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2017 DIGILAW 509 (GAU)

Sanjoy Choudhury v. State of Assam

2017-04-27

HRISHIKESH ROY

body2017
JUDGMENT : Hrishikesh Roy, J. Heard Mr. M. Nath, the learned Counsel appearing for the petitioners. Mr. H Buragohain the learned Standing Counsel, PWD (Roads), appears for the respondents. 2. The challenge here is to the letters dated 5.6.2009 (Annexure-7) and 31.7.2009 (Annexure-9), whereby the Addl. Chief Engineer, PWD (Roads) has recommended reversion of the petitioners to the cadre of Work-charge Section Assistant. The petitioners entered service as Muster Roll Workers and then they were appointed as Work-charge Section Assistant, between 1991 - 1994. Subsequently, the petitioners were inducted to the LDA Cadre from the post of Work-charge Section Assistant. The first 2 petitioners Sanjoy Choudhury and Asab Uddin Laskar have since been promoted to the cadre of UDA on 4.9.2004 and 24.7.2008, respectively. 3. The service status of the petitioners came to be noticed on account of information sought in respect of one Sukesh Rn. Roy, Sub-Engineer Grade 0I (Works) and while the required information was collated departmentally, it came to light that service of 6 Section Assistants in the Hailakandi Rural Road Division, PWD, were irregularly converted to the cadre of LDA. Since such movement is not permissible, the Addl. Chief Engineer under the impugned communication dated 5.6.2009 (Annexure-7) directed the Executive Engineer, to revert back the six incumbents, to the cadre of Section Assistant. 4.1. In response to the above communication, the Executive Engineer, Hailakandi informed that induction of Section Assistant to the cadre of LDA is a long followed practise in the Division and this was done for the smooth functioning of official works. It was specifically pointed out that only few LDAs in the Hailakandi Division are directly appointed and that too on compassionate basis and most are inducted into the cadre of LDA from Section Assistant, through conversion. 4.2. The following 4 problems were highlighted by the Executive Engineer, if the LDAs were to be reverted back to the post of Section Assistant, after so many years:- "............... (i) Since all such vacant posts of S.A. (due to their conversion) either filled up by promotion or through the regularization from the W/C Estt. from time to time So, none of them can be accommodated/converted within the sanctioned post of S.A. or push back to the W/C Estt. at present. Consequently, they will not get their salary. (i) Since all such vacant posts of S.A. (due to their conversion) either filled up by promotion or through the regularization from the W/C Estt. from time to time So, none of them can be accommodated/converted within the sanctioned post of S.A. or push back to the W/C Estt. at present. Consequently, they will not get their salary. (ii) Secondly, if such re-conversion is come into the force the whole Division including Sub-Division Offices will be paralysed and an abnormal situation will be arises. (iii) Thirdly, due to such re-conversion, 20 point roster point as well as employees data entry into the treasury will be affected severely. (iv) Lastly, this action may invite further legal complicacy also ........................" 4.3. It was further pointed out that the petitioners had no role in their movement from Section Assistant to the cadre of LDA and that they are on the verge of retirement and hence they be allowed to continue in the present capacity, as a special consideration. 5. Due weightage were not given to the above difficulties highlighted by the Executive Engineer and the Addl. Chief Engineer in his 2nd communication of 31.7.2009 (Annexure-9) observed that since the incumbents were converted from one cadre to another without legal support for such decision, reversion to the available vacancies of Section Assistants in the Karimganj Rural Road Division, for the incumbents serving in the Hailakandi Rural Road Division, was suggested. 6. The mode of entry to the cadre of LDA is provided under Rule 6(5)(a)(b) of the Assam Ministerial Establishment Service Rules, 1967 (hereinafter referred to as "the Ministerial Rules"), where direct recruitment to the extent of 90% is envisaged, on the basis of competitive examination and the balance 10% of the posts are to be filled up, on the criteria of seniority-cum-merit, from amongst the Grade-IV staff, serving in the concerned establishment. No other mode of entry to the cadre of LDA is envisaged by the Ministerial Rules and therefore the entry of the petitioners to the cadre of LDA, was found to be irregular by the Addl. Chief Engineer of the PWD. 7.1. Mr. No other mode of entry to the cadre of LDA is envisaged by the Ministerial Rules and therefore the entry of the petitioners to the cadre of LDA, was found to be irregular by the Addl. Chief Engineer of the PWD. 7.1. Mr. M. Nath, the learned Counsel for the petitioners does not dispute the legal position on the mode of entry to the cadre of LDAs but he refers to the fact that service of the first two petitioners were converted to the cadre of LDA as far back as on 11.8.1992 and 19.5.1994 and subsequently they have also been promoted to the cadre of UDA. Therefore, the proposed change of service status for the incumbents at the fag end of the career is being questioned by Mr. Nath. 7.2. The learned Counsel further submits that when no vacant post of Section Assistant is available in the Hailakandi Division, pushing back the petitioners as Section Assistant will create manifold service related difficulties for the incumbents. Suggestions made by the Addl. Chief Engineer in the communication dated 31.7.2009 for accommodating the reverted Section Assistant in the available post in the Karimganj Rural Road Division, is contended to be an arbitrary proposal, since no thought is given to the fact that the petitioners had served for last 20/25 years in the Hailakandi division. 8.1. On the other hand, Mr. H. Buragohain, the learned Standing Counsel for the PWD refers to the counter affidavit filed by the Chief Engineer (Roads) on 26.4.2010 to submit that it is impermissible for those serving in the Section Assistant establishment to be inducted into the cadre of LDAs, since it is not a permissible mode of entry, under the Ministerial Rules. 8.2. The departmental lawyer contends that when illegal entry of Section Assistant to the cadre of LDA was detected by the higher officers of the PWD, direction was issued for cancellation of conversion and to revert back the petitioners to their original cadre/post. But Mr. Buragohain also submits from the averments made in the Chief Engineer's affidavit that final decision is yet to be taken on the issue, by the Head of the Department. 9. But Mr. Buragohain also submits from the averments made in the Chief Engineer's affidavit that final decision is yet to be taken on the issue, by the Head of the Department. 9. In the rejoinder affidavit filed by the petitioners on 9.6.2010, names of several employees in various works department, whose services were converted to the cadre of LDA from the establishment of Section Assistant, are mentioned and it appears that many of them were also promoted to the higher cadre of UDA and few of them have already superannuated from service. The chart in the rejoinder affidavit reflects that practise of conversion is not confined only to the Rural Road Division but also to other Divisions like NEC, Border Roads of the PWD. Even in other works department like Irrigation and Water Resources, the practise of induction of Section Assistant to the cadre of LDA, is a long prevalent practise. 10. By virtue of entry into the cadre of LDA, the Section Assistants are paid better emoluments and they also become entitled for promotion to the next cadre of UDA. The concerned incumbents were inducted long back into the cadre of LDA on 11.8.1992 (Annexure-2), 19.5.1994 (Annexure-4) and on 10.9.2004 (Annexure-6) respectively. It cannot be overlooked that many years have gone by since the date of conversion and moreover the two senior-most beneficiaries have since been promoted to the cadre of UDA, as far back as on 4.9.2004 and 24.7.2008 respectively. 11. The induction of the experienced Section Assistant was made for betterment of the official works in the division and the petitioners had no role in the departmental decision. The induction to the cadre of LDA was done as per the long prevalent practise in the Hailakandi Division and until the communication dated 5.6.2009 (Annexure-7), none had pointed out that such conversion is impermissible. It is obvious that reversion for incumbents to the cadre of Section Assistant will have adverse service consequences for them and irrespective of the irregular nature of their entry into the cadre of LDA, prior hearing to the petitioners must be afforded, if their status is to be changed. 12. Confronted with the issue of reversion of an undeserved promotee, the Supreme Court in V. Kameshwari v. Union of India reported in 1993 Supp(2) SCC 407 had declared that the incumbent must not be made to suffer for no fault of his. 12. Confronted with the issue of reversion of an undeserved promotee, the Supreme Court in V. Kameshwari v. Union of India reported in 1993 Supp(2) SCC 407 had declared that the incumbent must not be made to suffer for no fault of his. Thus reversion were stopped by the Supreme Court for the concerned incumbent, in the interest of justice. 13. In the present case also, we are dealing with a group of Section Assistants who had no role in their entry to the cadre of LDA. They have served long in the cadre of LDA since 11.8.1992, 19.5.1994 and 10.9.2004 respectively. Two of the incumbents have also been promoted to the cadre of UDA. The petitioners were inducted from W/C Section Assistant to the cadre of LDA in the interest of the works in the Rural Road Division and none including the Addl. Chief Engineer had said that the service of the LDAs were deficient in any respect. 14. In view of the above discussion and having noted from the affidavit of the Chief Engineer (Roads) that the final decision is yet to be taken on reversion of the petitioners, their continuance in the present capacity is protected. This will not however preclude the Government from taking a policy decision for reversion of similarly situated incumbents in different works establishments. In that event, the Government must also consider whether any disturbance should be caused to those who have continued for last over 2 decades. In any case, if the Government decides to act against the petitioners under a policy decision, it should not be done without affording due hearing to the incumbents who are to be affected. It is ordered accordingly. 15. With the above order the case stands allowed without any order on cost.