High Court
Case Details
WP(C) 5266/2004 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (oral)
Legal Reasoning
Heard Mr. P. J. Saikia, learned counsel for the petitioner. Also hear d Mr. U. Rajbongshi, learned Standing Counsel, Transport Department for all the respondents. 2. Case of the petitioner is that he was appointed as trainee Watch and Ward (Supervisor) in the Transport Department, Government of Assam on stipe ndiary fixed pay basis by order dated 07.10.1994 issued by the Commissioner of T ransport, Assam. Thereafter, by intimation dated 20.12.1994 issued by the Deputy Secretary to the Government of Assam, Transport Department and addressed to the Accountant General, Assam, it was stated that 23 stipendiary posts of Watch an d Ward were re-designated as stipendiary Assistant Enforcement Inspector and 27 stipendiary posts of Guard were re-designated as stipendiary Enforcement Checker . The above re-designation had the concurrence of the Finance Department. Thus, by way of the said re-designation, petitioner held the post of Assistant Enforc ement Inspector on stipendiary basis. On completion of his term as trainee, peti tioner was under the expectation that his service would be regularized in the ra nk of Assistant Enforcement Inspector as by the aforesaid order, the post he was holding stood re-designated as Assistant Enforcement Inspector. 3. By order dated 08.09.1995 issued by the Commissioner of Transpor t, Assam, service of the petitioner and 49 others were brought under the regular time scale of pay w.e.f. 01.04.1995. However, petitioner’s service was regular ized as Enforcement Checker and not as Assistant Enforcement Inspector. 4. By way of this writ petition, petitioner seeks a direction to th e respondents to regularize his service as Assistant Enforcement Inspector in th e Transport Department, Government of Assam w.e.f. 01.04.1995. 5. Petitioner has also filed an additional affidavit. He has stated that the Government of Assam had framed a scheme for rehabilitation of surrende red ULFA militants. In terms of the said scheme, Government of Assam in the Poli tical (A) Department had issued notification dated 30.09.1994 sanctioning 50 num bers of posts for the Transport Department-23 posts of trainee Watch and Ward an d 27 posts of trainee Guard. Petitioner’s appointment as trainee Watch and Ward was in terms of the aforesaid scheme, which was subsequently re-designated as st ipendiary Assistant Enforcement Inspector. It is the contention of the petitione r that such appointments were outside the purview of the recruitment rules and, therefore, the qualification and procedure prescribed under the recruitment rule s would not be applicable to the persons employed under the aforesaid scheme. St ate Government acknowledged this position by appointing the petitioner as stipen diary Assistant Enforcement Inspector although his academic qualification is HSL C (matriculation). Since service of the petitioner was re-designated as stipendi ary Assistant Enforcement Inspector, his service ought to have been regularized in the said rank. 6. Respondents have filed counter affidavit. It is admitted that Go vernment of Assam had formulated a scheme for rehabilitation of surrendered ULFA militants for which 50 posts were sanctioned to the Transport Department [23 as stipendiary trainee Watch and Ward (Supervisor) and 27 as stipendiary Guard]. T he above posts were re-designated as stipendiary Assistant Enforcement Inspector and stipendiary Enforcement Checker on 20.12.1994. In view of creation of regul ar posts in the cadre of Assistant Enforcement Inspector and Enforcement Checker vide Government Memo dated 31.08.1995, the above 50 posts were brought under th e purview of the regular time scale. It is stated that as per Rule 4(1) read wit h Schedule-III of the Assam Transport Service (Recruitment and Promotion to the posts of Assistant Enforcement Inspector) Orders, 1990, the minimum qualificatio n prescribed for the post of Assistant Enforcement Inspector is Pre-University p ass or its equivalent examination pass from any recognized University or Board. The respondents had sorted out the requisite qualification of all the 50 stipend iary trainees. Those whose educational qualifications were less than Pre-Univers ity pass or its equivalent examination, their services were regularized as Enfor cement Checker. Since petitioner’s academic qualification was HSLC pass (Matricu lation), though he was initially appointed as stipendiary trainee Watch and Ward (Supervisor), which upon re-designation came to be known as Assistant Enforceme nt Inspector, he could be regularized in the post of Enforcement Checker only as his qualification did not permit his regularization as Assistant Enforcement In spector. 7. Mr. Saikia, learned counsel for the petitioner referring to the averments made in the writ petition and the additional affidavit submits that si nce the petitioner was appointed under a special scheme, the qualification presc ribed for the post of Assistant Enforcement Inspector under the recruitment rule s would not be applicable in his case. He further submits that since the petitio ner on re-designation was allowed to hold the post of Assistant Enforcement Insp ector, down- grading him to the post to Enforcement Checker is not justified. 8. Mr. Rajbongshi, learned Standing Counsel, Transport Department o n the other hand submits that the respondents had only followed the requirement of the Assam Transport Service (Recruitment and Promotion to the posts of Assist ant Enforcement Inspector) Orders, 1990 and as the petitioner does not fulfill t he eligibility requirement for the post of Assistant Enforcement Inspector, his service cannot be regularized in the said post. 9. Submissions made have been considered. 10. A perusal of the 1990 Orders would indicate that recruitment to the post of Assistant Enforcement Inspector is by two methods-50% by direct recr uitment through a competitive examination where the eligibility criterion is Pre -University or equivalent examination pass and 50% by promotion from Enforcement Checkers who are matriculates and having completed 10 years of service. 11. It is clear that petitioner had not entered service through the normal recruitment channel. He was offered appointment as a part of a rehabilita tion scheme. As already noticed above, initial appointment of the petitioner was on stipendiary basis, firstly, as trainee Watch and Ward (Supervisor), which wa s subsequently re-designated as stipendiary Assistant Enforcement Inspector. Whe n the petitioner was brought under regular time scale of pay, it had to be again st a post which he was eligible to hold. As per the 1990 Orders, petitioner did not have the eligibility qualification to hold the post of Assistant Enforcement Inspector, he being a matriculate. Therefore, he could not have been given the pay-scale of Assistant Enforcement Inspector. 12. In view of above, no case is made out to grant the relief as sou ght for by the petitioner. Accordingly, prayer for regularization in the post of Assistant Enforcement Inspector stands rejected. 13. However, rejection of the above prayer of the petitioner will no t debar the respondents to consider promotion of the petitioner to the post of A ssistant Enforcement Inspector if vacancies under the promotion stream are avail able and provided petitioner comes within the zone of consideration. 14.
Decision
With the above observation, writ petitioner stands disposed of.