Judgment:
Hrishikesh Roy, J.
1. Heard Dr. B Ahmed, learned Counsel appearing for the petitioners in W P (C) No. 3494/07. Also heard Ms. R Deka, learned Departmental counsel who represents the official respondents. Also heard Mr. K.K. Mahanta, learned senior counsel who appears for the petitioner in W P (C) No. 3811/07 and Ms. B Bhuyan, learned standing counsel of the Department who represents the official respondents. Mr. C Baruah, learned Counsel appears for the APSC.
2.The 3 petitioners, who are employed as Junior Engineers (J.E.) in the Public Works Department (PWD) have approached this Court seeking direction for consideration of their claim for promotion/direct entry, in the cadre of Assistant Engineer (Civil) as per the provisions incorporated in Rule 11(4)(c) of the Assam Engineering (Public Works Department) Service Rules, 1978 (hereinafter referred to as the Rules). The petitioners by virtue of possessing the higher Engineering Degree qualification which is the qualification prescribed for direct appointment into the cadre of Assistant Engineer (Civil), claim a right to be promoted as Assistant Engineer (Civil), although they were recruited as Junior Engineers on the basis of the Engineering Diploma qualification.
3. The learned Counsels appearing for the petitioners have referred to several instances in the Department, where such promotion of Junior Engineers (earlier described as Sub-ordinate Engineer Gr.I in the Rules) were given promotion to the posts of Assistant Engineers because of possessing the Graduate Engineer's qualification, by exercise of powers under Rule 11(4)(c) of the Rules and contended that the respondent authorities have interfered with the petitioners' right to get a fair treatment, by not considering their cases for such promotion to the higher cadre.
4. It is submitted by the learned Departmental counsels that promotion under Rule 11(4)(c) to the higher cadre of Assistant Engineer can be considered only for such Junior Engineers, who acquire the degree qualification, after their entry into service as Junior Engineer and such promotion cannot be considered for those, who have acquired the graduate Engineering Degree, prior to joining service in the cadre of Junior Engineer.
5. Under Rule 3(c) of the Rules, the cadre of Assistant Engineer is classified as a Class II Service under the Rules. Rule 11 prescribes the procedure for making promotion to the cadre of Assistant Engineers. Rule 11(2) provides that Subordinate Engineers serving in Grade I in the Assam Subordinate Engineering PWD Service, is the feeder post for making promotion to the cadre of Assistant Engineer. Sub-Rule 3 of Rule 11 prescribes that the vacancies to be filed by promotion of Subordinate Engineers shall be so fixed that, the promoted Assistant Engineers do not exceed 30% of the cadre strength of Assistant Engineers.
5.1.Sub-Rule 4 of Rule 11 provides for various modes of entry of members of the Assam Subordinate Engineering (PWD) Services Officers i.e. Junior Engineers to the higher cadre. Under Clause (a), a Subordinate Engineer rendering 8 years of service is eligible for promotion to the cadre of Assistant Engineer. Under Clause (c) of Rule 11(4), it is provided that a Subordinate Engineer Grade I, on his acquiring the academic qualification prescribed for direct recruitment of Assistant Engineer, shall be promoted as Assistant Engineer against the next available vacancy in the cadre and such promotion shall be treated as direct recruitment in the cadre of Assistant Engineer.
6. It is not in dispute that all the 3 petitioners herein had already acquired the academic qualification prescribed for direct recruitment as Assistant Engineers, when they entered in service in the lower cadre of Junior Engineer, as each of them also possessed the qualification of diploma in Engineering, which makes them eligible for appointment as Junior Engineers.
7. It is contended by the petitioners that to make a distinction of those who acquired higher academic qualification after they joined service as Junior Engineers and those who already possessed the Graduate Engineering qualification in addition to the Diploma qualification, at the time of entering service as Junior Engineers, would be highly discriminatory, as there is no rational basis for making a distinction between the two categories of Junior Engineers, having regard to the objective of providing for opportunity of fast track promotion, envisaged for Junior Engineers, under the provisions of Rule 11(4)(c) of the Rules.
8. To explain the several instances in the past of such promotion being granted in the Department to Junior Engineers, who joined as Junior Engineers with the additional academic qualification of Graduate Engineering Degrees, the Departmental counsels contend that this practice in the Department was discontinued after the Department decided, to stop referring promotional matters of Junior Engineers to the APSC.
9. The above explanation given by the Departmental counsels to justify a departure from the earlier practice of considering cases for promotion, of those Junior Engineers who had already acquired the Graduate Engineering academic qualification prior to joining service as Junior Engineers is difficult to accept as a reasonable justification. No change in Rule 11(4)(c) was incorporated because of abandoning of the practice of consulting the APSC by the Department for making promotion to the cadre of Assistant Engineer and under such circumstances, the claim of the petitioners for getting promotion to the cadre of Assistant Engineer, because of the Graduate Engineering Academic qualification possessed by them, has to be judged on the basis of the provisions of Rule 11(4)(c) of the Rules.
10. Rule 11(4)(c) obviously provides for a faster mode of entry into the higher cadre of Assistant Engineer for those, serving as Junior Engineers. The Rule itself does not rule out consideration of cases of those, who had already acquired the higher academic qualification, prior to their entry into the service in the feeder cadre of Junior Engineer.
11.From the several instances of such fast track promotion given, it is apparent that the Department had all along been considering promotion for the Junior Engineers, who possesses or acquire the Graduate Engineer qualification, without making any distinction amongst those, who acquired the qualification before or after entering into service of Junior Engineers in the Department.
12. The Department tries to justify the abandoning of the above practice, because of replacing the practice of consulting the APSC by consulting the DPC for making promotion to the cadre of Assistant Engineer. This explanation, furnished by the Department cannot in my view is acceptable, as no corresponding change in the Rules has been incorporated, to do away with the long standing practice followed by the Department. There is really no basis to make a distinction between those, who acquired higher qualification after they joined service and those who joined service in the lower cadre, with additional higher academic qualification. Therefore, non-consideration of the cases of the petitioners for promotion under Rule 11(4)(c) to the cadre of Assistant Engineer, is found to be discriminatory and the same therefore violates the petitioners' rights guaranteed under Article 14 and 16 of the Constitution of India.
13. In so far as the advertisement dated 27.3.2007 (Annexure 9), whereby 78 posts of Assistant Engineer (Civil) has been advertised for filling up the posts through direct recruitment, it is submitted by the Departmental counsels that the said direct recruitment exercise to the 78 posts, would not intrude into the 30% of the total cadre strength of Assistant Engineers, earmarked to be filled up by promotion of Junior Engineers (Subordinate Engineers). From the above submission, it can be understood that the 30% quota meant to be filled up by promotion in the cadre of Assistant Engineers, are available to be filled up by eligible serving Junior Engineers.
14. The petitioners herein are contenders for promotion on the basis of higher academic qualification under the provisions of Rule 11(4)(c) and not under the provisions of Rule 11(4)(a) and since such promotions are to be considered, subject to availability of vacancies in the cadre, I am of the opinion that directions should be issued to consider the cases of the 3 petitioners for promotion to the posts of Assistant Engineers under the provisions of Rule 11(4)(c), if vacancies in the promotional quota is available. It is ordered accordingly.
15. These cases are accordingly allowed with the further direction that the cases of the petitioners should be considered for promotion under Rule 11(4)(c) of Rules with expediency and preferably within a period of 3 months, from the date of receipt of a copy of this Court's order, subject to vacancies being available for giving such promotions.