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2015 DIGILAW 996 (GAU)

Prakash Kalita v. State of Assam

2015-08-11

HRISHIKESH ROY

body2015
JUDGEMENT : Heard Mr. UK Nair, the learned counsel appearing for the petitioner. The respondent Nos.1 & 2 are represented by Mr. J. Handique, the learned Govt. Advocate. The private respondent No.3 is represented by the learned Advocate Dr. B. Ahmed. 2. This case pertains to an inter se seniority dispute in the cadre of Assistant Engineer in the Municipal Administration Department and consequential promotion to the post of Executive Engineer. The petitioner challenges the exclusive direct recruit Gradation List of 28.3.2006 (Annexure-L), where the respondent No.3 is shown in the 1st place and the petitioner who is a promotee Assistant Engineer is altogether excluded. He also challenges the 2nd Gradation List of 28.3.2006 (Annexure-L1), where the name of the lone promotee Assistant Engineer is reflected. Thus there is no combined seniority list of all the serving Assistant Engineers (promotee and direct recruits) in the Department. The respondent No.3 was allowed to officiate in the higher rank of Executive Engineer through the order dated 3.5.2007 (Annexure-O) and that promotion order is challenged on the ground that petitioner was left out of the consideration process. 3. The petitioner entered service in the Department as a Sub-Engineer (Civil) on 9.4.1985 (Annexure-A), when he was appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 (hereinafter referred to as ‘the APSC Regulation’). His service was regularized on 6.6.1988 in pursuant to selection made by the APSC. Thereafter the petitioner was allowed to officiate as Assistant Engineer under Regulation 3(f) of the APSC Regulation, through the order dated 15.6.1990 (Annexure-C) but this order was rectified on 21.6.1990 (Annexure-D), whereby the petitioner was promoted to the higher cadre of the Assistant Engineer, under Regulation 4(d) of the APSC Regulation. The officiating promotion of the petitioner in the rank of Assistant Engineer was regularized on 25.10.1995 (Annexure-E) w.e.f. 16.6.1990. 4. On the other hand, the respondent No.3 (Mr. Abdur Rahim Laskar) joined as Assistant Engineer when he was appointed on 15.6.1990 under Regulation 3(f) of the APSC Regulation and subsequently the private respondent was regularly appointed as Assistant Engineer on 17.3.1993, on the basis of recommendation made by the APSC. The benefit of counting his officiating service was granted to the respondent No.3, through the notification dated 19.8.2005 and thus the service of the private respondent stood regularized in the cadre of Assistant Engineer from his date of joining i.e. 16.6.1990. The benefit of counting his officiating service was granted to the respondent No.3, through the notification dated 19.8.2005 and thus the service of the private respondent stood regularized in the cadre of Assistant Engineer from his date of joining i.e. 16.6.1990. 5. The provisional Gradation List of all the 6 Assistant Engineers (promotee and direct recruitees) in the Municipal Administration Department was notified on 4.11.2000 (Annexure-F) and in this list, the petitioner was placed in the 1st position and the respondent No.3 was placed in the 4th position. But subsequently when the service of the private respondent was regularized retrospectively from 16.6.1990 by the notification dated 19.8.2005 (Annexure-I), another Gradation List was notified on 18.10.2005 (page 39) and here the 3rd respondent was placed above the petitioner. Thereafter the seniority list for the direct recruits and the promotee were separately notified. In one list the name of only the petitioner was reflected whereas in the 2nd Gradation List issued on 28.3.2006 (Annexure-L), the names of direct recruit Engineers were shown and in this list the respondent No.3 was placed in the 1st position. Thus the consolidated list of all the serving Assistant Engineers was not subsequently published in the Department. 6. No service rules have been framed by the Municipal Administration Department and they follow the Assam Engineering PWD Service Rules, 1978 (hereinafter referred to as ‘the PWD Rules’) while considering promotion in their own Department. Under the general procedure for promotion, as prescribed under Rule 13(2) of the PWD Rules, four names for each vacancy are required to be considered and the criteria of promotion to the post of Executive Engineer, as provided under Sub-Rule (4), is merit and suitability with due regard to seniority. 7. For the lone vacancy of Executive Engineer, only the direct recruit Assistant Engineers were considered and thus the petitioner as a promotee Assistant Engineer was kept out of the deliberation of the DPC. Therefore without considering the case of the promotee Assistant Engineer, the promotion was granted to the respondent No.3, by the impugned notification dated 3.5.2007, to the lone vacancy of Executive Engineer, in the Directorate of Municipal Administration. 8. Therefore without considering the case of the promotee Assistant Engineer, the promotion was granted to the respondent No.3, by the impugned notification dated 3.5.2007, to the lone vacancy of Executive Engineer, in the Directorate of Municipal Administration. 8. The placement of the respondent No.3 in the first position of the Gradation List by counting his officiating service w.e.f. 16.6.1990 and his promotion was challenged by one Swapan Kumar Das, a direct recruit colleague of the respondent No.3, through the WP(C) No.2189/2006 and the WP(C) No.2280/2007. A separate case i.e. the WP(C) No.3820/2013 was also filed by the 3rd respondent Abdur Rahim Laskar, where he claimed regular promotion as Executive Engineer, since only officiating promotion was given to him on 3.5.2007. 9. The present case where similar challenges are made to the promotion and the Gradation List, was somehow segregated from the other three cases and through the common judgment dated 14.7.2015, the Writ Petition filed by the respondent No.3 Abdur Rahim Laskar and the two Writ Petitions filed by Swapan Kumar Das were disposed of. 10. After considering submission made by the respective parties, the learned Court quashed the Gradation List dated 28.3.2006 (Annexure-L) and also set aside the notification dated 19.8.2005 (Annexure-I), whereby respondent No.3’s service was retrospectively regularized w.e.f. 16.6.1990, in the cadre of Assistant Engineer. As the higher placement of the respondent No.3 in the Gradation List was the basis for considering him in the promotion exercise, the learned Judge declared the DPC’s recommendation made in favour of the respondent No.3 to be invalid and accordingly direction was issued to the departmental authorities to re-do the promotion exercise, by considering all the eligible Assistant Engineers, who come within the zone of consideration. 11.1. Relying on the common judgment given in the WP(C) No.2189/2006 and the other two cases, Mr. UK Nair, the learned counsel submits that as the Gradation List and the promotion order of the respondent No.3 were quashed in those Writ Petition(s), similar order should be passed in this case. To justify his claim, Mr. Nair submits that the petitioner’s name was excluded from the Gradation List where the names of only the direct recruit Assistant Engineers were notified and such exclusive Gradation List is not contemplated by Service Law. 11.2. To justify his claim, Mr. Nair submits that the petitioner’s name was excluded from the Gradation List where the names of only the direct recruit Assistant Engineers were notified and such exclusive Gradation List is not contemplated by Service Law. 11.2. If the officiating service period of the respondent No.3 w.e.f. 16.6.1990 is discounted in terms of the recent judgment of 14.7.2015 in the WP(C) No.2189/2006, the petitioner argues that the respondent No.3 will be brought down in the seniority list of Assistant Engineers and in that case, the respondent No.3 may not come within the zone of consideration, for the lone vacancy of Executive Engineer, in terms of the criteria prescribed under Rule 13(2) of the PWD Rules. 12.1. On the other hand, Dr. B. Ahmed, the learned counsel for the respondent No.3 submits that promotion to the post of Executive Engineer is to be considered on the criteria of merit cum suitability with due regard to seniority and under such criteria, even a junior Assistant Engineer within the zone of consideration, can be recommended for promotion. 12.2. The respondent No.3 further submits that the judgment in the WP(C) No.3820/2013 (Abdur Rahim Laskar vs. State of Assam) and the two Writ Petitions filed by Swapan Kumar Das is now under challenge before the Division Bench and accordingly Dr. Ahmed argues that the final word is still to be uttered on the seniority and promotion granted to the respondent No.3. 13. In the WP(C) No.3820/2013 and the other connected cases, this Court noted that the respondent No.3 was appointed under Regulation 3(f) of the APSC Regulation without any advertisement or selection process and on that basis, the Court held that the respondent No.3 is disentitled to have the benefit of his officiating service counted, for the purpose of seniority, in the cadre of Assistant Engineer. Thus the higher placement of the respondent No.3 in the Gradation List and also the notification granting him the benefit of officiating service were quashed by the Court with consequential interference with the recommendation of the DPC made for promotion of the respondent No.3, to the lone vacancy of Executive Engineer. 14. I have applied my mind to the reasoning given by the learned Judge for the judgment of 14.7.2015 and find that it is consistent with the ratio of the judgment in Anup Kr. 14. I have applied my mind to the reasoning given by the learned Judge for the judgment of 14.7.2015 and find that it is consistent with the ratio of the judgment in Anup Kr. Das vs. Sanjib Kakati reported in 2000 (1) GLT 429, where the Division Bench of this Court declared that when a person is appointed under Regulation 3(f), he is disentitled to seniority w.e.f. the date of his initial appointment, on subsequent regular appointment on recommendation by the APSC. 15. The additional issue in this case is that the petitioner also challenges the exclusive Gradation List notified for himself, as the lone promotee Assistant Engineer, through the notification dated 28.3.2006 (Annexure-L1) and his exclusion from the other Gradation List (Annexure-L) of the direct recruit Assistant Engineers. When the petitioner is serving as an Assistant Engineer, albeit on the basis of promotion, his name must be incorporated in a combined Gradation List of all the serving Assistant Engineers and since this was not done, a specific direction is now being issued for preparation of a combined Gradation List of all the serving Assistant Engineers in the Municipal Administration Department. This is found necessary as the exclusive Gradation List of 28.3.2006 (Annexure-L) is now quashed under the Court’s judgment dated 14.7.2015 in the WP(C) No.2189/2006. 16. Since the promotion recommendation made in favour of the respondent No.3 to the single vacancy of Executive Engineer was set aside on 14.7.2015, the impugned promotion notification of 3.5.2007 (Annexure-O) is legally unsustainable and the same is accordingly quashed. Consequently the official respondents are now directed to notify a combined Gradation List in the cadre of Assistant Engineer. Thereafter those within the zone of consideration in the feeder cadre should be considered for promotion, to the vacancy in the higher cadre, on the basis of criteria prescribed under Rule 13(4) of the PWD Rules. It is ordered accordingly. With this order, this case stands allowed without any order on cost. 17. A copy of the common judgment in the WP(C) No.2189/2006 and WP(C) No.2280/2007 (Swapan Kumar Das vs. State of Assam) and WP(C) No.3820/2013 (Abdur Rahim Laskar vs. State of Assam) be kept in the case record.