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Gauhati High Court · body

2009 DIGILAW 624 (GAU)

Bibhabananda Choudhury v. State of Assam

2009-09-01

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The order dated 25.3.2009 passed by the Gauhati Municipal Corporation ('the GMCH/Corporation'), as well as, the Gradation List of Asstt Engineers (Civil and Electrical) of the Corporation of the even dates based thereon, are in assailment in the instant proceeding. As during the pendency of the writ petition, the respondent No. 7 was promoted as Assistant Executive Engineer (Mechanical) by order dated 26.5.2009 by the said authority, the challenge has been extended thereto, as well, by an interim application registered as Miscellaneous Case No. 1368/2009. 2. I have heard Mr. H. Buragohain, Learned Counsel for the petitioners, Mr. H.K. Sarma, Learned Standing Counsel for the Corporation, Mr. R. Goswami, Learned Counsel for respondent No. 3 and Mr. D.C. Borah, Learned Counsel for respondent No. 7. 3. As the pleadings of the parties sufficiently project the rival stands to facilitate the adjudication of the issues raised, this petition is being disposed of at the admission stage. 4. The petitioners have claimed to have joined the Corporation in the year 1981 as diploma holder Jr. Engineers on being recommended by the Assam Municipal Public Service Commission ('the Commission'). In due course, they were promoted to the post of Asstt. Engineer in the year 1991 and assert to have regularized as such with effect from 26.11.1991. According to them, the private respondents were appointed as Asstt. Engineers with the Corporation on temporary/ad hoc basis under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation Act, 1951 ('the Regulations') initially for a period of four months between 1989 and 1990. This induction of the private respondents, the petitioners have averred, had been without any advertisement or in compliance of any process prescribed by law for public appointment. They admit that some of the said respondents were regularized as Asstt. Engineers, w.e.f. 20.6.1992 and 13.7.1997. They, therefore, assert that the respondents are all juniors to them in the cadre of Asstt. Engineer. They have complained that the authorities of the Corporation without finalizing the gradation list of Asstt. Engineers, have been promoting incumbents therefrom to the post Asstt. Executive Engineer on their own choice without heeding to their claims of superior seniority. They have stated that in the draft gradation lists, in which they were shown to be at higher positions over the respondents, the same eventually were not finalized. Engineers, have been promoting incumbents therefrom to the post Asstt. Executive Engineer on their own choice without heeding to their claims of superior seniority. They have stated that in the draft gradation lists, in which they were shown to be at higher positions over the respondents, the same eventually were not finalized. In the subsequent provisional gradation list of 2008, however, the private respondents were shown to be senior to them. With reference to respondent No. 7 the petitioners have asserted that not only his services in the post of Asstt. Engineer had not been regularized till the impugned order was passed, he was accommodated in a separate cadre of Mechanical Engineer created for him on extraneous considerations. As by the impugned order, the services of the private respondents in the post of Asstt. Engineer have been regularized with effect from the date of their initial ad hoc/temporary appointment under regulation 3(f), the petitioners seek judicial intervention for redress. 5. As the final gradation list of the same date is a consequence of the above determination, it is also under challenge on the same grounds. The petitioners have questioned the promotion of the respondent No. 7 to the post of Asstt. Executive Engineer (Mechanical) on the ground that it is impermissible in law, as not only his services as Asstt. Engineer remained to be regularized till 25.3.2009, considering the scheme of the Gauhati Municipal Corporation Engineering Service Rules, 2004 ('the Rules') rules which does not contemplate bifurcation of the posts on the basis of disciplines, the same could not have been done. 6. The Corporation, in its counter has pleaded that the petitioners were promoted temporarily to the post of Asstt. Engineer by order 26.11.1991 subject to their regularization by the Assam Public Service Commission ('the APSC') and that it was indeed only by the order impugned that the same was effected from the date(s) of their said promotion. According to the Corporation, respondent Nos. 3 to 7 all Graduate Engineers and were inducted as direct recruits. They have stated that while respondent Nos. 3 and 4 were inducted as direct recruits in the year 1989, the respondent Nos. 5 and 6 were appointed in the year 1990. The respondent Corporation has stated that respondent No. 7 was similarly appointed in the year 1992. 3 to 7 all Graduate Engineers and were inducted as direct recruits. They have stated that while respondent Nos. 3 and 4 were inducted as direct recruits in the year 1989, the respondent Nos. 5 and 6 were appointed in the year 1990. The respondent Corporation has stated that respondent No. 7 was similarly appointed in the year 1992. The Corporation has maintained that the services of the respondent No. 3 and 6 were approved by the APSC on 30.5.1992, following which the same was regularized by the Corporation by order dated 20.6.1992. The respondent Nos. 4 and 5 were regularized pursuant to the order dated 27.8.1996 passed by this Court in Civil Rule No. 1365/92 w.e.f. 13.3.1997. 7. The answering respondent has, thus, pleaded that the services of respondent Nos. 3, 4, 5 and 6 had been regularized as their names were placed above those of the petitioners in the provisional gradation list. According to the Corporation all promotions made hitherto to the post of Assistant Executive Engineers are on the basis of seniority and that the plea to the contrary is untenable, The Corporation has insisted that the impugned order dated 25.3.2009 by which the services of the petitioners and private respondents have been regularized with effect from the date(s) of their initial appointments/promotion to the post of Asstt. Engineer, has been by way of one time measure to streamline the existing state-of-affairs. 8. The respondent No. 3 in his separate affidavit, while substantially endorsing the stand of the Corporation, has emphatically contended that the services of the petitioners had not been regularized as claimed by them before the order impugned had been passed. According to the said respondent, their initial appointment was subject to regularization by the APSC, which did never follow. To the contrary based on the concurrence of the APSC, the service of the respondent No. 7 was regularized by order dated 20.6.1992 of the Corporation with effect from the date of his entry in service, i.e., 29.8.1989. This respondent has thus, endorsed the validity of the provisional gradation lists projecting him to be senior to the petitioners. According to him, the order dated 25.3.2009 having regard to the considerations on which the same is based, clarifies the one dated 20.6.1992 and that his services as Assistant Engineer stands regularized in unequivocal terms from the date of his initial appointment, i.e., 29.8.1989. According to him, the order dated 25.3.2009 having regard to the considerations on which the same is based, clarifies the one dated 20.6.1992 and that his services as Assistant Engineer stands regularized in unequivocal terms from the date of his initial appointment, i.e., 29.8.1989. By two separate affidavit-in-reply submitted by the petitioner, the petitioners while reiterating and reaffirming the statements made in the writ petition, have sought to bring on records amongst others, the orders of (1) regularization of their services as Jr. Engineers, (2) promotion to the post of Asstt. Engineer (Civil) and appointment of the respondent No. 3 as Asstt. Engineer for a period of four months. The provisional gradation list of 2004 has also been integrated in the said pleadings. 9. Mr. Buragohian, in the above state of pleadings, has urged that as the conditions of service of the parties are governed by the Rules, the criteria adopted by the respondent No. 1 for regularizing their services, is per se incontravention thereof, and, therefore, the impugned order ought to be interfered with. 10. The Learned Counsel has argued that as the services of the respondent Nos. 3 and 6 had been regularized with effect from 20.6.1992 and that of respondent Nos. 4 and 5 on and from 13.3.1997, they are apparently junior to the petitioners whose services stands regularized w.e.f. 26.11.1991 and, therefore, the impugned order is on the face of the records illegal and unsustainable in law. Consequentially, the final gradation list based thereon, is null and void. 11. Mr. Buragohain, has urged that a decision having been taken by the concerned authority of the Corporation to regularize the services of the respondent Nos. 3,4,5 and 6 with effect from dates aforementioned, the same could not have been altered and that too, to the prejudice to the petitioners and, thus, the impugned order on that count being arbitrary and discriminatory, is liable to be set aside. As the services of the private respondents till the date of their regularization in terms of the aforementioned order are ad hoc in nature, the same could not have been by any means included for the purpose of determination of the inter se seniority of the parties, he urged. 12. As the services of the private respondents till the date of their regularization in terms of the aforementioned order are ad hoc in nature, the same could not have been by any means included for the purpose of determination of the inter se seniority of the parties, he urged. 12. With reference to respondent No. 7, the Learned Counsel has argued that though his seniority has been rightly fixed reckoning his services w.e.f. 4.12.1992, in absence of any provision in the Rules, his accommodation in a separate gradation list on the basis of Mechanical discipline being wholly unauthorized, his promotion to the post of Asstt. Executive Engineer (Mechanical) ought to be nullified. 13. Mr. Sarma, Learned Standing Counsel for the Corporation referring to Section 67 and 72 of the Gauhati Municipal Corporation Act, 1971 ('the Act') has argued that as at the relevant time, the pay scale for the post of Asstt. Engineer of the Corporation exceeded Rs. 1,000 per month, appointment thereto was permissible only on the recommendation of the APSC. As admittedly, the promotion of the petitioners to the said post had not been done on the basis of such recommendation, their services were not regularized till the order dated 25.3.2009 was passed. In a way, therefore, the Learned Standing Counsel has urged that the petitioners have no locus standi to question the validity of impugned order and as a corollary the final gradation list based thereon. While admitting that the services of the respondent Nos. 3,4, 5 and 6 had been regularized on the basis of the recommendation of the APSC and/or the directions of this Court, inter alia, as contained in the order dated 5.9.2002 passed in Civil Rule No. 5096/98, WP(C) No. 5216/99 and WHO No. 6603/99, in order to set at rest the controversy bearing on the inter se seniority of the incumbents involved, an uniform yardstick of the date of the entry to the post was adopted and that, therefore, in the facts and circumstances of the case, the impugned decision ought not to be interfered with. As the inter se seniority has been fixed, thus, on the basis of length of regular service in the post or the Asstt. engineer, Mr. Sarma has urged that the impugned decision is unassailable in law and, therefore, the petition is liable to be dismissed. As the inter se seniority has been fixed, thus, on the basis of length of regular service in the post or the Asstt. engineer, Mr. Sarma has urged that the impugned decision is unassailable in law and, therefore, the petition is liable to be dismissed. He has submitted however that the enlistment of the respondent No. 7 in a separate gradation list of Assistant Engineer (Mechanical) has been on the instruction of the court and accordingly based on his seniority in that Branch has been promoted as Assistant Executive Engineer (Mechanical). 14. Mr. Goswami, supplementing the above, has argued that as the criteria adopted by the commissioner is fair, reasonable and logical, at this distant point of time, this Court would not in the exercise of its power of judicial review interfered therewith. According to the Learned Counsel, an administrative review of the earlier order of regularization being not unknown in law, the impugned order on that count, as well, cannot be impeached. According to him, the respondent No. 3 is presently the senior most Asstt. Engineer in the Corporation waiting for his turn to be promoted to the post of Asstt. Executive Engineer. 15. Mr. Borah, while generally supporting the other respondents present, has argued that as the respondent Corporation has drawn up a list of Asstt. Engineer (Mechanical) on the directions of the Government as contained in the letter dated 10.8.2004 (Annexure III to the affidavit-in-opposition of the Corporation), and that on the basis thereof, he in the meantime, hag promoted as Asstt. Executive Engineer (Mechanical), there is no reason why the impugned order or his promotion ought to be interfered with. 16. The rival pleadings and the arguments based thereon have been duly considered. Admittedly, the parties had been inducted in the service of the Corporation before the Rules had been brought into force by the notification dated 27.1.2004 published in the Assam Gazette of the same date. A reading of the Rules does not disclose any provision therein to deal with the issue of regularization of the existing incumbents. It is a matter of record, that the petitioners were initially appointed as Subordinate Engineers (Civil and Electrical) by the order dated 11.8.1981 and their services were regularized as such by order dated 19.9.1984. They were, thereafter, temporarily promoted to the post of Asstt. It is a matter of record, that the petitioners were initially appointed as Subordinate Engineers (Civil and Electrical) by the order dated 11.8.1981 and their services were regularized as such by order dated 19.9.1984. They were, thereafter, temporarily promoted to the post of Asstt. Engineer (Civil) with effect from the dates of their joining by order dated 26.11.1991 of the Corporation. The said order clearly specified that the said promotion was subject to the regularization by the APSC. This is inconformity with the prescriptions of Section 72(1) of the Act. There is nothing on record to establish that the said promotion of the petitioners thereafter had been endorsed by the recommendation of the APSC as required. 17. The order dated 29.8.1989 of the Commissioner of the Corporation appointing the respondent No. 3 as Asstt. Engineer (Civil) for a period of four months is on record. The records, further reveal the following dates of appointment of respondent Nos. 4, 5, 6 and 7 in the same post as hereunder: Respondent No. 4 - 5.9.1989, Respondent No. 5 - 21.7.1990, Respondent No. 6 - 8.8.1990, Respondent No. 7 - 4.12.1992. It is also a matter of record that by order dated 20.6.1992 the services of respondent Nos. 3 and 6, following the approval of the APSC were regularized with immediate effect. Similarly, by order dated 13.3.1997 of the Gauhati Municipal Corporation, Guwahati the services of respondent Nos. 4 and 5 alongwith one Sri Monoranjan Bharali were regularized in compliance of the order dated 27.8.1996 in Civil Rule No. 1365/1992. Noticeably, this was done in deference to the order of this Court, though the recommendation of the APSC, vis-à-vis, their services therefore was not available. Vis-à-vis respondent No. 7 is nothing on record, that prior to 25.3.2009 any decision had been taken by the Corporation to regularize his services. 18. A perusal of the provisional gradation list of the proximate post and the one impugned reveals that the respondent Nos. 3, 4, 5 and 6 had been assigned a higher positions than, that of the petitioners though, till then their services had been regularized from dates apparently after that of the induction of the petitioners as Asstt. Engineers. The respondent No. 7, however, was consistently allotted a slot below the petitioners and the respondent Nos. 3,4,5 and 6. Though the petitioners insist for superior seniority, vis-à-vis the respondent Nos. Engineers. The respondent No. 7, however, was consistently allotted a slot below the petitioners and the respondent Nos. 3,4,5 and 6. Though the petitioners insist for superior seniority, vis-à-vis the respondent Nos. 3, 4, 5 and 6 on the ground that the date of their promotion as Asstt. Engineers thereto is 26.11.1991, in view of the demonstrable fact, that their said promotion was sans the recommendation of the APSC as required by Section 72(1) of the Act, this plea cannot be sustained. This is clearly, reinforced by the rider accompanying their order of promotion making it subject to the recommendation of the said constitutional entity. Therefore, on the date of the passing of the impugned order, whereas the services of the respondent Nos. 3, 4, 5 and 6 stood regularize by the order dated 20.6.1992/13.3.1997, there was none for the petitioners. 19. As the plain reading of the impugned order dated 25.3.2009 would reveal, the Commissioner of the Corporation by consciously taking note of the factual background as a whole decided to regularize the services of the concerned incumbents in the post of Asstt. Engineer with effect from their respective dates of joining the said post. The said respondent-authority resorted to the said measure being aware that the promotion of the petitioners to the post of Asstt. Engineers had not been made on the recommendation of the APSC as mandated by Section 72(1) of the Act and that the services of the respondent Nos. 3, 4, 5 and 6 in fact, had been regularized by order dated 20.6.1992 and 13.3.1997. The said authority as the order discloses was also conscious of the decisions of this Court directing the regularization of the services of the incumbents who had meanwhile put in continuous service of more than eight to nine years. The Commissioner of the Corporation in the above premise, in order to resolve the simmering dispute decided to apply the yardstick of the date of initial entry to the post of Asstt. Engineer for the purpose of regularization of the services of the parties in the said post. In absence of any provision to the contrary in the Rules and having regard to the factual backdrop as narrated hereinabove, this Court is unable to persuade itself to sustain the petitioners plea of invalidating of such approach as arbitrary, illogical or illegal. Engineer for the purpose of regularization of the services of the parties in the said post. In absence of any provision to the contrary in the Rules and having regard to the factual backdrop as narrated hereinabove, this Court is unable to persuade itself to sustain the petitioners plea of invalidating of such approach as arbitrary, illogical or illegal. True it is, that the order dated 20.6.1992 and 13.3.1997 of the same authority permits an interpretation that the regularization of the services of respondent Nos. 3, 4, 5 and 6 was intended to be effected from the dates thereof, in absence of any specific indication in that regard, in the estimate of this Court, in the unique facts and circumstances of the case, the course adopted by the Commissioner of the Corporation cannot be per se repudiated as absurd, unfair or unjust to warrant interference therewith in the exercise of this Court's power of judicial review. Instances of administrative review, though rare are not unknown in administrative law, and having regard to the ultimate objective sought to be achieved, in the organizational interest and efficiency, the impugned order in the opinion of this Court cannot be faulted with. As the respondent Nos. 3 to 6 had been appointed initially under regulation 3(f) of the Regulations, they cannot be construed to be ad hoc appointees and, thus, the decision of the Apex Court in Vijay K. Dhand v. State of Punjab, (2004) 13 SCC 707 dealing with ad hoc services of the incumbents is of no avail to the petitioners. The impugnment of the order dated 25.3.2009 and the gradation list, therefore, fails. 20. A scrutiny of the Rules, per se does not demonstrate categorization of the encadered posts on the basis of disciplines, i.e., Civil, Electrical, and Mechanical. Schedule II thereto, which sets out the categories of posts, and other particulars related thereto, also do not admit of any such sectional bifurcation. To be specific, there is no post designated as Asstt. Engineer (Mechanical) and for that matter, Asstt. Executive Engineer (Mechanical). Schedule II thereto, which sets out the categories of posts, and other particulars related thereto, also do not admit of any such sectional bifurcation. To be specific, there is no post designated as Asstt. Engineer (Mechanical) and for that matter, Asstt. Executive Engineer (Mechanical). Though the respondent Corporation has endeavoured to justify this compartmentalization on the basis of a letter dated 10.8.2004 of the Deputy Secretary, to the Government of Assam, Guwahati Development Department, in absence of any provision in the Rules authorizing such segregation on the basis of disciplines, the consequential steps taken by it (Corporation) being not approved by the Rules cannot be sustained. The minutes of the meeting of the council of Administrators of the Corporation taken on 19.12.2003 records, in resolution No. 6, the decision to promote the respondent No. 7 to the next higher post being considered to be the only Mechanical Engineer. Incidentally, a seniority list of Asstt. Engineer (Mechanical) was published after the impugned order was passed reflecting the names of the respondent No. 7 and one Md. Abdul Karim Chaudhury at Sl, Nos. 1 and 2. Noticeably, though, the above resolution was taken far back as on 17.12.2003 it is only on 26.5.2009 that the same was implemented and the respondent No. 7 was promoted to the post of Asstt. Executive Engineer (Mechanical) thereby. In view of the above determination against the permissibility and/or the validity of branching the posts on the basis of disciplines, the seniority list of Asstt. Engineers (Mechanical) cannot be approved. This list being manifestly against the framework of the Rules is, therefore, to be construed as non est in law. In the result, while the impugned order dated 25.3.2009 and the final Gradation List based thereon are upheld, the seniority list of Asstt. Engineer (Mechanical), as well as the promotion of the respondent No. 7 to the post of Asstt. Executive Engineer (Mechanical) are hereby set aside. 21. In passing this order, this Court is not oblivious of the fact that the challenge to the promotion of respondent No. 7 has been made in an interim application in the above proceeding. However, considering the fact that this development had occurred during the pendency of the writ petition in hand, this Court to avoid multiplicity of litigations has entertained the assailment in the form presented. The petition, therefore, is partly allowed in the above terms. No costs.