Decided on February 23,2018

Labanya Bora Appellant
State Of Assam And 4 Ors Respondents


L. S. Jamir, J. - (1.) 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.
(2.) 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- 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.
(3.) 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.;

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