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2020 Supreme(Gau) 77
GAUHATI HIGH COURT
N. Kotiswar Singh, J.
Rohini Phangchopi Daughter Of Lt Hem Chandra Phangcho - Appellant
Versus
State Of Assam - Respondent
Writ Petition (Civil) No. 889 of 2018
Decided On : 24-01-2020
Nilay Dutta, Advocate, N.N.B. Choudhury, Advocate, N. Sarkar, Advocate, D.P. Sahu, Advocate, B. Goswami, Advocate, S. Chutia, Advocate, K. Gogoi, Advocate, R. Mazumder, Advocate
Headnote:
India Gandhi National Open University Act, 1985 – Section 16 – Assam Engineering (Flood Control Department) Services Rules, 1981 – Rules 15(5), 13, 14(1) – Issue on Certificate –learned senior counsel for the petitioners in response submits that it is the contention of the respondent authorities that the petitioners had obtained the certificates in Associate Member of Institution of Civil Engineers through distance education mode – However, there is no basis for holding that the course undergone by the petitioners is by way of distance education mode – He submits that the respondents, more particularly, the Secretary, Water Resources Department, who succeeded the earlier Secretary during whose tenure the selection was made and approval was granted by the State Government, made an enquiry without any basis from the AICTE as well as the Director of Technical Education regarding the genuineness of the certificate obtained by the petitioners –Held, In the present case, the issue raised by the State Government goes to the very root and foundation of the claim of the petitioners and if it is found that the certificates relied upon by the petitioners are not valid, the State Government would be within its authority to deny promotion to the petitioners –As regards the contention of the petitioners that the issue raised in this petition is covered by the decision rendered by this Court in WP(C) this Court is of the opinion that in view of the decision rendered by the Honble Supreme Court in Orissa Lift Irrigation (supra), the matter would require to be further examined in terms of the decision of the Honble Supreme Court as referred to above, more particularly as regards the issue of validity of a certificate/ diploma/degree course offered by any Technical Institution through distance mode education as referred to above. In the opinion of this Court, matters relating to technical education, distance education mode and AICTE have been comprehensively and decisively dealt with by the Honble Supreme Court in the aforesaid case and as such, any decision rendered by this Court relating to technical education, distance education mode and AICTE are to be in tune with the said decision –Petition disposed of
JUDGMENT
N Kotiswar Singh
1. Heard Mr. Nilay Dutta, learned senior counsel assisted by Mr. N. Sarkar,. learned counsel for the petitioners. Also heard Mr. B. Goswami, learned Addl. Advocate General, Assam assisted by Ms. S. Chutia, learned Standing Counsel, Water Resources Department for respondent Nos. 1 to 4 and Mr. K. Gogoi, learned Standing Counsel, Education (Technical) Department for respondent No.5.
2. In this petition, the petitioners have sought for a direction from this Court to be issued to the State respondents to promote the petitioners to the posts of Assistant Engineers (Civil) as per recommendation made by the State Selection Board and Assam Public Service Commission and as approved by the State Government.
3. Mr. N. Dutta, learned senior counsel for the petitioners has narrated the factual background and submitted as follows.
4. All the petitioners are presently serving as Junior Engineers (Civil) in the Water Resources Department, Government of Assam. They possess the academic qualification of AMICE (I) which is admittedly equivalent to Bachelor of Engineering (B.E). They all claim to be eligible for promotion to the higher posts of Assistant Engineers in the same Department as per rules.
5. It is the case of the petitioners that they were duly considered for promotion to the posts of Assistant Engineers and recommended by the State Selection Board in terms of Rule 15(5) of the Assam Engineering (Flood Control Department) Services Rules, 1981 read with Rule 11(5) and Rule 13 of the aforesaid Rules.
Rule 11 of the Assam Engineering (Flood Control Department) Service Rules, 1981 as amended reads as follows:
"11. Promotion as Assistant Engineer-
(1) The Appointing authority shall publish in the Government Gazette annually the number of vacancies in the respective cadres of Assistant engineers which have occurred or are likely to occur in the year.
(2) Subject to suitability as may be decided by the Board and by the Appointing Authority in consultation with the Commission, an officer belonging to the corresponding cadre of Subordinate Engineer Grade I in the Assam Subordinate Engineering (Flood Control Department) service under the Government and possessing the qualifications as set forth herein below shall be promoted to the cadre of Assistant Engineers in the manner provided in rules 13 and 14.
(3) The vacancies to the filled up by promotion of Sub-Engineers shall be so fixed that the promoted Assistant Engineer do not exceed 30% of the total corresponding cadre strength of permanent and temporary Assistant Engineers.
(4) A member of the Assam Subordinate Engineering Grade I (Flood Control Department) service shall be eligible for promotion as Assistant Engineer subject to the following conditions:-
(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 been successfully undergone the training and passed the Departmental examination as prescribed Government from time to time.
(5) Notwithstanding anything contained herein before in this rule, subject to suitability, a Subordinate Engineer Grade-I, of the Assam Subordinate Engineering (Flood Control Department) service, on his acquiring the academic qualification, as prescribed for a direct recruit Assistant Engineer, shall be promoted as Asstt. Engineer, in consultation with the Commission, as provided in rule 14, against the next available vacancy in the cadre and such promotion shall be treated as direct recruitment to the cadre of Assistant Engineer for the purpose of these rules.
Amendment of Rule-11- In Rule 11 after sub-rule (5) the following should be inserted as near Rule 11 (A) namely
Rule 11 A- Promotion as Assistant Research Officer -
xxxxxxx
xxxxxxx"
Rule 13 of the aforesaid Rules reads as follows:
"13. General procedure for promotion.
(1) 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 n
