Gumto & Ors. Vs. Ninya Bagra & Ors.  INSC 1582 (15 September
OF INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Civil)
No(s).19589- 19590/2008 (From the judgment and order dated
13/11/2006&21/5/08 in RA No.23/2008 & WA No. 457/2003 of The HIGH COURT
OF GUWAHATI,ASSAM) HAGE GUMTO & ORS. Petitioner(s) VERSUS NINYA BAGRA &
ORS. Respondent(s) (With appln(s) for permission to file addl. affidavit and
prayer for interim relief and office report )(for final disposal) Date:
15/09/2009 These Petitions were called on for hearing today.
MR. JUSTICE HARJIT SINGH BEDI HON'BLE MR. JUSTICE J.M. PANCHAL For
Petitioner(s) Mr. Sanjay Parikh,Adv.
Respondent(s) Mr. Ashok Panigrahi,Adv.
S.S.Dash,Adv.for Mr. Satya Mitra Garg,Adv.
Shrivastav ,Adv Mr. Ashish Gupta,Adv.
hearing counsel the Court made the following
O R D E R
appeals are allowed, [SUMAN WADHWA] [VINOD KULVI] COURT MASTER COURT MASTER
Signed order is placed on the file.
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6293-6294
OF 2009 (Arising out of SLP(C) Nos. 19589-19590/2008) Hage Gumto & Ors.
...Appellant(s) Versus Ninya Bagra & Ors. ...Respondent(s)
O R D E R
petitioner-respondent herein, Ninya, Bagra was appointed as a Junior Engineer
on 11th August, 1992, under the Arunachal Pradesh Administration (Public Works
Department) Group `B' Post, Recruitment Rules, 1983, (hereinafter called 1983
Rules). The Rules aforesaid provided that for promotion to the post of
Assistant Engineer from the post of Junior Engineer, a degree holder had to
have atleast five years and a diploma holder 10 years of regular service.
Subsequent to the appointment of Ninya Bagra as junior Engineer, the 1983 Rules
were repealed and the Arunachal Pradesh Power Engineering Service Rules, 1993
(hereinafter called the 1993 Rules) came into force on Ist November, -2- 1993.
The 1993 Rules (in so far as we are presently concerned) fixed the period of
service required for promotion to the post of Assistant Engineer at 8 and 10
years from amongst degree and diploma holders respectively. Concededly under
the 1993 Rules Ninya Bagra could have become eligible for promotion only on
11th August, 2000, though he was given officiating promotion vide order dated
16th July, 1997. The appellants herein were appointed as Assistant Engineers
under the direct recruitment quota between the years 1998-1999 on regular basis
after due process of selection as Assistant Engineers under the 1993 Rules, and
Ninya Bagra was promoted as Assistant Engineer on regular basis on the
recommendation of the DPC on 12th July, 2001 as he had completed 8 years of
service on 11 th August 2000. He thereupon filed a writ petition before the
Gauhati High Court claiming promotion with retrospective effect on the basis of
the 1983 Rules claiming seniority from the date that he had completed five
years of service as Junior Engineer as on 16th July, 1997. A reply affidavit
was filed by the State of Arunachal Pradesh on 6th September, 2002 and the
stand taken was that with the enforcement of 1993 Rules, the -3- 1983 Rules
stood repealed and that Ninya Bagra would be eligible for promotion after 8
years of regular service as Junior Engineer.
petition was taken up for hearing by the single Bench and the Bench observed
that admittedly the 1993 Rules alone governed the case of Ninya Bagra-
respondent No.1 herein and he was therefore entitled to promotion with effect
from the date of completion of 8 years of service as Junior Engineer i.e. from
petition was allowed to the limited extent that the benefit of 8 years of
service be taken as on the date when he had completed 8 years of service and
not on the date when the DPC had met. The matter was thereafter taken before
the Division bench in appeal by Ninya Bagra. The Division Bench relying almost
exclusively on the statement made by the Advocate General that the 1983 Rules
would be applicable to the case set aside the order of the single Bench and
are of the firm opinion that the appellant was entitled to regular promotion to
the post of Assistant Engineer with effect from 11.8.97. The Rules framed in
1993 as well as in 2005 have no bearing on the case at hand. Since the
appellant has already been regularized in service with effect from the date of
recommendation of the DPC, we see no bar in -4- issuing as direction to the
respondent. State to modify the impugned order dated 12.3.2001 and to pass a
fresh order regularizing the promotion of the appellant what effect from
we dispose of the writ appeal calling upon the respondent State to pass
appropriate orders in the light of the direction given above.
judgment under appeal accordingly stands modified.
parting with, we feel it necessary to observe that if any senior engineer
junior in service to the appellant was promoted subsequent to 11.8.97, his case
may be reconsidered and appropriate orders may be passed by the respondent
State without adversely affecting the right of the appellant."
this situation that the matter is before us by way of special leave at the
instance of Hage Gumto, the respondent in the writ petition.
Parikh, the learned counsel for the appellant has pointed out that there were
two factual errors in the order of the Division Bench viz. that the Rules of
1983 were no longer in operation in view of the fact that 1993 Rules repealed
the Rules 1983 and the statement made by the Advocate General was thus contrary
to the record and was, therefore, not binding on the appellant and secondly,
the observation of the Division -5- Bench that the respondent had been selected
by a properly constituted Departmental Promotion Committee was wrong in view of
the order dated 16/7/1997 which clearly provided that the arrangement was
purely temporary and the promotees (i.e. Ninya Bagra and others) could not
claim any benefit unless regularized by a Departmental Promotion Committee. He
has also referred us to the various documents on record including the categoric
stand of the respondent-State Government taken before the single Judge and the
Division Bench, as also the counter affidavit filed in this Court to contend
that the Rules of 1983 were not applicable.
learned counsel for Ninya Bagra has, however, submitted that some subsequent
developments had taken place in the matter as his client had been taken on
absorption by some other Governmental agency and he was no longer in the
Department, and that as far as he was concerned he would have no objection if
the legal issues were settled either way provided his present position was not
disturbed in any manner. The learned counsel for the State has however pointed
out that the stand of the State was that the Rules of 1993 and not of 1983 were
applicable to the present matter and as the Government was feeling some
difficulty in complying with -6- the broad directions of the Division Bench and
a chain reaction had ensued which made it imperative that the judgment of the
Division Bench be set aside.
heard learned counsel for the parties and gone through the record. It would be
clear from the positive stand of the respondent State that the statement made
by the Advocate General before the Division Bench was not authorized and was
contrary to the record.
the observation of Division Bench that Ninya Bagra respondent herein had been
selected on 16/7/1997 by a Departmental Promotion Committee was also incorrect.
reproduce herein the relevant part of the order dated 16.7.1997:
Arrangement is purely on temporary basis and will not bestow on them any claim
for regular appointment as AF-E) unless their services are regularized by a
regular DPC in concerning with the provisions of Recruitment Rules.
officiating arrangement may be terminated / removed to their original post at
any time without assigning any reason thereof."
bare reading of the aforesaid clause makes it evident that the promotion was
de-hors the Rules & did not confer any substantive right on the promotees.
also gone through the repealing clause in the 1993 Rules. Rule 35 which is the
repealing clause reads as under:
Repeal (1) All recruitment rules of post (s)/grades included in the service, as
in force, prior to commencement of these rules, in the department are hereby
Notwithstanding such repeal, anything done or any action taken under the
provisions of recruitment rules existing prior to commencement of three rules
in respect of post/grades included in the service, shall be deemed to have been
validly done on taken under these rules."
Rule has to be read along with Rule 32 which is the transitional clause. This
Rule too is reproduced below:
Transitional provision: (1) On and from the commencement of these rules and
until persons are appointed to hold the posts included in the service in
accordance with the provisions of these rules, such post (s) may continue to be
held by officers appointed thereto as if these -8- rules had not come into
force. Persons appointed to posts included in the service, on regular basis in
accordance with the provisions of the recruitment rules as existed prior to
commencement of these rules, shall be deemed to have been appointed to post
included in the service under these rules."
(2) of Rule 32 subsequently provides that the transitional clause would be
operative for a period of two years from the date of commencement of the 1993
Rules which would thus be applicable in toto with effect from 1995. The net
result is that Ninya Bagra's ad hoc promotion which was made in the year 1997
was to be governed by the Rules of 1993 and not by the 1983 Rules. We
accordingly feel that the judgment of the Division Bench is erroneous both on
fact and law. We accordingly set aside the same. As pointed out by the learned
counsel, Ninya Bagra respondent herein had gone on deputation to some other
Department and has been subsequently absorbed in that Organization, we are,
accordingly, of the opinion that notwithstanding -9- the observations in this
matter his position will not be touched in any manner.
appeals are allowed accordingly.
................ .J. (HARJIT SINGH BEDI) .
September 15, 2009.