Uttam Kalita vs Assam Urban Water Supply And Sewerage Board R.G. Baruah Road

Heard Mr. S. Kataki, the learned counsel appearing for the petitioners. Also heard Ms. M. Bordoloi, the learned counsel appearing for the Assam

Urban Water Supply and Sewerage Board (hereinafter referred to as ‘the Sewerage Board’) and their Managing Director (respondent Nos.1

& 2). The private respondent Nos.3â€"5, are represented by Mr. S.K. Ghosh, the learned counsel.

The petitioners had joined service on different dates in March/April, 1996, as Jr. Engineer in the Sewerage Board. In the gradation list dated

27.6.2007 (Annexure-A) for the Jr. Engineers under the Sewerage Board, the names of the seven petitioners are shown between position Nos.8â€"15

and in the same list, the seniority of the three private respondents are shown below at serial Nos.16, 17 & 18 respectively. By virtue of their higher

seniority position, the petitioners challenge the promotion order(s) dated 21.6.2010 (Annexure-C series), whereby 3 junior colleagues, namely,

Munindra Debnath, Mohanlal Sahu and Chandra Kanta Singha (respondent Nos.3, 4 & 5) were promoted to the post of Asstt. Engineer, in pursuant to

the resolution dated 16.3.2010, of the Board of Directors of the Sewerage Board.

3.1. Representing the petitioners, Mr. S. Kataki, the learned counsel submits that when the seven petitioners were placed above the private

respondents in the seniority list of Jr. Engineers, the promotion of those who are placed below the gradation list, would not be justified.

3.2. In the absence of any Service Rules, governing the employees of the Sewerage Board, Mr. Kataki refers to the selection exercise undertake

earlier on 20.10.2005 (Annexure-B), to project that promotion to the cadre of Asstt. Engineer was granted on the criterion of seniority and

accordingly, the departure from the norms is questioned to challenge the promotion of the junior colleagues.

On the other hand, the learned counsel, Mr. S.K. Ghosh, appearing for the respondent Nos.3â€" 5, highlights that the promotees were appointed

three years earlier on 6.3.1993, as Jr. Engineers, in the PHE Department, under Regulation 3(f) of the Assam Public Service Commission (Limitation

of Functions) Regulation, 1951 (hereinafter referred to as ‘the APSC Regulation’) and thereafter, these appointees were posted with the

Sewerage Board. Their service in the Sewerage Board have continued uninterrupted and accordingly, Mr. Ghosh argues that the petitioners with

relatively shorter tenure vis-à -vis the respondent Nos.3â€"5 as Jr. Engineers, cannot legitimately challenge the promotion of the private respondents.

Representing the Sewerage Board, the learned counsel, Ms. M. Bordoloi states that Service Rules is not yet finalized but she projects that the

power of appointment vests on the Board itself, under Section 8 of the Assam Urban Water Supply and Sewerage Board Act, 1985 (hereinafter

referred to as ‘the Sewerage Board Act’). According to the information available with Ms. Bordoloi, the Managing Director of the Sewerage

Board had regularized the service of the petitioners as well as the private respondents on 31.12.2005 but the inter se seniority of the regularized group

were to be determined subsequently.

For maintenance and regulation of water supply and sewerage facilities in the urban areas, the Sewerage Board was established by the Sewerage

Board Act and the key functions in the organization is discharged by the Board constituted under Section 4 of the Sewerage Board Act. The Minister

in charge of the Department functions as the Chairman and the Vice-Chairman with the status of Director, is to be appointed by the State

Government, under Section 4 of the statute. The power of appointment vests upon the Board under Section 8 and the organization is required to abide

by the direction issued by the Government, under Section 88 of the Act.

The recruitment and promotion of the employees of the Sewerage Board, even without Service Rules, must be done through a fair and non-

discriminatory process. The upgradation on the earlier occasion on 20.10.2005 (Annexure-B), reflects that promotion to the cadre of Asstt. Engineer

was made on seniority basis from the feeder cadre of Jr. Engineer. Therefore it can be reasonably said that the senior incumbents in the feeder cadre

should normally be promoted.

In the above context, the gradation list dated 27.6.2007 (Annexure-A), published by the Managing Director of the Sewerage Board reflects that the

petitioners are senior to the three private respondents. To be specific, the seven petitioners are placed at seniority position 8 to 15, whereas the private

respondents were placed below them at the respective seniority positions 16, 17 & 18. In this gradation list, the private respondents are erroneously

shown to have joined service on 26.6.1996. This is not correct, as they were inducted in March, 1993, under Regulation 3(f) of the APSC Regulation,

in the PHE Department.

9.1 The draft seniority list inviting claims and objections for the Jr. Engineers was published on 20.12.2006 (page-20) and thereafter the final select list

was notified on 27.6.2007, without disturbing the respective position of the petitioners and the private respondents. The only change was the addition

of one Naba Kumar Sonowal at the bottom-most (21st) position. Significantly the gradation list was preceded by the Division Bench judgment dated

4.6.1996, in the Writ Appeal No.181/1996 (Arup Kr. Nath & others vs. State of Assam & others), where the litigants were those, who were

appointed as Jr. Engineers, in the PHE Department under Regulation 3(f) of the APSC Regulation and who were then deputed simultaneously to the

Sewerage Board and these inductees were continuing without interruption in the Sewerage Board.

9.2 It is important to bear in mind that the Division Bench recorded in their judgment that the appointment of the junior engineers were on the basis of

the request made by the Sewerage Board to the Chief Engineer of the PHE Department projecting the requirement of 22 Jr. Engineers. On this basis,

the appellants/writ petitioners were recruited under Regulation 3(f) and their service was immediately placed at the disposal of the Sewerage Board.

For that process of appointment, the Division Bench was required to consider whether the appointees are to be treated as employees of the Sewerage

Board or of the PHE Department. The Court then found that at no point of time the appointees were treated to be employees of the PHE

Department, since they were inducted into service only to meet the requirement of the Sewerage Board. The Court accordingly declared that the

appointed persons should not be considered to be on deputation and therefore, their reversion to the PHE Department, would not be justified. On this

basis, the Division Bench ordered that the service of the litigants would continue in the Sewerage Board, till regular selection is made and the

appellants shall have the right to be considered in that process, in accordance with law.

The above judgment rendered in the Writ Appeal No.181/1996 reflects that the three private respondents, who are in the group of 22 Jr.

Engineers, recruited under Regulation 3(f), must be treated as employees of the Sewerage Board and their status and seniority will have to be

determined with this understanding. In the gradation list dated 27.6.2007 (page-21), the three private respondents are shown to have joined service on

26.6.1996 but this date is not consistent with the Division Bench judgment, in the Writ Appeal No.181/1996, where the 22 Jr. Engineers, recruited

under Regulation 3(f), were declared to be the employees of the Sewerage Board. Because of the Court’s verdict, the seniority of those who

were inducted to meet the requirement of the Sewerage Board, must be counted from the date of their induction into service i.e. March, 1993 and not

from the later date of 26.6.1996.

In the counter affidavit filed by the private respondents on 5.9.2017, they have annexed a list of staff under the Sewerage Board and in this list, the

respective date of appointment of the private respondents are shown as under:

Name Appointment as J.E.

Munindra Debnath (respondent No.3) 15.3.1993

Mohanlal Sahu (respondent No.4 ) 15.3.1993

Chandra Kanta Singha (respondent No.5) 15.3.1993

But the annexed list circulated by the Managing Director of the Sewerage Board is not a seniority list, since names of the employees are not

recorded in order of seniority. But this list definitely reflects that the private respondents joined service as Jr. Engineer of the Sewerage Board, in

March, 1993, whereas the petitioners have joined the Sewerage Board as Jr. Engineer, only in March/April, 1996.

In the above circumstances, the lower placement of the earlier appointees in the seniority list will be erroneous and for this reason the priority

promotion claimed by the petitioners, who were inducted three years later, may not tenable. The service of the Regulation 3(f) group and those who

were appointed on ad-hoc basis have continued in the Sewerage Board since 1993 and 1996 respectively and because of the judgment dated 4.6.1996,

in the Writ Appeal No.181/1996, the Regulation 3(f) group are entitled to continue till regular appointment is made in the organization. Moreover they

also have the right to be considered for regular appointment, in accordance with law.

In the above circumstances, it is difficult for the Court to determine with certainty that promotion granted on 21.6.2010 (Annexure-C series) to the

private respondents was unmerited. If seniority is the basis for promotion, the deprivation of the Jr. Engineers, placed higher in the seniority list of

27.6.2017 is apparent. But the question is whether the seniority list in the cadre of Jr. Engineers in the Sewerage Board was accurate as because, the

joining date for private respondents is incorrectly reflected in that seniority list of 27.6.2017. The difficulties for the Writ Court is further compounded

by the fact that neither the petitioners nor the rival litigants have brought on record their respective appointment order(s) or regularization order(s), if

any, in support of their claim. The Sewerage Board also has not filed any affidavit in the case and hence the relevant materials are not available for

Court’s consideration.

In the absence of the required details, the adjudication on the rival claim in my perception would hardly be proper. As earlier noted, the power of

appointment in the organization vests on the Board, under Section 8 of the Sewerage Board Act and therefore, it would be more appropriate in my

view to direct the appointing authority to first determine the respective employment status of the petitioners and the private respondents. Subject to

such determination, the Board should re-visit the impugned promotion orders dated 21.6.2010 (Annexure-C series), whereby the three Jr. Engineers

were promoted to the cadre of Asstt. Engineers. This exercise may not however impact Mohanlal Sahu (respondent No.4), who the Court is told has

already superannuated from service. To enable the appointing authority to do as directed, the petitioners should furnish a copy of this order to the

Managing Director of the Sewerage Board, who shall ensure that the ordered exercise is undertaken by the competent authority. The impugned office

order dated 21.6.2010 (Annexure-C series) and gradation list dated 27.6.2007 (Annexure-A), is made subject to the decision to be taken by the Board.

It is ordered accordingly.

With the above order, the case stands disposed of. No cost.