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2018 DIGILAW 1751 (GAU)

Arun Chandra Deka v. State of Assam

2018-12-15

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. P.K. Roy Choudhury, the learned counsel for the petitioner. Also heard Mr. M.R. Adhikari, the learned State Counsel for the respondent Nos. 1, 2 and 4 and Mr. U.K. Nair, the learned Senior Counsel for the respondent No. 5. Mr. R. Borpujari, the learned Standing Counsel, Finance Department, appears for the respondent No. 3 and Mr. M. Choudhury, the learned Senior Counsel appears for the respondent No. 6. 2. The case of the writ petitioner in brief is that vide notification dated 20.10.2005 (Annexure-A), he was posted as Junior Engineer (Civil) to the newly upgraded post of Assistant Engineer (Civil) with immediate effect. It may also be mentioned that up-gradation of the post concerned is shown to be dated 22.07.2005. 3. Vide notification dated 02.04.1998 (Annexure-B), the sanction of the Government for up-gradation of the post of Assistant Engineer (Civil) to the post of Assistant Executive Engineer (Civil) was conveyed to the Accountant General (A & E). It may be noticed that the pay scale of Assistant Executive Engineer (Civil) is higher than the pay scale of Assistant Engineer (Civil). 4. The respondent No. 5 who serving as Assistant Engineer was then upgraded to the up-graded post of Assistant Executive Engineer (Civil), vide notification dated 02.04.1998 (Annexure-C) w.e.f. 02.04.1998 i.e. the date of up-gradation of the post. 5. The respondent No. 6 being aggrieved by the up-gradation of the respondent No. 5 to the post of Assistant Executive Engineer (Civil), approached this Court by filing Civil Rule No. 2890 of 1998, which came to be disposed of vide order dated 10.05.2003 (Annexure-D). The finding of the learned Single Judge was that the post of Assistant Executive Engineer (Civil) having a higher pay scale than that of the post of Assistant Engineer, the same was essentially a promotional post. That being the case, Court was of the opinion that the respondent No. 5 who is also arrayed as respondent No. 5 in the present writ petition could not have been promoted or up-graded without considering the case of other eligible candidates. That being the case, Court was of the opinion that the respondent No. 5 who is also arrayed as respondent No. 5 in the present writ petition could not have been promoted or up-graded without considering the case of other eligible candidates. It was therefore directed that consideration for promotion to the post of Assistant Executive Engineer (Civil) be made by considering all eligible persons as per the relevant recruitment rules within a period of 3(three) months from the date of the order and in the event, if the process was not completed within the time frame or if the respondent No. 5 was not found fit for promotion by the Departmental Promotion Committee, the respondent No. 5 will have to make way for consequential orders to be passed by the authority concerned. 6. Mr. P.K. Roy Choudhury, the learned counsel for the petitioner submits that the direction of this Court in the Civil Rule has not been complied with, inasmuch as, the petitioner was never considered for promotion to the post of Assistant Executive Engineer (Civil) till date. He submits that the petitioner having been promoted to the post of Assistant Engineer on 20.10.2005, he became eligible to be considered for promotion as on 21.10.2010 after rendering 5 years of service in the post. He submits that the Drafts Service Rules of 2016 provides that promotion from the post of Assistant Engineer (Civil) to the post of Assistant Executive Engineer (Civil) shall be 100% by way of promotion on seniority-cum-merit basis and further with the requirement of having 5 years of regular service in the Grade of Assistant Engineer. He, therefore, submits that the State respondents having failed to consider all eligible candidates for promotion to the post of Assistant Executive Engineer (Civil) including the writ petitioner, a direction be given to the State respondents to consider the case of the petitioner. Mr. P.K. Roy Choudhury further submits that the petitioner on his part had in fact submitted a number of representations before the authority concerned, but, however, the same was not considered. 7. In the above premise, Mr. Mr. P.K. Roy Choudhury further submits that the petitioner on his part had in fact submitted a number of representations before the authority concerned, but, however, the same was not considered. 7. In the above premise, Mr. P.K. Roy Choudhury the learned counsel submits that the direction of this Court passed in the Civil Rule be implemented by the respondent authority by considering the case of the petitioner who became eligible for being considered for promotion to the post of Assistant Executive Engineer (Civil) since 21.10.2010 and also, the representations submitted by the petitioner be directed to be considered favourably by the official respondents. 8. Mr. P.K. Roy Choudhury, the learned counsel for the petitioner in support of his argument relies upon the decision of the Apex Court rendered in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 7 SCC 689 . By referring to paragraph No. 31 of the said judgment, he submits that delay itself cannot be a ground for rejecting the second round of writ petition. If relief has not been granted after the disposal of the earlier writ petition, the legitimate grievance of the party affected for non-compliance of such order is entitled to file a fresh writ petition to ensure compliance of the direction of the Court. 9. Representing the State respondents i.e. the respondent Nos. 1, 2 and 4, Mr. M.R. Adhikari, the learned State Counsel submits that the direction passed by this Court in the Civil Rule has been duly considered and pursuant to which, the service of the respondent No. 5 was confirmed vide notification dated 18.03.2005. He submits that the confirmation of the respondent No. 5 is with reference to the sanction of the State Government for permanent retention of the post which was created on 05.12.1984 and then up-graded to the post of Assistant Executive Engineer (Civil) on 02.04.1998 and the last retention order dated 30.12.2002 which was with effect from 01.03.2003. He submits that the permanent retention order was communicated to the Director of Handloom and Textile, Assam, by the Deputy Secretary to the Government of Assam, Handloom, Textile and Sericulture Department on 18.07.2003. 10. Mr. M.R. Adhikari further submits that the Department of Handloom and Textile having only limited number of post, the PWD Rules, 1978 has not been found to be suitable. 10. Mr. M.R. Adhikari further submits that the Department of Handloom and Textile having only limited number of post, the PWD Rules, 1978 has not been found to be suitable. In fact, the Assam Handloom and Textiles (Recruitment and Promotion) Service Orders, 1988, has been applied by the Department concerned for considering the case of promotion of its officers and the instant case is not an exception. Mr. M.R. Adhikari further submits that going by the prayer made by the petitioner in his representations, it can be seen that he has asked for consideration of his promotion to the post of Executive Engineer while he is only holding the post of Assistant Engineer. He submits that the next promotional post for the post of Assistant Engineer is to the post of Assistant Executive Engineer. He also submits that the post of Executive Engineer has not been created so far. Not only is the post to be created but the petitioner has to fulfill the eligibility criteria in order to be considered for promotion to the said post. 11. Mr. M.R. Adhikari thus submits that under the facts and circumstances and the writ petitioner having not challenged the promotion and confirmation of the respondent No. 5 at the appropriate time, the writ petition should be dismissed. 12. Mr. U.K. Nair, the learned counsel for the respondent No. 5 submits at the outset that the writ petition is not maintainable on the ground of delay and laches. The petitioner in fact has not even questioned the promotion of the respondent No. 5 to the post of Assistant Engineer which was on 11.05.1992 under Regulation 4(d) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 initially but, subsequently regularized. Such being the case, the petitioner cannot challenge the promotion and confirmation of the respondent No. 5 to the post of Assistant Executive Engineer (Civil) at this stage. He further submits that the petitioner on the other hand having been promoted to the post of Assistant Engineer only on 20.10.2005, in fact, was not even born in the cadre when the issue was taken up by this Court on 10.05.2003 in Civil Rule No. 2890 of 1998. He further submits that the petitioner on the other hand having been promoted to the post of Assistant Engineer only on 20.10.2005, in fact, was not even born in the cadre when the issue was taken up by this Court on 10.05.2003 in Civil Rule No. 2890 of 1998. He submits that the respondent No. 5 was promoted to the post of Assistant Executive Engineer (Civil) on 02.04.1998 and confirmed vide order dated 18.03.2005 while, the writ petition was only filed on 18.02.2014 and therefore, there is delay and laches on the part of the petitioner. He also submits that the State respondents as contended in their affidavit-in-opposition have only complied with the direction of this Court passed in the Civil Rule and therefore, the interference of this Court under the facts and circumstances is not called for. 13. Mr. M. Choudhury, the learned Senior Counsel for the respondent No. 6 on the other hand submits that the State respondents have not complied with the direction passed by this Court in the Civil Rule, inasmuch as, the case of the eligible candidates including the respondent No. 6 has not been considered. By referring to his affidavit-in-opposition the learned counsel submits that no promotion process has been exercised in terms of the Court's order till date and the respondent No. 5 continued in the post of Assistant Executive Engineer till he retired early this year. He also submits that the respondent authorities without challenging the direction passed in the Civil Rule cannot render the same to be ineffective without resorting to any appropriate remedial proceedings. He submits that merely because the respondent No. 6 has not questioned the inaction of the respondent authorities, the same cannot be a ground for the respondent authorities not to comply with the direction of this Court. He therefore submits that a direction may be given to the respondent authorities to consider all the eligible candidates including the respondent No. 6 for promotion to the post of Assistant Executive Engineer as per the relevant rules within a time frame. In so far as the issue raised on delay and laches, the learned Senior Counsel submits that he too relies upon the decision referred to by Mr. In so far as the issue raised on delay and laches, the learned Senior Counsel submits that he too relies upon the decision referred to by Mr. P.K. Roy Choudhury, the learned counsel for the petitioner i.e., C. Muddaiah (Supra) more particularly paragraph No. 32 of the said judgment and contends that delay cannot be the ground for rejecting a second writ petition. 14. Coming back to the direction passed in the earlier round of litigation, Mr. M. Choudhury submits that once a direction is passed by a competent Court, the same has to be obeyed and implemented without any reservation, if such party's interest is aggrieved with such direction, he has to resort for the appropriate proceedings, else non-compliance of the Court's direction will invite chaos and confusion. 15. To the above submissions, Mr. U.K. Nair, on the other hand, submits that decision of the Apex Court in the case of C. Muddaiah (Supra) will not be applicable in the instant case, inasmuch as, the respondent authorities have already taken the decision to confirm the promotion of the respondent No. 5. Therefore, the same being in compliance with the direction, it is not open for the writ petitioner or the respondent No. 6 to insist that the order has not been complied with. He submits that when an order has been rightly or wrongly complied with, the same issue cannot be reopened except by way of appropriate proceedings. He thus submits that the contentions of the opposite parties are only misconceived. 16. Mr. U.K. Nair, the learned Senior Counsel, further submits that the respondent No. 5 having attained the age of superannuation in the interregnum was released from Government service w.e.f. 31.01.2018 (A.M.) vide notification issued under Memo No. HTS. 09/93/Pt/41-A dated 30.01.2018. Following his retirement, his pension papers have been processed and the same is in the final stage. Under the circumstance, his service may not be disturbed. In so far as the claim of the petitioner is concerned, Court may suitably direct the respondent authorities and to which, the respondent No. 5 cannot have any objection. 17. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the record produced by Mr. M.R. Adhikari, the learned State Counsel. 18. 17. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the record produced by Mr. M.R. Adhikari, the learned State Counsel. 18. From the projection made by the learned counsels for the rival parties, what can be noticed is that the post of Assistant Engineer (Civil) was upgraded to the post of Assistant Executive Engineer (Civil) as conveyed by the Under Secretary to the Government of Assam, Handloom, Textile and Sericulture Department to the Accountant General (A & E), Assam, vide communication dated 02.04.1998. Pursuant to such upgradation, the respondent No. 5 being the then senior-most Assistant Engineer was also upgraded to the post of Assistant Executive Engineer. Since the respondent No. 5 was upgraded in the above manner without considering the case other eligible officers, the respondent No. 6 approached this Court by filing Civil Rule No. 28890 of 1998 challenging the up-gradation of the respondent No. 5. The writ petition was disposed of by order dated 10.05.2003 with the observation that the post of Assistant Executive Engineer having a higher pay-scale than the post of Assistant Engineer, it was essentially a promotional post from the post of Assistant Engineer. Accordingly, the respondent authorities were directed to fill up the post of Assistant Executive Engineer by promotion in accordance with the service rule in force within a period of 3(three) months from the date of the order. If such process was not completed within the stipulated time or if the respondent No. 5 was not found fit for promotion by the Departmental Promotion Committee, his up-gradation will have to give way to such consequential orders of the authority concerned. It may be noticed at this stage that at the relevant time, the present petitioner was not in the cadre of Assistant Engineer and he was promoted to the post of Assistant Engineer only on 20.10.2005. 19. From a perusal of the records produced by the learned State Counsel, it can be seen that pursuant to the direction of this Court on 10.05.2003, the Director of Handloom and Textiles sent a proposal for the confirmation of the respondent No. 5 to the Secretary, the Government of Assam, Handloom and Textiles Department vide communication dated 27.08.2004 which was signed on 26.08.2004. This, in fact, is not as per the direction of this Court. This, in fact, is not as per the direction of this Court. However, this fact was not brought to the notice of this Court. Pursuant to the proposal sent by the Director, the service of the respondent No. 5 admittedly has been confirmed and he retired from service w.e.f. 31.01.2018 as submitted by the learned Senior Counsel Mr. U.K. Nair. Considering the manner in which the respondent authorities have failed to abide by the Court's order, situation demanded a stern action had the same been bought to the Court's notice at an earlier point of time. However, as already noticed, the petitioner was only promoted to the post of Assistant Engineer on 20.10.2005. As per the draft service Rule of 2016, promotion to the post of Assistant Executive Engineer is 100% by promotion with 5 years of service in the Grade of Assistant Engineer. The petitioner therefore considering his promotion to the post of Assistant Engineer on 20.10.2005, became eligible to be considered for promotion on 21.10.2010 after completing 5 years of service in the Grade. Therefore, the petitioner is admittedly eligible to be considered for promotion to the post of Assistant Executive Engineer which will of course be subject to fulfillment of other requirements besides five years of service in the grade of Assistant Engineer. 20. This Court in view of above and having regard to the fact that the respondent No. 5 has already retired from service w.e.f. 31.01.2018, is of the considered opinion that the services rendered by him as Assistant Executive Engineer may not be disturbed. However, the petitioner and the respondent No. 6 besides other eligible candidates will be entitled to be considered from the date they became eligible for promotion in terms of the relevant service rules. In that view of the matter, without entering into the controversy any further, the writ petition is disposed of with a direction to the respondent authorities (respondent Nos. 1 to 4) to consider the petitioner and the respondent No. 6 along with all other eligible candidates for promotion to the post of Assistant Executive Engineer within a period of 2(two) months from the date of receipt of a certified copy of this order. 1 to 4) to consider the petitioner and the respondent No. 6 along with all other eligible candidates for promotion to the post of Assistant Executive Engineer within a period of 2(two) months from the date of receipt of a certified copy of this order. It is made clear that in the event the petitioner or the respondent No. 6 are found to be eligible to be promoted as Assistant Executive Engineer, their promotion will be effective from the date they became eligible as per the relevant service rules. However, they will not be entitled to arrear salaries except notional fixation of their pay. Further, in so far as seniority is concerned, having regard to the fact that the petitioner approached this Court only in the year 2014 despite being eligible to be considered for promotion in the year 2010, seniority will have to be counted from the date of actual service in the promotional post. 21. With the above observations and directions, the writ petition stands disposed of. No cost. 22. The Departmental records produced by Mr. M.R. Adhikari, the learned State Counsel be returned back to him.