ZAKI AHMED Vs. LIEUTENANT GOVERNOR

JUDGEMENT

(1.) THIS writ petition has been taken out by the petitioner challenging the order No.1402 dated 11th May, 2001 passed by the respondent No.5 whereby and whereunder the private respondent was promoted to the post of Assistant Engineer(Electrical).

(2.) THIS case has a chequered history. The parties have approached this Court and were subjected to several round of litigation. It is undisputed that the petitioner was appointed as Junior Engineer under the Municipal Council, Port Blair on temporary and ad hoc basis. Subsequently, the petitioner was promoted as Assistant Engineer (E&M) on ad hoc basis initially for a period of six months which was extended from time to time. The said appointment was subsequently regularized as per Order No.674 dated 18.02.2004. The private respondent was also ad hoc appointee and appointed w.e.f. 04th December, 1992. Subsequently, the authorities promoted certain candidates by excluding the candidature of the private respondent which constrained him to approach this Court by filing the Writ Petition being W.P. No.82 of 2000. According to the private respondent, the selection for promotion was selective and the authorities did not consider his candidature and therefore has acted in gross violation of Articles 14 and 16 of the Constitution of India. The Hon'ble Single Bench by its judgement dated 10th August, 2000 set aside the appointment of the selective candidate as the same was in contravention to the recruitment rules. The mandamus appeal, against the said judgement and order preferred by the private respondents, came up for consideration before the Division Bench of this Court. While disposing of the said mandamus appeal on 13.12.2000, the Division Bench recorded the submission made on behalf of the official respondents to the effect that the recruitment rules as referred and relied upon by the Hon'ble Single Bench are yet to be notified under the provisions of law. While notifying Clause 11(eleven) of the said Recruitment Rules it was categorically observed that it does not provide for a promotion in the post of Assistant Engineer (Electrical) of a Junior Engineer(Mechanical) and directed the respondent concerned to constitute a Departmental Promotion Committee for such promotion upon consideration of eligible Junior Engineers(Electrical) as the aforesaid Recruitment Rules had not been notified as yet. In spite of the aforesaid direction, the authority concerned did not venture to call upon all the eligible candidates who are entitled for such promotional posts which led to filing of a Contempt Petition before this Court being CPAN No.009 of 2001. The said Contempt Petition was disposed of with the following orders which read thus:-

(3.) HE further submits that there is sufficient explanation in the Writ Petition which occasioned the delay in challenging the impugned order and as such the writ petitioner cannot be a guilty of delay in approaching the Court. Lastly, he submits that since the petitioner was always kept above the private respondent in order of seniority there was no occasion to challenge the order of regularization of the appointment of the private respondent. It is only after the judgement and order dated November 25, 2010 passed in W.P. No.335 of 2007 by which this Court directed the re-fixation of the seniority list on the basis of a substantive order of promotion the petitioner felt aggrieved by an order of regularization of an appointment of the private respondent.