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2015 DIGILAW 1460 (GAU)

Diganta Kumar Puzari v. State of Assam

2015-11-24

UJJAL BHUYAN

body2015
JUDGMENT : Heard Mr. B.M. Choudhury, learned Counsel for the petitioner, Mr. P.S. Deka, learned Government Advocate, Assam and B. Sinha, learned Standing Counsel, Assam Public Service Commission (APSC). 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to appoint him as Assistant Director in the Directorate of Town & Country Planning, Assam. 3. Case of the petitioner is that he was appointed as Overseer/Junior Engineer in the office of the Deputy Director, Town & Country Planning, Dispur, Guwahati pursuant to which he joined service on 07-01-1995. Since then petitioner has been serving in the same rank for more than 20 years without a single promotion. Presently, petitioner is posted as Junior Engineer in the office of Executive Engineer, Town & Country Planning, Drainage and Sewerage Division, Tinsukia. 4. While in service, after obtaining permission from the authority, petitioner obtained MA degree in Economics from Dibrugarh University in the year 1997. Thereafter he obtained MBA degree from Indira Gandhi National Open University, New Delhi in December, 2004. 5. Director of Town & Country Planning vide his letter dated 24-07-2009 informed various authorities of the department that from amongst the employees of the Directorate two numbers of candidates may be selected for undergoing PG degree/ Diploma course in Town & Country Planning with specialization in Town & Country Planning/Transportation Planning/ Housing etc. during the year 2010-11. It was stated that the candidates must have the requisite qualification of Master’s degree in Economics / Sociology / Geography / BE (Civil) or B. Arch. for getting into the course. It was further stated that the candidates may avail study leave for a period of 2 years for undergoing the said course and must have completed 5 years of regular service for being selected for the said course. A categorical declaration was made that after successful completion of the above course, the candidates would be appointed as Assistant Director under the Directorate by the Government. The authorities were requested to intimate the Directorate about availability of such candidates. 6. In terms of the aforesaid offer, petitioner applied for the Government sponsored course of PG degree course in Town and Country Planning /Master of Planning. The authorities were requested to intimate the Directorate about availability of such candidates. 6. In terms of the aforesaid offer, petitioner applied for the Government sponsored course of PG degree course in Town and Country Planning /Master of Planning. Petitioner and another Assistant Research Officer were selected for undergoing the course of Master of Planning (Urban and Regional Planning) under the Centre of Environmental Planning and Technology (CEPT) University, Ahmedabad. Director of Town & Country Planning sought approval of the Government for grant of study leave to the petitioner and the other departmental candidate vide letter dated 28-06-2010. In the said letter it was stated that total sanctioned strength in the cadre of Assistant Director under the Directorate of Town & Country Planning is 22 out of which 13 posts were lying vacant. Because of non-filling up of such vacancies, works of the Directorate were badly affected. Inspite of process being initiated for direct recruitment during the year 2009, only 4 vacancies could be filled up because of non-availability of qualified candidates. Therefore the Directorate decided to sponsor the two departmental candidates so that on acquiring of the qualification they can be appointed as Assistant Director. 7. Government of Assam in the Urban Development Department sanctioned the study leave of the petitioner and the other departmental candidate. In due course, petitioner completed the course of degree of Master of Planning (Urban and Regional Planning) from the CEPT University, Ahmedabad whereafter he resumed his service on 01-06-2012. At the time of resumption of service, age of the petitioner was 44 years 4 months. In view of the offer made vide letter dated 24-07-2009, petitioner made a request before the Principal Secretary, Urban Development Department on 08-06-2012 to consider his appointment as Assistant Director. The said letter was forwarded by the Director of Town & Country Planning vide his forwarding letter dated 04-08-2012 wherein it was pointed out that as against 22 sanctioned posts of Assistant Director, 13 posts were lying vacant. 8. In the meanwhile, Government of Assam in the Urban Development Department sent requisition dated 23-12-2013 to the APSC to initiate recruitment process to fill up 9 vacant posts. It was also stated that there were two departmental candidates including the petitioner who were eligible for age relaxation. 9. It appears that APSC sought for clarification from the Government regarding age limit of departmental candidates. It was also stated that there were two departmental candidates including the petitioner who were eligible for age relaxation. 9. It appears that APSC sought for clarification from the Government regarding age limit of departmental candidates. Director also informed the Government that due to delay in advertisement for the post of Assistant Director, the two departmental candidates including the petitioner had crossed the upper age limit for the post. Government was requested to condone the overage of the two candidates. Personnel Department had also advised the Urban Development Department to follow Government Office Memorandum (OM) dated 27-03-1980 and 04-01-1992. However, no decision has been taken regarding condonation of overage of the petitioner. A number of representations have been submitted by the petitioner in this regard but there has been no response. 10. Aggrieved, present writ petition has been filed seeking the relief as indicated above. 11. Notice in this case was issued on 27-05-2015. On 10-08-2015, Ms. B. Dutta, learned Government Advocate submitted that in the cadre of Assistant Director 14 posts are presently lying vacant. Directorate of Town and Country Planning has taken up the matter with the Finance Department to fill up the vacancies. Finance Department has given approval to fill up 9 vacancies following which steps are being taken to fill up the 9 vacancies. 12. On similar lines, an affidavit has been filed by the Director of Town and Country Planning i.e. respondent No.5. It is stated that after completion of Post Graduate course from CEPT University, Ahmedabad, petitioner resumed his duty on 01-06-2012 and at that point of time his age was 44 years 4 months. It is admitted that the Directorate had forwarded the application of the petitioner to the Government for appointment as Assistant Director while pointing out that out of the 22 sanctioned posts of Assistant Director, 13 were lying vacant. Government had forwarded the draft advertisement to APSC to fill up 9 vacancies in the post of Assistant Director under the Directorate of Town and Country Planning as approved by SIU, Finance Department. The draft advertisement was forwarded vide letter dated 23-10-2013 wherein it was mentioned that there were two departmental candidates for the post of Assistant Director and that they were eligible for age relaxation, if it was found necessary. It is further stated that case of the petitioner is now pending before the Government for a final decision. The draft advertisement was forwarded vide letter dated 23-10-2013 wherein it was mentioned that there were two departmental candidates for the post of Assistant Director and that they were eligible for age relaxation, if it was found necessary. It is further stated that case of the petitioner is now pending before the Government for a final decision. Further stand taken in the affidavit is that in view of the delay in issuing advertisement, Directorate had requested that the case of the petitioner and the other departmental candidate should be considered for condonation of overage considering their long service in the department. 13. In the Court proceeding held on 13-10-2015, learned Government Advocate was directed to produce the draft advertisement forwarded by the Urban Development Department to the APSC to fill up the post of Assistant Director to ascertain as to whether there is any age prescription in the advertisement for departmental candidates like the petitioner. However, the draft advertisement was not produced. 14. Mr. B.M. Choudhury, learned Counsel for the petitioner submits that petitioner has attained the eligibility for appointment to the post of Assistant Director on being recommended by the State for undergoing the relevant course for which leave was also granted. At the time of inviting application for undergoing the course, an assurance was given to the intending departmental candidates that in the event of successfully completing the course, such candidate would be offered the post of Assistant Director. When the petitioner had completed the course, he was within the prescribed age limit for such appointment but because of the delay on the part of the respondents in issuing the advertisement, petitioner has crossed the age bar and therefore would stand debarred from consideration for no fault of his. Therefore, in order to remove the hardship of the petitioner and to ensure that petitioner does not suffer from service stagnation, it is necessary to condone the over age of the petitioner and thereafter to consider his candidature on merit. 15. On the other hand learned Government Advocate would submit that though the respondents are sympathetic to the cause of the petitioner, they are hampered by non-availability of any provision for relaxation of overage of a departmental candidate in the case of direct recruitment. 16. Submissions made by learned Counsel for the parties have received the due consideration of the Court. 17. 16. Submissions made by learned Counsel for the parties have received the due consideration of the Court. 17. Pending finalization of service rules to be framed under the proviso to Article 309 of the Constitution, State has framed the Assam Town and Country Planning Service Order, 1990 (“Service Order” for short) for regulating the recruitment and conditions of service of persons appointed to the Assam Town and Country Planning Service. The post of Assistant Director is a separate cadre belonging to Class I of the service. As per Order 5(ii) (a), recruitment to the cadre of Assistant Director shall be made by direct recruitment only in accordance with the provisions of Order 6. As per Order 6, direct recruitment to the cadre of Assistant Director shall be made by the Governor who is the appointing authority on the basis of selection made by the APSC in accordance with the procedure prescribed therein. Since the procedure prescribed is not the subject matter of dispute, detailed reference to the same may not be necessary. 18. Before proceeding to the other provisions of the Service Order, it may be noted that as per Schedule 1 to the Service Order, the post of Assistant Director is equivalent to the post of Assistant Engineer. 19. As per Order 7(i)(a) the number of vacancies in the cadres of Assistant Director, Assistant Engineer etc. occurring or likely to occur in the year should be published in the gazette. 67% of the total posts of Assistant Engineer shall be filled up by direct recruitment and rest 33% shall be filled up by promotion from amongst Junior Engineer, Sub-Engineer, Overseer and Computer. As per Order 7(3), a Junior Engineer is eligible for promotion as Assistant Engineer provided he has rendered minimum 5 years of service as Junior Engineer on the 1st day of January of the year of promotion. As per proviso to Order 7(3), subject to suitability, a Junior Engineer belonging to the service on his acquiring the academic qualifications as prescribed for direct recruitment to the cadre of Assistant Engineer shall be promoted as Assistant Engineer in consultation with the APSC against the next available vacancy in the cadre of Assistant Engineer and such promotion shall be treated as direct recruitment to the cadre of Assistant Engineer. 20. General procedure of promotion is mentioned in Order 9. 21. 20. General procedure of promotion is mentioned in Order 9. 21. Order 10 lays down the special procedure for promotion to Assistant Engineer and to three other posts. It provides that on receipt of select list from the Selection Board, the appointing authority shall forward the same to the APSC with a request to approve the select list. APSC shall consider the select list so recommended by the Selection Board and shall approve the same with or without modifications as it considers just and proper. 22. As per Order 11(2), the Selection Board for promotion to the post of Assistant Engineer shall consist of the following :- (i) Commissioner/ Secretary to the Government of Assam, Town & Country Planning Department. Chairman (ii) Commissioner/ Secretary to the Government of Assam, Personnel Department or his nominee not below the rank of Deputy Secretary. Member (iii) Director of Town & Country Planning. Member (iv) Deputy Secretary to the Government of Assam, Town & Country Planning Department. Member 23. As per Order 13, where the Government is satisfied that the operation of any of the orders causes undue hardship in any particular case, it may dispense with or relax the requirement of that order to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. 24. As per Order 16, in case of direct recruitment, a candidate should not be less than 21 years and more than 30 years on the 1st day of January of the year of advertisement with relaxation for candidates belonging to special categories. 25. While Schedule I mentions the 2 posts of Assistant Director and Assistant Engineer to be equivalent, as per Schedule II, both the posts of Assistant Director and Assistant Engineer carry the same time scale of pay i.e. Rs. 1835-50-2035-60-2395-80-2555-EB-80-2075-100-3575-125-4325 PM. 26. As per Schedule III, for direct recruitment to the cadre of Assistant Director, a candidate must possess Post Graduate degree or Diploma in Town & Country Planning (City or Regional Planning) from any recognized institution or equivalent qualifications. However, for direct recruitment to the cadre of Assistant Engineer, a candidate must possess Bachelor’s degree in Engineering (Civil) or its equivalent qualifications from recognized institution. 27. However, for direct recruitment to the cadre of Assistant Engineer, a candidate must possess Bachelor’s degree in Engineering (Civil) or its equivalent qualifications from recognized institution. 27. Thus from a careful analysis of the provisions of the Service Order, it becomes evident that though the post of Assistant Director is treated as equivalent to the post of Assistant Engineer having the same pay-scale, the entry level qualifications for both the posts are different. Though learned Counsel for the petitioner by referring to the provisions of the Service Order treating the post of Assistant Director as equivalent to the post of Assistant Engineer had made a faint attempt to suggest that because of such equivalence the provision for promotion available in the case of Assistant Engineer in addition to direct recruitment would stand extended to the cadre of Assistant Director, I am afread such a submission cannot be accepted because of the restrictive language used in Order 5(ii)(a) which restricts recruitment to the cadre of Assistant Director only through direct recruitment as per procedure laid down in Order 6. Keeping the above aspect in mind, it is therefore clear that recruitment to the cadre of Assistant Director can be made only by way of direct recruitment in accordance with the provisions of Order 6. Order 16 prescribes age limit between 21 years and 30 years as on the 1st day of January of the year of advertisement in the case of direct recruitment relaxable in case of special categories as per Government policy. However, the Government has been vested with the power of relaxation under Order 13. As already mentioned above, where the Government is satisfied that the operation of any order causes undue hardship in any particular case, it may dispense with or relax the requirement of that order to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. 28. Having said that, it is seen that petitioner has stagnated in the post of Junior Engineer for more than 20 years now. In the meanwhile petitioner has acquired the eligibility for appointment as Assistant Director by obtaining the Master Degree in Urban and Regional Planning from CEPT University, Ahmedabad which had the approval of the Government. 28. Having said that, it is seen that petitioner has stagnated in the post of Junior Engineer for more than 20 years now. In the meanwhile petitioner has acquired the eligibility for appointment as Assistant Director by obtaining the Master Degree in Urban and Regional Planning from CEPT University, Ahmedabad which had the approval of the Government. The Director of Town and Country Planning had given an assurance at the time of soliciting candidature that after successful completion of such course, the candidate would be appointed as Assistant Director by the Government. The Director while forwarding the case of the petitioner to the Government for appointment to the post of Assistant Director had stated that as against the sanctioned strength of 22, 13 posts of Assistant Director are lying vacant. While sending requisition to the APSC, the Government suggested age relaxation for the petitioner. Subsequently it has been clarified by the Director that the cadre of Assistant Director is facing a number of vacancies due to lack of experienced and qualified candidates for the posts. Despite recruitment drive carried out, vacancies could not be filled up because of lack of eligible candidates. 29. In the light of the above stand of the Directorate as well as that of the Government, Court is of the view that the present is a fit case for invoking the provisions of Order 13 to relax the requirement of Order 16 in so far age of the petitioner is concerned. Having regard to the peculiar facts of this case, Court is of the considered opinion that if the requirement of Order 16 is not relaxed in the case of the petitioner it will cause undue hardship to him inasmuch as it would lead to service stagnation of the petitioner despite acquiring eligibility which is not desirable. Moreover, the department will also not gain anything by not relaxing the upper age limit of the petitioner despite facilitating him to acquire additional knowledge and skill by sponsoring his candidature for the master’s course. Moreover, eligible candidates are also not readily available, affecting the work of the Directorate. Therefore, to deal with the case of the petitioner in a just and equitable manner, it is necessary to dispense with or relax the requirement of Order 16 in his case, being a departmental candidate. 30. Moreover, eligible candidates are also not readily available, affecting the work of the Directorate. Therefore, to deal with the case of the petitioner in a just and equitable manner, it is necessary to dispense with or relax the requirement of Order 16 in his case, being a departmental candidate. 30. This being the position, respondent No.1 in consultation with the APSC shall relax / dispense with the requirement of Order 16(1) of the Assam Town and Country Planning Service Order, 1990 in the case of the petitioner, declaring him as eligible for recruitment to the cadre of Assistant Director through direct recruitment. Since the Government had already sent the requisition to the APSC to issue advertisement to fill up 9 vacancies in the post of Assistant Director on 23-12-2013, APSC shall issue the consequential advertisement within 30 days from the date of receipt of a certified copy of this order. Petitioner shall be allowed to participate in the selection and his candidature shall be considered on merit. 31. Writ petition is accordingly allowed. However, there shall be no order as to cost.