LABANYA BORA vs THE STATE OF ASSAM and ORS.

Heard Mr. P.K. Deka, learned counsel for the petitioner. Also heard Mr. N. Goswami, learned Government Advocate appearing for the

respondent Nos. 1 to 4.

The petitioner was appointed as work charged Mechanical Helper by order dated 16-05-1989. Thereafter, she was brought to the regular

cadre with effect from the date of her joining i.e 01-12-1992 by order dated 26-11-1993. Since then, the petitioner has been serving as

Mechanical Helper under the establishment of Executive Engineer, PWD (R&B), Mechanical Division, Jorhat and claims that she is the senior most

Grade-IV employee in the establishment as per the list of Qualified Grade-IV staff under the division issued by the Executive Engineer, PWD

(R&B) on 04- 03-2016. The petitioner applied for promotion to a Grade-III post in terms of Rule 10 (3) of the Assam Directorate Establishment

(Ministerial) Service Rules, 1973 (herein after ""the Rules of 1973"") which provides for 10% reservation to available vacancies for promotion by

Grade-IV employees. It is the case of the petitioner that as per the list of qualified grade-IV staff dated 04-03-2016, she is the senior most Grade-

IV employee. The petitioner therefore, made an application for promotion to Junior Assistant (LDA) which was forwarded to the Chief Engineer,

PWD (R&B) by letter dated 04-03-2016. It is submitted that in the chart of the vacancy position of all category post under P.W.R.D (Grade-III

& Grade-IV posts) which was sent along with the letter dated 04-03- 2016, it was proposed that the petitioner be promoted to the post of Junior

Assistant, being the senior most Grade-IV of the said division against the existing vacancy which is unreserved and free from the preview of court

case. However, it is the case of the petitioner that without considering her case, one Sri Santosh Chandra Dutta, who is junior to the petitioner,

was promoted under Sub-Rule 3 of Rule 10 of the Rules of 1973. It is also submitted that there is another vacancy in Grade-III post which is to

be filled up in terms of Note (2) of Rule 10 (3) of the Rules of 1973. As the petitioner has been deprived of her promotion, she prays for

considering her case in the said vacant post under 10% reserved quota as provided under the Rules of 1973.

The respondent No. 3 has filed counter-affidavit wherein, a specific plea has been taken that though the petitioner is a Mechanical Helper, she

was engaged in typing works considering her gender inasmuch as, the work of Mechanical Helper cannot be perform by a woman. It is also

submitted that as per the Rules of 1973, 10% of vacancies are to be filled up by Grade-IV employees who passed the Higher Secondary or

equivalent examination and 10% vacancies are to be filled up from those who passed matriculation or equivalent examination. It is submitted that

under the Rules of 1973, Rule 2 (g) defines service as the ministerial service in the respective office where the member serves. In that view of the

matter, the respondents had considered the case of Sri. Santosh Chandra Dutta and promoted him to Grade-III post under the quota of Higher

Secondary passed examination. Therefore, it is submitted that since the petitioner is a Mechanical Helper and not from the Ministerial service, she

was not considered for promotion.

I have considered the submissions forwarded by the learned counsel for the parties.

A consideration of the Rules of 1973 would indicate that Rule 10 does not differentiate between technical or ministerial staff under the service.

Rule 10 (3) clearly indicates that selection on the basis of suitability (with due regard to seniority) from amongst the Grade-IV staff of the office

who passed (i) the Higher Secondary or equivalent examination and have rendered not less than 5 years or (ii) the matriculation or equivalent

examination and have rendered not less than 7 years of continuous service in the office on the 1st day of the year in which the selection is made. It

is also to be noted that Note (2) to Rule 10 of the Rules of 1973 provides that if in an office the 5 percent and 10 percent of the strength of the

cadre of (Junior Assistant) as aforesaid, be less than 1, even then 1 post shall be filled up under subrules (2) and (3), as the case may be.

In the present case, it is an admitted fact that there were two vacant posts for consideration under 10% reserved for promotion to Grade-III

posts. The list of qualified Grade-IV staff under the division issued by the Executive Engineer, PWD (R&B) has also been considered by this

Court. Therein, the name of the petitioner appears at Serial No. 1 and her qualification is indicated as HSLC passed with designation as

Mechanical Helper. The said Sri. Santosh Chandra Dutta appears at Serial No. 2 with designation as Peon and qualification as Pre-Degree

passed. There is no dispute at the bar that when the consideration for promotion of Sri Santosh Chandra Dutta was made, there were two vacant

posts for consideration under 10% reservation as provided under Rule 10 of the Rules of 1973.

Further, the vacancy position of all category posts under P.W.R.D (Grade-III and Grade-IV posts) has also been considered wherein, the

petitioner has been proposed to be promoted to the post of Junior Assistant being the senior most Grade-IV of the said division against the existing

vacant post which is unreserved and free from the preview of court cases. These documents, as indicated hereinabove, clearly points out that the

petitioner was the senior most Grade-IV employee in the division. The next ground taken by the respondents is that the petitioner belongs to the

technical cadre whereas, Rule 2 (g) of the Rules of 1973 defines service as ministerial service in the respective office has been considered.

However, this Court on consideration of the rules does not find any differentiation with regard to either to technical service or the ministerial

service. In that view of the matter, this Court is of the considered opinion that the petitioner has been wrongly deprived of her promotion to a

Grade-III post.

Accordingly, this writ petition is disposed of with a direction to the respondents to consider the case of the petitioner along with all other eligible

persons to the one vacant post that is made available under 10% reservation as provided under Rule 10 of the Rules of 1973. If after

consideration, the petitioner is selected for promotion, it is directed that she should be promoted from the date, her junior Sri Santosh Chandra

Dutta, was promoted to Grade-III post. Let such consideration be made within a period of 3 (three) months from the date of receipt of a certified

true copy of the order of this Court. The petitioner is directed to furnish a certified true copy of this Court''s order to the respondent Nos. 1 and 3

within a period of 2 (two) weeks from today.

With the above directions, this writ petition is disposed of.