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Judgment
1.Heard Mr. UK Nair, the learned senior counsel for the writ petitioner and Mr. N Goswami, the learned State counsel appearing for the respondent
Nos. 1 and 2. Also heard Ms. M Bordoloi, the learned counsel appearing for the respondent No. 3.
This is the second time the writ petitioner is before this Court. The earlier writ petition being WP (C) No. 4648 of 2016 was disposed of vide
Judgment and Order dated 12.06.2017 with a direction to the Principal Secretary to the Government of Assam, Urban Development Department
(respondent No.1) to place the case of the petitioner before the appropriate authority for considering his promotion to the post of Chief Engineer under
the Assam Urban Water Supply and Sewerage Board (‘the Board’) within a period of 15 days from the date of the order and thereafter, the
appropriate authority should take a decision within a period of 45 days thereafter. Pursuant to the said direction, the respondent No.1 had passed the
order dated 30.08.2017 (Annexure-20) rejecting the claim of the petitioner for his promotion. Being aggrieved, the petitioner has initiated the present
writ petition.
In order to understand the dispute, brief facts of the case may be noticed at the outset.
The petitioner who is a graduate in Civil Engineering joined service as an Assistant Engineer in the Directorate of Municipal Administrative
Department under the State Government vide notification dated 30.06.1989. His service was placed at the disposal of the Board on part time basis as
Assistant Engineer against the existing vacancy. He was thereafter appointed on part time basis under the Board in terms of Section 8 of the Assam
Urban Water Supply and Sewerage Board Act, 1985 ( Act of 1985) in addition to his own duty as Assistant Engineer of Municipal Administrative
Department w.e.f. 03.07.1989. His service under the Board was consequently absorbed permanently w.e.f. the date of joining his service vide
notification dated 15.11.1995 (Annexure-4). Pursuant to his absorption, service rendered by him under the State Government was counted w.e.f.
05.07.1988 vide order dated 20.08.1996 (Annexure-6).
The petitioner thereafter was promoted to the post of Superintending Engineer under the Board vide order dated 14.07.2008 and his promotion was
regularized vide order dated 08.10.2010 (Annexure-7) w.e.f. the date of his joining.
On 19.02.2011, the 49th Board of Directors’ meeting under the Board was convened, wherein a resolution was passed unanimously to promote
the petitioner who was in the meantime serving as in-charge Chief Engineer of the Board to the vacant post of Chief Engineer of the Board as per the
provision of the Act of 1985. It was however resolved that the same was subject to the approval of the Government and the respondent No.3 was
given the task of moving the Government for necessary approval. The respondent No.3 sought the approval of the State Government and in that
process several communications were exchanged. Consequently, the Deputy Secretary to the Government of Assam, Urban Development Board and
the communication dated 20.10.2014 informed the respondent No. 3 the Government’s approval for designating the petitioner as Chief Engineer of
the Board in the same pay scale which he was drawing in the post of Superintending Engineer-cum-in-charge Chief Engineer. As such, the petitioner
was designated as Chief Engineer of the Board in terms of the said communication vide office order dated 22.10.2014 (Annexure-18).
The petitioner however being aggrieved for only being designated as Chief Engineer of the Board without any financial benefit despite the resolution
passed by the Board to promote him as Chief Engineer approached this Court by filing WP (C) No. 4648 of 2016 as already mentioned above. The
writ petition was disposed of vide Judgment dated 12.06.2017 directing the respondent authorities concerned to consider the case of the petitioner for
his promotion to the post of Chief Engineer within a time frame. It was pursuant to the said direction that the impugned order dated 30.08.2017 came
to be passed whereby, the respondent authorities have taken the stand that no resolution was taken as to whether the Superintending Engineer of the
Board would be entitled to be promoted to the post of Chief Engineer and what scale of pay is to be assigned on promotion as Chief Engineer. It was
also contended that the pay scale of Chief Engineer of the Board was also not mentioned in the Act of 1985. The Managing Director of the Board
who is also the Chief Executive Officer of the Board is of the rank of Joint Secretary to the Government of Assam having the Grade pay of either
Rs.7600/- or Rs.7400/-. The Grade pay of the Additional Chief Engineer being Rs.7400/- is the same with that of the Managing Director of the Board.
Since the post of Chief Engineer of the Board is just below the post of Managing Director, the grade pay of Chief Engineer should be below the Grade
pay of the Managing Director. Under the circumstance, the claim of the petitioner was declined.
Mr. UK Nair, the learned senior counsel for the petitioner submits that the stand taken by the respondent authorities cannot be sustained in view of
the fact that the Board in its meeting held on 29.03.1989 (Annexure-21) at Agenda Item No.4 had squarely resolved for creation of a post of Chief
Engineer in the rank of the Additional Chief Engineer of the Public Health & Engineering Department (PHED) and further the post be filled up by
officers on deputation from the PHED. Therefore, it is clear that the post of Chief Engineer under the Board was created in the rank of Additional
Chief Engineer of the PHED. Admittedly, the grade pay of an Additional Chief Engineer under the PHED being Rs.7400/-, the grade pay of Chief
Engineer under the Board will therefore be Rs.7400/-.
The learned senior counsel by referring to the minutes of the 19th Board meeting held on 07.02.1996 (Annexure-22) submits that the Board against
the Agenda of the Item No.6 clearly resolved that the Board shall henceforth appoint its own officers/employees as per the requirement and as per
the provision laid down in the Act of 1985. By further referring to the minutes of the 20th Board meeting held on 19.11.1997 (Annexure-23), Mr. UK
Nair, the learned senior counsel submits that the Board against Agenda Item No.10 resolved that the pay scale of Chief Engineer of the Board besides
other posts mentioned therein will be similar to that of the corresponding post under the PHED of the State. He submits that the State Government in
the PHED vide notification dated 18.11.2011 (Annexure-25) had determined the strength of different cadres under the PHED as on 31.03.2011. As
can be seen, the Grade pay attached to the post of Chief Engineer under the PHED is Rs.7600/- and that of Additional Chief Engineer is Rs.7400/-.
He submits that since the post of Chief Engineer in the rank of Additional Chief Engineer, PHED was created by the Board through its resolution
dated 29.03.1989, the post of Chief Engineer under the Board will be entitled to Grade pay of Rs.7400/-.
He submits that by the impugned order dated 30.08.2017, the ground for rejecting the claim of the petitioner that the Grade pay attached to the post of
Managing Director also being Rs.7400/- despite being the next higher post is only mis-conceived. He submits that the post of Managing Director is the
cadre post of the Assam Civil Service and not a cadre under the Board. Similarity in Grade pay cannot be the ground for rejecting the claim of the
petitioner, inasmuch, as the pay scale attached to the post does not necessarily determine the hierarchy of post under the Board. By referring to the
affidavit-in-reply filed by the petitioner on 04.05.2018, Mr. UK Nair, the learned senior counsel submits that the previous incumbent who was an
Additional Chief Engineer under the PHED on deputation under the Board was drawing a grade pay of Rs.7400/- and therefore, the stand taken by
the respondent No.1 vide the impugned order dated 30.08.2017 is unsustainable. Under the facts and circumstances, the impugned order dated
30.08.2017 be set aside and also the communication dated 20.10.2014 as well as the order dated 22.10.2014 in so far the designation of the petitioner
as Chief Engineer without any pay benefit is concerned and he should be promoted to the post of Chief Engineer under the Board with the grade pay
of Rs.7400/- w.e.f. 22.10.2014.
Appearing for the respondent Nos. 1 and 2, Mr. N Goswami, the learned State counsel submits that the draft Rules for various posts under the
Board is being considered and therefore pending finalization of the same, the claim of the petitioner cannot be entertained.
Ms. M Bordoloi, the learned counsel for the respondent No.3 also adopts the submission of the learned State Counsel. She further submits that the
petitioner in fact was never promoted to the post of Chief Engineer under the Board. She submits that although a resolution may have been passed to
promote him to the post of Chief Engineer but unless the approval of the State Government is obtained in terms of Section 8 of the Act of 1985, the
petitioner cannot be promoted to the said post. Therefore, in terms of the approval given by the Government for designation of the petitioner as Chief
Engineer but in the same pay scale, he is drawing as Superintending Engineer of the Board, the petitioner cannot claim pay scale of Rs.7400/-. At any
rate she submits that since the draft Rules are not yet finalized, the petitioner cannot claim his promotion to the post of Chief Engineer at this stage.
Thus, the writ petition being without any merit, the same should be dismissed.
I have heard the submissions of the learned counsels for the rival parties and I have perused the materials available on record.
As may be noticed, the petitioner was permanently absorbed under the Board w.e.f. the date of his joining in the Government service i.e. on
05.07.1988. He was promoted to the post Superintending Engineer w.e.f. 14.07.2008 and the 49th Board of Directors’ meeting unanimously
resolved to promote him to the vacant post of Chief Engineer of the Board subject to the approval of the Government as required under the Act of
1985. Despite the resolution, the State Government in the Urban Development Department only gave an approval for designating him as Chief
Engineer in the pay scale of Superintending Engineerâ€" cum-in-charge Chief Engineer he was holding. The decision taken by the respondent
authorities to keep him as only designated Chief Engineer without financial benefit was questioned by the petitioner by initiating WP (C) No.4648 of
2016. The writ petition was disposed of with a direction to the respondent authorities to consider his claim and accordingly the impugned order dated
30.08.2017 came to be passed.
It may further be noticed that vide the Meeting Minutes of the 2nd Board proceeding held on 29.03.1989, the post of Chief Engineer under the
Board was created in the rank of Additional Chief Engineer in the PHED. The newly created post was resolved to be manned by Engineers on
deputation from the PHED. Subsequently, the Board in its 19th meeting held on 07.02.1996 passed a resolution that the Board will henceforth appoint
its own officers/employees as per the requirement and as per the provision laid down under the Act of 1985.
The respondent No.3 in its affidavit-in-opposition dated 26.04.2018 has not disputed the creation of the post of Chief Engineer under the Board in
the rank of Additional Chief Engineer of the PHED. However, the specific stand taken in the affidavit is that no resolution was taken as to whether
Superintending Engineer of the Board would be entitled to be promoted to the post of Chief Engineer. This stand only runs contrary to the resolution
adopted by the Board in its 49th Board of Directors’ meeting held on 19.02.2011. The further stand taken is that the post of Chief Engineer of the
Board is next below the post of Managing Director of same Board and therefore, the Grade pay of the Chief Engineer cannot be above the grade pay
of the Managing Director of the Board. This stand in my considered opinion cannot be accepted, inasmuch, as the creation of the post of Chief
Engineer under the Board has not been disputed and as per the resolution passed on 29.03.1989 by the Board, the post of Chief Engineer was created
in the rank of Additional Chief Engineer of PHED. The post of Managing Director which is manned by the State civil servant being an Assam Civil
Service cadre post and having the same grade pay can only be understood to be as coincidental. Moreover, the previous incumbent having held the
post of Chief Engineer on deputation by coming from the PHED was also in the grade pay of Rs.7400/-. Admittedly, the highest cadre post under the
Board is the post of Chief Engineer while the post of Managing Director is a cadre post of the Assam Civil Service and placed just above the post of
Chief Engineer. Parity in the grade pay of two posts though unequal in hierarchy can happen such as in the present case. Likewise, the scale of pay or
monthly emoluments drawn by two different officers holding similar post is also possible. By virtue of service seniority, persons in the same post can
be having different monthly emoluments. Therefore, the similarity in the grade pay of Chief Engineer under the Board with that of the Managing
Director cannot be the ground for denying the petitioner his promotion, more particularly, when a resolution to that effect was already passed
unanimously on 19.02.2011.
Section 8 of the Act of 1985 empowers the Board to appoint officers and staffs of the Board including the Chief Engineer which however should
be preceded by the approval of the Government. In the instant case, although the Board resolved to promote the petitioner as Chief Engineer but the
Government only approved his designation as Chief Engineer without financial benefit. No doubt, the State Government may decline to give its
approval but the same has to be on reasonable and justifiable grounds. From what can be seen in the impugned order dated 30.08.2017 is that the
ground for rejecting the claim of the petitioner is only misconceived and therefore, cannot be sustained. It is apparent from the creation of the post of
Chief Engineer vide the Board meeting dated 29.03.1989 as well as the resolution passed on 19.02.2011 that the petitioner was recommended to be
promoted to the post of Chief Engineer and therefore, insistence of a resolution on the entitlement of a Superintending Engineer to be promoted to the
post of Chief Engineer cannot be the basis for declining him promotion. Further, when the petitioner could be promoted to the post of Superintending
Engineer from the post of Assistant Engineer in the absence of service Rules, there is no reason as to why promotion cannot be given to him pending
finalization of the draft Service Rules. It is a well settled position in law that promotions can be made by relying upon draft Rules and therefore, upon
considering the matter in its entirety, I find merit in the writ petition.
In view of above, I am of the considered opinion that the petitioner is entitled to be promoted to the post of Chief Engineer w.e.f. the date he was
designated as Chief Engineer with the approval of the State Government i.e. on 22.10.2014. The impugned communication dated 20.10.2014, the
Office Order dated 22.10.2014 and in so far as the designation of the petitioner as Chief Engineer without financial benefit is concerned, are hereby
set aside. The impugned order dated 30.08.2017 also stands set aside.
The respondent authorities are now directed to promote the petitioner as Chief Engineer of the Board w.e.f. 22.10.2014 with all the consequential
benefits within a period of 6(six) weeks from the date of receipt of a certified copy of this order.
The writ petition stands allowed and disposed of.
No cost.