2005 Oommen is permanently absorbed in the post of Assistant Engineer (Civil) against the post of Assistant Engineer(Civil), Zilla Parisad, with immediate effect. The Chief Executive Officer, Zilla Parisad, takes Oommen on the strength of Zilla Parisad as an Assistant Engineer (Civil) with effect from May 27, 2005, inter alia, recording that Oommen had tendered his technical resignation from the post of Junior Engineer (Civil), APWD, with effect from May 27, 2005.

9. Oommen is appointed on July 21, 2005 in the group-A gazetted post of Executive Engineer of Zilla Parisad on ad hoc basis for a period of one year. The ad hoc appointment of Oommen is extended from time to time. However, his tenure in the post of Executive Engineer (Civil) has not been extended after January 27, 2008.

10. On December 27, 2006 Oommen makes a representation to the Zilla Parisad to take steps for amendment of the said recruitment rules of 2003 to enable Oommen to get an opportunity of promotion to the post of Executive Engineer (Civil) of Zilla Parisad.

11. The Zilla Parisad, in its meeting held on December 03, 2007, resolves that at least 50% per centum of the posts of Assistant Engineers, Executive Engineers and Superintendent Engineers in the Zilla Parisad should be filled up by promotion. The said resolution of the Zilla Parisad is forwarded to the Chief Secretary.

12. The Chief Executive Officer, Zilla Parisad, suggests the Commissioner-cum-Secretary, Rural Development, Local Self-Government department, Andaman and Nicobar Administration, for amendment of the recruitment rules of 2003, inter alia, pointing out that the engineers, who are working with the Zilla Parisad, have no promotional channel in view of the aforementioned recruitment rules of 2003.

13. Oommen moves writ petition No.27 of 2008 challenging, in substance, the said recruitment rules of 2003 regarding recruitment of Executive ''Engineers (Civil) in Zilla Parisad and for a direction commanding the respondents to open an avenue of promotion from the post of Assistant Engineer (Civil) to the higher post of Executive Engineer (Civil).

14. In the meantime, however, the Chief Secretary, A & N Administration, ''constituted a committee to examine the policy adopted towards the APWD engineers on transfer to Panchayati Raj Institutions. A report was prepared and submitted by the committee on May 05, 2007 making number of recommendations. The recommendations, along with the report, are forwarded to the Administration. The recommendations are reviewed by the Chief Secretary and again, on December 12, 2007, a committee was constituted with the Administration as the Chairperson.

15. The writ petition No.93 of 2008 is filed by the said unregistered association, inter alia, for a direction on the Administration to accept the report of the committee dated May 5, 2007 and to treat the staff posted on transfer to Zilla Parisad at par with the staff posted on transfer from the APWD concerning the financial benefits.

16. The Hon''ble single Judge considers both the applications simultaneously. The Hon''ble Judge frames nine issues. The findings of the Hon''ble Judge are as under:

(a) The Lieutenant Governor has no authority under Article 309 of the Constitution of India to frame rules in case of services and posts in the local authority like Zilla Parisad. Therefore, quoting Article 309 as source of power in the notification dated July 14, 2003 is erroneous.

(b) Under Article 239(1) of the Constitution of India, the person appointed by the President as an Administrator of an Union Territory, by whatever designation he may be called, shall exercise only such powers as are entrusted to him by the President of India. The Administrator is, therefore, a delegate of the President of India, but his status is not that of a constitutional functionary and not akin to the Governor of a State.

(c) Article 240(1) of the Constitution of India confers power on the President to frame regulations, inter alia, for good governance of a Union Territory. Such power conferred on the President to make regulation has been exercised for these islands leading to promulgation of the Andaman and Nicobar Islands (Panchayat) Regulation, 1994.

(d) Once a regulation is promulgated by the President under Article 240(1) of the Constitution of India, it would continue to have the force and effect of an Act of Parliament applicable to the union (sic) concerned.

(e) The Lieutenant Governor is vested with the power of making subordinate legislation and, therefore, is the rule maker under the said regulation and he is to act within the limits of the power conferred upon him. Regulation 202(2)(ba) of the said Regulation conferred specific powers to frame rules for constitution of services, which are necessary for smooth functioning of the Panchayati Raj Institutions in these islands.

(f) Under the regulations, as aforesaid, promulgated by the President under Article 240(1) of the Constitution of India, the Lieutenant Governor enjoys the powers to frame rules for constitution of services in the Panchayati Raj Institutions. Therefore, the said recruitment rules of 2003 are correctly framed.

(g) Rules are defective only to the extent of an erroneous quoting of the provisions of Article 309 of the Constitution of India.

(h) Once the resignation of Oommen is accepted there exists no employee employer relationship between the Andaman and Nicobar Administration and Oommen.

(i) The learned Judge holds that whether or not. Oommen would be entitled to benefit of service rendered as Assistant Engineer (Civil) prior to his absorption in the Zilla Parisad does not require a decision on this writ petition. Still, the learned Judge holds that the said Recruitment Rules requires eight years regular service in the grade of Assistant Engineer as one of the pre-requisites for promotion to the post of Executive Engineer (Civil), but Oommen was permanently absorbed in the Zilla Parisad as an Assistant Engineer (Civil) on or after May 27, 2005. The period of service rendered by him as Assistant Engineer (Civil) in his parent department, either on ad hoc basis or regular basis, stood obliterated once he was permanently absorbed in the Zilla Parisad. The benefit of such service, which Oommen could legitimately claim, if his candidature is to be considered for promotion to the post of Executive Engineer (Civil) in his parent department, is lost. His services from the date of joining in the Zilla Parisad shall, only, be relevant, if at all an avenue for his promotion to the post of Executive Engineer (Civil) is opened at the future point of time.

17. The Hon''ble Judge, therefore, disposed of the writ petition filed by Oommen by the following directions:

However, having regard to the facts that there has been a change in the circumstances in the sense that Oommen has now been absorbed in the Zila Parisad giving him a status of permanency and that the said Recruitment Rules had been framed at a time when appointment on deputation was considered as the only method of filling up the post of Executive Engineer(Civil), and that the proposal of the Zilla Parisad is pending before the Lieutenant Governor and it is open and within his competence to change the rules relating to service and alter or amend or vary the qualifications [by addition/subtraction], eligibility criteria and other conditions of service including avenue of promotion from time to time as the administrative exigencies warrant, this Court would direct the Lieutenant Governor to consider the Zilla Parisad''s proposal for introduction of a promotional quota for filling up the post of Executive Engineer (Civil) in the Zilla Parisad keeping in mind the authorities of the Apex Court referred to above so as to save the Recruitment Rules from a charge of being violative of the constitutional provisions as also to ensure equality of opportunity. A decision in this behalf according to law but uninfluenced, by the stand taken in the counter affidavit of the respondents 1 to 3 shall be taken as early as possible but positively within six months from date of receipt of a copy of this order.

18. However, the Hon''ble Judge rejects the writ petition filed by the Government Employees'' Joint Action Coordination Committee as not maintainable. In our view, the Hon''ble Judge rightly relied upon the decision in the case of Sand Carrier''s Owner''s Union and others Vs. Board of Trustees for the Port of Calcutta and others, to hold that unincorporated associations are not legal persons and as such the writ petitions are not maintainable at their instance.

19. The Full Bench of the Madras High Court in the case of Tamil Nadu Panchayat Development Officers Association, Madras Vs. Secretary to Govt. of Tamil Nadu, Rural Development and Local Administration Dept., Madras and Others, also, holds that an unregistered association has no locus standi to move the High Court under Article 226 of the Constitution of India.

20. Before we deal with the submissions advanced by the contesting parties, we record that Mr. Vijay Narayan, learned advocate appearing on behalf of the Government Employees'' Joint Action Coordination Committee advances argument challenging the directions passed by the Hon''ble single Judge. The writ petition filed by the said un-registered association is rightly dismissed by the Hon''ble single Judge questioning the locus standi of the un-incorporated associations to maintain writ petition. The Association does not prefer any appeal. We are, therefore, not inclined to consider the submissions of Mr. Vijay Narayan when his clients accept the order of the Hon''ble single Judge rejecting their writ petition.

21. Being aggrieved by the judgment and order, as aforementioned, Oommen prefers an appeal, which is tendered as MAT No.030 of 2008. The Administration, also, files an appeal, which is tendered as MAT No.031 of 2008.

22. This Court on January 07, 2009 directs that the said appeals and the application for stay are to be heard together. An interim order is passed to the effect that if any decision is taken in respect of the dispute-in-question, such decision shall abide by the result of the appeals.

23. Mr. Kalyan Bandhopadhyay, learned senior advocate appearing on behalf of Oommen, submits that the Lieutenant Governor has no power to legislate; the recruitment rules of 2003 suffers from lack of legislative competence and, therefore, ultra vires. He, further, submits that an employer is under obligation to provide promotional avenues. Therefore, when the recruitment rules of 2003 provides no avenue of promotion of an Assistant Engineer to the next higher posts of Executive Engineer, the recruitment rule suffers from unreasonableness.

24. Mr. Bandhopadhyay in support of his contentions, cites the decisions in the cases of State of Tripura and Others Vs. K.K. Roy, Food Corporation of India and Others Vs. Parashotam Das Bansal and Others, and A. Satyanarayana and Others Vs. S. Purushotham and Others, .

25. Mr. Mohammed Tabraiz, learned advocate appears for the Zilla Parisad and supports the contention of Mr. Bandhogadhyay. Mr. Tabraiz submits that Zila Parisad, on many occasions, requests the Administration to amend the recruitment rules giving avenues of promotion to the engineers working with the Zilla Parisad.

26. Ms. Anjili Nag, learned advocate appears for the Administration and submits that the Hon''ble single Judge erred in law in directing the Administration to amend the recruitment rules to pave ways for promotion of the Assistant Engineer to the post of Executive Engineer in a writ petition field by Oommen, inasmuch as, Oommen was deputed as an engineer in Zilla Parisad, but he still belongs to the cadre of Junior Engineer under the APWD. She submits that Oommen is not a regular Assistant Engineer. His absorption is illegal. Therefore, Oommen has no right to claim promotion.

27. Mrs. Nag submits that there are seniors to Oommen in the cadre of Junior Engineer (Civil) under the APWD. Oommen belongs to the cadre of Junior Engineers (Civil) under the APWD. If the promotional avenues are created for the benefit of Oommen, the seniors to Oommen in the cadre, who do not opt to join Zilla Parishad, will suffer unnecessary humiliation as they will get no scope of absorption in the Zilla Parisad. Mrs. Nag relies upon a decision in the case of State of Punjab & Ors. v. Inder Singh reported in 1998 (2) SLJ 113 : 1997 (8) SCC 312 and, on the strength of the observations of the Supreme Court of India, submits that deputationist is liable to be repatriated to his parent cadre/department. He cannot resist his repatriation on the ground that he continued on deputation for a long time and, thus, earns promotion on ex-cadre post.

28. Mrs. Nag cites a well known decision of the Supreme Court of India in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, and submits that when absorption of Oommen is illegal, he has no right to claim for avenues of promotion and the Court cannot direct absorption in clear violation of the statutory rules. Mrs. Nag, also, cites a decision in the case of Housing Board of Haryana Vs. Haryana Housing Board Employees Union and others, and submits that Zilla Parisad is not an autonomous body, but only a local authority. Therefore, the Lieutenant Governor has got every right to deal with the service conditions of the employees both of the Zilla Parisad and of the Administration. Unfortunately, for Oommen, Mrs. Nag submits, the mode of appointment in the higher post is by way of deputation. Oommen cannot challenge the mode of appointment because he is not eligible to the post of Executive Engineer.

29. Finally, Mrs. Nag submits that the Lieutenant Governor rescinded the recruitment rules of 2003 pursuant to the liberty granted by this Court. Therefore, the recruitment rules of 2003 is not in existence. Separate writ petitions are pending challenging the action of the Lieutenant Governor, Therefore, the claim of Oommen cannot survive.

30. Oommen files his writ petition, in substance, for opening an avenue for his promotion to the next higher post. Therefore, in our considered opinion, it is not necessary for us to consider whether the Andaman and Nicobar islands (Panchayats) Regulation, 1994 and the aforementioned recruitment rules of 2003 framed by the Lieutenant Governor under regulation 202(2)(ba) of the said regulation are ultra vires or not, when the Hon''ble single Judge holds that the recruitment rules of 2003 suffer from unreasonableness and directs the authorities to consider the proposal of Zilla Parisad for introduction of promotional quota for filing up the post of Executive Engineer (Civil) in the Zilla Parisad. We, therefore, keep this question open.

31. However, we concur with the Hon''ble single Judge that the Lieutenant Governor has no authority under Article 309 of the Constitution of India to frame rules, inasmuch as, his status is not that of a constitutional functionary and not akin to the Governor of a State.

32. The Supreme Court of India in the case of Council of Scientific and Industrial Research and Another Vs. K.G.S. Bhatt and Another, , holds that it is often said and indeed, adroitly, an organization public or private does not ''hire a hand'', but engages or employs a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management much less any career planning, manpower development, management development etc. which is not treated to a system of promotions.

33. "In Dr. Ms. O.Z. Hussain Vs. Union of India and others, the Supreme Court of India holds that promotion is a normal incidence of service. There is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the Nonmedical ''A'' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the council and its members arid provide promotional avenue for this category of officers.

34. In the case of State of Tripura and Others Vs. K.K. Roy, the Supreme Court of India holds that it is not a case where there existed an avenue for promotion. It is, also, not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have crated promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue for promotion, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State.

35. In Food Corporation of India and Others Vs. Parashotam Das Bansal and Others, , the Supreme Court of India holds that an employee of a State although has no fundamental right of promotion, he has a right to be considered therefore. What is necessary is to provide an opportunity of advancement; promotion being normal incidence of service. When employees are denied an opportunity of promotion for long years on the ground that they fell within the category of employees excluded from the promotional prospect, the Superior Court will have the jurisdiction to issue necessary direction. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government, but the jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country.

36. In A. Satyanarayana and Others Vs. S. Purushotham and Others, , the Supreme Court of India holds that although mere chance of promotion is not a fundamental right, but right to considered therefore, is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India.

37. A system of promotion is an essence of modern management and when a person is recruited in an organisation, he must be given an opportunity to advance.

38. The recruitment rules must not be arbitrary, but it must be reasonable. The recruitment rules not providing for promotion will certainly result in reducing efficiency in public service, which is the essential part of the machinery of the State. Such rules are, therefore, unfair, unjust and against the public policy. Such rules violate Articles 14 and 16 of the Constitution of India.

39. The said recruitment rules of 2003 suffer from defects of arbitrariness as those rules do not provide for any promotional avenues for the Assistant Engineers of the Zilla Parisad. The Assistant Engineers are not considered for promotion to the higher post of Executive Engineer as the only mode of recruitment to the post of Executive Engineer is by deputation. Therefore, there is no channel of promotion in respect of the Assistant Engineers of the Zilla Parisad.

40. Assuming that the Lieutenant Governor has authority to frame recruitment rules for the engineers of the Zilla Parisad in view of the provisions of the said Regulation of 1994, but the recruitment rules for recruitment of Executive Engineer (Civil) in Zilla Parisad is unreasonable and violative of the principles enshrined in Articles 14 and 16 of the Constitution of India.

41. Mrs. Nag submits that the absorption of Oommen in Zilla Parisad is illegal. It is surprising that the absorption of Oommen was never disputed till he claims for promotion. Mr. Kalyan Bandhopadhyay, learned senior advocate appearing for Oommen, is right that the respondents to a writ petition cannot be allowed to attack its own action as a respondent. He rightly relies upon the observations of the Supreme Court of India in the case of The State of Assam & Anr. v. Raghava Rajagopalachari, reported in 1972 SLR 915.

42. The Secretary, Local Self-Government, Andaman and Nicobar Administration, requested the Chief Engineer, APWD, to forward the names of eligible officers for appointment in the post of engineers in the Zilla Parisad on promotion-cum-deputation basis. The information was circulated to all eligible persons, who were working under the Chief Engineer. Oommen alongwith some other junior engineers opted for the Zilla Parisad. The submission of Mrs. Nag that in the event the promotional avenue is created for Oommen, his seniors in the parent cadre will be humiliated, cannot be accepted. The seniors did not opt for joining Zilla Parisad.

43. The decision cited by Mrs. Nag in the case of Inder Singh (supra) is clearly distinguishable, as the employees involved in that case were never absorbed in the transferee department.

44. The Uma Devi (supra) has, also, no manner of application in this case. It is not a case where the Court is directing absorption in clear violation of statutory rules.

45. Oommen was permanently absorbed in the Zilla Parisad with effect from May 27, 2005. We have, already, indicated hereinabove that it is not open to the respondents to the writ petition to challenge the absorption of Oommen in Zilla Parisad for the first time when Oommen claims for avenue of promotion.

46. The case of Housing Board of Haryana (supra) has no manner of application, inasmuch as, we are keeping the question of the power of the Lieutenant Governor to deal with the service conditions of the employees of the Zilla Parisad under the Regulation of 1994 open nor we are directing the authorities to give Oommen promotion.

47. The Hon''ble single Judge directed the Lieutenant Governor to consider the proposal of Zilla Parisad for introduction of promotional quota for filling up the post of Executive Engineer (Civil) in Zilla Parisad keeping in my mind the authorities of the Apex Court referred to hereinabove. A Division Bench of this Court on January 07, 2009 passed an interim order to the effect that if any decision is taken in respect of the dispute-in-question, such decision shall abide by the result of these appeals. We are unable to accept the contention of Mrs. Nag that as the said recruitment rules of 2003 are rescinded by the Lieutenant Governor, the writ petition field by Oommen becomes infructuous, inasmuch as, the said rules are rescinded subject to the decision in these appeals.

48. We, however, record that it was not necessary for the Hon''ble single Judge to make the observations that the period of service rendered by Oommen as Assistant Engineer (Civil) in his parent department, either on ad hoc or regular basis, stood obliterated, once he was permanently absorbed in the Zilla Parisad, inasmuch as, the learned Judge himself holds that whether or not Oommen would be entitled to the benefit of service rendered as Assistant Engineer(Civil) prior to his absorption in Zilla Parisad does not require a decision on this writ petition.

49. The expression of the said opinion was unnecessary to the decision in the writ petition. It may be an expression of the view point, but has no binding effect. When an issue does not arise for consideration, any observation made with regard to such an issue is obiter dictum, inasmuch as, the decision should be based strictly on the points directly raised. Therefore, the observations of the Hon''ble single Judge, as aforesaid, are set aside.

50. We, therefore, modify the order of the Hon''ble single Judge and declare that the mode of recruitment in the post of Executive Engineer(Civil) in Zilla Parisad is ultra vires and direct the Lieutenant Governor to suitably amend the recruitment rules, taking into consideration the decisions of the Supreme Court of India, as referred to hereinabove, as, also, the proposal of the Zilla Parisad for introduction of promotional quota for filling up the post of Executive Engineer(Civil) in Zilla Parisad.

51. Let such decision be taken by six weeks from this date.

52. The appeals are, thus, disposed of.

In view of the disposal of the appeals, the connected application being CAN No. 132 of 2008, also, stands disposed of.

We, however, direct the parties to bear their costs in the these appeals.

R.N. Banerjee J.

I agree