ITEM NO.2               COURT NO.9             SECTION XIV

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      Petition(s) for Special Leave to Appeal (Civil) No(s).19589- 19590/2008 (From the judgement 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.

CORAM :         HON'BLE MR. JUSTICE HARJIT SINGH BEDI         HON'BLE MR. JUSTICE J.M. PANCHAL

For Petitioner(s) Mr. Sanjay Parikh,Adv. Mr. Mamta Saxena,Adv. Mr. A.N. Singh,Adv. Mr. J. Sahni,Adv.

                    Ms. Anitha Shenoy,Adv.

For Respondent(s) Mr. Ashok Panigrahi,Adv. Mr. S.S.Dash,Adv.for

                    Mr. Satya Mitra Garg,Adv.

                    Mr. Anil Shrivastav ,Adv Mr. Ashish Gupta,Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

Leave granted.

The appeals are allowed,

[SUMAN  WADHWA]  [VINOD  KULVI]

 COURT  MASTER    

COURT  MASTER

Signed  order is  placed  on the  file.

  IN THE 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

Leave granted. The  writ  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the  1983 Rules were repealed and the Arunachal Pradesh  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,  

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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 11th  

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  

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1983 Rules stood repealed and that Ninya Bagra would be  

eligible for promotion after 8 years of regular service  

as Junior Engineer.

The writ 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 11/8/2000.

The  writ  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 held  

that:

“We  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

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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  11.8.1997.  

Accordingly, we dispose of the writ appeal calling  

upon  the  respondent  State  to  pass  appropriate  

orders in the light of the direction given above.  

The  judgment  under  appeal  accordingly  stands  

modified.

Before 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.”

It is 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.

Mr. Sanjay 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  

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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.   

The 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  

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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.  

We have 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.

Equally 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.

We  reproduce  herein  the  relevant  part  of  the  

order dated 16.7.1997:

“This  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.

This  officiating  arrangement  may  be  

terminated/removed to their original post at  

any  time  without  assigning  any  reason  

thereof.”

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A 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.

 We have also gone through the repealing clause in  

the  1993 Rules. Rule 35 which is the repealing clause  

reads as under:

“35.  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 repealed.

(2) 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.”

2

This Rule has to be read along with Rule 32 which  

is  the   transitional   clause.  This  Rule  too  is  

reproduced below:  

“32.  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

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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.”

Sub-Rule  (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  

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the observations in this matter his position will not be  

touched in any manner.

The appeals are allowed accordingly.

                   ................  .J.                (HARJIT SINGH BEDI)

                        . ..................J.

                                  (J.M.PANCHAL) New Delhi, September 15, 2009.