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2014 DIGILAW 885 (GAU)

Abu Fateh Ahmed v. State of Assam

2014-09-18

UJJAL BHUYAN

body2014
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. S.K. Goswami, learned counsel for the petitioners and Dr. B Ahmed, learned Standing Counsel, Irrigation Department, Assam for respondent Nos. 1, 2 & 3. Also heard Mr. B Banerjee, learned counsel appearing for respondent Nos. 4 to 17 and Mr. J Roy, learned counsel for respondent Nos. 18 to 20. By way of this petition under Article 226 of the Constitution of India, petitioners seek quashing of seniority assigned to respondent Nos. 4 to 17 in the rank of Assistant Engineer (Mechanical) in the Irrigation Department, Govt. of Assam above the petitioners. Petitioners further seek a direction to the respondents to restore their seniority above the respondent Nos. 4 to 17. 2. Challenge made in this writ petition is to the notification dated 13.05.2013, issued by the Secretary to the Govt. of Assam, Irrigation Department, whereby respondent Nos. 4 to 17 have been placed at Sl. Nos. 5 to 18 in the inter-se seniority list of Assistant Engineer (Mechanical) above the petitioners at Sl. Nos. 19 & 20. According to the petitioners, respondent Nos. 4 to 17 were serving as Assistant Engineers in the Assam State Minor Irrigation Development Corporation (ASMIDC), which, for various reasons, became defunct. Following signing of Memorandum of Understanding (MoU), State Govt. issued notification dated 13.05.2005 absorbing 262 numbers of employees of ASMIDC in the Irrigation Department in equivalent cadres on condition that their seniority would be fixed below the incumbents in the respective cadres of the Irrigation Department. It is the contention of the petitioners that in violation of such condition, respondent Nos. 4 to 17 have been wrongly assigned higher seniority above the petitioners. Hence the writ petition. 3. This Court by order dated 23.07.2013 had issued notice and had passed an interim order to the effect that no promotion should be carried out on the basis of the impugned gradation list dated 13.05.2013. 4. Respondent Nos. 4 to 17 have filed an application for modification of the aforesaid order dated 23.07.2013. The said application has been registered as MC No. 2911/2013. On 23.05.2014 an order was passed in the said MC No. 2911/2013 that the misc. case would he heard along with the main writ petition. Accordingly, misc. case filed by respondent Nos. 4 to 17 is being heard along with the writ petition and the stand taken in the misc. The said application has been registered as MC No. 2911/2013. On 23.05.2014 an order was passed in the said MC No. 2911/2013 that the misc. case would he heard along with the main writ petition. Accordingly, misc. case filed by respondent Nos. 4 to 17 is being heard along with the writ petition and the stand taken in the misc. application is being treated as the stand of the respondent Nos. 4 to 17 in the writ proceeding. 5. Writ petitioners have filed their objection to the misc. application filed by respondent Nos. 4 to 17. 6. Mr. Goswami, learned counsel for the petitioners submits that petitioners were initially appointed as Junior Engineer and after attaining eligibility by acquiring higher qualification, they were promoted to the post of Assistant Engineer though belatedly. Petitioner No. 1 was promoted on 09.09.2005, whereas petitioner No. 2 was promoted on 10.01.2006, but following intervention of this Court, date of promotion of the petitioner No. 2 would be deemed to be 09.09.2005 i.e., the date of promotion of petitioner No. 1. He submits that respondent Nos. 4 to 17 on their absorption in the cadre of Assistant Engineer in the Irrigation Department following MoU, had joined on various dates between 29.10.2005 to 03.07.2006 i.e., after the petitioners. Therefore, they were rightly placed below the petitioners in the initial gradation list. Government of Assam had taken a decision on 20.02.2010 that the Assistant Engineers who stood absorbed in the Irrigation Department from the ASMIDC, would be treated to have joined their services in the Irrigation Department as on 01.07.2005 for the purpose of conferring them financial benefits, such as, salary, pension etc. It was not done to confer seniority to them. To buttress his point, learned counsel for the petitioners picks up the example of respondent No. 4 and submits that his actual joining date is 03.07.2006; when he had not rendered service as Assistant Engineer in the Irrigation Department from 01.07.2005, his seniority cannot be counted from the notional date of 01.07.2005. Respondent Nos. 5 to 17 are also similarly placed like respondent No. 4. He, therefore, submits that assignment of higher seniority to respondent Nos. 4 to 17 above the petitioners is illegal and requires interference by this Court. Mr. Goswami also submits that respondent Nos. Respondent Nos. 5 to 17 are also similarly placed like respondent No. 4. He, therefore, submits that assignment of higher seniority to respondent Nos. 4 to 17 above the petitioners is illegal and requires interference by this Court. Mr. Goswami also submits that respondent Nos. 4 to 17 were required to submit an undertaking at the time of absorption that in future they would not claim seniority over the existing officers. Therefore, they are barred from questioning seniority of the petitioners. 7. Mr. Banerjee, learned Senior Counsel for respondent Nos. 4 to 17 on the other hand raises question mark over the promotion of the petitioners to the post of Assistant Engineer. He argued that initial entry into the service by the petitioners as Junior Engineer was illegal not being in conformity with the Rules and, therefore, petitioners cannot seek further benefit on the strength of such entry into the service. Referring to the provisions of Assam Engineering (Irrigation Department) Service Rules, 1978, particularly Rules 11(5) and 22 thereof, he submits that promotion of the petitioners to the post of Assistant Engineer has to be treated as direct recruitment and a promotee is to be considered senior to a direct recruit. He submits that there is no error in the decision of the authorities to treat them to be in the service of the Irrigation Department w.e.f. 01.07.2005, as any other view taken, would be contrary to the intention of the executive authority and cause prejudice to respondent Nos. 4 to 17. 8. Mr. J. Roy, learned counsel for respondent Nos. 18, 19 and 20 submits that the said respondents are admittedly senior to both the petitioners and respondent Nos. 4 to 17. Interim order of this Court is coming in the way of their promotion. Therefore, the interim order should be vacated. 9. Dr. B Ahmed, learned Standing Counsel, Irrigation Department supports the stand of the department and submits that no interference is called for in the impugned gradation list dated 13.05.2013. 10. Submissions made have been considered. 11. I have also perused the documents placed on record. It is seen that petitioner No. 1 was promoted to the post of Assistant Engineer on 09.09.2005. 10. Submissions made have been considered. 11. I have also perused the documents placed on record. It is seen that petitioner No. 1 was promoted to the post of Assistant Engineer on 09.09.2005. Though petitioner No. 2 was so promoted on 10.01.2006, he filed a writ petition before this Court being WP(C) No. 2318/2012, in which a direction was issued by this Court on 07.09.2012 that promotion of petitioner No. 2 should be deemed to have taken effect from the date on which petitioner No. 1 was promoted and, thereafter, all consequential benefits should be conferred on him, including seniority, promotion, fixation of pay etc. Therefore, for all intent and purpose, the date of promotion of the petitioner No. 2 to the post of Assistant Engineer would be 09.09.2005 i.e., the date of promotion of petitioner No. 1. There is no material on record to suggest or to show that any challenge was made to the appointment of the petitioners either as Junior Engineer or as Assistant Engineer. In the absence of any challenge, the arguments advanced by Mr. Banerjee that petitioners' initial entry was illegal, cannot be entertained. In any case, the documents on record show that petitioners were appointed as Junior Engineer on the basis of recommendation by the Assam Public Service Commission (APSC). 12. For various reasons, which need not be gone into in the present proceeding, ASMIDC had to be closed down and following a policy decision, it was decided to absorb 262 numbers of employees of ASMIDC in the Irrigation Department against the corresponding cadres. In this connection Govt. notification dated 13.05.2005 was issued. As per Clause 1 of the said notification, it is stated that inter-se seniority of the former employees of ASMIDC after absorption would be fixed below the existing incumbents in the respective cadres of Irrigation Department. As per clause 4, it was provided that the former employees of ASMIDC on their absorption would have to sign an undertaking individually that they would not claim seniority in the Irrigation Department based on the past services rendered by them in the ASMIDC. 13. A careful reading of this notification would show that on their absorption, the former employees of ASMIDC would start their service on a clean slate in the Irrigation Department. Their seniority would commence on their absorption in the Irrigation Department. 13. A careful reading of this notification would show that on their absorption, the former employees of ASMIDC would start their service on a clean slate in the Irrigation Department. Their seniority would commence on their absorption in the Irrigation Department. To avoid any future complicacies or dispute between the existing employees and the former employees of ASMIDC, who were being absorbed, it was clearly provided that the latter would have to sign individual undertakings that they would not claim their past services for counting their seniority in the Irrigation Department. 14. Government in the Irrigation Department took a further decision communicated vide letter dated 20.02.2010 that the date of joining of the Assistant Engineers on absorption from ASMIDC would be uniformly taken as 01.07.2005 instead of their actual dates of joining for the purpose of allowing financial benefits i.e., salary, pension etc. w.e.f. 01.07.2005. The rationale behind such a decision appears to be that there should be uniformity in the financial benefits received by the former employees of ASMIDC on their absorption. 15. It was thereafter that Govt. notification dated 26.10.2010 was issued treating the respective dates of joining of respondent Nos. 4 to 17 and similar others, who had joined Irrigation Department on absorption, as 01.07.2005 instead of the dates of actual joining. Interestingly, in the notification dated 26.10.2010, it was not mentioned that the date 01.07.2005 was being taken as a notional date of joining only for the purpose of conferring financial benefits, such as, salary, pension etc. As can be seen from this notification itself, respondent Nos. 4 to 17 had actually joined on their absorption on various dates starting from 29.10.2005 to 03.07.2006. 16. It appears that a meeting was held much earlier on 12.11.2003, which was presided over by the Secretary of the Irrigation Department, to discuss issues relating to fixation of seniority and other allied matters of the former employees of ASMIDC now absorbed in the Irrigation Department. In the said meeting, it was decided, amongst others that the seniority of the absorbed employees would be counted from the dates of their joining in the Irrigation Department, but they will get their pay protection as admissible as per Rules and norms. A copy of the minutes of the said meeting has been placed on record by the petitioners as Annexure-II to their objection. 17. A conjoint reading of the Govt. A copy of the minutes of the said meeting has been placed on record by the petitioners as Annexure-II to their objection. 17. A conjoint reading of the Govt. notification dated 13.05.2005, departmental letter dated 20.02.2010 and the minutes of the meeting held on 12.11.2003 would go to show that on their absorption in the Irrigation Department, the former employees of ASMIDC would be placed below the existing incumbents in the respective cadres so as to protect the seniority of the existing employees. Notional date of joining was taken as 01.07.2005 for the purpose of conferring pay protection and pensionary benefits to them maintaining uniformity. It was not intended to give them seniority over the existing incumbents by treating them to be in the cadre w.e.f. 01.07.2005 on which date they were not borne in the cadre. Seniority in a cadre cannot be counted from a date when the employee was not in service in the cadre. Such a view, if taken, would not only be opposed to the executive intention as can be seen from the notification dated 13.05.2005 but would also be untenable in law. 18. From the above as has already been noticed, petitioners' date of entry in the cadre of Assistant Engineer would be 09.09.2005 and from the notification dated 26.10.2010 (Annexure-X to the writ petition), it is seen that actual dates of joining on absorption in case of respondent Nos. 4 to 17 are from 29.10.2005 to 03.07.2006, which would mean that respondent Nos. 4 to 17 would be junior to the petitioners in the cadre of Assistant Engineer on the basis of their respective dates of joining. 19. Reliance placed by Mr. Banerjee on Rules 11(5) and 22(3) of the Assam Engineering (Irrigation Department) Services Rules, 1978 is misplaced, inasmuch as even if the promotion of the petitioners to the post of Assistant Engineer is taken to be direct recruitment, respondent Nos. 4 to 17's absorption in the cadre of Assistant Engineer cannot be treated to be either promotion or direct recruitment. On that count also, they cannot claim seniority over the petitioners. 20. In that view of the matter and having regard to the discussions made above, this Court is of the considered view that decision of the Irrigation Department to confer higher seniority to respondent Nos. 4 to 17 above the petitioners is not justified and the same is hereby interfered with. 20. In that view of the matter and having regard to the discussions made above, this Court is of the considered view that decision of the Irrigation Department to confer higher seniority to respondent Nos. 4 to 17 above the petitioners is not justified and the same is hereby interfered with. 21. Before parting with the record, it is seen that three Assistant Engineers, Sri Upen Ch. Deka, Abdul Motaleb and Manik Dutta, who had got themselves impleaded as respondent Nos. 18, 19 and 20 in the present proceeding, have filed an application for vacation of the interim order. It is seen from the impugned notification dated 13.05.2013 that respondent Nos. 18, 19 and 20 are placed at Sl. Nos. 2, 3 & 4 in the gradation list above the petitioners as well as respondent Nos. 4 to 17 and their seniority has been made final. Neither the petitioners nor the respondent Nos. 4 to 17 have disputed or raised any grievance against the assignment of seniority position to respondent Nos. 18, 19 and 20 above them, which in any case has been made final. 22. In view of above, respondent Nos. 1 & 2 shall now recast the seniority list by placing the two petitioners above the respondent Nos. 4 to 17 and take consequential steps thereafter. 23. Interim order dated 23.07.2013 would stand vacated in so far respondent Nos. 18, 19 and 20 are concerned and would stand merged with this order in so far petitioners and respondent Nos. 4 to 17 are concerned. Writ petition is accordingly allowed to the extent indicated above. No costs. Petition Partly allowed.