WP(C) 3494/2007 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Dr. B Ahmed, learned counsel appearing for the petitioners in W P (C) No.3 494/07. Also heard Ms. R Deka, learned Departmental counsel who represents the o fficial respondents. Also heard Mr. K K Mahanta, learned senior counsel who appears for the petitione r in W P (C) No.3811/07 and Ms. B Bhuyan, learned standing counsel of the Depart ment who represents the official respondents. Mr. C Baruah, learned counsel appears for the APSC. 2. The 3 petitioners, who are employed as Junior Engineers (J.E.) in the Pu blic Works Department (PWD) have approached this Court seeking direction for con sideration of their claim for promotion/direct entry, in the cadre of Assistant Engineer (Civil) as per the provisions incorporated in Rule 11(4)(c) of the Assa m Engineering (Public Works Department) Service Rules, 1978 (hereinafter referre d to as the Rules). The petitioners by virtue of possessing the higher Engineeri ng Degree qualification which is the qualification prescribed for direct appoint ment into the cadre of Assistant Engineer (Civil), claim a right to be promoted as Assistant Engineer (Civil), although they were recruited as Junior Engineers on the basis of the Engineering Diploma qualification. 3. The learned counsels appearing for the petitioners have referred to seve ral instances in the Department, where such promotion of Junior Engineers (earli er described as Sub-ordinate Engineer Gr.I in the Rules) were given promotion to the posts of Assistant Engineers because of possessing the Graduate Engineer’s qualification, by exercise of powers under Rule 11(4)(c) of the Rules and conten ded that the respondent authorities have interfered with the petitioners’ right to get a fair treatment, by not considering their cases for such promotion to th e higher cadre. 4. It is submitted by the learned Departmental counsels that promotion unde r Rule 11(4)(c) to the higher cadre of Assistant Engineer can be considered only for such Junior Engineers, who acquire the degree qualification, after their en try into service as Junior Engineer and such promotion cannot be considered for those, who have acquired the graduate Engineering Degree, prior to joining servi ce in the cadre of Junior Engineer. 5. Under Rule 3(c) of the Rules, the cadre of Assistant Engineer is classif ied as a Class II Service under the Rules. Rule 11 prescribes the procedure for making promotion to the cadre of Assistant Engineers. Rule 11(2) provides that S ubordinate Engineers serving in Grade I in the Assam Subordinate Engineering PWD Service, is the feeder post for making promotion to the cadre of Assistant Engi neer. Sub-Rule 3 of Rule 11 prescribes that the vacancies to be filed by promoti on of Subordinate Engineers shall be so fixed that, the promoted Assistant Engin eers do not exceed 30% of the cadre strength of Assistant Engineers. 5.1. Sub-Rule 4 of Rule 11 provides for various modes of entry of members of the Assam Subordinate Engineering (PWD) Services Officers i.e. Junior Engineers to the higher cadre. Under Clause (a), a Subordinate Engineer rendering 8 years of service is eligibl e for promotion to the cadre of Assistant Engineer. Under Clause (c) of Rule 11(4), it is provided that a Subordinate Engineer Grade I, on his acquiring the academic qualification prescribed for direct recruitmen t of Assistant Engineer, shall be promoted as Assistant Engineer against the nex t available vacancy in the cadre and such promotion shall be treated as direct r ecruitment in the cadre of Assistant Engineer. 6. It is not in dispute that all the 3 petitioners herein had already acqui red the academic qualification prescribed for direct recruitment as Assistant En gineers, when they entered in service in the lower cadre of Junior Engineer, as each of them also possessed the qualification of diploma in Engineering, which m akes them eligible for appointment as Junior Engineers. 7. It is contended by the petitioners that to make a distinction of those w ho acquired higher academic qualification after they joined service as Junior En gineers and those who already possessed the Graduate Engineering qualification i n addition to the Diploma qualification, at the time of entering service as Juni or Engineers, would be highly discriminatory, as there is no rational basis for making a distinction between the two categories of Junior Engineers, having rega rd to the objective of providing for opportunity of fast track promotion, envisa ged for Junior Engineers, under the provisions of Rule 11(4)(c) of the Rules. 8. To explain the several instances in the past of such promotion being gra nted in the Department to Junior Engineers, who joined as Junior Engineers with the additional academic qualification of Graduate Engineering Degrees, the Depar tmental counsels contend that this practice in the Department was discontinued a fter the Department decided, to stop referring promotional matters of Junior Eng ineers to the APSC. 9. The above explanation given by the Departmental counsels to justify a de parture from the earlier practice of considering cases for promotion, of those J unior Engineers who had already acquired the Graduate Engineering academic quali fication prior to joining service as Junior Engineers is difficult to accept as a reasonable justification. No change in Rule 11(4)(c) was incorporated because of abandoning of the practice of consulting the APSC by the Department for makin g promotion to the cadre of Assistant Engineer and under such circumstances, the claim of the petitioners for getting promotion to the cadre of Assistant Engine er, because of the Graduate Engineering Academic qualification possessed by them , has to be judged on the basis of the provisions of Rule 11(4)(c) of the Rules. 10. Rule 11(4)(c) obviously provides for a faster mode of entry into the higher cadre of Assistant Engineer for those, serving as Junior Engineers. The Rule it self does not rule out consideration of cases of those, who had already acquired the higher academic qualification, prior to their entry into the service in the feeder cadre of Junior Engineer. 11. From the several instances of such fast track promotion given, it is app arent that the Department had all along been considering promotion for the Junio r Engineers, who possesses or acquire the Graduate Engineer qualification, witho ut making any distinction amongst those, who acquired the qualification before o r after entering into service of Junior Engineers in the Department. 12. The Department tries to justify the abandoning of the above practice, be cause of replacing the practice of consulting the APSC by consulting the DPC for making promotion to the cadre of Assistant Engineer. This explanation, furnished by the Department cannot in my view is accep table, as no corresponding change in the Rules has been incorporated, to do away with the long standing practice followed by the Department. There is really no basis to make a distinction between those, who acquired higher qualification aft er they joined service and those who joined service in the lower cadre, with add itional higher academic qualification. Therefore, non-consideration of the cases of the petitioners for promotion under Rule 11(4)(c) to the cadre of Assistant Engineer, is found to be discriminatory and the same therefore violates the petitioners’ rights guaranteed under Articl e 14 and 16 of the Constitution of India. 13. In so far as the advertisement dated 27.3.2007 (Annexure 9), whereby 78 posts of Assistant Engineer (Civil) has been advertised for filling up the posts through direct recruitment, it is submitted by the Departmental counsels that t he said direct recruitment exercise to the 78 posts, would not intrude into the 30% of the total cadre strength of Assistant Engineers, earmarked to be filled u p by promotion of Junior Engineers (Subordinate Engineers). From the above submission, it can be understood that the 30% quota meant to be f illed up by promotion in the cadre of Assistant Engineers, are available to be f illed up by eligible serving Junior Engineers. 14. The petitioners herein are contenders for promotion on the basis of high er academic qualification under the provisions of Rule 11(4)(c) and not under th e provisions of Rule 11(4)(a) and since such promotions are to be considered, su bject to availability of vacancies in the cadre, I am of the opinion that direct ions should be issued to consider the cases of the 3 petitioners for promotion to the posts of Assistant Engineers under the provisions of Rule 11(4)(c), if v acancies in the promotional quota is available. It is ordered accordingly. 15. These cases are accordingly allowed with the further direction that the cases of the petitioners should be considered for promotion under Rule 11(4)(c) of Rules with expediency and preferably within a period of 3 months, from the da te of receipt of a copy of this Court’s order, subject to vacancies being availa ble for giving such promotions.