Smti. Gitimollika Bora vs The State Of Assam And 2 Ors
2022 Latest Caselaw 624 Gua

                                                                    Page No.# 1/21

GAHC010095112020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/2843/2020

            SMTI. GITIMOLLIKA BORA
            W/O SHRI TIKEDRAJEET SAIKIA, R/O VILL-CHARINGIA GAON, P.O.-
            CHARINGIA, DIST-JORHAT, ASSAM, PIN-



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REPRESENTED BY THE SECRETARY TO THE GOVT OF ASSAM,
            IRRIGATION DEPARTMENT, DISPUR, GUWAHATI-6

            2:THE CHIEF ENGINEER
             IRRIGATION DEPARTMENT
            ASSAM
             CHANDMARI
             GUWAHATI-3

            3:THE ADDITIONAL CHIEF ENGINEER
             ZONE-III
             IRRIGATION
            ASSAM
             JORHAT-1
             PIN-

            4:THE ASSAM PUBLIC SERVICE COMMISSION
             GUWAHATI. REPRESENTED BY ITS SECRETARY
             GUWAHATI
            ASSAM

Advocate for the Petitioner   : DR. B AHMED

Advocate for the Respondent : SC, IRRIGATION
                                             Page No.# 2/21




Linked Case : WP(C)/3504/2020

SIDDHARTH RAJKHOWA AND 36 ORS.
SON OF SHRI MANISH RAJKHOWA
RESIDENT OF K. K. BHATTA LANE
SHANKAR- MADHAV SUB- BYLANE
H. NO-1
HATIGAON
GUWAHATI781038
DISTRICT KAMRUP (M).

2: MS POLY DEKA

DAUGHTER OF LATE BIRAJ KUMAR DEKA
RESIDENT OF HOUSE NO 28
SWAHID PATH
SURVEY
BELTOLA
ASSAM
PIN 781028.

3: SHRI KRISHNAV JYOTI SARMA
SON OF SHRI NARENDRA NATH SARMA
RESIDENT OF AMBIKAGIRI NAGAR
KAMALA PATH
HOUSE NO. 4
ASSAM
PIN 781024

4: MS. SIKHA SARMA
DAUGHTER OF SHRI NAGEN SARMA
RESIDENT OF VILLAGE RAIBORY (BRAHMUNPARA)
PO BONGARA
PS PALASHBARI
DIST KAMRUP
PIN 781015

5: SHRI NAYANA KUMAR
DAUGHTER OF LATE DINESH KUMAR DAS
RESIDENT OF MEGHMALLAR APARTMENT
FLAT NO. 103
F.C. ROAD
UZANBAZAR
LATASIL
                                                        Page No.# 3/21

GUWAHATI
PIN 781001

6: MS. DITIMONI GOGOI
DAUGHTER OF LATE TIRTHA NATH GOGOI
RESIDENT OF C/O TARUN CHOUDHURY
VILLAGE SOALKUCHI
KANCHAN NAGAR
P.O SOALKUCHI
GUWAHATI
ASSAM
KAMRUP (R)
PIN 781103

7: MS. MINAKSHI DAS
DAUGHTER OF SHRI MUKUNDA CHANDRA DAS
RESIDENT OF ABS HERMITAGE
RUPKONWAR PATH
BYLANE NO 2
HENGRABARI
GUWAHATI
PIN 781036

8: MS. PRANITA KALITA
DAUGHTER OF BHUPESH CHANDRA KALITA
RESIDENT OF HENGRABARI
LICHUBAGAN
ZARNAPAR PATH
HOUSE NO 5
GHY 781036

9: SHRI MRIDUL BARMAN
SON OF JYOTISH CH BARMAN
RESIDENT OF BHASKAR NAGAR
ZOO ROAD TINIALI
2ND BYE LANE
MILIJULI CHOWK
HOUSE NO 12
GUWAHATI 781021

10: SHRI BANAJIT DAS
SON OF SHRI DINESWAR DAS
RESIDENT OF C/O THE INSTITUTION OF ENGINEERS (INDIA)
ASSAM STATE CENTRE
BUILDING CAMPUS
GUWAHATI 781001

11: SHRI NAYANJYOTI KALITA
                                          Page No.# 4/21

SON OF SHRI PRAMOD CH. KALITA
RESIDENT OF SATGAON
DALBARI
BEHIND PHE WATER TANK
JONAKI PATH
H.NO 66
ASSAM
PIN 781071

12: MS HOMAKALA DEVI
DAUGHTER OF SHRI NAR BAHADUR BHATTARAI
RESIDENT OF ASEB COLONY
NARENGI
QRT. NO. TYPE VI/01/02
P.O. NARENGI
PS NOONMATI
KAMRUP (M)
GUWAHATI 781026

13: SHRI ANGSHUMAN TALUKDAR
SON OF DILIP TALUKDAR
RESIDENT OF DHRUBAJYOTI PATH
H.NO 2
RGB ROAD P.O. ZOO ROAD
P.S. GITANAGAR
DISTRICT KAMRUP(M)
ASSAM
PIN 781024

14: MS MANIMALA DAS
DAUGHTER OF SHRI JOGEN CHANDRA DAS
RESIDENT OF E.S.I.C STAFF COLONY
BAMUNIMAIDAM
GUWAHATI
P.S CHANDMARI
P.O BAMUNIMAIDAM
GUWAHATI 781021
DISTRICT KAMRUP (M).

15: MS HIMASHRI KALITA
DAUGHTER OF CHANDRA KANTAKALITA
RESIDENT OF WARD NO.9
PATHSALA
P.O PATHSALA
PIN 781325
DISTRICT BARPETA
ASSAM
                                                     Page No.# 5/21

16: MS GITUMONI GOGOI
DAUGHTER OF INDRAJITGOGOI
RESIDENT OF 2 NO. NAOHOLIA
P.O. NAOHOLIA
DIST DIBRUGARH
ASSAM
PIN 786191

17: MS PRANAMI BORAH
DAUGHTER OF LATE HAREN BORAH
RESIDENT OF LEPETKATTAKACHARI GAON. P.O./P.S BARBARUAH
PIN 786007
DIBRUGARH
ASSAM

18: SHRI ANUPAM SONOWAL
SON OF MUNINDRA NATH SONOWAL
RESIDENT OF VILLAGE KHONIA GAON CHOWKIDINGHEE
PS MILAN NAGAR PO KHONIA GAON
PIN 786003.

19: SHRI NAYANMONI HAZARIKA
SON OF SHRI BASANTA HAZARIKA
RESIDENT OF VILLAGE CHAGALICHUBURI
P.O BIHAGURI
P.S TEZPUR
DISTRICT SONITPUR
ASSAM 784153

20: MS SUSHMA DAS
DAUGHTER OF SHRI SWADESH DAS
RESIDENT OF HOUSE NO 644 VILLAGE FATASHILGANESHPARANEAR
MILONJYOTI CLUB
P.O. DHIRENPARA
P.S FATASHIL AMBARI
PIN 781025

21: MS BARASHA KALITA
DAUGHTER OF SHRI PARESH CH. KALITA
RESIDENT OF SAWKUCHI
JONAKINAGAR
BYE LANE 6
HOUSE NO 5
P.O. SAWKUCHI
GUWAHATI 781040

22: SHRI PRITHIRAJ BASUMATARY
SON OF SHRI PRABINBASUMATARY
                                  Page No.# 6/21

RESIDENT OF VILLAGE LURI
P.O NARTAP
SONAPUR
KAMRUP METRO
PIN 782402

23: SHRI BIKASH MANDAL
SON OF SHRI BIRENMANDAL
RESIDENT OF SALBARI
PIPELINE
WARD NO 12
NORTH BONGAIGAON
DISTRICT BONGAIGAON
BONGAIGAON
ASSAM
PIN 783380

24: MS BHARGOBI GOGOI
DAUGHTER OF SHRI GIRISH GOGOI
KHUMTAI GAON
P.O DAKHINHENGRA
GOLAGHAT

25: MS PRAGYA BORA
DAUGHTER OF SHRI KULENDRA BORA
NAMCHONIA GAON
P.O. KAMARBANDHA ALI
PIN 785625
DIST GOLAGHAT
ASSAM

26: MS RISHMA HUSSAIN
DAUGHTER OF MD ABUL HUSSAIN
VILLAGE MARUACHOWKI
POST OFFICE MARUACHOWKI
DISTRICT DARRANG (ASSAM)
POLICE STATION SIPAJHAR
PIN 784145

27: SHRI SIMANGSHA MACHAHARI
SON OF SHRI RUBENDRAMACHAHARI
RESIDENT OF VILLAGE BWIGRIGURI
P.O./P.S. UDALGURI
DIST UDALGURI
ASSAM
PIN 784509.

28: SHRI JATIN KAKATI
                                                     Page No.# 7/21

SON OF SHRI MAHENDRA CHANDRA KAKATI
 RESIDENT OF VILLAGE AMGAON
 P.O BONDA
 NARANGI
P.S PRAGJYOTISHPUR
 DISTRICT KAMRUP (M)
 PIN 781026
ASSAM

29: SHRI SANTANU BARUAH
SON OF SHRI MOHAN BEZBARUAH
RESIDENT OF NABAGRAHA ROAD
CHANDANGIRI
H/NO. 09
P.O SILPUKHURI
DIST KAMRUP (M)
GUWAHATI
ASSAM. PIN 781003

30: SHRI KRISHNA MOHAN MONDAL
SON OF MANGAL CH MONDAL
RESIDENT OF VILLAGE BALARCHAR PART 1
P.O KIRTANPARA
PS MERERCHAR
PIN 783384
BONGAIGAON
ASSAM

31: SHRI BHASKAR PRATIM DEKA
SON OF DANESWAR DEKA
RESIDENT OF VILLAGE SAIKIAPARA
P.O MENAPARA
PIN 784146
P.S MANGALDAI
DIST DARRANG (ASSAM)

32: MD ABDUL HYE SHEIKH
SON OF MD AYNAL HOQUE RESIDENT OF VILLAGE POLASHGURI NO. 1
P.O. SAPKATA P.S GOSSAIGAON
DISTRICT KOKRAJHAR (BTR)
ASSAM
PIN 783360

33: SHRI RAJDEEP BORAH
SON OF SHRI LABARAM BORAH
RESIDENT OF VILLAGE GANAKDALANI
PO DHALPUR
DISTTICE LAKHIMPUR
                                                   Page No.# 8/21

PIN 784165

34: SHRI SUDARSAN SANKAR BORA
SON OF SHRISATYENDRA NATH BORA
MANAI MAJI GAON
MALOW ALI
P.O DHEKARGARAH
JORHAT 785001

35: MD MEHDI HASAN
SON OF MD. JULHAS ALI
RESIDENT OF VILLAGE NEW KARAITARY
P.O FAKIRAGRAM
P.S FAKIRAGRAM
DISTRICT KOKRAJHAR
PIN 783345

36: SHRI JYOTISH KALITA
SON OF SHRI PADMA KALITA
RESIDENT OF VILLAGE GARAMUR DULIA GAON
OPPOSITE JORHAT RADIO STATION COLONY
P.O JORHAT ENGINEERING COLLEGE
PIN 785007
JORHAT
ASSAM

37: MS APARAJITA DAS
DAUGHTER OF LATE MUKUL CHANDRA DAS
RESIDENT OF HOUSE NO. 15
NIRIBILI PATH
RUKMINIGAON
GUWAHATI
PIN 781028
VERSUS

THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM
IRRIGATION DEPARTMENT
DISPUR
GUWAHATI 781006
ASSAM.

2:THE CHIEF ENGINEER
IRRIGATION DEPARTMENT
 CHANDMARI
 GUWAHATI 781003
 ASSAM.
 3:THE ASSAM PUBLIC SERVICE COMMISSION
                                                                        Page No.# 9/21


          REPRESENTED BY ITS SECRETARY
          KHANAPARA
          GUWAHATI 781022
          ASSAM
          ------------
          Advocate for : MR. U K NAIR
          Advocate for : SC
          APSC appearing for THE STATE OF ASSAM AND 2 ORS.



                                BEFORE
                HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                     ORDER

22.02.2022

Heard Mr. U.K. Nair, learned senior counsel, assisted by Mr. M.P. Sarma, learned counsel for the petitioners. Also heard Mr. P.N. Goswami, learned Additional Advocate General, assisted by Mr. N. Upadhyaya, learned Standing Counsel for the Irrigation Department, i.e. State respondent nos. 1, and 2 and Mr. K. Konwar, learned standing counsel for the Assam Public Service Commission (APSC for short), i.e. respondent no. 3.

2) The 37 (thirty-seven) petitioners herein have joined together to agitate their common cause. In the writ petition, it has been projected that pursuant to an advertisement dated 12.12.2013 and consequent selection process conducted by the APSC, on the basis of their Diploma in Civil Engineering, all the petitioners were appointed as Junior Engineer (Civil) in the Irrigation Department on temporary basis. It is projected that while the petitioner nos. 1 to 6, 8 to 19 and 33 to 37 had respectively obtained their Graduate Degree in Civil Engineering before their appointment as Junior Page No.# 10/21

Engineer in the Irrigation Department, the respondent nos. 7, 20 and 32, who were pursuing their Graduate course in Civil Engineering while they had appeared in selection process, had obtained their respective Degree in Civil Engineering sometime after joining as Junior Engineer in the Irrigation Department. In respect of some of the petitioners, their order of appointment was issued on 07.12.2017 and the rest of them were appointed vide appointment order dated 28.02.2018.

3) The petitioners have B.E. Degree in Civil Engineering. Hence, they claim to be eligible for promotion to the next higher post of Assistant Engineer (Civil). It is projected that the petitioner no. 1 had also cleared departmental examination to be promoted to the post of Assistant Engineer (Civil), as such the petitioner no. 1 had submitted his representation dated 11.07.2019 for being considered for promotion as per the provisions of Rule 11(5) of the Assam Engineering (Irrigation Department) Service Rules, 1978 (hereinafter referred to as the "1978 Rules"). Although it has been stated in the writ petition that the other petitioners had also submitted similar representations, but only the representation submitted by the petitioner no. 1 has been annexed to the writ petition as Annexure-4. Thereafter, pursuant to the letters from the competent authorities, the Chief Engineer, Irrigation, Assam, vide forwarding letter dated 07.02.2020 had furnished information to the Government, as per which 48 numbers of Junior Engineers were found having B.E./ B.Tech Degree. In the meanwhile, the Irrigation Department has issued an advertisement to fill up 159 vacant posts of Assistant Engineer through APSC and accordingly, the petitioners have filed this writ petition under Article 226 of the Constitution of India, claiming right to be considered for promotion under Page No.# 11/21

the 1978 Rules ahead of their batch-mates who are not Graduate Engineers. In support of his submissions, the learned senior counsel for the petitioners has placed reliance on the case of Dijen Sarmah & Anr. v. The State of Assam & Ors., W.P.(C) 3494/2007, decided on 30.04.2009.

4) In the affidavit-in-opposition filed by the respondent no. 1, the stand taken is to the effect that there are 48 Junior Engineers with Graduate Degree including the petitioners and that the petitioners had obtained Graduate Degree prior to their induction in service. It has been stated that the total cadre strength of Assistant Engineer in Irrigation Department was 453 out of which 70%, i.e. 317 posts are for filling up by direct recruitment and remaining 30%, i.e. 136 posts are meant for promotion and that as on the date of filing of the affidavit-in-opposition, out of 136 posts meant for promotional quota, 106 posts have been filled up. It has been stated that the petitioners was appointed during 2017-18. Be it mentioned that to show the position in service, the learned Additional Advocate General has placed reliance on the gradation list dated 05.09.2020 of Junior Engineers. Moreover, extensive reference is made to Rules 5, 6, 11, 11(3), 13 and 14 of the 1978 Rules. It is the specific stand of the respondent no. 1 to the effect that as per Rule 11(5) of the 1978 Rules, a Junior Engineer must acquired academic qualification for direct recruitment as Assistant being for promotion as Assistant Engineer i.e. graduation as per Rule 14 thereof against the next available vacancy and such promotion shall be treated as direct recruitment to the cadre of Assistant Engineer. Accordingly, it has been stated that the said clause in the said Rule 11(5) excludes the Junior Engineers who had acquired qualification prior to joining service. In this regard it has also been stated that if the Engineering Degree acquired prior to joining Page No.# 12/21

the service is taken into consideration for promotion, it would amount to deletion of word "acquiring" and amount to adding the word "acquired", which was not the legislative intent. It has also been stated that the petitioners fall under the 30% promotional quota and therefore, cannot assail the direct recruitment process for 70% posts as prescribed under Rule 5 and that the petitioners cannot claim promotion for posts meant for direct recruitment.

5) By referring to the stand taken in the affidavit-in-opposition of respondent no.1, it was submitted that under distinguishable facts W.P.(C) 3494/2007 was decided because in the said case, the State respondents had not taken the plea taken in this case and that there were examples of fast track promotion in Public Works Department, which was later on discontinued and that there is not a single instance of such fast track promotion in the Irrigation Department.

6) The only issue in this case is whether the petitioners in this case would get the benefit of Rule 11(5) of the 1978 Rules.

7) At the outset, it may be mentioned that the learned counsel for the parties are ad idem that previously the (i) Public Works Department, (ii) Public Health Engineering, (iii) Irrigation Department, and Flood Control Department were under the Works Department of the State and thereafter, these three separate departments were created by the State and the services under these three departments are governed by separate service rules, viz., (i) Assam Engineering (Public Works Department) Service Rules, 1978, (ii) Assam Public Health Engineering Service Rules, 1996, (iii) Assam Engineering Page No.# 13/21

(Irrigation Department) Service Rules, 1978, and (iv) Assam Engineering (Flood Control Department) Service Rules, 1981.

8) The provisions of Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978 is almost para materia to Rule 11(5) of the herein before three other rules. The provisions of Rule 11(5) of the 1978 Rules reads as follows:-

"11(5) Notwithstanding anything contained herein before in this rule, subject to suitability, a Subordinate Engineering Grade-I of the Assam Engineering (Irrigation Department) services, on his acquiring the academic qualification, as prescribed for a direct recruit Assistant Engineer, shall be promoted to as Assistant Engineer, in consultation with the Commission, as provided in Rule 14, against the next available vacancy in the cadre and such promotion shall be treated as direct recruitment to the cadre of Assistant Engineer for the purpose of these rules ."

9) In the case of Dijen Sarmah (supra), the fact situation is somewhat similar to the facts of this case. In the said case the three petitioners who were employed as Junior Engineers in the Public Works Department had approached the Court seeking a direction for consideration of their claim for promotion / direct entry in the cadre of Assistant Engineers as per the provisions incorporated in Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978. The petitioners therein, by virtue of the higher Engineering Degree qualification which is the qualification prescribed for direct appointment into the cadre of Assistant Engineer (Civil), although they were recruited as Junior Engineers on the basis of the Engineering Diploma qualification. In the said case also it was contended by the departmental counsel that the past practice in the department for promoting those Junior Engineers who had joined with additional qualification of Engineering Degree Page No.# 14/21

was discontinued after the department decided to stop referring promotional matters of Junior Engineers to the Assam Public Service Commission. Nonetheless, the Court did not accept the justification by the learned departmental counsel to justify the departure from the earlier practice as no corresponding change was found in Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978 by holding that the practice was discriminatory. Therefore, the writ petition was allowed by directing the cases of the petitioners be considered for promotion under Rule 11(4)(c) of the aforesaid rules.

10) However, this case is based on dissimilar fact situation. In the instant case relating to Irrigation Department, the specific stand of the respondents in their affidavit-in-opposition is that there was not a single instance of fast track promotion in the Irrigation Department to those Junior Engineers who had acquired Graduate Engineering prior to their induction in service.

11) Nonetheless, in the herein before referred case of Dijen Sarmah (supra), the coordinate Bench of this Court had referred to the provisions of Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978, which as stated herein before, is para materia to the provisions of Rule 11(5) of the 1978 Rules and had observed and opined as follows:-

"10. Rule 11(4)(c) obviously provides for a faster mode of entry into the higher cadre of Assistant Engineer for those serving as Junior Engineers. The Rule itself does not rule out considering of cases of those who had already acquired the higher academic qualification, prior to their entry into the service in the feeder cadre of Junior Engineer.

11. From the several instances of such fast track promotion given, it is Page No.# 15/21

apparent that the Department had all along been considering promotion for the Junior Engineers, who possesses or acquire the Graduate Engineer qualification, without making any distinction amongst those, who acquired the qualification before or after entering into service of Junior Engineers in the Department.

12. The Department tries to justify the abandoning of the above practice, because of replacing the practice of consulting the APSC by consulting the DPC for making promotion to the cadre of Assistant Engineer.

This explanation, furnished by the Department cannot in my view is acceptable, as no corresponding change in the Rules has been incorporated, to do away with the long standing practice followed by the Department. There is really no basis to make a distinction between those, who acquired higher qualification after they joined service and those who joined service in the lower cadre, with additional higher academic qualification. Therefore, non-consideration of the cases of the petitioners for promotion under Rule 11(4)(c) to the cadre of Assistant Engineer, is found to be discriminatory and the same therefore violates the petitioners' rights guaranteed under Article 14 and16 of the Constitution of India.

13. In so far as the advertisement dated 27.3.2007 (Annexure 9), whereby 78 posts of Assistant Engineer (Civil) has been advertised for filling up the posts through direct recruitment, it is submitted by the Departmental counsels that the said direct recruitment exercise to the 78 posts, would not intrude into the 30% of the total cadre strength of Assistant Engineers, earmarked to be filled up by promotion of Junior Engineers (Subordinate Engineers). From the above submission, it can be understood that the 30% quota meant to be filled up by promotion in the cadre of Assistant Engineers, are available to be filled up by eligible serving Junior Engineers.

14. The petitioners herein are contenders for promotion on the basis of higher academic qualification under the provisions of Rule 11(4)(c) and not under the provisions of Rule 11(4)(a) and since such promotions are to be considered, subject to availability of vacancies in the cadre, I am of the opinion that directions should be issued to consider the cases of the 3 petitioners for promotion to the posts of Assistant Engineers under the provisions of Rule 11(4)(c), if vacancies in the promotional quota is available. It is ordered accordingly."

12) It is seen that in the 1978 Rules, there is no scope of promotion of a Junior Engineer with Diploma in Engineering to be promoted to the next higher post. Therefore, it appears that Junior Engineers with Diploma in Engineering would otherwise stagnate. Perhaps for the said reason, the 1978 Rules provide for an opportunity to acquire Engineering Degree and then claim promotion to the post of Assistant Engineer and thereupon be treated as a Page No.# 16/21

direct recruit. Only thereafter, such Assistant Engineer would be eligible for any further promotion to the next higher post.

13) In light of above, in the considered opinion of the Court, the plain language of Section 11(5) of the 1978 Rules leaves no scope for any ambiguity as the said section specifically provides to the effect that "... on his acquiring the academic qualification, as prescribed for a direct recruit Assistant Engineer, shall be promoted to as Assistant Engineer, in consultation with the Commission, as provided in Rule 14, against the next available vacancy in the cadre and such promotion shall be treated as direct recruitment to the cadre of Assistant Engineer for the purpose of these rules."

14) Thus, on the basis of plain and unambiguous language of the provisions of Rule 11(5) of the 1978 Rules, the Court is unable to accept the contention of the learned senior counsel for the petitioners. Rather, the Court is inclined to accept the stand of the learned Addl. Advocate General that if the interpretation sought to be given by the learned senior counsel for the petitioners is accepted it would amount to substitution of the word "acquiring" with the word "acquired", which was not the legislative intent. Moreover, in the considered opinion of the Court, promotions cannot be ordered to be made dehors the relevant service Rules in force.

15) In connection with the principles of interpretation of statutes, it is too well settled that where there is no ambiguity in the words, literal meaning has to be applied. In this regard, we may refer to a recent judgment of the Full Bench of the Supreme Court of India in the case of National Highways Authority Page No.# 17/21

of India v. Pandarinathan Govindarajulu & Anr., (2021) 6 SCC 693: AIR 2021 SC 560: 2021 STPL 35 SC. Para 9 thereof as appearing in STPL is quoted below:-

"9. It has been repeatedly held by this Court that where there is no ambiguity in the words, literal meaning has to be applied, which is the golden rule of interpretation. The words of a statute must prima facie be given their ordinary meaning. [Dental Council of India v. Hari Prakash, (2001) 8 SCC 61 and Harbhajan Singh v. Press Council of India, (2002) 3 SCC 722]."

16) Thus, by applying the golden principles of interpretation, the Court is unable to accept the finding of the coordinate Bench of this Court in the case of Dijen Sarmah (supra) while examining the provisions of Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978 which is similar to the provisions of Rule 11(5) as given in para 10 thereof to the effect that "... The Rule itself does not rule out considering of cases of those who had already acquired the higher academic qualification, prior to their entry into the service in the feeder cadre of Junior Engineer..."

17) Nonetheless, the Court is of the considered opinion that in the case of Dijen Das (supra), the interpretation given to the provisions of Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978 was perhaps justified because as per fact situation as narrated in para 11 of the judgment in the case of Dijen Sarmah (supra), the Public Works Department was all along been considering promotion for the Junior Engineers who possesses or acquire the Graduate Engineer qualification without making distinction amongst those who acquired the qualification before or after entering into service of Junior Engineers in the Department. The said practice, as per affidavit-in-opposition by the respondents, was never followed in the Irrigation Page No.# 18/21

Department. Therefore, the Court is unable to adopt the interpretation of the provisions of Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978 for interpreting the provisions of Rule 11(5) of the 1978 Rules owing to distinctive facts of this case.

18) As per the pleadings in this writ petition, at the time of their respective appointment as Junior Engineers, while the petitioner nos. 7, 20 and 32 were pursuing their Degree of Bachelor of Engineering (Civil Engineering), had obtained such degree sometime after joining service as Junior Engineer, the other petitioners had already acquired their Graduate Degree in Civil Engineering prior to joining in service. Therefore, there is no dispute that all the petitioners had joined service on the basis of holding Diploma in Civil Engineering. Thus, there is no dispute that all the petitioners had competed with Diploma Holders for being selected and appointed as Junior Engineer (Civil) in the Irrigation Department. It has been submitted at the Bar that in Rule 11(2) and 11(5) of the 1978 Act, reference has been made to the post of Subordinate Engineer Grade-I; in Rule 11(2) and 11(4), reference has been made to the Assam Subordinate Engineering (Irrigation Department) Service Rules, 1978; and in Rule 11(3), reference has been made to Sub-Engineer; and in Rule 11(4)

(a), reference has been made to the post of Subordinate Engineer. Nonetheless, the learned senior counsel for the petitioners and the learned Additional Advocate General are both ad idem that Subordinate Engineer Grade-I, Sub- Engineer and Junior Engineer are one and the same and the said post is now referred to as "Junior Engineer". It is not in dispute that the minimum qualification to be appointed as Junior Engineer is Diploma in Civil Engineering.

Page No.# 19/21

19) It is also not in dispute that ordinarily under Rule 11(4)(a) of the 1978 Rules, a Junior Engineer would qualify to be considered for promotion of having rendered 8 years of service as a Junior Engineer on the first January of the year of promotion, but a fast track promotion is permissible under Rule 11(5) of 1978 Rules on acquiring Graduate Degree.

20) In this case in hand, the petitioners having higher qualification of "Graduate Degree in Civil Engineering" though eligible to apply for direct recruitment to the post of Assistant Engineer, with eyes open, elected to be appointed as Junior Engineer which requires lesser qualification of "Diploma in Civil Engineering". The case of the petitioner nos. 7, 20 and 32 is no different because they knew that they were in verge of obtaining their respective graduate degree in a short time, but with wide eyes, they opted to compete with Diploma Holders to be appointed as Junior Engineers with lesser qualification. Yet, after joining service is seeking fast track promotion to the next higher post of Assistant Engineers with a pre-existing Graduate Degree. Thus, by this method, the petitioners want to steal a march over other Junior Engineers, who would otherwise become eligible for promotion to the next higher post of Assistant Engineer after rendering service of 8 years. This, in the considered opinion of the Court would amount to giving unfair advantage to the petitioners who had not exercised option for being selected and appointed as Assistant Engineer on the strength of her pre-existing Graduation Degree.

21) Therefore, respecting the well settled judicial discipline, the Court is of the considered opinion that as this coordinate Bench is unable to accept the interpretation rendered by another coordinate Bench regarding Page No.# 20/21

interpretation of Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978, which is nearly similar to the provisions of Rule 11(5) of the 1978 Rules, which is a question of law, it would be appropriate for this subsequent Bench of coordinate jurisdiction to refer the matter to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate in the field. It is too well settled that no coordinate Bench can comment upon and/or sit in judgment over the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench. If a coordinate Bench does not agree with the principle of law enunciated by another coordinate Bench, the matter has to be referred to a larger Bench. In this regard, we may refer to para 26 of the judgment of the Division Bench of this Court in the case of Manmita Barman v. State of Assam & Ors., (2021) 1 GLT 300 (DB).

22) The point of determination referred to for consideration of the Division Bench is as follows:-

"Whether the use of word "acquiring" as provided in Rule 11(5) of the Assam Engineering (Irrigation Department) Service Rules, 1978 would exclude those Junior Engineers who had acquired Graduate Degree in Engineering prior to joining service as Junior Engineer in the Irrigation Department?"

23) It is needless to mention that the Division Bench would have the inherent and unfettered discretion to reframe the point of determination and/or to decide any other point that may arise in course of hearing.

24) The Registry shall place the matter before the Hon'ble The Chief Justice for his consideration to list this writ petition before the Division Bench for Page No.# 21/21

determination of the point of determination.

JUDGE

Comparing Assistant