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2019 DIGILAW 28 (GAU)

Mujibur Rahman v. Guwahati Municipal Corporation

2019-01-10

N.KOTISWAR SINGH

body2019
ORDER : N. KOTISWAR SINGH, J. 1. Heard Mr. S.K. Das, learned counsel for the petitioner as well as Mr. H. Sarma, learned counsel for all the respondents. 2. The petitioners are presently serving as Assistant Health Inspectors under the Guwahati Municipal Corporation, Guwahati. The petitioner No. 1 who is an Arts Graduate was initially appointed as a Supervisor on 18.04.1984 and the petitioner No. 2, a Science graduate, as Supervisor on 04.09.1984 and thereafter, their services were regularized along with 6 incumbents on 28.01.1985. 3. Subsequently, they were promoted to the posts of Assistant Health Inspector vide a common order dated 07.09.2007 and have been discharging their duties in the aforesaid capacity till now without any further promotional avenue or opportunity offered by the respondent authorities. According to the petitioners, this amounts to stagnation in service more so, when according to the petitioners some persons who were appointed along with them as Supervisors later, had been absorbed as LDAs and had been given promotion to higher post of UDAs and later to the post of Deputy Rank Officer. The post of Deputy Rank Officer is higher than the Assistant Health Officer. The promotion of the petitioners to the aforesaid post of Deputy Rank Officer had been denied by the respondent authorities by contending that the said post of Deputy Rank Officer comes under the establishment section to which promotion can be made only from the feeder posts of UDA and Assistant Tax Superintendent only and since the petitioners are holding the posts of Assistant Health Inspector they cannot be considered for promotion to the said post. It has been submitted by the petitioners that after the post of Assistant Health Inspector, there is no higher post available to consider their promotion. 4. The petitioners contended that a similarly situated person namely, Ganesh Deka who was appointed as a Supervisor in the same year as the petitioners, after being absorbed as an LDA was given promotion to the higher post of UDA and subsequently promoted to the post of Deputy Rank Officer. 5. 4. The petitioners contended that a similarly situated person namely, Ganesh Deka who was appointed as a Supervisor in the same year as the petitioners, after being absorbed as an LDA was given promotion to the higher post of UDA and subsequently promoted to the post of Deputy Rank Officer. 5. The case of the petitioners is that if such a person who is similarly situated as the petitioners could be given promotion to the higher ranked post of Deputy Rank Officer, the petitioners could also be considered for promotion to the higher post or create such promotional avenues so that they get similar benefits as far as their career advancement is concerned. Accordingly, the petitioners have approached this Court for appropriate directions in this regard. 6. Learned counsel for the petitioners submits that the petitioners after being appointed as Assistant Health Inspectors on 07.09.2007 have remained in the same status without any promotional avenues unlike in the Establishment section who are provided with promotional avenues. 7. The stand of the GMC is that the post of Deputy Rank Officer comes under the Establishment section and the posts of Supervisor and Assistant Health Inspector come under the Health section of the GMC, which are different, distinct and separate sections and not connected with each other. Since, under the Health section, the highest post available is Assistant Health Inspector to which the petitioners have been already promoted, they cannot have any grievance that there is no promotional avenue or that they have been discriminated. As far as the said Ganesh Deka is concerned, he was given promotion to the post of Deputy Rank Officer after his appointment as Supervisor was converted and absorbed as an LDA as per the approval of the Government. As per rules, as an LDA, as he became an eligible for promotion to the post of UDA, he was promoted as UDA and thereafter, on fulfilling the necessary qualifications he was given promotion to the higher post of Deputy Rank Officer in the Establishment section. Accordingly, it has been contended by the learned counsel for the respondent authorities that the case of the petitioners cannot be compared with the aforesaid Ganesh Deka, even though he might have been initially appointed as a Supervisor along with the petitioners. 8. Accordingly, it has been contended by the learned counsel for the respondent authorities that the case of the petitioners cannot be compared with the aforesaid Ganesh Deka, even though he might have been initially appointed as a Supervisor along with the petitioners. 8. Learned counsel for the respondents also submits that the aforesaid Ganesh Deka who was holding the post of Supervisor after he was absorbed as an LDA was placed below the existing LDAs in the seniority list as he was deemed to have been freshly appointed as an LDA. 9. Learned counsel for the petitioners in support of his submissions has placed reliance on the following cases:- 1. State of Tripura & Ors. Vs. K.K. Roy, Civil Appeal No. 6253 of 1998, 2. Bidyut Kanti Choudhury Vs. State of Tripura, 2005 (1) GLT 347, 3. Union of India & Anr. Vs. Hemraj Singh Chauhan & Ors., AIR 2010 SC 1682 , 4. K.K. Gohil Vs. State of Gujarat & Ors., AIR 2015 SCW 4844, 5. R.K. Sethi Vs. Oil and Natural Gas Commission, AIR 1997 SC 899 , 6. Raghunath Prasad Singh Vs. Secretary, Home (Police Department), Government of Bihar, AIR 1988 SC 1033 , 7. Margaret Wanrap & Ors. Vs. State of Meghalaya & Ors., 2002 (2) GLT 416, 8. Council of Scientific and Industrial Research Vs. K.G.S. Bhatt, AIR 1989 SC 1972 . 10. In Raghunath Prasad Singh (supra) it was held by the Hon'ble Supreme Court that, "4. Before we part with the appeal, we would like to take notice of another aspect. In course of hearing of the appeal, to a query made by us, learned counsel for the appellant indicated the reason as to why the appellant was anxious to switch over to the general cadre. He relied upon two or three communications which are a part of the record where it has been indicated that there is no promotional opportunity available in the wireless organisation. Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. We would therefore, direct the State of Bihar to provide at least two promotional opportunities to the officers of the State Police in the wireless organisation within six months from today by appropriate amendments of rules. In case the State of Bihar fails to comply with this direction, it should, within two months thereafter, give a fresh opportunity to personnel in the police wireless organisation to exercise option to revert to the general cadre and that benefit should be extended to everyone in the wireless organization". 11. In State of Tripura Vs. K.K. Roy (supra) it was held by the Hon'ble Supreme Court that: "(6) It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of appointment, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the Appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the Appellant should have followed the said principle. (7) We are, thus, of the opinion that the respondent herein is at least entitled to grant of two higher grades, one upon expiry of the period of 12 years from the date of his joining of the service and the other upon expiry of 24 years thereof." 12. In Council of Scientific and Industrial Research (supra) it was held by the Hon'ble Supreme Court that: "9. That then is the scope of bye-law 71(b)(ii). But that does not mean that we should interfere with the relief granted to respondent-1. By pointing out the error that crept into the decision of the Tribunal, we need not to lake to its logical end which will defeat justice. Respondent-1 is not a lay-man. He is a highly qualified engineer. Although joined service with a diploma in Engineering, he later passed Bachelor of Engineering (B.E.) and also acquired M. Tech. degree and one more diploma (D.P.M.). He was however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employees a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See: Principles of Personnel Management by Flipo Edwin B. 4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See: Principles of Personnel Management by Flipo Edwin B. 4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both no managerial employees and their supervisors". (See: Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man-power development, management development etc. which is not related to a system of promotions. (See: Management of Personnel in Indian Enterprises by Prof. N.N. Chatterjee, Chap. 12 p. 128). The appellant appears to have overlooked this basic requirement of management so far as respondent-1 was concerned till N.R. & A.S. was introduced. 14. In the instant case as already noticed that respondent-1 has suffered and stagnated for about twenty years in the same scale from inception due to defective promotional policy. Therefore, we decline to interfere with the relief granted by the Tribunal although we do not agree with the views expressed on the scope of bye-law 71(bXii)." 13. In Margaret Wanrap and Ors. (supra) it was held by the Hon'ble Supreme Court that: "9. Apart from that it is also well settled law of the land that the Court is not competent to give directions to lay down policy which would be for the appropriate Government to take policy decision, or to issue directions to create promotional avenues. If the Court gives such a direction, it would amount to entrancing upon the area of policy making which is within the purview of the appropriate Government. Reference can be made in this regard to a decision of the Apex Court rendered in Tech. Executive (Anti Pollution) Welfare Association Vs. Commissioner of Transport Department and another, AIR 1997 SC 3662 . Reference can be made in this regard to a decision of the Apex Court rendered in Tech. Executive (Anti Pollution) Welfare Association Vs. Commissioner of Transport Department and another, AIR 1997 SC 3662 . Considering the nature of these three cases, I am of the view that to secure ends of justice, the promotional avenues/opportunities should be provided by the State respondents to the Grade-IV employees including these three petitioners in the next higher post of IDAs or equivalent post for which this Court requires the State respondents to apply its mind to what has been stated above and observed by this Court keeping in view of the case in Raghunath Prasad Singh Vs. Secretary, Home Department, Government of Bihar and others (supra) and Tech. Executive (Anti Pollution) Welfare Association Vs. Commissioner of Transport Department and another (supra) and other existing circumstances like promotional avenue of those Grade-IV employees in other department like Secretariat (Civil Service) and to take necessary decision as early as possible within a reasonable period preferably within a period of four months from the date of receipt of a certified copy of this order from the petitioners. It is made clear that their salary be no impediment on the part of the State respondents to absorb the services of these three petitioners in Secretariat (Civil Services), Government of Meghalaya and afford them with a promotional avenue as discussed above." 14. In Bidyut Kanti Choudhury (supra) it was held by the Hon'ble Supreme Court that: "24. Denial if any chance or promotion all together, howsoever minimum it may be, naturally leads to frustration. Confinement of employee in his interim grade till his retirement without proving any scope for promotion cannot be appreciated. Reasonable promotional opportunity generates efficiency in service and fosters appropriate aptitude and aptitude to grow for achieving excellence in service. Stagnations in one's service career cannot be made the Rule. The procedure which the respondents have adopted also may lead to a kind of situation in which an erstwhile student might be appointed as Assistant Headmaster above his erstwhile teacher. This will naturally have serious repercussions leading to degeneration in service. It is in this context, the Apex Court time and again has emphasized the need for minimum promotional scope. It is also in this context why the schemes like assured career progression (ACP), restructuring etc., have been formulated by various governments. This will naturally have serious repercussions leading to degeneration in service. It is in this context, the Apex Court time and again has emphasized the need for minimum promotional scope. It is also in this context why the schemes like assured career progression (ACP), restructuring etc., have been formulated by various governments. If the other things are equal and there is no impediment in making the above quoted notification dated 06.04.82 lying down the criteria to the promotion to the post of Assistant headmaster applicable to the case of similarly situated teachers of non-government schools receiving 100 percent grants-in-aid with provincialisation of service, we see no reason as to why the said notification cannot be made applicable to the case of petitioner and for that matter to the case of the teachers working in such schools. We are of the considered opinion that a pragmatic approach is required to be taken in the matter. 26. For the foregoing reasons and discussions, we are of the considered opinion that the petitioner and for that matter the teachers of the non government schools receiving 100 percent grants-in-aid from the government must be treated at par with the teachers of other government schools in the matter of promotion. There is no distinctive feature so as to hold that the aforesaid notification dated 06.04.82 is not applicable to the case of such non Page government school teachers. Even otherwise also the non-government school teachers cannot be deprived of any avenue of promotion. Stagnation in service career cannot be made the rule. Consequently, the writ appeal succeeds granting the prayer made in WP(C) No. 206/01. The respondents shall now proceed in the matter providing promotional avenue to the petitioner and for that matter the teachers of the non-government schools receiving 100 per cent grants-in-aid from the government at par with the teachers of the government schools. The case of the petitioner should be appropriately dealt with in the mariner." 15. It was also similarly held in the cases of K.K. Gohil (supra), R.K. Sethi (supra) and Union of India & Anr. (supra). 16. The case of the petitioner should be appropriately dealt with in the mariner." 15. It was also similarly held in the cases of K.K. Gohil (supra), R.K. Sethi (supra) and Union of India & Anr. (supra). 16. The sum and substance of the submissions of the learned counsel for the petitioners is that it is now well settled that the employer must provide adequate avenues for promotion for the employees as it would generate efficiency in service as otherwise, it would bring stagnation without any future promotional prospects and creates despondency. Accordingly, it has been submitted that necessary directions may be issued for providing promotional avenue for the petitioners at least to the rank of Deputy Rank Officer which is available to other similarly situated employees. 17. Learned counsel for the respondents on the other hand submits that it is not a case of total denial of promotion. In fact, the petitioners after having initially been appointed as Supervisors were subsequently given promotion to the higher posts of Assistant Health Inspectors. Therefore, it is not the case that they were not given any promotion. Since, there is no equivalent post to the post of Deputy Rank Officer in the Health section of the Corporation, it is not possible to give any further promotion, and accordingly, submits that the aforesaid decisions relied on by the petitioners are not applicable in the present case. 18. After having heard the learned counsel for the parties and considered the materials on record, it has been noticed that under the GMC respondent, there are no specific sets of service rules governing the promotional avenues, and promotions seem to have been given on the basis of certain practices. In other words, there is no specific provision under the existing rules which debars an Assistant Health Officer to be considered for promotion to the post of Deputy Rank Officer. 19. Therefore, the Court would hold that in absence of any rules which specifically debars consideration of an Assistant Health Officer for promotion to the higher post of Deputy Rank Officer and also in absence of any specific rule restricting the number of feeder posts, the authorities can certainly consider giving promotion to such Assistant Health Inspectors to the higher post of Deputy Rank Officer. Further considering the fact that a person who was appointed along with the petitioners has been given promotion, it would not be wrong to say that the petitioners would have a legitimate expectation for similar promotional avenue. It is also expected that the authorities will create promotional avenues so that fear of stagnation does not adversely affect the performance of the employees. Under such circumstances, this Court is of the view that the present petition can be disposed of with the following direction. Since there is no specific provision debarring consideration of the Assistant Health Officers for promotion to the higher post of Deputy Rank Officer, the authorities shall consider whether the post of Assistant Health Officer can be included in the feeder posts for promotion to the higher post of Deputy Rank Officer and the authorities shall also explore the possibilities of creating such scheme as "Assured Career Progression" as available to the employees of the State as well as the Central Government, to take care of such legitimate expectations of the employees. 20. Since, it is submitted by the learned counsel for the petitioners that one of the petitioners is going to retire in December 2019, the matter may be processed as directed above, as expeditiously as possible, preferably within a period of 4(four) months from the date of receipt of a certified copy of this order. 21. With the above observations and directions the present petition stands disposed of.