Decided on September 06,1994


Referred Judgements :-



- (1.)This application under Article 226 of the Constitution of India arises out of an order dated 28.5.88 passed by the learned Assam Administrative Tribunal, Gauhati in case No. 18ATA/88 and for a further direction to declare that the gradation list dated 13.2.87 (Annexure-IX) is legal, binding and to determine the seniority of the petitioner and the Respondents No. 5, 6, 7 and 8 in terms of the aforesaid Gradation list.
(2.)The brief facts are as follows : The petitioner joined the Irrigation Department under the Government of Assam as a Subordinate Engineer Grade-I on 17.11.69. The respondents No. 6, 7, and 8 joined the service on 10.10.68, 12.1.70 and 20.7.71. The respondent No. 5 joined the said department on 7.11.72. The final gradation list of Subordinate Engineer (Civil)/(Mechanical/(Electrical) in the Irrigation Department was circulated vide Notification dated 25th April, 1979 and in the said gradation list, the respondent No. 6 was shown at Sl. No. 2 and the petitioner and the Respondents No. 7 and 8 were shown at Sl. No. 3, 5 and 6 respectively. From that gradation list it will appear that the petitioner was immediate junior to the respondent No.6, but was senior to the respondent No.7 and 8. However, from the date of joining the petitioner and the Respondents No. 6, 7, and 8 all were senior to the respondent No.5. A copy of the gradation list is at Annexure-I to the writ application.
(3.)That subsequently a set of Rules were framed in exercise of power under Article 309 of the Constitution of India and that set of Rules is known as Assam Engineering (Irrigation) Department) Service Rules, 1978 (hereinafter called as the 'Rule'). These rules were enacted on 8.8.78 and as such they came into force from that date. Rule 3 of the aforesaid Rules specified the Class/Cadre of the posts in the service. The service consists of three categories i.e. (a) Class I (Senior Grade), (b) Class-I and Class-Ill Senior Grade of posts includes - (i) Secretary to Government, (ii) Chief Engineer; (iii) Addl. Chief Engineer and (iv) Superintending Engineer. Class-II posts includes the posts of (i) Executive Engineer, (ii) Research Officer, Research Station and (iii) Assistant Executive Engineer. Class-Ill includes the posts of Asstt. Engineer. Recruitment to these different cadres and seniority are provided by following the Rules. Rule 5 provides for method of recruitment to Class-II of the service which is by direct recruitment on the basis of selection made in accordance with Rule 6 and by promotion in accordance with rules 11, 13 and 14. Recruitment to Class I and Class (Senior Grade) are made by promotion only in accordance with rules 12 and 13. Rule 6 provides for direct recruitment subject to schedule (3) of Rule 11. Rule 11(4) provides as follows : 4(a) & (b)
(a) He has rendered minimum 8 years of service as a subordinate engineer on the first January of the year of promotion. (b) He has successfully undergone the training and passed the Departmental Examination as prescribed by Government from time to time. Rule 13 provides that before the end of each year the Government shall make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre. Rule 22 of the aforesaid Rules provides for seniority. Rule 22 is quoted below :

"22. Seniority - (1) The seniority of a member in a cadre appointed by direct recruitment or by promotion shall be determined according to the order of reference in the respective list finally approved by Appointing Authority under sub-rule (6) or rule 13 and sub-rule (3) of rule 14, sub-rule (1) of rule 18, if he joins the appointment within 15 days from the date of receipt of the order or within the extended period as mentioned in rule 19. (2) If a member fails to join the appointment within the initial 15 days of receipt of the order or within the extended period as mentioned in rule 19, but joins later, his seniority shall be determined in accordance with the date of joining. (3) A member appointed by promotion against a vacancy occurring in a year shall be senior to a member appointed by direct recruitment of that year. (4) A separate seniority list of S.E.S. Sub-divisional Officers and Sub-divisional Officers (TC) en-cadred or Assistant Engineers with effect from 1st January, 1973, promoted from the cadre of Subordinate Engineer Grade-I shall be maintained. Such a seniority list shall continue till all the members of the list are adjusted against promotion post or the post are vacated by retirement or otherwise. (5) The inter-se-seniority of such Sub-divisional Officers and Sub-Divisional Officers (TC) vis-a-vis the direct recruit Assistant Engineers shall be in accordance with the detailed instruction issued by Government. Rule 24 provides for preparation and publication of Gradation list. That is quoted below : 24. Gradation list - There shall be prepared and published every year a gradation list containing the names of all members of the service cadrewise in order of seniority and such other particulars as date of birth, date of appointment, etc.

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