Smti. Gitimollika Bora vs The State Of Assam And 2 Ors
2022 Latest Caselaw 626 Gua

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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
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                                BEFORE
                HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                     ORDER

22.02.2022

Heard Mr. N. Hoque, learned counsel for the petitioner and 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, 2 and 3 and Mr. K. Konwar, learned standing counsel for the Assam Public Service Commission (APSC for short), i.e. respondent no. 4.

2) The petitioner has a Diploma in Civil Engineering and pursuant to a selection process conducted by the APSC, she was appointed as Junior Engineer (Civil) in the Irrigation Department on temporary basis vide order dated 30.12.2011. The petitioner had thereafter obtained her B.E. Degree in Civil Engineering from Jorhat Engineering College in the year 2014. Therefore, claiming to be eligible for promotion to the next higher post of Assistant Engineer (Civil), the petitioner had applied on 22.05.2015 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 the said application was forwarded to the competent authorities by the Additional Chief Engineer (Civil), no action was taken. In the meanwhile, the Irrigation Department has issued an advertisement to fill up 159 vacant posts of Assistant Engineer through APSC. The petitioner has filed this writ petition under Article 226 of the Constitution of India, claiming that she has a right to be considered for promotion under the 1978 Rules ahead of her Page No.# 3/13

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

3) 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 petitioner and that the petitioner had obtained Graduate Degree prior to her 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 petitioner was appointed vide notification dated 30.12.2011 and that as per the gradation list dated 05.09.2020, the name of the petitioner is at serial no. 65 out of 306 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 the service is taken into consideration for promotion, it would amount to deletion of word "acquiring"

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and amount to adding the word "acquired", which was not the legislative intent. It has also been stated that the petitioner falls under the 30% promotional quota and therefore, cannot assail the direct recruitment process for 70% posts as prescribed under Rule 5 and that the petitioner cannot claim promotion for posts meant for direct recruitment.

4) 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.

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

6) 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 Page No.# 5/13

Control Department) Service Rules, 1981.

7) 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 ."

8) 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. In the said case, 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 was discontinued after the department decided to stop Page No.# 6/13

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 therein be considered for promotion under Rule 11(4)(c) of the aforesaid rules.

9) 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.

10) 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 apparent that the Department had all along been considering promotion for the Page No.# 7/13

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."

11) 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 Page No.# 8/13

further promotion to the next higher post.

12) 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."

13) 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 counsel for the petitioner. 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 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.

14) 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 Page No.# 9/13

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]."

15) 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..."

16) 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 Department. Therefore, the Court is unable to adopt the interpretation of the Page No.# 10/13

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.

17) As per the pleadings in this writ petition, the petitioner had obtained Three Year (Six Semester) Diploma in Civil Engineering in Term VI Final Diploma Examination, 2006 in Civil Engineering. Thereafter, she had obtained Diploma in Computer Aided Design (CAD for short) in the course conducted from 10.04.2006 to 10.07.2006. Thereafter, the petitioner had obtained Degree of Bachelor of Engineering (Civil Engineering) in the Examination held in July, 2011. However, on recommendation made by the APSC on 30.09.2011, the petitioner had been appointed as Junior Engineer (Civil) vide notification dated 30.12.2011. Thus, there is no dispute that the petitioner 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 counsel for the petitioner 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.

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18) 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.

19) 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 her pre-existing Graduation Degree.

20) 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 1978 Rules, which is a question of law, it would be appropriate Page No.# 12/13

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).

21) 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 already acquired Graduate Degree in Engineering prior to joining service as Junior Engineer in the Irrigation Department?"

22) 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.

23) 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.

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JUDGE

Comparing Assistant