High Court
Case Details
WA 305/2009 PRESENT HON’BLE THE CHIEF JUSTICE MR A.K.GOEL HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R(CAV) UJJAL BHUYAN J Since issues in Writ Appeal No.305/2009 and W.P.(C) No.3821/2011 are related and parties being the same, both the cases were heard together and are being disposed of by this common judgment and order. 2. he materials on record. We have heard learned Counsel for the parties and also perused t Writ Appeal No.305/2009 3. Respondents 7 to 11 as the writ petitioners had filed W.P.(C) No .1616/2009 before this Hon’ble Court wherein respondents 3 to 6 were arrayed as respondents of even number while appellant was arrayed as respondent No.7. The c hallenge made in the writ petition was to the legality and validity of order dat ed 25-03-2009 passed by the Commissioner, Gauhati Municipal Corporation (GMC) as well as the final gradation list of Assistant Engineers serving in GMC of even date. During the pendency of the writ petition, respondent No.7 (appellant herei n) was promoted as Assistant Executive Engineer (Mechanical) vide order dated 26 -05-2009 issued by the Commissioner, GMC based on a separate gradation list of A ssistant Engineers (Mechanical). The above promotion as well as the separate gra dation list were also put to challenge by the writ petitioners by filing an inte rim application. 4. By the order dated 25-03-2009, Commissioner, GMC directed that s ervices of all Assistant Engineers serving in GMC stood regularized w.e.f. the d ates of their initial appointment / promotion to the said post and that their se niority would be counted from the dates of their initial appointment / promotion to the post of Assistant Engineer. Accordingly, final gradation list of Assista nt Engineers of GMC was prepared and published. However, a separate gradation li st was prepared for the Mechanical Wing as per Government direction dated 10-08- 2004. 5. Government direction dated 10-08-2004 was to take immediate nece ssary action in the matter of preparation of a separate gradation list of Mechan ical Wing. It was issued on the basis of a petition dated 30-07-2004 submitted b y the appellant. 6. As per the seniority list of Assistant Engineers (Mechanical), a ppellant was placed at serial No.1 above one Md. Abdul Karim Choudhury, who was placed at serial No.2. Date of initial appointment / joining of appellant in the post of Assistant Engineer was shown as 04-12-1992, which is also the date of r egularization of his service in the post of Assistant Engineer. In the remarks c olumn, it was mentioned that appellant was regularized on the basis of aforesaid order dated 25-03-2009. 7. By the order dated 26-05-2009 issued by the Commissioner, GMC, a ppellant was promoted to the post of Assistant Executive Engineer (Mechanical). 8. nter affidavits.
Decision
The writ petition was contested by the respondents by filing cou 9. Learned Single Judge, on due consideration, held that the respec tive parties were appointed in the GMC before the Guwahati Municipal Corporation Engineering Service Rules, 2004 came into effect from 27-01-2004. The Rules do not contain any provision dealing with regularization of service of the existing employees. Learned Single Judge found from the record that respondents 3 to 6 i n the writ petition were assigned higher positions than that of the writ petitio ners though their services had been regularized from dates after the induction o f the writ petitioners as Assistant Engineers. Respondent No.7 (appellant herein ) was consistently allotted a slot below the writ petitioners and respondents 3 to 6. Though the writ petitioners were promoted as Assistant Engineers on 26-11- 1991, which is prior to regularization of service of respondents 3 to 6 as Assis tant Engineer, in view of the fact that such promotion was without recommendatio n of the Assam Public Service Commission (APSC) as is the requirement under sect ion 72(1) of the Gauhati Municipal Corporation Act, 1971, their claim of higher seniority was negatived by the learned Single Judge. Tracing the background fact s, learned Single Judge upheld the validity of the order dated 25-03-2009 and th e gradation list based thereon. Since this part of the order is not under challe nge in appeal, we do not propose to dilate on this aspect as the same is conside red not necessary. 10. However, the challenge to the order dated 26-05-2009 and the gra dation list of Assistant Engineers (Mechanical) was upheld by the learned Single Judge. Accordingly, the seniority list of Assistant Engineers (Mechanical) and the promotion of respondent No.7 (appellant herein) to the post of Assistant Exe cutive Engineer (Mechanical) were set aside. Learned Single Judge held as under :- (cid:28)20. A scrutiny of the Rules, per se does not demonstrate categorization of the encadered posts on the basis of disciplines, i.e. Civil, Electrical and Mechanic al. Schedule-II thereto, which sets out the categories of posts, and other parti culars related thereto, also do not admit of any such sectional bifurcation. To be specific, there is no post designated as Asstt. Engineer (Mechanical) and for that matter, Asstt. Executive Engineer (Mechanical). Though the respondent- Cor poration has endeavoured to justify this compartmentalization on the basis of a letter dated 10-08-2004 of the Deputy Secretary, to the Govt. of Assam, Guwahati Development Department, in absence of any provision in the Rules authorizing su ch segregation on the basis of disciplines, the consequential steps taken by it (Corporation) being not approved by the Rules cannot be sustained. The minutes o f the meeting of the Council of Administrators of the Corporation taken on 19-12 -2003 records, in resolution No.6, the decision to promote the Respondent No.7 t o the next higher post being considered to be the only Mechanical Engineer. Inci dentally, a seniority list of Asstt. Engineer (Mechanical) was published after t he impugned order was passed reflecting the names of the respondent No.7 and one Md. Abdul Karim Chaudhury at SI. No.1 and 2. Noticeably, though the above resol ution was taken far back as on 17-12-2003 it is only on 26-05-2009 that the same was implemented and the Respondent No.7 was promoted to the post of Asstt. Exec utive Engineer (Mechancial) thereby. In view of the above determination against the permissibility and / or the validity of branching the posts on the basis of disciplines, the seniority list of Asstt. Engineers (Mechanical) cannot be appro ved. This list being manifestly against the framework of the Rules is therefore, to be construed as non-est in law. In the result, while the impugned order date d 25-03-2009 and the final Gradation List based thereon are upheld, the seniorit y list of Asstt. Engineer (Mechanical), as well as the promotion of the Responde nt No.7 to the post of Asstt. Executive Engineer (Mechanical) are hereby set asi de. 21. In passing this order, this Court is not oblivious of the fact that the challenge to the promotion of Respondent No.7 has been made in an interim applic ation in the above proceeding. However, considering the fact that this developme nt 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 pre sented. The petition, therefore, is partly allowed in the above terms. No costs. (cid:29) 11. le Judge. We are in agreement with the views expressed by the learned Sing 12. The Guwahati Municipal Corporation Engineering Service Rules, 20 04 (2004 Rules) have been framed in exercise of powers conferred under section 6 7(3) and 415 of the Gauhati Municipal Corporation Act, 1971. Rule 3 of the 2004 Rules provides for various cadres comprising the service called GMC Engineering Service. The posts equivalent to and included in the various cadres comprising t he service are as under :- (1) (2) (3) (4) (5) (6) Chief Engineer, Superintending Engineer, Executive Engineer, Assistant Executive Engineer, Assistant Engineer, Junior Engineer. Rule 20 provides for preparation and publication of a gradation list every year, containing the names of all members of the service, cadre-wise in order of seni ority. The strength of each cadre is mentioned in Schedule-II alongwith the time scale of pay attached to each cadre. The total cadre strength of Assistant Engi neer is thirty five, out of which thirty three are earmarked for the Civil Wing, one for the Mechanical Wing and another one for the Electrical Wing. However, f or the posts of Assistant Executive Engineer and above, there is no such earmark ing. Under Rule 11(a) of the 2004 Rules, fifty percent of the posts of Assistant Engineer are to be filled up by promotion and the remaining fifty percent by di rect recruitment. As per Schedule-III, for direct recruitment to the post of Ass istant Engineer, the qualification prescribed is B.E. degree from a recognized E ngineering College. As per Schedule-IV, for promotion to the post of Assistant E ngineer, the eligibility criteria is having worked as Junior Engineer for eight years in GMC. 13. Thus, it is evident that though certain number of posts in the c adre of Assistant Engineer are earmarked for various wings, such as, Civil, Mech anical and Electrical, there is no post as such which is designated as Assistant Engineer (Mechanical) or Assistant Executive Engineer (Mechanical). The Rules a lso provide for a single gradation list containing the names of all members of t he service, cadre-wise in order of seniority. There is no provision for a gradat ion list of Assistant Engineers (Mechanical). 14. Viewed in the above context, we do not find any error or infirmi ty in the decision of the learned Single Judge. Writ Appeal is without merit and is, accordingly, dismissed. W.P.(C) No.3821/2011 15. By way of this writ petition under Article 226 of the Constitut ion of India, the petitioner (appellant in Writ Appeal No.305/2009) has question ed the constitutional validity of the Guwahati Municipal Corporation Engineering Service Rules, 2004 (already referred to as the 2004 Rules), particularly Sched ule-II (Rule-4) and Rules-11(d) thereof. Petitioner also seeks a direction to th e respondents to provide for separate cadres for Civil, Mechanical and Electrica l Engineering Wings in the rank of Assistant Executive Engineer in GMC. Further prayer of the petitioner is to direct respondent No.3 (Commissioner, GMC) to fix his initial date of appointment in the post of Assistant Engineer (Mechanical) as 24-09-1990 instead of 04-12-1992. 16. It may be mentioned that this writ petition was filed after fili ng of Writ Appeal No.305/2009 against judgment and order dated 01-09-2009 passed in W.P.(C) No.1616/2009 whereby promotion of petitioner to the post of Assistan t Executive Engineer (Mechanical) made by order dated 26-05-2009 issued by respo ndent No.3 and the separate gradation list of Assistant Engineers (Mechanical) w ere setaside. 17. Case of the petitioner as projected in the writ petition is that he is a B.E. degree holder from Gauhati University. He was appointed as Assista nt Engineer (Mechanical) in GMC vide order dated 24-09-1990. The appointment was temporary for a period of three months and was made in anticipation of Governme nt approval. Such appointment was extended from time to time, with a break of on e day in between. Petitioner was ultimately appointed temporarily in GMC as Assi stant Engineer (Mechanical) under Regulation 3(f) of APSC (Limitation of Functio ns) Regulations, 1951 vide order dated 04-12-1992 issued by respondent No.3. In a previous round of litigation, this Court had held that the services of the Ass istant Engineers should be deemed to be regularized from the dates of their init ial appointment and further directed GMC to frame Rules. 18. e Assam Gazette on 27-01-2004. Subsequently, GMC framed the 2004 Rules which was notified in th By order dated 25-03-2009, respondent No.3 directed that the se 19. rvices of all the Assistant Engineers stood regularized w.e.f. the dates of thei r initial appointment / promotion to the post and that their seniority shall be counted from the dates of their initial appointment / promotion to the post of A ssistant Engineer. A separate gradation list was prepared for the Mechanical Win g as per Government direction. In the said gradation list, petitioner was placed at Serial No.1 with his date of initial appointment / joining in the post of As sistant Engineer shown as 04-12-1992. According to the petitioner, the seniorit y list of Assistant Engineers (Civil and Electrical) prepared by respondent No.3 would indicate that the services of such engineers have been regularized from t he dates of their initial appointment / promotion to that post. 20. eer (Mechanical) vide the order dated 26-05-2009 issued by respondent No.3. Petitioner was promoted to the post of Assistant Executive Engin 21. Petitioner’s above promotion was challenged before this Court in W.P.(C) No.1616/2009. This Court by judgment and order dated 01-09-2009 set asi de the promotion of the petitioner on the ground that there is no such post desi gnated as Assistant Executive Engineer (Mechanical) under the 2004 Rules. The sa id decision is the subject matter of Writ Appeal No.305/2009, decided in the ear lier part of this judgment. 22. As already indicated above, after filing of the writ appeal, pet itioner has filed the present writ petition challenging the constitutional valid ity of the 2004 Rules and for a direction to the respondents to provide separate cadres for various disciplines such as Civil, Mechanical and Electrical. As not iced earlier, petitioner has further sought for a direction to fix his initial d ate of appointment in the post of Assistant Engineer as 24-09-1990 instead of 04 -12-1992. 23. d, are as under:- The relevant portions of the 2004 Rules, which have been impugne (cid:28) 4. Strength of Service:- The strength of each cadre in the Service shall be such as determined by Corpora tion with prior approval of Government from time to time. The strength of the ca dres on the date of commencement of these rules shall be as shown in the Schedul e-II to the rules. (cid:29) (cid:28) SCHEDULE-II (Rule-4) STRENGTH OF EACH CADRE OF THE SERVICE AND THE TIME SCALE OF PAY. Categories of Post Time scale of pay Number of posts Total Chief Engineer Deputation Post Superintending Engineer 9075-14225 Permanent Temporary Executive Engineer Asstt. Executive Engineer 8100-13025 5725-11825 2 7 -- -- 3 6 2 -- 7 -- 3 6 Asstt. Engineer 33 1 1 Junior Engineer 6. 8 -- -- 25 1 2 4390-11425 33 (C) 1 (M) 1 (E) -- -- -- 3580-8750 17 (C) 1 (E) 2 (Gr.II) 1. 2. 3. 4. 5. (cid:28)11. Appointment by promotion:- .(a) & & & & & & & & & & & & & & & & & &. (b) & & & & & & & & & & & & & & & & & &. (c) & & & & & & & & & & & & & & & & & &. (d) The promotion shall be on seniority-cum-merit basis and experience. (e) & & & & & & & & & & & & & & & & & &. (cid:29) 24. ns, have been assailed on the following grounds :- The vires of the 2004 Rules, particularly the aforesaid provisio (a) The 2004 Rules are not comparable to the Rules of other Departments of t he Government of Assam, such as, Public Works Department, Irrigation Department, Water Resources Department etc; (b) In the cadre of Assistant Engineer, Junior Engineers (diploma holders) o n promotion are treated at par with graduate Engineers as they are enlisted in t he common gradation list and are equally eligible for promotion to the next high er post of Assistant Executive Engineer, which is not the case in the other Depa rtments; In the other Departments, there are separate cadres for the different di (c) sciplines of Civil, Mechanical and Electrical Engineering unlike GMC where the a bove three Engineering disciplines are clubbed together; Not having separate cadres for the different disciplines would affect th (d) e administration as a Civil Engineer may not have the knowledge and technical ex pertise to look after works of Mechanical Engineering and vice-versa; Rule 11(a) of the 2004 Rules provides that recruitment to the post of As (e) sistant Engineer would be by promotion as well as by direct recruitment. Fifty p ercent of the posts are to be filled up by promotion from amongst the Junior Eng ineers (diploma holders) whereas the remaining fifty percent are to be filled up by direct recruitment from amongst graduate Engineers. This is not the position in the other Departments where lesser percentage is ear-marked for such promoti on; (f) Though in Serial No.5 of Schedule-II of the 2004 Rules, there are thirty three posts of Assistant Engineer to be manned by Civil Engineers, one by Mecha nical Engineer and one by Electrical Engineer but in the next higher cadre of As sistant Executive Engineer and above, there is no specific promotional post earm arked for the three disciplines, which is there in the other Departments; Rule 11 (d) of the 2004 Rules provides that promotion shall be on the ba (g) sis of seniority-cum-merit and experience but in other Departments, promotion is based on merit-cum-seniority. By virtue of this Rule, a Junior Engineer may be promoted to the highest post of Chief Engineer on account of his seniority. In s uch a case, the interest of the institution will suffer; (h) There is violation of Article 14 of the Constitution of India by treatin g un-equals as equals in-as-much as diploma holders cannot be treated at par wit h degree holders considering the disparity in their educational qualifications; 25. GMC has filed its counter affidavit. It has contended that petit ioner was appointed as Assistant Engineer (Mechanical) under Regulation 3(f) of APSC (Limitation of Functions) Regulations, 1951 w.e.f. 04-12-1992 and, therefor e, his service was regularized w.e.f. 04-12-1992. It has also contended that the 2004 Rules are valid and constitutional. Respondents 5 to 9, who were the petitioners in W.P.(C) No.1616/ 26. 2009 giving rise to Writ Appeal No.305/2009, have also filed a common counter af fidavit. They have resisted the claim of the petitioner that the benefit of regu larization should be given to him w.e.f. 24-09-1990 by contending that his appoi ntments prior to 04-12-1992 were de-hors any rules or procedure. Therefore, peti tioner cannot claim seniority from 24-09-1990. They have also contended that pet itioner had accepted his promotion to the post of Assistant Executive Engineer ( Mechanical) on the strength of a separate gradation list of Assistant Engineers (Mechanical) where his initial date of appointment in the post of Assistant Engi neer (Mechanical) was shown as 04-12-1992. Having accepted the same, it is not o pen for the petitioner to now turn around and contend that his date of appointme nt should be 24-09-1990 and not 04-12-1992. They have also urged that the 2004 R ules are constitutionally valid and donot suffer from any infirmity. 27. Petitioner in his reply affidavit has reiterated the contentions made in the writ petition. Additionally, he has contended that question of his initial appointment being not in-accordance with rules doesnot arise in-as-much as there was no service rule at that time. 28. Respondents 5 to 9 in their brief re-joinder affidavit have cont ended that the claim of the petitioner that his seniority be counted from 24-09- 1990 and not from 04-12-1992 is hit by delay and laches as the challenge has bee n made after more than two years, that too, after accepting the promotional orde r dated 26-05-2009 which mentioned his date of initial appointment as 04-12-1992 . 29. Basic contention of the petitioner as highlighted by Mr. Saikia, learned Counsel for the petitioner in the course of his argument is that the 20 04 Rules provides discipline wise posts in the cadre of Assistant Engineer i.e. thirty three for Civil, one each for Mechanical and Electrical but in the next h igher post of Assistant Executive Engineer and above, no post is ear-marked for any of the disciplines. In other words, for promotion to such post, irrespective of the discipline, an Assistant Engineer would be eligible provided he fulfills the eligibility criteria and comes within the zone of consideration. 30. We donot find any force in the contention of the petitioner. Whether there should be separate cadres for Civil, Mechanical an 31. d Electrical Wings in the rank of Assistant Executive Engineer is for the concer ned authority to decide. Just because there is no separate cadre for the above d isciplines, it would not render the 2004 Rules invalid or unconstitutional. It i s within the domain of the administration and the Court would not ordinarily li ke to enter into such domain by invoking the power of judicial review. Moreover, the provision for considering promotion on the basis of seniority-cum-merit and experience instead of on merit-cum-seniority basis would not dent the constitut ionality of a statute. It is for the administration to decide which criteria to adopt while considering promotion. It is not for the Court to substitute its vie ws for that of the administrative authority. 32. The 2004 Rules also provide that recruitment to the post of Assi stant Engineer shall be on 50:50 basis i.e. fifty percent by direct recruitment from amongst degree holders and fifty percent by promotion from amongst Junior E ngineers (diploma holders) having eight years of service experience as such in G MC. Once inducted into the cadre of Assistant Engineer, diploma holders are trea ted at par with degree holders for the purpose of promotion to the next higher p ost of Assistant Executive Engineer, which is to be filled up hundred percent by way of promotion from the feeder cadre of Assistant Engineer, the eligibility c riteria being having service experience of five years in the said post in GMC. T o our mind, there is no arbitrariness or unreasonableness in the aforesaid provi sion as contained in the 2004 Rules. It only provides for opportunity of promoti on to the Junior Engineers. The 2004 Rules requires service experience of eight years in the post in GMC for a Junior Engineer to be eligible for promotion to t he post of Assistant Engineer. After promotion, they become part of the common c adre alongwith degree holders. By no stretch can it be said that thereby unequal s are being treated alike, thus violating Article 14 of the Constitution of Indi a. 33. It is a settled legal proposition that the constitutional validi ty of an enactment can be challenged only on two grounds, viz., (a) lack of legi slative competence and (b) violation of any of the fundamental rights guaranteed in part-III of the Constitution or any other constitutional provision [See (200 7) 6 SCC 236 (Greater Bombay Coop. Bank Limited -Vs- United Yarntex (P) Limited and ors.)]. In considering the validity of a statute, the presumption is always in favour of its constitutionality and the burden is upon the person who challen ges it to show that there has been transgression of constitutional principles. M ere hardship is no ground to strike down a valid legislation. In the case of Pra fulla Kr. Das and others -Vs- State of Orissa and others reported in (2003) 11 S CC 614, the Hon’ble Supreme Court has held that it would not be permissible for the Court to declare a legislation ultra vires only because it may cause hardsh ip to the petitioner. A mere hardship cannot be a ground for striking down a val id legislation unless it is held to be suffering from the vice of discrimination or unreasonableness. 34. The Apex Court in the case of Dilip Kumar Garg and another -Vs- State of Uttar Pradesh and others reported in (2009) 4 SCC 753 has held that the administrative authorities are in the best position to decide the requisite qua lification for promotion (in that case from Junior Engineer to Assistant Enginee r) and it is not for the Court to sit over their decision like a Court of appeal . In the facts of that case, it was held that the decision to treat all the Juni or Engineers, whether degree holders or diploma holders, as equals for the purpo se of promotion is a policy decision and the Court should not ordinarily interfe re in policy decision unless there is clear violation of constitutional provisio n or the statute. 35. It is also permissible to prescribe longer qualifying service fo r those not possessing the qualification. Md. Shujat Ali -Vs- Union of India rep orted in (1975) 3 SCC 76 recognized the principle that difference in educational qualifications can be made up by longer experience. The Hon’ble Supreme Court i n a number of decisions has upheld provisions prescribing higher experience on t he basis of difference in educational qualifications for eligibility for promoti on. 36. Therefore, in our view, the grounds urged by the petitioner assa iling the constitutionality of the 2004 Rules are not good grounds to test the v ires of the said enactment. Learned Counsel for the petitioner has also not been able to show any transgression of the parent statute by the impugned Rules. For the aforesaid reasons, the impugnment of the 2004 Rules has to fail and, accord ingly, the challenge is rejected. 37. Coming to the claim of the petitioner that his service in the po st of Assistant Engineer should be regularized w.e.f. 24-09-1990 by counting hi s date of initial appointment from such date instead of 04-12-1992, a perusal of the initial appointment order dated 24-09-1990 would indicate that it was a pur ely temporary appointment for three months and was issued in anticipation of Gov ernment approval. It is true that the 2004 Rules was not in existence then but a t the same time, petitioner has also not been able to show that such appointment was preceded by any advertisement or selection. Subsequently, petitioner was ap pointed as Assistant Engineer (Mechanical) on 04-12-1992 under Regulation 3(f) o f APSC (Limitation of Functions) Regulations, 1951. By order dated 25-03-2009, r espondent No.3 has regularized the services of all the Assistant Engineers w.e.f . the dates of their initial appointment / promotion to the post of Assistant En gineer and decided to count their seniority from such date. Accordingly, petitio ner’s service in the post of Assistant Engineer was regularized w.e.f. 04-12-199 2 i.e. his date of appointment under Regulation 3(f) and his seniority counted f rom such date. The Apex Court in the case of Masood Akhtar Khan and others -Vs- State of Madhya Pradesh and others reported in (1990) 4 SCC 24 has made it clear that if the initial appointment is not made according to the Rules, subsequent regularization of service doesnot entitle an employee to the benefit of interven ing service for seniority. 38. te of appointment as 24-09-1990 instead of 04-12-1992 cannot be accepted. In view of above, prayer of the petitioner to fix his initial da 39. 40. Writ petition is devoid of merit and is accordingly dismissed. No cost.