High Court · 2009

I have heard Mr. H. Buragohain, learned counsel for the petitioners, Mr. H.K. Sarma, learned Standing counsel for the Corporation, Mr. R. Goswami, learn ed counsel for Respondent No.3 and Mr. D.C. Borah, learned counsel for Responden t No.7. 03. As the pleadings of the parties sufficiently project the rival s tands to facilitate the adjudication of the issues raised, this petition is bein g disposed of at the admission stage. 04. The petitioners have claimed to have joined the Corporation in t he year 1981 as diploma holder Jr. Engineers on being recommended by the Assam M unicipal Public Service Commission (hereinafter for short referred to as the Com mission). In due course, they were promoted to the post of Asstt. Engineer in t he year 1991 and assert to have regularized as such with effect from 26.11.1991. According to them, the private respondents were appointed as Asstt. Engineers w ith the Corporation on temporary/ad-hoc basis under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation Act - 1951(herei nafter for short referred to as the Regulations) initially for a period of four months between 1989 and 1990. This induction of the private respondents, the pe titioners have averred, had been without any advertisement or in compliance of a ny process prescribed by law for public appointment. They admit that some of th e said respondents were regularized as Asstt. Engineers’ w.e.f. 20.06.1992 and 13.07.1997. They, therefore, assert that the respondents are all juniors to the m in the cadre of Asstt. Engineer. They have complained that the authorities of the Corporation without finalizing the gradation list of Asstt. Engineers, have been promoting incumbents therefrom to the post Asstt. Executive Engineer on th eir own choice without heeding to their claims of superior seniority. They have stated that in the draft gradation lists, in which they were shown to be at hi gher positions over the respondents, the same eventually were not finalized. In the subsequent provisional gradation list of 2008 however, the private responden ts were shown to be senior to them. With reference to Respondent No.7 the petiti oners have asserted that not only his services in the post of Asstt. Engineer ha d not been regularized till the impugned order was passed, he was accommodated i n a separate cadre of Mechanical Engineer created for him on extraneous consider ations. As by the impugned order, the services of the private respondents in th e post of Asstt. Engineer have been regularized with effect from the date of the ir initial ad-hoc/temporary appointment under Regulation 3(f), the petitioners s eek judicial intervention for redress. 05. As the final gradation list of the same date is a consequence of the above determination, it is also under challenge on the same grounds. The pe titioners have questioned the promotion of the Respondent No.7 to the post of As stt. Executive Engineer (Mechanical) on the ground that it is impermissible in l aw, as not only his services as Asstt. Engineer remained to be regularized till 25.03.2009, considering the scheme of the Gauhati Municipal Corporation Engineer ing Service Rules, 2004(hereinafter for short referred to as the Rules) rules wh ich does not contemplate bifurcation of the posts on the basis of disciplines, t he same could not have been done. 06. The Corporation, in its counter has pleaded that the petitioners were promoted temporarily to the post of Asstt. Engineer by order 26.11.1991 su bject to their regularization by the Assam Public Service Commission (hereinafte r for short referred to as the APSC) and that it was indeed only by the order im pugned that the same was effected from the date(s) of their said promotion. Acc ording to the Corporation, Respondent Nos.3 to 7 all Graduate Engineers and were inducted as direct recruits. They have stated that while Respondent No. 3 and 4 were inducted as direct recruits in the year 1989, the Respondent No. 5 and 6 w ere appointed in the year 1990. The respondent-Corporation has stated that Respo ndent No.7 was similarly appointed in the year 1992. The Corporation has maintai ned that the services of the Respondent No. 3 and 6 were approved by the APSC on 30.05.1992, following which the same was regularized by the Corporation by orde r dated 20.06.1992. The Respondent No.4 and 5 were regularized pursuant to the o rder dated 27.08.1996 passed by this Court in Civil Rule No.1365/92 w.e.f. 13.03 .1997. The answering respondent has thus, pleaded that the services of 07. Respondent Nos. 3,4,5 and 6 had been regularized as their names were placed abov e those of the petitioners in the provisional gradation list. According to the Corporation all promotions made hitherto to the post of Assistant Executive Engi neers are on the basis of seniority and that the plea to the contrary is untenab le. The Corporation has insisted that the impugned order dated 25.03.2009 by wh ich the services of the petitioners and private respondents have been regularize d with effect from the date(s) of their initial appointments/promotion to the po st of Asstt. Engineer, has been by way of one time measure to streamline the exi sting state-of-affairs. 08. The Respondent No.3 in his separate affidavit, while substantial ly endorsing the stand of the Corporation, has emphatically contended that the s ervices of the petitioners had not been regularized as claimed by them before th e order impugned had been passed. According to the said respondent, their initi al appointment was subject to regularization by the APSC, which did never follow . To the contrary based on the concurrence of the APSC, the service of the Respo ndent No.7 was regularized by order dated 20.06.1992 of the Corporation with eff ect from the date of his entry in service i.e. 29.08.1989. This respondent has thus, endorsed the validity of the provisional gradation lists projecting him to be senior to the petitioners. According to him, the order dated 25.03.2009 hav ing regard to the considerations on which the same is based, clarifies the one d ated 20.06.1992 and that his services as Assistant Engineer stands regularized i n unequivocal terms from the date of his initial appointment i.e. 29.08.1989. B y two separate affidavit-in-reply submitted by the petitioner, the petitioners w hile reiterating and reaffirming the statements made in the writ petition, have sought to bring on records amongst others, the orders of (1) regularization of t heir services as Jr. Engineers, (2) promotion to the post of Asstt. Engineer (Ci vil) and appointment of the Respondent No.3 as Asstt. Engineer for a period of f our months. The provisional gradation list of 2004 has also been integrated in t he said pleadings. Mr. Buragohian, in the above state of pleadings, has urged that 09. as the conditions of service of the parties are governed by the Rules, the crite ria adopted by the Respondent No.1 for regularizing their services, is per se in contravention thereof, and therefore the impugned order ought to be interfered w ith. 10. The learned counsel has argued that as the services of the Respo ndent No.3 and 6 had been regularized with effect from 20.06.1992 and that of Re spondent No. 4 and 5 on and from 13.03.1997, they are apparently junior to the p etitioners whose services stands regularized w.e.f. 26.11.1991 and therefore, th e impugned order is on the face of the records illegal and unsustainable in law. Consequentially, the final gradation list based thereon, is null and void.

11. Mr. Buragohain, has urged that a decision having been taken by t he concerned authority of the Corporation to regularize the services of the Resp ondent Nos. 3,4,5 and 6 with effect from dates aforementioned, the same could no t have been altered and that too, to the prejudice to the petitioners and thus t he impugned order on that count being arbitrary and discriminatory, is liable to be set aside. As the services of the private respondents till the date of thei r regularization in terms of the aforementioned order are ad-hoc in nature, the same could not have been by any means included for the purpose of determination of the inter-se seniority of the parties, he urged. 12. With reference to Respondent No.7, the learned counsel has argue d that though his seniority has been rightly fixed reckoning his services w.e.f. 04.12.1992, in absence of any provision in the Rules, his accommodation in a se parate gradation list on the basis of Mechanical discipline being wholly unautho rized, his promotion to the post of Asstt. Executive Engineer (Mechanical) ought to be nullified. Mr. Sarma, learned Standing Counsel for the Corporation referrin 13. g to Section 67 and 72 of the Gauhati Municipal Corporation Act, 1971(hereinafte r for short referred to as the Act) has argued that as at the relevant time, the pay scale for the post of Asstt. Engineer of the Corporation exceeded Rs. 1,000 .00 per month, appointment thereto was permissible only on the recommendation of the APSC. As admittedly, the promotion of the petitioners to the said post had not been done on the basis of such recommendation, their services were not regu larized till the order dated 25.03.2009 was passed. In a way, therefore, the le arned Standing Counsel has urged that the petitioners have no locus standi to qu estion the validity of impugned order and as a corollary the final gradation lis t based thereon. While admitting that the services of the Respondent Nos. 3,4,5 and 6 had been regularized on the basis of the recommendation of the APSC and/o r the directions of this Court, inter alia as contained in the order dated 05.09 .2002 passed in Civil Rule No. 5096/98, WP(C) No. 5216/99 and WP(C) No. 6603/99, in order to set at rest the controversy bearing on the inter-se seniority of th e incumbents involved, an uniform yardstick of the date of the entry to the post was adopted and that therefore, in the facts and circumstances of the case, the impugned decision ought not to be interfered with. As the inter-se seniority h as been fixed, thus on the basis of length of regular service in the post of the Asstt. Engineer, Mr. Sarma has urged that the impugned decision is unassailable in law and therefore the petition is liable to be dismissed. He has submitted however that the enlistment of the Respondent No.7 in a separate gradation list of Assistant Engineer (Mechanical) has been on the instruction of the Court and accordingly based on his seniority in that Branch has been promoted as Assistant Executive Engineer (Mechanical). Mr. Goswami, supplementing the above, has argued that as the cri 14. teria adopted by the Commissioner is fair, reasonable and logical, at this dista nt point of time, this Court would not in the exercise of its power of judicial review interfered therewith. According to the learned counsel, an administrative review of the earlier order of regularization being not unknown in law, the imp ugned order on that count, as well, cannot be impeached. According to him, the R espondent No.3 is presently the senior most Asstt. Engineer in the Corporation w aiting for his turn to be promoted to the post of Asstt. Executive Engineer. 15. Mr. Borah, while generally supporting the other respondents pres ent, has argued that as the respondent-Corporation has drawn up a list of Asstt. Engineer (Mechanical) on the directions of the Government as contained in the l etter dated 10.08.2004(Annexure - III to the affidavit-in-opposition of the Corp oration), and that on the basis thereof, he in the meantime, has promoted as Ass tt. Executive Engineer (Mechanical), there is no reason why the impugned order o r his promotion ought to be interfered with. 16. The rival pleadings and the arguments based thereon have been du ly considered. Admittedly, the parties had been inducted in the service of the Corporation before the Rules had been brought into force by the notification dat ed 27.01.2004 published in the Assam Gazette of the same date. A reading of the Rules does not disclose any provision therein to deal with the issue of regulari zation of the existing incumbents. It is a matter of record, that the petitione rs were initially appointed as Subordinate Engineers (Civil & Electrical) by the order dated 11.08.1981 and their services were regularized as such by order dat ed 19.09.1984. They were, thereafter, temporarily promoted to the post of Asstt . Engineer (Civil) with effect from the dates of their joining by order dated 26 .11.91 of the Corporation. The said order clearly specified that the said promo tion was subject to the regularization by the APSC. This is inconformity with t he prescriptions of Section 72(1) of the Act. There is nothing on record to est ablish that the said promotion of the petitioners thereafter had been endorsed b y the recommendation of the APSC as required. 17. The order dated 29.08.1989 of the Commissioner of the Corporatio n appointing the Respondent No.3 as Asstt. Engineer (Civil) for a period of four months is on record. The records, further reveal the following dates of appoin tment of Respondent Nos.4,5,6 and 7 in the same post as hereunder:- Respondent No.4 - 05.09.1989, Respondent No.5 - 21.07.1990, Respondent No.6 - 08.08.1990, Respondent No.7 - 04.12.1992. It is also a matter of record that by order dated 20.06.1992 the services of Res pondent No.3 and 6, following the approval of the APSC were regularized with imm ediate effect. Similarly, by order dated 13.03.1997 of the Gauhati Municipal Co rporation, Guwahati the services of Respondent No.4 and 5 alongwith one Sri Mono ranjan Bharali were regularized in compliance of the order dated 27.08.1996 in C ivil Rule No.1365/1992. Noticeably, this was done in deference to the order of this Court, though the recommendation of the APSC, vis-à-vis, their services the refor was not available. Vis-à-vis Respondent No.7 is nothing on record, that p rior to 25.03.2009 any decision had been taken by the Corporation to regularize his services. A perusal of the provisional gradation list of the proximate pos 18. t and the one impugned reveals that the Respondent Nos. 3,4,5 and 6 had been ass igned a higher positions than, that of the petitioners though, till then their s ervices had been regularized from dates apparently after that of the induction o f the petitioners as Asstt. Engineers. The Respondent No.7 however, was consist ently allotted a slot below the petitioners and the Respondent Nos. 3,4,5 and 6. Though the petitioners insist for superior seniority, vis-à-vis the Respondent No.3,4,5 and 6 on the ground that the date of their promotion as Asstt. Enginee rs thereto is 26.11.1991, in view of the demonstrable fact, that their said prom otion was sans the recommendation of the APSC as required by Section 72(1) of th e Act, this plea cannot be sustained. This is clearly, reinforced by the rider a ccompanying their order of promotion making it subject to the recommendation of the said constitutional entity. Therefore, on the date of the passing of the im pugned order, whereas the services of the Respondent Nos. 3,4,5 and 6 stood regu larize by the order dated 20.06.1992/13.03.1997, there was none for the petition ers. As the plain reading of the impugned order dated 25.03.2009 woul 19. d reveal, the Commissioner of the Corporation by consciously taking note of the factual background as a whole decided to regularize the services of the concerne d incumbents in the post of Asstt. Engineer with effect from their respective da tes of joining the said post. The said respondent-authority resorted to the said measure being aware that the promotion of the petitioners to the post of Asstt. Engineers had not been made on the recommendation of the APSC as mandated by Se ction 72(1) of the Act and that the services of the Respondent Nos. 3,4,5 and 6 in fact, had been regularized by order dated 20.06.1992 and 13.03.1997. The sai d authority as the order discloses was also conscious of the decisions of this C ourt directing the regularization of the services of the incumbents who had mean while put in continuous service of more than eight to nine years. The Commissio ner of the Corporation in the above premise, in order to resolve the simmering d ispute decided to apply the yardstick of the date of initial entry to the post o f Asstt. Engineer for the purpose of regularization of the services of the parti es in the said post. In absence of any provision to the contrary in the Rules a nd having regard to the factual backdrop as narrated hereinabove, this Court is unable to persuade itself to sustain the petitioners plea of invalidating of suc h approach as arbitrary, illogical or illegal. True it is, that the order dated 20.06.1992 and 13.03.1997 of the same authority permits an interpretation that t he regularization of the services of Respondent Nos.3,4,5, and 6 was intended to be effected from the dates thereof, in absence of any specific indication in t hat regard, in the estimate of this Court, in the unique facts and circumstances of the case, the course adopted by the Commissioner of the Corporation cannot b e per se repudiated as absurd, unfair or unjust to warrant interference therew ith in the exercise of this Court’s power of judicial review. Instances of admi nistrative review, though rare are not unknown in administrative law, and having regard to the ultimate objective sought to be achieved, in the organizational i nterest and efficiency, the impugned order in the opinion of this Court cannot b e faulted with. As the Respondent Nos.3 to 6 had been appointed initially under Regulation 3(f) of the Regulations, they cannot be construed to be ad-hoc appoin tees and thus the decision of the Apex Court in 2004 13 SCC 707(Vijay K. Dhan d v. State of Punjab) dealing with ad-hoc services of the incumbents is of no av ail to the petitioners. The impugnment of the order dated 25.03.2009 and the gra dation list, therefore fails. A scrutiny of the Rules, per se does not demonstrate categorizat 20. ion of the encadered posts on the basis of disciplines, i.e. Civil, Electrical, and Mechanical. Schedule-II thereto, which sets out the categories of posts, an d other particulars related thereto, also do not admit of any such sectional bif urcation. To be specific, there is no post designated as Asstt. Engineer (Mechan ical) and for that matter, Asstt. Executive Engineer (Mechanical). Though the re spondent-Corporation has endeavoured to justify this compartmentalization on the basis of a letter dated 10.08.2004 of the Deputy Secretary, to the Govt. of Ass am, Guwahati Development Department, in absence of any provision in the Rules au thorizing such segregation on the basis of disciplines, the consequential steps taken by it (Corporation) being not approved by the Rules cannot be sustained. The minutes of the meeting of the Council of Administrators of the Corporation t aken on 19.12.2003 records, in resolution No.6, the decision to promote the Resp ondent No.7 to the next higher post being considered to be the only Mechanical E ngineer. Incidentally, a seniority list of Asstt. Engineer (Mechanical) was publ ished after the impugned order was passed reflecting the names of the Respondent No.7 and one Md. Abdul Karim Chaudhury at Sl. No.1 and 2. Noticeably, though, the above resolution was taken far back as on 17.12.2003 it is only on 26.05.200 9 that the same was implemented and the Respondent No.7 was promoted to the post of Asstt. Executive Engineer (Mechanical) thereby. In view of the above determ ination against the permissibility and/or the validity of branching the posts on the basis of disciplines, the seniority list of Asstt. Engineers (Mechanical) c annot be approved. This list being manifestly against the framework of the Rule s is therefore, to be construed as non-est in law. In the result, while the imp ugned order dated 25.03.2009 and the final Gradation List based thereon are uphe ld, the seniority list of Asstt. Engineer (Mechanical), as well as the promotion of the Respondent No.7 to the post of Asstt. Executive Engineer (Mechanical) ar e hereby set aside. 21. In passing this order, this Court is not oblivious of the fact t hat the challenge to the promotion of Respondent No.7 has been made in an interi m application in the above proceeding. However, considering the fact that this development had occurred during the pendency of the writ petition in hand, this Court to avoid multiplicity of litigations has entertained the assailment in the form presented. The petition, therefore, is partly allowed in the above terms. No costs.