WA 402/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR HON’BLE MR JUSTICE P.K. MUSAHARY JUDGMENT AND ORDER(CAV) (PK Musahary, J) This writ appeal is preferred against the judgment and order dated 24.11.2009 pa ssed by the learned single Judge in W.P. (C) No. 1391/2005. The appellant writ p etitioner is aggrieved by a part of the aforesaid judgment and order, particular ly, paragraphs No- 11, 12 & 13, in which the learned single Judge held that in v iew of the provisions under Sections 327 & 329 of the Guwahati Municipal Corpora tion Act, 1971(GMC Act, in short), no mandamus could be issued directing the GMC authority to entrust the Engineers of the Guwahati Municipal Corporation(GMC, i n short) to discharge the functions of granting or rejecting building permission , etc., within the jurisdiction of GMC, and also the view taken therein that th e action on the part of the GMC authorities in bringing persons on deputation wi thout the recommendation of Assam Public Service Commission(APSC in short) as pe r Section 72(1)(2) of the GMC Act, cannot be faulted. 2. For disposal of this writ appeal, the facts in short may be note d as under: The petitioner passed Bachelor of Engineering (Civil) from Assam Engineering College, Guwahati, in 1988. He was appointed as Assistant Engineer on 13.12.1991 and subsequently, he along with others, was deemed to have been re gularly appointed in service on the basis of an order dated 05.09.2002 passed by this Court in Civil Rule No. 5096/1998, Writ Petitions No. 5216/1999 and 6603/1 998. The private respondents No. 3, 4, 5, 6 and 7( private respondents, in short ), who were working as Junior Engineers(Civil) were brought on deputation from t he Country & Town Planning Department, Government of Assam and were temporarily promoted as Assistant Engineers(Civil) by an office order dated 06.03.1990. Ther e was another Civil Rule No. 3451/1998 filed by one Sri Sujit Kalita before this Court which was disposed of on 21.11.2003 with an observation to the effect tha t in view of the publication of the Assam Engineering Service Rules, the said pe titioner would not have any grievance. It is stated in the aforesaid writ petiti on that during the pendency of the Civil Rule No. 3451/1998, the respondent auth orities by order dated 26.08.2003, promoted the private respondents to the posts of Assistant Executive Engineer, subject to final order in Civil Rule No. 3451/ 1998 and finalization of GMC Engineering Service Rules, 2003. In the meantime, t he GMC Engineering Service Rules, 2003, were already published in the official g azette on 27.01.2004 and as such, the said Civil Rule No. 3451/1998 was disposed of. Inspite of framing of the Rules and availability of sufficient number of gr aduate Engineers in the GMC, the promotion of private respondents was allowed to continue on temporary basis in the post of Assistant Executive Engineers and ti ll this date, the respondent authorities have not finalized the gradation list o f Assistant Engineers. The respondent authorities are allowing the private respo ndents to serve as Assistant Executive Engineers without repatriating them to th eir parent department i.e. Country & Town Planning Department, Government of Ass am. The said private respondents, besides being given promotion to the posts of Assistant Executive Engineer, have been allowed to discharge the duties and func tions of granting or refusing permission in respect of construction of buildings , etc., totally overlooking the services of the Assistant Engineers including th e appellant writ petitioner of the GMC under the provisions of Sections 327 and 329 of the GMC Act and Rules, framed thereunder. The petitioner and other Engine ers of the GMC became aggrieved by the inaction of the GMC in not publishing the gradation list of Assistant Engineers and continuing the services of the Associ ate Planners, overlooking the services of the graduate Engineers available in th e GMC, which led to filing of writ petition No. 1391/2005 which has been dispose d of by the learned single Judge vide impugned judgment and order dated 24.11.20 09. 3. We have heard Mr. B. D. Das, learned senior Government Advocate, assisted by Mr. H. K. Sharma, learned counsel, for the appellant writ petitione r and Mr. D. Saikia, learned standing counsel, for respondent GMC. 4. We have noted that in the writ petition, the writ petitioner sou ght for the following reliefs : (i) Direction to the respondent authorities to prepare and publish the grada tion list of Assistant Engineers; (ii) To fill up the posts of Assistant Executive Engineers held by the privat e respondents on regular basis as per the GMC Service Rules, 2003, and, (iii) To entrust the Engineers of GMC with the duties and functions of grantin g or refusing permission for construction of buildings, etc., as per the provisi ons under Sections 327 and 329 of the GMC Act. 5. So far as the prayer for preparation and publication of the grad ation list is concerned, it has been noted in the impugned judgment and order da ted 24.11.2009 that the gradation list of Assistant Engineers(Civil & Electrical ) has already been published on 31.03.2009 and no direction is warranted in that regard. 6. As regards the second prayer for filling up the post of Assistan t Executive Engineers on regular basis, the learned single Judge observed that a fter publication of Service Rules in 2004, there should not be any difficulty in filling up the posts of Assistant Executive Engineers on regular basis and acco rdingly, a direction was issued to the respondent GMC to fill up all the vacant posts of Assistant Executive Engineers(Civil) including the posts occupied by th e private respondents on regular basis in terms of the Service Rules. In the imp ugned judgment and order dated 24.11.2009, it is also provided that if the writ petitioner is eligible for promotion in the aforesaid cadre, he should also be c onsidered for promotion and since the petitioner was appointed as Assistant Engi neer long back in 1991 and expecting promotion to the rank of Assistant Executiv e Engineer, the respondent GMC was directed to do the needful in that regard as expeditiously as possible preferably within a period of 4(four) months from the date of receipt of a copy of the judgment. It was also provided in the aforesaid impugned judgment and order that pre-condition of recommendation by the APSC or MSC as stipulated in Section 72(1)(2) of GMC Act, may not be followed, if the a ppointments are made on deputation basis. It is this observation/direction of th e learned single Judge by which the petitioner has become aggrieved by and dissa tisfied with because the petitioner demanded that all the appointments should be made on the recommendation of either APSC or MSC. 7. We have noted from the writ petition that the GMC Engineering Se rvice Rules, 2003, was published in 2004, providing, amongst others, strength in each cadre, manner of recruitment, etc., therein. The GMC Engineering Service c onsist of 6 cadres including the cadre of Assistant Executive Engineer. As per R ule 11 of the aforesaid Service Rules, the appointment to the post/cadre of Assi stant Executive Engineers should be made by 100% promotion, from the feeder post of Assistant Engineer. The promotion should be made on seniority-cum-merit basi s and experience. The total strength in the cadre of Assistant Executive Enginee r is 6 as per Schedule II to the Service Rules. The eligibility of different cad res has been specified in Schedule IV to the Service Rules and according to the said Schedule, for promotion to the post of Assistant Executive Engineers, a ca ndidate must have worked as Assistant Engineer for 5 years in GMC. Rule 11 to th e aforesaid Service Rules, provides that vacancies shall be filled up by the app ointing authority from the Select List recommended by the Selection Board. Rule 11(c) provides that Selection Board should consist of a Chairman and 4 members, as specified hereunder : (1) Chairman, GMC Service Commission - Chairman (2) Commissioner, GMC - Member Secretary (3) Addl. Deputy Commissioner, Kamrup- Member (4) Chief Engineer, PWD - Member (5) Chief Engineer, PHE - Member 8. Against the aforesaid clear provisions under the GMC Service Rul es, the learned single Judge came to a conclusion that it is difficult to accep t the statements of the learned counsel for the petitioner that all the appointm ents should be made on the recommendation either APSC or MSC. The relevant Serv ice Rules, as discussed above, provides for constitution of Municipal Service Co mmission(MSC in short) and it also provides how the MSC should be constituted co nsisting of certain officials. Because of the aforesaid provisions in the Serv ice Rules, we are not in agreement with the direction of the learned single Judg e that the pre-condition of recommendation by APSC or MSC as stipulated in Secti on 72(1)(2) of the GMC Act, may not be followed, if the appointments are made on deputation basis. We find no provision in the Service Rules providing promotion to the post of Assistant Executive Engineer on deputation basis from the post o f Assistant Engineer. In our considered view, since the Service Rules did not pr ovide for promotion to the post of Assistant Executive Engineer on deputation ba sis, no direction could be issued to the respondent authorities to fill up the p osts of Assistant Executive Engineer on deputation basis. In view of above, ther e should be a direction to the respondent authorities to fill up the posts of As sistant Executive Engineer by way of promoting the Assistant Engineer on the bas is of seniority-cum-merit and experience, as provided in the Service Rules. Acco rdingly, we make an order to the effect that the post of Assistant Executive Eng ineer, if any, lying vacant in the GMC shall be filled up by promotion from the cadre of Assistant Engineer on the basis of seniority-cum-merit and experience a nd other conditions as laid down in the relevant Service Rules. The direction of the learned single Judge stands modified to this extent. 9. We hold no different view in respect of finding and decision of the learned single Judge in regard to question of entrusting the appellant with duty and/or function/ responsibility for granting or refusing permission of cons truction of buildings, etc., as the same is a matter of policy decision and no m andamus could be issued to the respondent GMC. The direction issued by the learn ed single Judge in this respect is upheld. 10. The writ appeal stands disposed of with the observations and dir ections indicated above. 11. Parties shall bear their own costs.