Arindam Mukherjee, J. - (1.) The appellants were recruited as Sub-Assistant Engineers in Kolkata Municipal Corporation (hereinafter referred to as the 'KMC') and possess a degree in engineering. They were respondent nos. 6 to 12, 14 and 15 in the writ petition. The respondent no. 29 described as proforma respondent in the appeal was also recruited as Sub-Assistant Engineer with a degree in engineering but has not challenged the order impugned. The respondent nos. 1 to 23 are the writ petitioners who were also been appointed as Sub-Assistant Engineers in KMC but possess diploma in various engineering branches. The respondent nos. 24 to 28 are the KMC and its officials/officers. These respondents were respondent nos. 1 to 5 in the writ petition.
(2.) The writ petition was essentially filed for the following reasons:- a) The KMC through a recruitment process appoints Sub-Assistant Engineers (hereinafter referred to as the 'SAEs'). This is a sub-ordinate engineering cadre. The minimum qualification to appear in the recruitment process of Sub-Assistant Engineers is diploma in engineering in either civil/mechanical/electrical branch. b) Since there is no bar for the candidates possessing higher qualification, that is, degree in civil/mechanical/electrical to appear in the recruitment process of Sub-Assistant Engineers, the degree holders who became successful in the selection process were also appointed as Sub-Assistant Engineers along with those who possessed diploma in engineering. So the cadre of Sub-Assistant Engineer consist of both degree and diploma engineers of civil/mechanical/electrical stream. c) The gradation list as per the merit list prepared in course of the recruitment process is adopted by the Municipal Service Commission. d) The next promotion from SAE is to the post of Assistant Engineer. This is an engineering cadre which starts from the post of Assistant Engineers and proceeds up to the post of Chief Engineer. The Assistant Engineers are appointed through separate recruitment process where the minimum qualification is degree in engineering in civil/mechanical/electrical stream. e) All SAEs are eligible for promotion to the next higher post, that is, Assistant Engineer after completion of ten years. However, due to shortage of available promotional post in the cadre of Assistant Engineer for the promotion of SAEs, the KMC in order to compensate the SAEs formulated a Carrier Advancement Scheme. As per the first Carrier Advancement Scheme, after completion of ten years of service a SAE is placed to the next higher scale, that is, from scale no. 12 to scale no. 13, though according to the writ petitioners, that scale should have been no. 16 being the next promotional scale applicable to Assistant Engineers. The writ petitioners also alleged that, there is no scope of second Carrier Advancement Scheme in fifteen years in case of SAEs having diploma. f) Finding stagnation amongst the SAEs, the KMC authorities by a circular dated 17th June, 2008 introduced a new scheme by providing the SAEs who have completed twenty years of satisfactory service in KMC with the basic scale of pay of the Assistant Engineers being Rs. 8000-275-13000. The then existing scheme for 1/3 : 2/3 up -gradation facilities to second next higher scale were done away with. This benefit was extended with effect from 1st May, 2008. g) Subsequently, finding that SAEs are losing motivation at work being stagnated at the same post in some cases even after completion of twenty five years of service despite being awarded the pay scale of Assistant Engineers as per the existing scheme, KMC formulated a further scheme keeping the existing scheme of providing higher scale of pay in operation to provide the SAE's the post of Assistant Engineer so that they could enjoy the same. A proposal was given for creating supernumerary posts of Assistant Engineers as and where necessary and offer such posts to the SAEs. The criteria for awarding such post to the SAEs will appear from the "specific proposal" contained in the agenda note date 19th April, 2012. The same are reiterated hereinbelow:- 1) (a) "The SAEs who have completed 25 years of service or more in the present post may be promoted to the post Asstt. Engineer in their respective discipline by way of creation of supernumerary posts wherever required subject to fulfilment of promotional norms. (b) The SAEs having degree qualification and have completed 13 years of service or more in the present post out of which 5 years as degree holder may be promoted to the post of Asstt. Engineer by way of creation of supernumerary posts wherever required subject to fulfilment of promotional norms. (c) (i)To take an exercise at the beginning of each year to asses similar cases as per clause mentioned in (a) and (b) and to review if such cases may be accommodated. (ii) At present 3 nos of diploma holder SAEs (C) and 12 nos of SAEs (M) come under the purview of the proposed scheme having completed 25 years and 10 nos of degree holder SAEs (C) come under the purview of the proposed scheme having completed 13 years as SAEs including 5 years as degree holder SAEs (As on 31.12.2011)." h) This proposal was accepted and the Municipal Commissioner by his order dated 30th June, 2012 had approved the following for the implementation of resolution. "In the light of the above, the Mpl. Commissioner by his order dated 30.06.2012 has approved the following for the implementation of the resolution: 1) The diploma holder SAEs who have completed 25 years of service or more in the present post as on 31.12.2011 are to be promoted to the post of Asstt. Engineer in their respective discipline by way of creation of supernumerary posts wherever required subject to fulfilment of promotional norms. 2) The degree holder SAEs who have completed 13 years of service or more in the present post out of which 5 years as degree holder SAEs as on 31.12.2011 are to be promoted to the post of Asstt. Engineer by way of creation of supernumerary posts wherever required subject to the fulfilment of promotional norms. 3) The said supernumerary posts will be adjusted against the permanent vacancies in regular manner as and when the vacancy becomes available within the sanctioned posts of Assistant Engineer. 4) At present and at the beginning of each year an exercise will be made by the Personnel Deptt. to find out the eligible SAEs for promotion against supernumerary posts completing 25 years as diploma holder SAE and 13 years (5 years with degree) as degree holder SAE, who could not be promoted against the regular posts during the previous year upto 31st December for which Personnel Deptt. will issue Office Orders by observing necessary criteria and by obtaining necessary approval from the authority. 5) There would be no change in the existing R/R for the posts of Assistant Engineer. 6) The pay of the eligible S.A.Es as mentioned above may be fixed as A.E on promotion against supernumerary posts from the date of joining in the post. 7) The facts relating to the above and with reference to the M-I-C and Mpl. Corporation resolution may be noted in the respective Service Books with proper verification by the concerned I.F.U. 8) The pay scale and the post of A.E so awarded to the eligible SAEs against supernumerary posts as mentioned above may be treated as personal to them for subsequent adjustments against availability of permanent vacancies. All concerned are requested to take necessary action immediately in this regard." This forms part of the circular dated 3rd July, 2012.
(3.) On the basis of such order and circular, a list was prepared as will appear from the circular dated 5th July, 2012 providing the names of the diploma holder SAEs and the degree holder SAEs who were to be designated as Assistant Engineers (supernumerary posts).;