The main legal point established in the judgment is the application of Rule 5(2) of the Assam Civil Defence (Non-Gazetted) Service Rules, 1991, which treats persons appointed to equivalent posts before the commencement of the rules to have been encadred in the cadre service.

JUDGMENT :

1. Heard Mr. M.P. Sharma, learned counsel appearing for the writ petitioner. Also heard Mr. C.K.S. Baruah, learned Government Advocate, Assam, appearing for the respondent nos. 1 & 2. None has appeared for the respondent no. 3.

2. By filing this writ petition, the speaking order dated 09/09/2010 passed by the Director General of Civil Defence and Commandant General of Home Guard i.e. the respondent no.2 has been put under challenge inter alia contending that the impugned order has been issued without proper authority and jurisdiction and the same is also in clear contravention of the relevant Service Rules. By the impugned order, the respondent no. 3 has been absorbed in the cadre and has also been given consequential seniority over the petitioner.

3. The facts of the case, in a nutshell, as appearing from the materials on record are as follows :-

(i) The writ petitioner was appointed as Civil Defence Wireless Operator under the respondent no. 2 on 07/01/1995. On the other hand, the respondent no. 3 was appointed as PBX Operator on 01/11/1991 in the establishment of Director General, Civil Defence and Commandant General, Home Guards, i.e. the respondent no. 2 pursuant whereto, he had joined on 03/11/1991. The pay scale of PBX Operator was marginally higher than the post of Civil Defence Wireless Operator and Demonstrator but the nature of duty of both the posts were more or less the same. The post of PBX Operator was not a cadre post under Rule 3 of the relevant service rules i.e. “Assam Civil Defence (Non-Gazetted) Service Rules, 1991” although the said post did find mention in the schedule of the Rules which mentioned all the posts which were part of the service. As such, although, the respondent no. 3 had joined way back on 03/11/1991 as a PBX Operator, yet, due to the aforesaid anomaly in the Rules, he was not given the benefit of seniority by treating his post as ex-cadre whereas, persons appointed after him like the writ petitioner, who had joined as a Wireless Operator, were assigned seniority position in the Gradation List. Aggrieved thereby, the petitioner had approached the authorities ventilating his grievance in the matter.

(ii) Taking note of the amended provisions of the Rules and the grievance expressed by the respondent no. 3, the respondent no. 2 had passed the impugned order not only treating his post of PBX Operator to be a part of the cadre service but also assigning seniority to him over the persons who were appointed after the respondent no. 3 including the writ petitioner. Immediately, thereafter, the Gradation List of Civil Defence Demonstrators and Wireless Operators etc. were published wherein, in view of his seniority position the name of the respondent no.3 figured at Sl. No. 1 whereas the petitioner’s name appeared at Sl. No. 4. Aggrieved thereby, the instant writ petition has been filed.

4. Mr. Sharma, learned counsel for the writ petitioner has argued that since the respondent no. 3 was appointed against an ex-cadre post, he could not have been encadred by the impugned order, far less any seniority be given to him above the petitioner herein, who was all along holding a cadre post. According to Mr. Sharma, regardless of the date of appointment, seniority in this case ought to be governed by the fact that the persons holding cadre post must be recognized to be of higher seniority than those absorbed against ex-cadre post. Mr. Sharma has further argued that it is only the Governor of Assam who had the competence and jurisdiction to pass such an order absorbing the respondent no. 3 to the cadre service and not the respondent no.2. Therefore, viewed from any angle, submits Mr. Sharma, the impugned order is illegal and hence, is liable to be set aside.

5. It is also the submission of Mr. Sharma that as per the provisions of Rule 5(2) of the Rules, the deemed encadrement can only be applied with regard to posts of equivalent nature and, therefore, the impugned order is also bad on account of t