Tapan Bordoloi And 6 Ors vs State Of Assam And Ors

Heard Mr. P.J. Phukan, the learned Counsel appearing for the petitioners. Also heard Mr. S.S. Roy, the learned Govt. Advocate representing the

respondent Nos.1 â€" 4.

The petitioners were serving as Muster Roll (M.R) worker in the Jorhat East Road Division (now renamed as Jorhat Rural Road Division) and they

were brought to the regular M.R. Labour category by the order dated 4.6.2004 (Annexure-A). At that stage the Executive Engineer under his

communication dated 17.3.2010 (Annexure-B) mentioned about the seven LDA vacancies in the Jorhat Rural Road Division and requested for

Finance Deptt’s approval to fill up those vacancies. In this communication, the names of the petitioners and other employees working in the

division, were indicated by the Executive Engineer.

In response, the departmental authorities in their letter dated 10.5.2010 had mentioned that the proposed promotion can be given subject to the

following six condition(s) :

Consideration of qualification and length of service where required for giving promotion to the next higher post.

Maintain 10% quota for promotion of Gr.IV staff to that of Grade-III post.

Post to be filled up against sanction vacancy with its up-to-date retention.

To promote sr.most one first if not otherwise debarred.

Maintenance of Roster Point where applicable to be followed strictly.

Action to be taken as per provisions of Service Rules.

Purporting to act on the above letter of 10.5.2010, the Executive Engineer issued the order of 14.5.2010 (Annexure-C) whereby, all the seven

petitioners were promoted to the post of Lower Division Assistant (LDA) against the vacant posts available in the division. However within 2 months,

the promotion order was cancelled on 31.7.2010 and the petitioners were reverted back to their original posts.

When this case was taken up earlier on 9.11.2017, it was projected by the learned Standing Counsel for the Finance Department that the Muster

Roll workers, who are regularized against a personalized post, are disentitled to promotion to any higher posts in the department. Therefore, in order to

ascertain whether the petitioners have been regularized against the personalized posts or any sanctioned vacancies, the case was adjourned on several

dates to enable the Govt. Advocate to receive instruction. But today also, Mr. S.S. Roy, the learned Govt. Advocate is unable to say whether the

regularization of the petitioners was ordered against posts personal to them or against regular vacancies.

The learned Counsel for the petitioners, Mr. P.J. Phukan submits that the petitioners after receiving the promotion order on 14.5.2010 had not only

served in the higher post, but their Service Book were also accordingly updated. On this basis, the arbitrary cancellation of the promotion without

affording any hearing to the promotes, is questioned by the petitioners.

7.1 On the other hand, the learned Govt. Advocate Mr. S.S. Roy refers to the counter affidavit filed by the Executive Engineer on 13.8.2010 to project

that under the letter of 10.5.2010, ban was imposed on promotion of the Muster Roll Labourers. He further submits that only when Muster Roll

Workers are regularized as Grade-IV category employees, they may become eligible for promotion, when they complete 15 years of continuous

service in the Grade-IV category. Moreover promotion can be granted only with prior approval of the State Level Empowered Committee (for short

SLEC) and concurrence of the Finance (SIU) Department. With these caveats on promotion, the Govt. Advocate submits that the Executive Engineer

had issued the promotion order through oversight by failing to take note of the ban on promotion and the prohibition on promotion, of the Muster Roll

Labourers.

7.2 According to the State authorities, the impugned cancellation order dated 31.7.2010 was tendered to the petitioners but they refused to accept the

same and instead rushed to the Court to challenge their reversion.

The regularization order issued on 4.6.2004 (Annexure-A) clearly reflects that the petitioners were regularized as M.R. Labour and nowhere it is

shown that they were brought to the Grade-IV category. It can be also seen from the letter dated 17.3.2010 (Annexure-B) that the Executive

Engineer was conscious of the fact that promotion in the available vacancies can be granted only with Finance Deptt’s approval. Moreover, the

letter addressed to the Executive Engineer on 10.5.2010 stipulated the conditions for filling up the available Grade-III posts.

The impugned order issued on 14.5.2010 (Annexure-C) does not however disclose whether approval from the Finance Department was secured for

granting the promotion. It is also silent on whether the stipulated condition(s) in the communication dated 10.5.2010 such as the to up-to-date retention

of the vacancies, eligibility of the aspirants and limiting the promotional quota to 10% for the Grade-IV staff, were ever considered before promoting

the petitioners.

The ambiguities noticed above make me concerned about the bonafide of the promotion. It is not clear whether concurrence of the Finance (SIU)

was ever obtained for filling up the vacancies. Moreover there is no certainty on whether the promotion was effected with due adherence to the

stipulations made in the letter dated 10.5.2010 although this letter is conspicuously mentioned in the promotion order. In such circumstance I am

inclined to accept that the Executive Engineer issued the order through oversight by disregarding the ban and the applicable norms. Nevertheless, it

also clear that the petitioners as beneficiaries, were not afforded any hearing before the promotion order was canceled and they were reverted back

to the original post. As the Govt. Advocate has failed to clarify whether the petitioners were regularized against the personal post, it is difficult to pin-

point the actual status of the petitioners. Next issue to be addressed is whether the regularized M .R. Labourers are disentitled for higher promotion or

if they can be categorized as Grade-IV employees who are entitled to quota of 10% for being considered for promotion in the Grade-III cadre. But

these issues cannot be answered with the available materials.

Confronted by the above difficulties, Mr. P.J. Phukan, the learned Counsel submits that the petitioners be permitted to file a representation and the

same be ordered to be decided with a speaking order. This submission is not opposed by the learned Govt. Advocate.

In view of the above consensus, the petitioners are allowed to address a representation to the Secretary to the Govt. of Assam, PWD (Roads)

Department. The competent authority should then determine the status of the petitioners and also decide whether they were deservingly promoted on

14.5.2010 and/or whether, the promotes should have been reverted. A speaking order in this regard should be passed within 8 weeks of receipt of

representation. It is ordered accordingly.

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