High Court · 2012

Heard Mr. I. Hussain, learned counsel for the petitioners. None

2. This is a matter of 2003 and the case was heard at some length o n 29-03-2012. The hearing was deferred to enable learned counsel for the petiti oners to obtain up-to date instructions from his clients as to whether they have been promoted or not in the meanwhile. Mr. I. Hussain, learned counsel for the petitioners submits on instructions that the petitioners have still not been pro moted. Under such circumstances, the Court has no other option but to proceed wi th the hearing of the matter on merit. The case of the two petitioners is that they are working as Jr. 3. Instructor under the Directorate of Employment and Craftsman Training, Assam. Th e petitioner No. 1 was so appointed on 07-12-1981, pursuant to which he joined o n 17-12-1981. The petitioner No. 2 was appointed as Jr. Instructor on 28-04-1985 and he joined the post on 07-05-1985. Thus, the petitioner No. 1 has completed more than 30(thirty) years of service in the same rank of Jr. Instructor. Simila rly, the petitioner No. 2 is also continuing in the same post of Jr. Instructor for more than 27 years as on date.

4. Prior to 1975 there was common cadre of Instructor under the Dir ectorate of Employment and Craftsman Training, Assam. Following the Assam Servic e (Revision of Pay) Rules, 1975, the post of Instructor was bifurcated into two posts, namely, Jr. Instructor and Sr. Instructor. The post in the revised scale of Rs. 300-575 corresponding to the earlier scale of Rs. 175-400 was re-designat ed as Jr. Instructor and the post in the revised scale Rs. 350-750 corresponding to the earlier pay scale of Rs. 225-600 was re-designated as Sr. Instructor. It was provided that the Jr. Instructor on completion of 10(ten) years of satisfac tory service be promoted and given the pay scale of Sr. Instructor.

5. Thereafter, the State of Assam framed a set of rules called the Assam Craftsmen Training Service Rules, 1993 to regulate the recruitment and con ditions of service of the persons appointed to the Assam Craftsmen Training Serv ice. According to Rule 11(d) of the Assam Craftsmen Training Service Rules , 199 3 ( for short, (cid:28)the 1993 Rules (cid:29)), 100% of the vacancies in the cadre of Sr. Inst ructor is required to be filled up by promotion, subject to availability of suit able officers. As per Rule 12(1), promotion is made from the cadre of Jr. Instru ctor to Sr. Instructor, the eligibility criteria being 10(ten) years of service in the cadre of Jr. Instructor.

6. A provisional seniority list of the Instructoral staff under the Directorate of Employment and Craftsman Training, Assam was prepared on 05-08-1 997 wherein the petitioners were placed at Sl. No. 87 and 116 respectively. The grievance of the petitioners is that the said seniority list has been prepared w ithout reference to any particular cadre.

7. When a few Jr. Instructors were promoted as Sr. Instructors, the petitioners and a few others filed a writ petition before this Court, being Civ il Rule No. 6788 of 1998. The same was disposed of by this Court by order dated 13-09-2000 by directing the respondents to publish the final gradation list of J r. Instructors and to make promotion in accordance with rules holding the field. On appeal, the Hon’ble Division Bench by order dated 06-11-2000 passed in W. A No. 430 of 2000 clarified that while preparing the final gradation list, the sen iority of all the Jr. Grade Instructors should be minutely examined. The further observation was that the department should first determine the exact number of vacancies and thereafter make the promotions from amongst the persons who had co mpleted 10 years of service.

8. Making a grievance that the situation has not improved and that respondents continued to make promotion randomly without adhering to the norms l aid down by the 1993 Rules, the petitioners have approached this Court by way of the present writ petition seeking a direction to promote them to the post of Sr . Instructor and not to finalise the gradation list of Sr. Instructors till thei r promotion as Sr. Instructor and enlistment of their names in the provisional g radation list of Sr. Instructor.

9. This Court by order dated 30-05-2003 while issuing rule, directe d in the interim that no final gradation list of Sr. Instructors, should be prep ared without the leave of this Court.

10. Mr. Hussain, learned counsel for the petitioners submits that de spite framing of the rules, the respondents have been making promotion from the post of Jr. Instructor to Sr. Instructor randomly and in a most arbitrary manner . He submits that a number of Jr. Instructors junior to the petitioners have not only been promoted to the next higher grade of Sr. Instructor but even to the subsequent higher post of Supervisor. During the hearing, Mr. Hussain has placed before this Court a provisional gradation list of Jr. Instructor prepared on 1 7-02-2011 in which the names of the two petitioners appear at Sl. Nos. 10 and 32 respectively. He, therefore, submits that in terms of the previous orders of th is Court, necessary direction may be issued to promote the petitioners to the po st of Sr. Instructor as they have not only completed the requisite period of 10( ten) years of service but have been continuing in the post of Jr. Instructor fo r the last 31 and 27 years respectively.

11. The respondents have neither filed any affidavit nor have produc ed the record. Though there is an interim order of this Court restraining the re spondents from finalising the gradation list of Sr. Instructors without the leav e of the Court, no such leave has been sought for by the respondents. Today also when the matter is being heard, there is no one to represent the respondents i. e., the Labour and Employment Department, Govt. of Assam.

12. have been considered. The submissions made by the learned counsel for the petitioners The 1993 Rules provide that all the vacancies in the cadre of Sr 13. . Instructor should be filled up by promotion from the feeder cadre of Jr. Instr uctor, the only condition being that there should be suitable officers available for promotion. The eligibility criteria for such promotion is 10(ten) years of service in the cadre of Jr. Instructor. As per the Government office memorandum dated 03-10-1985, annexed to the writ petition as Annexure-5, which explained th e provision contained in the Assam Service (Revision of Pay) Rules, 1975 regardi ng the bifurcation of the cadre of Instructor into Senior Instructor and Junior Instructor, the promotion envisaged from the post of Jr. Instructor to Sr. Instr uctor is automatic and this is reflected in the 1993 Rules.

14. The Hon’ble Division Bench of this Court as far back as on 06-11 -2000 had directed the Labour and Employment Department to determine the exact n umber of vacancies in existence and thereafter to make the necessary promotions. As promotions have continued both from the post of Jr. Instructor to Sr. Instru ctor and from Sr. Instructor to the next higher grade of Supervisor, the said de termination is required to be continued.

15. From the materials on record, it is seen that the petitioners ha ve stagnated in the same post for almost three decades each. This is not an idea l situation, more so, when the recruitment rules provide for automatic promotion from the post of Jr. Instructor to Sr. Instructor, the eligibility criteria bei ng 10(ten) years of service in the cadre of Jr. Instructor. There is merit in th e submission that the pool of eligible candidates in the feeder grade of Jr. Ins tructor has not been properly identified. In view of the above, this writ petition is disposed of by direc 16. ting that the case of the petitioners for promotion to the post of Sr. Instructo r should be considered by the respondents in accordance with law. Such considera tion shall be done within a period of 3(three) months from the date of receipt o f a certified copy of this order. Once the petitioners are promoted to the highe r grade of Sr. Instructor, the respondents shall permit the petitioners to file objections regarding the gradation list of Sr. Instructors. Till such time, as d irected by this Court on 30-05-2003, the final gradation list of Sr. Instructors shall not be prepared.

18. Writ petition stands allowed to the extent indicated above. No cost.