Gauhati High Court
Mohammed Ansari vs The Union Of India And 2 Ors on 16 December, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010046182022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1947/2022
MOHAMMED ANSARI
RETD. (DIRECTOR), BRO, S/O- LATE MOHAMMED AZAM, HOUSE NO. 6-
162/1-9, FLAT NO. 303, GANESH TOWER, RAMAVARAPPADU, VIJAYAWADA-
521108, ANDHRA PRADESH.
VERSUS
THE UNION OF INDIA AND 2 ORS.
REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI-
110001.
2:THE JOINT SECRETARY (BR)
(EARLIER DESIGNATED AS SECRETARY
BORDER ROADS DEVELOPMENT BOARD (BRDB)
ROOM NO. 418
B-WING
4TH FLOOR
SENA BHAWAN
NEW DELHI-110011.
3:THE DIRECTOR GENERAL
BORDER ROADS ORGANIZATION
SEEMA SADAK BHAWAN
RING ROAD
DELHI CANTT.
NEW DELHI-110010
Advocate for the Petitioner : MRS. R BORAH
Advocate for the Respondent : ASSTT.S.G.I.
Page No.# 2/6
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 16.12.2022 Heard Mr.D.Bora, the learned counsel appearing on behalf the petitioner and Ms. A.Gayan, the learned counsel appearing on behalf of the respondents.
2. The instant writ petition have been filed challenging the BRDB Sectt. Note No. BRDB/04/1894/2010/GE-I dated 10th January 2011 Para (c) which stipulates the condition that for Superintending Engineers to get the benefit of Non Functional Upgradation (NFU), 2(two) years experience as Commander Base Workshop or Officer Commanding in Store Division is mandatory as well as for a direction upon the respondents to grant the petitioner Non Functional Upgradation (NFU) w.e.f 01.04.2012 taking into consideration the Note No.12 of Diary No.1269570/17/CR dated 06.11.2017 passed by the Department of Personnel & Training, while considering the case of the petitioner.
3. To the said writ petition, the respondent Nos. 1, 2 and 3 have filed a joint affidavit. In the said affidavit, the respondent have taken a specific stand in paragraph No.22, that the experienced based Commander Base Workshop or Officer Commanding Store Division in respect of Officers of rank of Superintending Engineers (E/M) for further promotion to the rank of Chief Engineer (E/M) vide the Note No. 12 of Diary No.1269570/17/CR dated 06.11.2017 issued by the DoP&T clarifies that for Superintending Engineers (E/M) who have fulfilled the primary eligibility criterion of 8 (eight) years regular Page No.# 3/6 service in the present grade, there is no requirement of field experience as Commander Base Workshop or Officer Commanding Store Division. Further, as per the said clarification the date of applicability of the Non Functional Upgradation to the affected officers is to be reckoned on the completion of 8(eight) years regular service in the rank of Superintending Engineer (E/M) (without considering command experience). Accordingly on the basis of such clarification a proposal has already been submitted to the Ministry of Defense (BR) for approval. Paragraph No.22 of the said affidavit-in-opposition being relevant is quoted herein below:
"22. That with regards to the statement made in paragraph 32 to 39 the deponent begs to states that as per existing RR for promotion from the rank of SE (E/M) to the next higher rank of Chief Engineer pre-revised Pay Band PB-4(Rs.37400- 67000/- with grade pay of Rs. 10000/-), SE (E/M) with eight years regular service in the grade including service, if any, in the Non Functional Selection Grade or seventeen years regular service in Group 'A' post of BRES (E/M) out of which 04 years regular service should be in the grade of SE out of which 02 years experience as Commander base Work Shop or Officer Commanding in Store Division.
As per DoP & T OM No. AB.14017/16/2020-Estt (RR/Pt) dated 18 January, 2011 vide which guidelines for amendment of service Rules for the Various Organized PB-Group "A"
engineering Service for promotion to SAG (PB-4 with grade pay of Rs.10000/-) leveled in Organized Engineering services issued, the eligibility requirement shall be "Officers in the grade of SE and equivalent (PB-4 GP of 8700/-) with 3 years regular service in the grade or officers in the grade of SE/Equivalent with 17 years regular service in Group-A post in the service out of which at least 01 years of regular service should be in the PB-4 GP of Rs.8700/-."
Later on, the DoP&T has clarified regarding 2 years experience as Commander Base Workshop or Officer Commanding Store Division in respect of officers of the rank of SE (E/M) for further promotion to the rank of CE (E/M), vide their note No. Dy No.1269570/17/CR Page No.# 4/6 dated 6th November 2017 that for SE(E/M) who have fulfilled the primary eligibility criterion of 08 years regular service in present grade, there is no requirement of field experience as Commandant Base Work Shop or OC Store Division. As per this clarification, the date of applicability of NFU to affected officers is to be reckoned on completion of 08 years regular service in the rank of SE (E/M) without considering command or which a proposal has already been submitted to MoD (BR) for approval.
Proposal for grant of Non Functional Up-Gradation in respected of affected officers (including the petitioner) who have completed their primary criterion of 08 years service in the rank of SE (E/M) (without considering the command experience) in accordance with DoP&T clarification as cited above, has been prepared and initiated to MoD(BR) vide Norte No.16062/NFU-10000/SE(E/M)/DGBR/E1D dated 20 April, 2022 for further consideration. Proposal for grant of NFU is under progress with MoD (BR).
A copy of Note No. 16062/NFU-10000/SE(E/M)/DGBR/E1D dated 20 April, 2022 is annexed herewith and marked as Annexure-R1."
4. It also transpires from the said paragraph quoted herein above, that a proposal for grant of Non Functional Upgradation in respect of affected officers including the petitioner who have completed the primary criterion of 8(eight) years in the rank of Superintending Engineers (E&M) in accordance with the DoP&T clarification have been prepared and initiated to the Ministry of Defense (DR) vide Note No.16062/NFU-10000/SE(E/M)/DGBR/E1D dated 20.04.2022 for further consideration. The proposal for grant of the Non Functional Upgradation is under process with the Ministry of Defense (BR).
5. On a specific query being made to the learned counsel appearing on behalf of the respondents as to whether the petitioner duly qualifies for the grant of the benefit of Non Functional Upgradation, she submits upon Page No.# 5/6 instruction that the petitioner qualifies and as such the proposal has been sent to the Ministry of Defense (BR).
6. In view of the categorical stand taken by the respondents in their affidavit, the question of interfering with the impuged BRDB Sectt. Note No. BRDB/04/1894/2010/GE-I dated 10th January 2011 Para (c) is not warranted in as much as the respondent authorities have also acknowledged to the fact that the said requirement of having field experience as Commander base Work Shop or Officer Commanding in Store Division is not required in the affidavit.
7. Now coming to the question as to whether the petitioner is entitled for a mandamus for a direction upon the respondents to grant the petitioner the Non Functional Upgradation w.e.f 01.04.2012. It appears from the above quoted paragraph of the affidavit that the respondent authorities have already forwarded the proposal for granting the Non Functional Upgradation benefit to the petitioner on 20th of April, 2022 itself.
8. However, even after the passage of 8(eight) months, the respondent authorities have not taken any action on the said proposal.
9. In that view of the matter, this Court therefore disposes of the instant writ petition with a direction to the respondent authorities and more particularly to the Ministry of Defense (BR) i.e. Respondent No.1 herein to consider the proposal of the Petitioner sent by the Respondent No.2 on 20 th of April, 2022 forthwith and pass appropriate orders in respect to the said proposal within a period of 45(forty five) days from the date a certified copy of the order is served Page No.# 6/6 upon the Respondent No.2 by the Petitioner.
10. With the above observations and directions, the petition stands disposed.
JUDGE Comparing Assistant