JUDGMENT
1. This writ petition has been preferred for issue of a writ of Mandamus/Certiorari for quashing the promotion order of the private respondent Nos. 8 to 12 and the gradation list of Group ‘B’ Officers of the Agriculture Department, Arunachal Pradesh, along with other consequential reliefs.
2. Petitioners’ case in brief is that they were duly selected and appointed as Agriculture Inspector, Horticulture Inspector, Plant Protection Inspector (Grade ‘C’) vide appointment orders passed on 1-2-1979, 24-4-1980. 28-10-1983 and 30-7-1984. The respondent authority also vide notification dated 30-5-1989 (Annexure – 2) upgraded the status of Agriculature Inspector/ Extension Officer/Agriculture Manager/Technical Assistant/ Horticulture Inspector and Plant Protection inspector having degree in Agriculture from Group ‘C’ to Group ‘B’ (Gazetted status). The respondent authority were promoting the Inspectors in various branches mentioned above to the next higher grade as per gradation list prepared and published on 23-12-1988 and corrected vide corrigendum dated 21-7-1990. The practice of promotion on the basis of seniority as per gradation list was given a go-bye vide the impugned order dated 2-7-1996 whereby the respondents authority
promoted some officers arbitrarily in total disregard to the seniority list and the service rules.
3. On 11th October, 1989 the State Government issued an order to the effect that pending formal and complete separation of the cstablsihment of the Department of Agriculture and Horticulture, the Gazetted Officers of both the Departments will continue to be in a common care and their service records will be maintained in the Department of Agriculture. Thereafter, the department of Agriculture and Horticulture were bifurcated and the officers of the combined gradation list were asked to exercise their option by a W.T. message issued on 8.2.1991. All the petitioners exercised their option for the department of Horticulture. In a meeting held in the office of the Chief Secretary on 19.3.1992, it was decided that combined inter-se-seniority as approved would continue. It was further decided that the officers who have already opted for either of the department and working in that department would continue to serve in that department. It was further decided that if any of such officers opt for change of department, such option will be accepted subject to the availability of the vacancy and on condition that he would be placed as junior most in that department. It is alleged that though the petitioners exercised their option for Horticulture Department, they were not placed under the Horticulture Department. The respondent authorities have made transfer and placement to Horticulture Department by pick and choose policy placing the junior officers of the combined cadre to Horticulture-Department and by now they are enjoying higher status and rank than the petitioners who are senior to them. The junior officers placed in the Horticulture Department have also been promoted to the next higher grade. The director of Agriculture brought this anomalies to the notice of t he Government vide letters dated 123-5-1993 and 20-6-1993. The petitioners during the period between 1992 and 1995 have been promoted to Group-‘B’ senior (Category-4) technical from group ‘B’ juniorpost. but their promotion to Group-‘A’ (Category 3) has become long due. The petitioners individually submitted representation on 8-3-1996 in protest against the illegal procedure of promotion ignoring legitimate claim of the petitioners. Thereafter on 8-3-1996, the Development Commissioner circulated provisional gradation list of Group -‘B’ (senior) officers only of the Agriculture Department with a direction to the concerned officers to communicate their acceptance of the list within 30 days. All the petitioners objected to the said list which was prepared in violation of the combined seniority list of both the departments. But, nothing has done by the respondents to correct
the irregularity committed. That apart, the petitioners also deny the formal separation of the Departments of Agriculture and Horticulture and challenged the method and procedure of placement and subsequent promotion of junior officers which according to them are in violation of the provisions of Rules 8 and 9 of the Arunachal Pradesh Agriculature/Horticulture Service Rules, 1989. According to them, the promotion to the category 3 (Group-A post) ought to have been made from the officers of the category-IV (Group-‘B’). Being aggrieved thereby, the petitioners have filed this writ petition challenging the promotion orders of private respondents (Annexure – 9) and the provisional gradation list (Annexure – 11A).
4. The respondent State in their counter affidavit while denying allegation of pick and choose policy allegedly adopted in (he placement of officers to Horticulture Department submits that as a majority of officers have opted for Horticulture Department, it was not possible to accommodate them in the Horticulature Department due to limitation of post. As such, considering the past experience and qualification and other services particulars, placement of officers were made by notification dated 14-5-1993. Services of Sarbashri Rakesh Kumar, Lalji Singh, SK. S. Goutam, N. Tanti and T. Tatung were placed under the Horticulture Department, although they were junior in the combined gradation list. On the basis of their Seniority in the bifurcated Horticulture Department, they were given ad hoc promotion to the next higher grade to meet the urgent need of the department and as such the promotion of the junior officers named above cannot be considered as irregular. In view of this, the petitioners whose services were placed with the Agriculture Department have no right to challenge the aforesaid promotion order. That apart, officers, namely, S.S, Mishra, D.P. Sonar, J. Dutta Roy and Dr. A Tage who were much senior in the combined seniority list are still continuing as Joint Director and Dy. Director in the Horticulture Department. The apprehension of the writ petitioners that their scope of promotion in the Agriculture department is limited is not correct. It has also been denied that the respondents have received any representation from the writ petitioners as stated in para 9. The representation allegedly submitted on 8-3-1996 was on the fact of it after lapse of a period of 5 years cannot be considered to mitigate their grievances which will otherwise unsettle the settled position. Because of this delay, it is pleaded that the petition under Article 226 cannot be maintained. It is further pleaded that the Department was bifurcated in 1998 followed by a notification on 14.5.1993. The
officers placed at the Horticulture Department became a separate and distinct cadre having no link with the officers of the Agriculture department. Therefore, the impugned provisional gradation list of officers of the Agriculture department cannot legally challenged. The petitioners being officers of the Agriculture Department cannot have any say in any matter of Horticulture Department. The seniority list of the officers published vide notification dated 8.3.1996 cannot as well as be disputed by them. It has also been denied that there was no formal notification of bifurcation of the departments as alleged and that seniority alone cannot be the determining factor for placement of officers. The Service Rules for both Agriculture and Horticulture Department of 1989 was not given effect to in view of objection raised by the Public Service Commission. The Government had to frame draft Rules in the year 1992 and, in the meantime, promotion and appointments were separately made in both the departments which would be clear from the order at Annexure-15 of the writ petition. The seniority list of the direct appointees aswell to the cadre of the Extension Officers is being maintained separately strictly in accordance with the merit list prepared by the State Public Service Commission for both the Agriculture and Horticulture Departments. As such the combined seniority list is of no relevance.
5. The petitioners in their affidavit-in-reply reiterated the stand taken by them in the writ petition challenging the bifurcation of the department. It is submitted that the notification No. PD/ES-38/88 dated 29-9-1998 was not published in the Official Gazette and not made public. The order dated 11-10-1989 (Annexure-3) clearly indicates that it was issued pending formal and complete separation of the establishment of the Agriculture and Horticulture department an the officers in Agriculture and Horticulture department would continue to be a common cadre. In violation thereof and ignoring the option exercised by the petitioners, the authorities posted officers of their choice to the Horticulture department. Even the minutes of the meeting dated 19-3-1992 regarding combined seniority list have not been followed. According to them, if past experience and qualification were determining factor for placement of officers, in such a case the petitioners ought to have given preference for placement at the disposal of the Horticulture department. They also challenge the ad hoc appointment/promotion as discriminatory as it was not done in a proper manner as per Rule. The writ petitioners also reiterated that they have made representation individually before the authorities on 8-3-1996.
6. I have heard Mr. A.S. Choudhury, Learned counsel for the petitioners and Mr. D.S. Bhattacherjee, Learned Govt. Advocate, Arunachal Pradesh.
7. It would appear from the pleadings that the dispute is mainly related to the bifurcation of the Department of Agriculture and Horticulture into two departments and subsequent placement of officers in the Horticulture department, Therefore, it has to be seen whether there has been Bifurcation of the department or whether a decision to bifurcate the department had been taken and given effect to, and whether the option exercised by the petitioners and other similarly situated officers have properly dealt with or not.
8. According to the writ petitioners, no formal notice of bifurcation was issued, and minutes of the meeting held in the office of the Chief Secretary on 19.3.1992 to continue with the combined inter-se-seniority has not been followed. It is, therefore, necessary to refer to the notification of bifurcation which was issued on 30th September, 1993. The notification shows that the Horticulture Wing was separated from the department of Agriculture and an independent department of Horticulture was created with effect from 1st October, 1988. It appears that a copy of this notification has been marked for publication in the Official Gazette. The petitioners challenged the publication of this notification raising doubt thereof. The respondents also did not produce the copy of Gazette notification to show that it was published in the Official Gazette. The learned counsel for the petitioners relying on Annexure-3, an order dated 11th October, 1989 submits that recital in this order shows that certain arrangements were made for maintenance of service record etc. pending formal and complete separation of the department of Agriculture and Horticulture.
In this notification, it has been made clear that the Gazetted Officers of both the departments would continue to be in a common-cadre and the service records will be maintained in the Department of Agriculture. Clause (c) of the notification further provides that there will be inter change of the officers of the two departments. But by the W.T. Message (Annexure-4) issued by the Deputy Director of Agriculture (Information) on 8th February, 1991, options of the officers were sought for their placement in either of the departments. Although the gazette copy of the notification issued in 1988 is not before us, these two documents (Annexure – 3 and 4 ) clearly show that there was a decision to bifurcate the Department of Agriculture and Horticulture into two separate establishments and the said
decision was given effect to, and that is why the officers were asked to exercise their option vide W.T. Message dated 8th February, 1991. In union of India v. S.L. Dutta 1991 (2) SLJ (SC) 90, the Supreme Court held that that High Court should rarely interfere where the validity of the policy is involved. In the instant case, the decision to bifurcate the Department of Agriculture and Horticulture into two separate establishments was a policy decision of the State Government and, as such, this Court is not inclined to interfere with the said decision merely on the ground that there was no publication of the notification in the Official Gazette.
9. It would appear from the pleadings that all the petitioners in persuance of the W.T. Message dated 8th February, 1991 exercised option for placement under the newly created Department of Horticulture. Their main grievance is that ignoring options exercised by them, the authorities resorted to pick and choose policy and placed the officers much junior in rank to the writ petitioners at the disposal of the Horticulture department violating the legal rights of the writ petitioners for placement at the disposal of Horticulture Department.
10. There is no denial to the claim made by the writ petitioners that all of them have exercised option for placement in the Horticulture Department. The respondent-State tried to justify the placement of junior officers on the ground that the selection was made on the basis of the qualification, past experience and service record. This calls for a decision as to whether when a department is separated into two separate departments, the officers of a particular grade having equal qualification and enjoying same rank and status, could be considered for placement in either of the two newly created departments to occupy the same position and status on the basis of their qualification, past experience and service record ; or whether the option has to be disposed of on the basis of seniority alone.
11. In the opinion of this Court, the placement of officers after bifurcation has to be primarily on the basis of option exercised and the inter-se-seniority of the officers concerned. The question of selection does not arise in the matter of placement unless the posts on the newly created establishment require any additional qualification as a condition precedent for placement. In the instant case, we do not find anything on record to show that the posts of Inspector and other posts of equal rank in the newly created Horticulture Department was meant to be manned by specially
qualified persons. That being so, the question of selection appears to be redundant. The placement had to be made on the basis of option considering the seniority of the officers subject to availability of vacancy in the department. It is not the case of the Government that all the writ petitioners were considered and found unsuitable for placement with the Horticulture Department. The Government decision ordering placement of officers at the disposal of Horticulture Department communicated vide order dated 14th May, 1993 does not appear to be in keeping with the established norms. The placement of as many as 60 officers made by the aforesaid order dated 14.5.1993 includes some junior officers. This order in the given situation cannot but be depricated as arbitrary and capricious. That apart, the decision taken on 19.3.1992 in the office of the Chief Secretary to the effect that the officers of the combined wing cadre already serving in the Horticulture Wing would continue in that is also not legally acceptable.
12. The petitioners have been Insisting that combined seniority list which was decided to be followed in the meeting held on 19.3.1992 is still in force and, as such, the promotion of the private respondents to the next higher grade in the Horticulture Department being in violation of Rule 9 of the Arunachal Pradesh Agricultural / Horticulture Service Rules, 1989 has to be quashed. The contention of the writ petitioners will automatically stand vindicated if the order of placement is disturbed. If the placement of the officers under the Department of Horticulture remains undisturbed, it becomes conclusive of the fact that combined seniority list was no longer required to be followed. The validity of the ad hoc promotion of the private respondents is co-extensive with the validity of the placement of officers. If the placement is interferred with, all subsequent actions in promoting the private respondents on ad hoc basis will naturally have to suffer a change.
13. In this writ petition, the petitioners have challenged the order of promotion of the private respondents and the gradation list of Group-‘B’ officers of Agriculture Department circulated on 8.3.1996. It would appear that the placement order made on 15th May, 1993 has not been challenged. However, this Court has the powers in exercise of its jurisdiction under Article 226 to travel beyond the prayers to do complete justice in appropriate cases. The writ petition has been filed in the month of January, 1997. There is a lapse of 3 years and 6 moths from the date of issue of the placement order. On this context it has to be considered whether this Court should turn down the prayer of the writ petitioners on the ground of delay alone.
14. The learned counsel for the State of Arunachal Pradesh relied on the decision in Raj Bhushan Gandhi v. Secretary, Haryana State Electricity Board and another, 1994 SCC (L&S) 407 and in Sachindra Bijoy Chakraborry v. Union of India and others, GLR (1982) 1 NOC 26. The ratio laid down in Sachindra Bijoy Chakraborry (supra) by this Court is that the law does not assist a person who is inactive and sleeps over his right when infringed or disputed and remain dormant without asserting them in a Court of law. To this, the learned counsel for the writ petitioners, however, contended that the writ petitioners submitted representations on 8.3.96 which were not disposed of by the respondent-State. In their counter-affidavit, the state has denied to have received any such representation. The petitioners have submitted copies of some documents marked as Annexures-12 and 13. Annexure-12 is the copy of one of such representations. Annexure-13 is the forwarding letter wherefrom we find that ten such representations were forwarded to the Director of Agriculture. Therefore, it is clear that the representations were submitted by the writ petitioners refusing to accept the seniority list of Group-‘B’ senior officers in the month of March, 1996. But no representation appears to have been filed against the order of placement. The writ petition was filed after 3 (three) years 6 (six) months from the date of issue of placement order. The question is whether this delay would operate as an obsolute bar.
15. Before the question of delay is dealt with, it is necessary to dispose of the objection to the effect that the order of placement is not in challenge and, therefore, no relief can be given by this Court. It has already been observed hereinbefore that the order of placement of officers was passed in a capricious and arbitrary manner. This has resulted into infringement of the right of the writ petitioners and future prospect in the service. The constitution guarantees equal protection which otherwise means the right to equal treatment in similar circumstances both in privileges conferred and in the liabilities imposed. In the instant case, by resorting to pick and choose policy, the authorities have violated the right of the writ petitioners to equal treatment. The Courts of law have always attempted to ensure that the paramount consideration of justice is not defeated by undue adherance to technicalities. The Court has to come forward to redress the grievances of the victim of injustice. Therefore, in order to do complete justice to the writ petitioners, I consider this petition as an appropriate case where this Court is to mould the reliefs consistent with the parameter of the constitutions and the law in
order to remove the injustice done. Therefore, the omission on the part of the writ petitioners to seek direction setting aside the order of placement is not being treated as a bar.
16. The question remains to be answered whether the delay of 3 years 6 months in filing the writ petition will stand on the way. In this connection, we may quote the following passage from Lindsay Petroleum company v. Prosper Armstrong Hurd etc. ; (1874) 5 P.C.
221 :-
“Now the doctrine of laches in Court of Equity is not an arbitrary of technical doctrine. Where it would be practically unjust to give a remedy either because the party has by his conduct done that which might fairly be regarded as equivalent to a waiver of it. or where by his conduct and neglect he has though perhaps not waving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most materials. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”
The above ratio was approve’d by the Supreme Court in Moon Mills Ltd. v. Industrial Courts, AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, AIR 1969 SC 329. The length of delay and the nature of acts done during the interval are the most important factors to be taken into consideration a writ petition challenged on the ground of delay. At this stage, we may recall the stand taken by the State Government in the affidavit-in-opposition. It has been pleaded that ad hoc promotions to some officers were given in the Horticulture Department to meet the immediate necessity of administration. Except this, I do not find anything in the affidavit-in-opposition which may be considered as an obstacle to the recycling of the process of placement of officers in accordance with individual option exercised by them. As the ad hoc promotions were made to meet the immediate administrative requirement, this Court is also in the opinion that any order directing re-consideration of the replacement of officers will not create any serious administrative problem. On this context, the delay of 3 years 6 months cannot be
treated as a bar in the given circumstances of this case. Annexure-6 and 7 issued by the Director of Agriculture shows that authorities were reminded of the anomalies in respect of bifurcation and placement of officers, Inspite of this, the authorities remained silent and did nothing to correct the wrong action on their part cannot be shielded on the ground of delay alone.
17. In the result, the writ petition is allowed. The placement order dated 15th May, 1993 and the seniority list of Group-‘B’ officers are hereby quashed. The ad hoc promotions of the private respondents are not being disturbed since it is made on public exigencies. The respondents are directed to reconsider the option exercised by the officers of the combined department including the writ petitioners in the light of the observation made hereinbefore and to place their services at the disposal of either of the department in accordance with law. On completion of the process of placement, the respondents-shall consider filling up of the next higher grade by promotion in accordance with merit and seniority. Till then, the private-respondents who are on ad hoc promotion are allowed to continue.
18. No costs.