Rule 22(3) of the Assam Engineering (Public Works Department) Service Rules, 1978 prioritizes promotees over direct recruits for seniority based on vacancy year, complying with Articles 14 and 16 of the Constitution.

JUDGMENT & ORDER :

(Ashutosh Kumar, CJ.)

We have heard Mr. K.N. Choudhury, learned Senior Advocate assisted by Mr. R.M. Deka and Mr. D.J. Das, learned Advocates for the petitioners; Mr. P. Nayak, learned Additional Advocate General, Assam for the State; Mr. B.D. Konwar, learned Senior Advocate assisted by Mrs. J.M. Konwar, learned Advocate for respondent Nos.3 to 92 and Mr. P. Doley, learned Advocate for respondent Nos.94 to 98.

2. The petitioners, directly recruited Assistant Engineers (Civil), have challenged the constitutional validity of Rule 22 (3) of the Assam Engineering (Public Works Department) Service Rules, 1978 (in short, “Rules of 1978”) and the consequential action by the State in assigning seniority to respondent Nos.3 to 98, who are promotees to the same cadre.

3. The controversy arose because the petitioners were appointed as Assistant Engineers on 21.09.2022, whereas the promotees were appointed on 06.01.2023. However, the promotees have been placed senior to the direct recruits on the ground that they were promoted against vacancies of the calendar year-2022 and under Rule 22 (3), a promotee appointed against a vacancy occurring in a year shall rank senior to a direct recruit of that year.

4. The petitioners contend that such seniority assignment enables a person “not even born in the cadre” to the rank above those already appointed and is, therefore, violative of Articles 14 and 16 of the Constitution of India.

5. In order to understand the dispute and resolve the same, it would be necessary to refer to Rule 22 of the Rules of 1978 in its entirety, which reads as under:

“22. Seniority- The Seniority of a member in a cadre appointed by direct recruitment or by promotion shall be determined according to the order of merit in the respective list finally approved by the Appointing Authority under sub- rule (6) of Rule 13 and sub-rule (4) 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 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.” SDOs and SDOs (T.C.) since re-designated and encadred as Assistant Executive Engineer/Assistant Engineer with effect from 1-1-73 promoted from the cadre of Junior Engineer shall be maintained such 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 Assistant Executive Engineer shall be fixed in accordance with sub-rule (1) of this Rule.

(6) The seniority of such Assistant Executive Engineer shall be in accordance with the decision of the Governor.”

(Emphasis supplied)

6. Before any further discussion is made with regard to the arguments advanced on behalf of the parties, it would be necessary to refer to few of the terms of the employment as defined in the dictionary of the Rules of 1978.

Rule 2(j) defines “Year” as a Calend