DHENURAM MILI Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this writ petition, the petitioners are seeking direction from this court to restrain the respondent authorities from promoting the Junior Engineers, who are juniors to them, to the post of Assistant Engineer in the normal cadre without first regularising the services of the petitioners in the normal cadre from ex-cadre posts held by them and to comply with the direction given by this Court in its judgment and order dated 14.8.2008 passed in WP (C) No. 4767 of 2007. Before proceeding further, the facts of the case, as pleaded by the petitioners, may be noticed briefly. The petitioners are three years Diploma holders in Engineering and were appointed as Junior Engineers in the Public Health Engineering Department (PHED) on various dates and posted at various places. Their initial dates of joining in the respective posts held by them are as under:

(2.) The petitioners are governed by a set of Rules called The Assam Public Health Engineering Services Rules, 1996 ("the Rules" for short), which prescribes the norms and procedures about the method of recruitment of Junior Engineer as well as Assistant Engineers. The petitioners have fulfilled all the criteria for promotion to the post of Assistant Engineer. By the letter dated 16.12.1995, the Deputy Secretary to the Government of Assam, PHED requested the Chief Engineer (PHE), Assam (Respondent No. 3) to submit the Annual Confidential Reports (ACRs) of the Junior Engineers whose names were mentioned therein at least for five years i.e., 1990-91 to 1994-1995 and also informed them that the Selection Board meeting for selecting Junior Engineer (PHE) for promotion to the post of Assistant Engineer would be held in due course. Subsequently, by the letter dated 3.3.1997, the Deputy Secretary promoted 10 (ten) Junior Engineer to the post of Assistant Engineer (PHE) with effect from the date of taking over the charges: the petitioners have no grievance against them. However, as the particulars of the petitioner Nos. 3 and 4 also figured in the said letter dated 16.12.1995 for promotion to the post of Assistant Engineer, they had the legitimate expectation that their cases would also be considered for the post of Assistant Engineer but their expectations were frustrated. The Under Secretary, PHED, Assam subsequently issued Notification dated 12.2.2004 publishing the final inter-se seniority list of the cadre of Junior Engineer (PHE) of the department wherein the names of the petitioners also found a place. Their names figured at Serial Nos. 40, 46, 26, 19, 60, 77, 48 and 42 respectively. In this inter-se seniority list, the incumbents whose particulars were found at Sl. No. 1 to 4 and 13 had already retired from service on superannuation. The case of the petitioners is that even though the ACRs of the petitioners and others were requisitioned in the year 1995 for promotion to the post of Assistant Engineer, only 10 out of 36 candidates were given promotion to the post of Assistant Engineer in the regular cadre in the year 1997. As noticed earlier, on 10.2.2006, the Secretary to the Govt. of Assam, PHED issued a notification promoting Junior Engineer like the petitioners, among others, to officiate in the post of Assistant Engineer (Ex-cadre) in the interest of public service and as per the policy decision taken to extend promotional benefits to the Junior Engineers serving in the same cadre post for more than 20 years or more according to their inter-se seniority positions. It was clarified in the said notification that the post of Assistant Engineer (Ex-cadre) would be personal and the same would be reverted to the original cadre of Junior Engineer on their relinquishment of the post of Assistant Engineer (Ex-cadre). The dates of promotion of the petitioners in the post of Assistant Engineer (Ex-cadre) and the places of their posting are mentioned below:

(3.) The petitioners are aggrieved by their promotion to the ex cadre post of Assistant Engineer inasmuch as they will be deprived of future promotional and other service benefits and deny them forever of promotion to the post of Assistant Engineer on regular basis. Apart from causing irritants to them, their very position and status by virtue of their promotion as Assistant Engineers (PHE) in the ex-cadre post has been questioned by the Office of the Accountant General (A & E), Assam vide letter dated 6.11.2006 by questioning whether the post of Ex-cadre Assistant Engineer (PHE) conferred gazetted status or not while issuing the pay slip to them. Notwithstanding the hardships faced by them, they were nevertheless expecting that they would be brought back to the normal cadre of Assistant Engineer post in near future when the post of Assistant Engineer would fall vacant in the regular cadre. But, much to their prejudice, the Under Secretary to the Government of Assam, PHED, vide letter dated 12.10.2006 informed the Chief Engineer, PHED, Assam to take immediate action for submitting the ACRs for last five years in respect of 50 Junior Engineers of PHED preferably from Sl. No. 98 onwards of the inter-se seniority list of J.E. (PHE) published on 14.2.2004 as the same was urgently required in connection with their promotion to the next higher post. According to the petitioners, the Joint Secretary to the Government of Assam, Agriculture Department vide the Notification dated 16.10.2006 regularised 5 Assistant Agricultural Engineers (ex-cadre) in the normal cadre of Assistant Agriculture Engineer who were earlier allowed to hold the ex-cadre post of Assistant Agricultural Engineer vide Govt. notification dated 25.1.2006 in the pay scale prescribed therein. The petitioners are also expecting treatment, more so, when they are the senior most incumbents holding the post of Assistant Engineer (Ex-cadre) in the inter-se seniority list dated 12.2.2004 and their particulars are at Sl. Nos. 19, 26, 40, 42, 46, 48, 60 and 77 respectively whereas the incumbents at Sl. No. 1 to 4 have already retired from service on superannuation. However, the respondent authorities with ulterior motive have sought to promote the incumbents in normal cadre from Sl. No. 98 onwards of the inter-se seniority list. The said request was reiterated by the Under Secretary to the Government of Assam (PHD) in his letter dated 13.6.2007 addressed to the Chief Engineer, PHE, Assam.