Gauhati High Court
Gs No.172577L Sri Sunil Mishra And 62 Ors vs The Union Of India And 6 Ors on 12 September, 2019
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010010432014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2763/2014
1:GS NO.172577L SRI SUNIL MISHRA and 62 ORS
S/O- LT. DHARAM DEO MISHRA, J.E. CIVIL, HQ P UDAYAK GREF, C/O- 99
APO, PIN- 931715.
VERSUS
1:THE UNION OF INDIA and 6 ORS
REP. BY THE SECY., BORDER ROADS DEVELOPMENT BOARD BRDB,
ROOM NO. 418, 'B' WING 4TH FLOOR, SENA BHAWAN, NEW DELHI- 110011.
Advocate for the Petitioner : MR.D BORAH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HON'BLE THE CHIEF JUSTICE (ACTING) MR. ARUP KUMAR GOSWAMI
HON'BLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 12-09-2019 [Manish Choudhury, J.] Heard Mr. I.H. Saikia, learned counsel for the petitioners and Mr. S.C. Keyal, learned Assistant Solicitor General of India, appearing for respondent Nos.1--6. Also heard Mr. S. Saikia, learned counsel appearing for respondent No.7.
The petitioners, 63 in numbers, have approached this Court by this writ petition under Article 226 of the Constitution of India seeking the following reliefs:-
i) To issue writ, order or direction in the nature of Certiorari and/or any other writ, order Page No.# 2/7 or direction of like nature setting aside and quashing the amendments made by way of the 1996 Rules by incorporating a new Para (c) in Column 11 of Serial No.8 and Para
(b) in Column 11 of Serial No.2.
ii) To issue writ, order or direction in the nature of Mandamus and/or any other writ, order or direction of like nature directing the Respondents to correct the Master Seniority List (MSL) of GREF JE (Civil) & JE (E&M) posts by removing the above described illegalities, mistakes in the interest of justice.
iii) To issue writ, order or direction in the nature of Mandamus and/or any other writ, order or direction of like nature directing the Respondents to fix the JE (E&M) and JE (Civil) MSL seniority of the petitioners before the 02 years CME Diploma Holders who got promoted from ITI qualification posts like Vehicle Mechanic, Electrician, Turner, Welder, Machinist, Radio Mechanic/Operator and matriculation qualification posts like LDC, SKT to the promotional post of Superintendent E&M-II/B&R-II, by directly (two steps) through DPC by pushing behind/skipping the petitioners who were senior to them and were also holding 03 years Diploma in Engineering and working in the Diploma in Engineering minimum entry level posts of Charge Mechanic/Charge Electrician/Overseer w.e.f. 20-05-1996.
iv) To issue writ, order or direction in the nature of Certiorari and/or any other writ, order or direction of like nature by setting aside and quashing the undue advantages/benefits/seniority accorded to 02 years CME Diploma Holders in the JE (Civil) & JE (E&M) without following the provisions of 1982 Rules, without any approval from DOPT (i.e. from 1986 to 19-5-1996), and without approval of MHRD and AICTE from 20-05-1996 to 31-01-2001 and declare the same illegal and declare the above said persons not eligible for JE post and remove the same from JE's Master Seniority List (MSL).
v) To issue writ, order or direction in the nature of Mandamus and/or any other writ, order or direction of like nature to the effect that it is only after approval of MHRD dated 01-
02-2001, that the 02 years CME Diploma Holders were only eligible for promotion to Diploma in Engineering qualification minimum entry level posts of Overseer, Charge Mechanic, Charge electrician from ITI qualification post as per MHRD Notification (59) instead of Superintendent E&M-II & B&R-II post (i.e. Diploma in Engineering qualification promotional post).
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vi) To issue writ, order or direction in the nature of Mandamus and/or any other writ, order or direction of like nature directing the Respondents to follow/implement all DOPT, MHRD, OM's and guidelines and also implement the DOPT OM No.AB- 14017/2/97-Estt (RR) dated 25-05-1998, MHRD Gazette Notification (59) No.F.3-1/99- TS.III A(.) dated 01-02-2001 at the earliest in the interest of justice.
vii) To issue writ, order or direction in the nature of Mandamus and/or any other writ, order or direction of like nature, inter alia, directing the Respondents to make the 1996 Rules effective w.e.f. 01-02-2001 instead of 20-05-1996 for 02 years CME diploma holders in the light of the MHRD Notification (59) dated 01-02-2001.
viii) To issue writ, order or direction in the nature of Mandamus and/or any other writ, order or direction of like nature directing the Respondents to upgrade the Directly recruited 03 Year Diploma in Engineering qualified entry level posts of Overseer, Charge Mechanic, Charge electrician and merge the same with the post of Superintendent E&M-II & B&R-II post i.e. J.E. Level post w.e.f. 01.01.1996 retrospectively as per 5 th CPC recommendations.
ix) To issue writ, order or direction in the nature of Certiorari and/or any other writ, order or direction of like nature setting aside and quashing the BRDB letter F.No.BRDB/06/166/2010GE-I dated 13-05-2010 merging the posts of Overseer, Charge Mechanic/Electrician, Superintendent Grade II and I.
x) To issue writ, order or direction in the nature of Mandamus and/or any other writ, order or direction of like nature directing the Respondents to pay interest at bank norms on the arrear of pay and allowance that would result due to fixation of seniority and post of the petitioners with retrospective effect from 01.01.1996.
xi) And/or pass such further order/orders as to Your Lordships may deem fit and proper in the facts and circumstances of the case.
-AND-
In the interim, pending disposal of the Rule, Your Lordships may be pleased to direct the respondents to stay the promotion of those 2 Year CME Diploma Holders who got reappointed/promoted from 1986 to 31.01.2001 since during the said period their CME Diploma Course was not even recognized by the Ministry of Human Resources (MHRD)/AICTE, DoPT and without any provisions in the 1982 Rules and also direct them to the effect that Page No.# 4/7 pendency of the present writ petition would not be a bar to dispose of the pending representations of the petitioners, giving interim relief to the petitioner and/or to pass such further or other Order(s) as Your Lordships may deem fit and proper so as to give adequate interim relief to the petitioner.
The case projected by the petitioners is that they are members of the General Reserve Engineering Force (GREF), a construction force structured on the Army pattern under the Ministry of Road Transport and Highways (MoRTH) and Border Roads Development Board (BRDB) is the Administrative Wing for the GREF. The GREF has two cadres - (i) Civil Engineering cadre and (ii) Electrical & Mechanical Engineering cadre. The petitioners are the 3-years full time Diploma holders in various branches in engineering and they are presently serving as Junior Engineers (JE), Assistant Engineers (AE) and Assistant Executive Engineers (AEE) in the GREF.
It is stated that recruitment and conditions of service of the employees under the GREF are governed by a set of rules, "the General Reserve Engineering Force Group 'C' and Group 'D' Recruitment Rules, 1982" (1982 Rules, for short). The said 1982 Rules were in force when the petitioners had joined the service during 30.06.1982 - 19.05.1996. On 20.05.1996, the 1982 Rules were amended by "the General Reserve Engineering Force Group 'C' and Group 'D' Recruitment (Amendment) Rules, 1996" (1996 Rules, in short). The further contention of the petitioners is that they joined initially in the post of Overseer, Surveyor, Draughtsmen, etc. The petitioners have contended that by virtue of the amendments brought in the year 1996 by the 1996 Rules, the employees in the GREF having Diploma in Engineering from the College of Military Engineering were made eligible to the post of Superintendent as well as Overseer in the service. Further case of the petitioners is that prior to 1996, the employees in the GREF holding Diploma from the College of Medical Engineering were not eligible for promotion to the post of either Overseer or Superintendent.
It is submitted by Mr. Saikia that because of the amendments in 1996, 10% vacancies in the post of Superintendent in both the Civil Engineering cadre and Electrical & Mechanical Engineering cadre have been reserved for Group 'C' employees in possession of Diploma in Engineering (Civil/Mechanical/Electrical) from the College of Military Engineering with 5 years regular service in the grade in GREF. That apart, the 1996 Rules have changed the essential qualification for promotion to both Superintendent as well as Overseer by including the Diploma obtained from the College of Military Engineering.
It is contended by the learned counsel for the petitioners that pursuant to the said amendments, the Departmental Promotion Committee had given benefits to the employees in the Page No.# 5/7 GREF with Diploma from the College of Military Engineering by giving two steps promotion at a time from 1996. He further submits that those employees were given two steps promotion in one single DPC without any kind of written/trade test/oral test by overtaking/skipping the existing directly recruited 3 years full-time Engineering Diploma holders like the petitioners. He contends that the respondent authorities had promoted CME Diploma Holders from 1986 onwards to 19.05.1996, 20.05.1996 to 31.01.2001 and from 01.02.2001 onwards. To substantiate his submission, he has referred to Annexure-P/6 Series annexed to the writ petition.
Mr. Saikia submits that though both Column 11 of 1996 Rules has been challenged along with Column 7, Column 7 has not been incorporated inadvertently in the prayer portion in the writ petition. Mr. Saikia further submits that though Column 11(i)(ii)(iii) of Rule 2 of the 1996 Rules have been put to challenge, the same have inadvertently been mentioned as Column 11(a)(b)(c) at page 15 of the writ petition and he submits that the same may be read as Column 11(i)(ii)(iii) of Rule 2 of the 1996 Rules.
Mr. Keyal, learned Assistant Solicitor General of India has submitted that the present writ petition is not maintainable because of non-impleadment of necessary parties. He further submits that after the amendment in the Rules in the year 1996, a number of employees holding the Diploma in Engineering from College of Military Engineering were promoted to the post of Superintendent and they were promoted by the Departmental Promotion Committee. Because of such promotions, rights have been accrued to those employees and without their presence, this writ petition cannot be decided.
Mr. S. Saikia appearing for respondent No.7 has submitted that the Government of India in the Ministry of Human Resource Development by its notification dated 01.02.2001 had recognized courses in Civil Engineering, Electrical and Mechanical Engineering and Draughtsmen Estimating and Design conducted by the College of Military Engineering, Pune for recruitment to the post under the Central Government, for which a Diploma in appropriate field is the prescribed qualification. It is further submitted by him that there is no specific instruction from the All India Council for Technical Education (AICTE) as regards the position prior to 2001 in respect of Diploma holders obtained from the College of Military Engineering.
We have considered the submissions of the learned counsel for the parties and also perused the materials on record.
One of the contentions of the petitioners is that the Diploma holders from the College of Military Engineering does not have any right to be treated at par with the 3 years full time Diploma holder like Page No.# 6/7 the petitioners having diploma from institutions having AICTE approval, as the College of Military Engineering does not have the approval of AICTE.
Apart from assailing a part of the Rules, amended by 1996 Rules, indicated above, on the ground stated hereinabove, the petitioners have also sought for a direction directing the respondent authorities for fixation of their inter-se seniority positions in the Master Seniority List before the Diploma holders having Diploma from the College of Military Engineering who, in the meantime, got promoted from various posts like Vehicle Mechanic, Electrician, Turner, Welder, Radio Mechanic/Operator and matriculation qualification posts like LDC, SKT, etc. to the promotional posts of Superintendent, Building & Roads (B & R), Grade-II and Superintendent, Electrical & Mechanical (E & M) Grade-II, by virtue of the 1996 Rules.
From the pleadings in the writ petition, it transpires that the Diploma holders from the College of Military Engineering in the GREF service were promoted from 1986 onwards to the posts of Superintendent, Building & Roads (B & R), Grade-II and Superintendent, Electrical & Mechanical (E & M) Grade -II. The post of Superintendent has now been re-designated as Junior Engineer (JE). It is, thus, clear that prior to filing of this writ petition in the year 2014, a number of employees holding Diploma from the College of Military Engineering were promoted during the period from 1986 to 2014 and because of such promotions, rights have been accrued to those employees in such promotional parts.
If the prayer of inter-se seniority between these two groups of employees are to be decided, the same may have an impact on the inter-se seniority of those employees having Diploma from the College of Military Engineering. There is no dispute to the fact that the Diploma holders from the College of Military Engineering have been conferred the benefit of promotion to the higher post during the period from 1986 onwards and some of them were accorded seniority over the petitioners. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise the interests of those employees having Diploma from the College of Military Engineering. In the context of the prayer made, such employees are necessary parties. When those employees have not been impleaded as parties in the writ petition it will be impermissible to grant such a relief. It is well settled in law that no order can be passed behind the back of a person that shall adversely affect him as that would go against the basic tenet of the principles of natural justice. It is noticed that the petitioners had slept over their rights, if any, since the year 1996 and have allowed the promotions to take effect by operation of the impugned provisions in the 1996 Rules. Thus, it would also be inequitable to put the clock back at this distant point of time and to disturb the inter-se seniority positions.
Page No.# 7/7 In the above fact situation obtaining in the present case, we are of the considered opinion that this writ petition is not maintainable for the reasons aforestated. Accordingly, this writ petition is dismissed with no order as to cost.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant