Gauhati High Court
Smti. Gitimollika Bora vs The State Of Assam And 2 Ors on 22 February, 2022
Page No.# 1/16
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.# 2/16
Linked Case : WP(C)/3433/2020
KUNAL KASHYAP THAKURIA AND 10 ORS.
S/O HIENDRA NATH THAKURIA
R/O HOUSE NO. 7
BATHOUTHANCHALIPATH
NEAR M.P. ACCADEMY
KHERAIKUSHI
CHANDAN NAGAR
GHORAMARA
BELTOLA
PIN-781040
DIST. KAMRUP (M)
ASSAM
2: HELINA NARZARY
D/O JOTISH KUMAR NARZARY
R/O UZAN BAZAR
BAROWARI
RLY. CLN. QTR. NO. L/124 B
GUWAHATI-781004
DIST. KAMRUP (M)
ASSAM
3: GAYATRI CHOUDHURY
D/O AJIT CHOUDHURY
R/O TOWN-BORPARA
BONGAIGAON
WARD NO. 23
PIN-783380
DIST. BONGAIGAON
ASSAM
4: DAVID BORKAKOTI
S/O TARULATA BORKAKOTI
R/O HOUSE NO. 172
G.N.P. ROAD
CHANDMARI COLONY
NEAR SHEPHERD SCHOOL
DIST. KAMRUP (M)
ASSAM
PIN-781003
5: KARAM VIR ISLARY
Page No.# 3/16
S/O ABHINASH ISARY
R/O H. NO. 109
HATHIMATHA ROAD
KOKRAJHAR
P.O. AND DIST. KOKRAJHAR
ASSAM
PIN-783370
6: DEEBAJEET BARMAN
S/O KAMALISWAR BARMAN
R/O A.I.D.C. NABIN NAGAR
TRIBANI PATH
HOUSE NO. 31
NANAKVILLA
DIST. KAMRUP (M)
ASSAM
PIN-781024
7: KISHORE KUMAR CHOUDHURY
S/O DINOBANDHU CHOUDHURY
R/O VILL. KALLIYAPARA
P.O. MONIARI TINIALI
PIN-781125
DIST. KAMRUP
ASSAM
8: KAMRUZ ZAMAN
S/O NURUZ ZAMAN
R/O NEAR TARAJAN HIGH SCHOOL JORHAT
P.O. P.S AND DIST. JORHAT
ASSAM
PIN-785001
9: RITUPOBAN DOUL BARUAH
S/O RAJEN DOUL BARUAH
R/O MILAN NAGAR
JORHAT
P.O. P.S AND DIST. JORHAT
ASSAM
PIN-785001
10: MOON MOON TISSOPI
D/O ROBIRAM TISSO
R/O VILL. TUMPRENG TISSO GAON
P.O. TUMPRENG
PIN-782485
DITS. WEST KARBI ANMGLONG
Page No.# 4/16
11: PRIYANUJ MAHANTA
S/O ANIL MAHANTA
R/O BARMUKH CHUTIYA GAON
P.O. JOYRAPAR
PIN-785697
DIST. SIVASAGAR
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE CHIEF SECRETARY GOVT. OF ASSAM
2:SECRETARY
TO THE GOVT. OF ASSAM PUBLIC HEALTH ENGINEERING DEPTT.
3:ASSAM PUBLIC SERVICE COMMISSION
REP. BY THE SECRETARY TO THE COMMISSION JOYANAGAR
KHANAPARA
GHY-22
4:CHIEF ENGINEER PUBLIC HEALTH ENGINEERING
PUBLIC HEALTH ENGINEERING DEPTT. BAMUNIMAIDAN
GHY-781021
------------
Advocate for : MR. D P CHALIHA
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 3 ORS.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
22.02.2022
Heard Mr. D.P. Chaliha, learned senior counsel for the petitioners. Also
heard Mr. P.N. Goswami, learned Additional Advocate General appearing for the
Public Health Engineering Department, i.e. State respondent nos. 1, 2 and 4 and
Mr. K. Konwar, learned standing counsel for the Assam Public Service
Commission (APSC for short), i.e. respondent no. 3.
Page No.# 5/16
2) The 11 (eleven) petitioners herein have joined together to
agitate their common cause. In the writ petition it has been projected that all
the petitioners had respectively obtained their 3 (Three) Year Diploma in Civil
Engineering under the State Council for Technical Education, Assam. Thereafter,
they had all respectively obtained their Bachelor Degree in Civil Engineering
from various Colleges/ Institutes.
3) Pursuant to a selection process conducted by the APSC, all the
petitioners were appointed as Junior Engineer (Civil) in the Public Health
Engineering Department on regular basis vide order dated 25.02.2019 (wrongly
mentioned in para 14 of the writ petition as 25.02.2029) and that in the said
order, the names of the petitioners appear at serial no. 10, 13, 14, 21, 25, 36,
39, 40, 43, 60 and 64 respectively. The petitioners claim to be eligible for
promotion to the next higher post of Assistant Engineer (Civil) in terms of Rule
11(5) of the Assam Health Engineering Service Rules, 1996 (wrongly mentioned
in para 16 of the writ petition as Assam Health Engineer Rules, 1996),
(hereinafter referred to as the "1996 Rules"). Some of the writ petitioners had
submitted their application dated 15.11.2019 to the authorities to consider their
cases for appointing them as Assistant Engineer (wrongly mentioned as
Assistance Engineers in para 17 of the writ petition). However, as action was not
taken as per Rule 13/14 of the 1996 Rules. However, the APSC vide an
advertisement published in newspapers on 19.08.2020 proposed to fill up, inter
alia, 62 vacant posts of Assistant Engineer (Civil) under Public Health
Engineering Department, providing for applicable reservations as per law in
force. Therefore, the aggrieved petitioners have filed this writ petition under
Page No.# 6/16
Article 226 of the Constitution of India, claiming that a right to be considered for
promotion under the 1996 Rules ahead of their batch-mates who are not
Graduate Engineers. In support of his submissions, reliance has been placed by
the learned senior counsel 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. 2, the
stand taken is to the effect that the petitioners had rendered about 1 1/2 (one
and half year) service as Junior Engineers in the Public Health Engineering
Department and that as per the gradation list of Junior Engineers dated
30.07.2020, the names of the petitioners appear between serial nos. 331 to 384.
It has also been stated that on 05.08.2020, the Selection Board had
recommended the names of 33 Junior Engineers to the post of Assistant
Engineers whose names figured from serial no. 1 to 31 of the said Gradation List
and three reserved category candidates whose names were at serial no. 68, 69
and 71 of the same Gradation List and that such promotion were not
challenged. Accordingly, it has been stated that there are about 300 Junior
Engineers whose names appear above the petitioners, some of whom might
have Graduate Engineering Degree. It was further stated that the total cadre
strength of Junior Engineer in Public Health Engineering Department is 653 and
the total cadre strength of Assistant Engineer is 277 out of which 70% i.e. 194
posts are for direct recruitment to the cadre and remaining 30% i.e. 83 posts
are for being filled up on promotion in accordance with the rules and that all 83
posts have already been filled up. In view of above, the learned Additional
Advocate General has submitted that the petitioners can only be considered for
promotion in accordance with the rules when their turn comes. It has also been
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submitted that the petitioners can only claim promotion under the prescribed
30% quota for promotion and cannot claim any vested right to be considered
for promotion under 70% quota earmarked in the rules for being filled up by
direct recruitment. The learned Additional Advocate General has made extensive
reference to Rules 5, 6, 11, 11(3), 11(5), 13 and 14 of the 1996 Rules. It is the
specific stand of the respondent no. 2 to the effect that as per Rule 11(5) of the
1996 Rules, a Junior Engineer must acquire 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 their
joining in service. In this regard it has also been stated that if the Engineering
Degree acquired prior to joining 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.
5) By referring to the stand taken in the affidavit-in-opposition of
respondent no.2, 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 any fast track promotion in the Public
Health Engineering Department to those Junior Engineers who had acquired
Graduate Degree prior to induction in service.
Page No.# 8/16
6) The only issue in this case is whether the petitioners in this
case would get the benefit of Rule 11(5) of the 1996 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
(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 nearly similar to Rule 11(5) of
the herein before three other rules. The provisions of Rule 11(5) of the 1996
Rules reads as follows:-
"11(5) Notwithstanding anything contained herein before in this rule on
suitability, Junior Engineer of the Assam Subordinate Engineering Service (PHE)
services on his acquiring the academic qualification, as prescribed for a direct
recruit Assistant Engineer, shall be promoted 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
Page No.# 9/16
therein, 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, it was also 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 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 said writ petition was allowed by
directing the cases of the petitioners therein 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 Public Health Engineering 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 Public Health Engineering Department to
those Junior Engineers who had acquired Graduate Engineering Degree prior to
Page No.# 10/16
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 nearly similar 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
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.
Page No.# 11/16
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
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 1996 Rules, the Court is unable to accept the
contention of the learned senior counsel for the petitioner. Rather, the Court is
Page No.# 12/16
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 petitioner
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
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
nearly 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..."
Page No.# 13/16
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 Public
Health Engineering 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 1996 Rules owing to distinctive facts of this case.
18) As per the pleadings in this writ petition, all the petitioners had
obtained Three Year Diploma in Civil Engineering. Thereafter, the petitioners had
obtained Degree of Bachelor of Engineering (Civil Engineering). Thereafter, on
recommendation made by the APSC, the petitioners had been appointed as
Junior Engineer (Civil) vide notification dated 25.02.2019. 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 Public Health
Engineering Department despite holding Graduate Degree. It is not in dispute
that the minimum qualification to be appointed as Junior Engineer is Diploma in
Civil Engineering.
Page No.# 14/16
19) It is also not in dispute that ordinarily under Rule 11(4)(a) of the
1996 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 1996 Rules on acquiring Graduate Degree.
20) In this case in hand, the petitioner 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". 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 petitioner wants 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
petitioner who had not exercised option for being selected and appointed as
Assistant Engineer on the strength of their 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
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 1996 Rules, which is a question of law, it would be appropriate
Page No.# 15/16
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
larger Bench is as follows:-
"Whether the use of word "acquiring" as provided in Rule 11(5) of the Assam
Public Health Engineering Service Rules, 1996 would exclude those Junior
Engineers who had already acquired Graduate Degree in Engineering prior to
joining service as Junior Engineer in the Public Health Engineering Department?"
23) It is needless to mention that the Division Bench would have
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
determination of the point of determination.
JUDGE
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Comparing Assistant
