Gauhati High Court
Tilak Ch. Das & Anr vs The State Of Assam And 6 Ors on 30 April, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
WRIT PETITION (C) NO.05 OF 2015
Petitioner :
Sri Debajit Das,
Son of late Dharani Dhar Das,
Presenty serving as the Deputy Secretary (Materials),
Public Works Roads Department, Dispur,
Guwahati-6.
By Advocates :
Mr. K.N. Choudhury Sr. Advocate.,
Mr. J. Patowary,
Mr. P.P. Medhi,
Mr. M. Mahanta.
Respondents :
1. State of Assam, represented by the Additional Chief Secretary (Works), Government of Assam, Dispur, Guwahati-781006.
2. Commissioner and Special Secretary to the Government of Assam, Public Works (Roads) Department, Dispur, Guwahati-781006.
3. Secretary to the Government of Assam, Public Works Department, Dispur, Guwahati-781006.
4. Secretary to the Government of Assam, Personnel Department, Dispur, Guwahati-781006.
5. Deputy Secretary to the Government of Assam, Personnel Department, Dispur, Guwahati-781006.
6. Deputy Secretary to the Government of Assam, Public Works Roads Department, Confidential Cell, Dispur, Guwahati-781006.
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7. Chief Engineer,
Public Works (Roads) Department,
Chandmari, Guwahati - 3.
8. Chief Engineer,
Public Works (Building & NH) Department,
Chandmari, Guwahati - 3.
9. Shri Ajit Kumar Bhuyan,
Son of late Prasanna Kumar Bhuyan,
Resident of Bipin Borgohain Path,
Milan Nagar,
PO- CR Building,
Dibrugarh.
10. Shri Ameetav Sarma,
Son of late Buddhi Sarma,
Resident of Bhagirathi Apartment,
Zoo Narengi Road,
Guwahati-21.
By Advocates:
Mr. A.C. Buragohain, Advocate General,
Mr. D.K. Misra, Senior Advocate,
Mr. N. Dutta, Senior Advocate,
Mr. T.J. Mahanta, Senior Advocate,
Mr. R.M. Deka, SC, PWD (R),
Ms. V.L. Singh, SC, PWD (Bld. & NH).
WRIT PETITION (C) NO.5470 OF 2014
Petitioner :
Md. Abdul Kader,
Son of D. Ali,
House No.14, Nurun Nahar Path,
Hatigaon, Sijubari Road, Guwahati-38.
By Advocates :
Mr. S.K. Medhi,
Mr. J. Das,
Mr. A. Das.
Respondents :
1. State of Assam,
represented by the Secretary,
Public Works Department (Roads),
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Government of Assam,
Dispur, Guwahati-6.
2. Commissioner and Special Secretary to the
Government of Assam,
Public Works Department (Roads), Dispur,
Guwahati-781006.
3. Commissioner and Special Secretary to the
Government of Assam,
Public Works Department (Building & NH),
Dispur, Guwahati-781006.
4. Selection Board
[Constituted under the Assam Engineering (PWD) Service Rules, 1978 for promotion to the rank of Executive Engineer, PWD (C) for the year 2014], Dispur, Guwahati-6 represented by the Secretary, PWD as the Chairman.
5. Shri Jugendra Nath Sutradhar, Executive Engineer, PWD (Serial No.6 in the Gradation List)
6. Shri Shyamal Bordoloi, Executive Engineer, PWD (Serial No.14 in the Gradation List)
7. Shri Rubul Gohain, Executive Engineer, PWD (Serial No.19 in the Gradation List)
8. Shri Jyotish Kumar Sarma, Executive Engineer, PWD (Serial No.21 in the Gradation List)
9. Shri Debabrata Acharjee, Executive Engineer, PWD (Serial No.25 in the Gradation List)
10. Shri Afzal Karim, Executive Engineer, PWD (Serial No.27 in the Gradation List)
11. Shri Pabitra Kr. Sarma, Executive Engineer, PWD (Serial No.35 in the Gradation List) W .P (C) N o.07 OF 2013 P age 3 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015
12. Shri Shyamanta Bezbarua, Executive Engineer, PWD (Serial No.43 in the Gradation List)
13. Shri Debajit Das, Executive Engineer, PWD (Serial No.52 in the Gradation List)
14. Shri Surjya Kanta Talukdar, Executive Engineer, PWD (Serial No.3 in the Gradation List)
15. Shri Anwarul Haque Laskar, Executive Engineer, PWD (Serial No.4 in the Gradation List)
16. Shri Gobin Saikia, Executive Engineer, PWD (Serial No.7 in the Gradation List)
17. Shri Siben Kr. Mazumdar, Executive Engineer, PWD (Serial No.9 in the Gradation List) Respondent Nos. 5 to 17 to be served through the Office of the Secretary, Government of Assam, PWD, Dispur, Guwahati-781006.
By Advocates:
Mr. D.P. Borah, SC, PWD (Roads), Ms. V.L. Singh, SC, PWD (Building & NH), Mr. K.N. Choudhury, Sr. Advocate, Mr. J. Patowary.
WRIT PETITION (C) NO.2958 OF 2014 Petitioner :
Shri Pranab Kr. Rabha, Son of late Pabitra Kr. Rabha, Resident of Puranivita, Dudhnoi, Assam.
By Advocates :
Ms. D.K. Das, Ms. L.G. Ahmed.
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Respondents :
1. State of Assam,
represented by the Commissioner & Special Secretary, Public Works Department (Roads), Dispur, Guwahati-781006.
2. Secretary, Government of Assam, Personnel (B) Department, Dispur, Guwahati-781006.
3. Chief Engineer, Public Works Department (Roads), Chandmari, Guwahati-781003.
4. Shri Debajit Das, Son of late Dharani Dhar Das, Resident of Elora Path, Ajanta Path, Survey Road, Guwahati-781028.
5. Secretary to the Government of Assam, Finance Department, Dispur, Guwahati-781006.
By Advocates:
Ms. B. Bhuyan, SC, PWD (Roads), Ms. A. Verma, SC, Finance, Mr. H.K. Mahanta, SC, Personnel Dept., Mr. K.N. Choudhury, Sr. Advocate, Mr. J. Patowary.
WRIT PETITION (C) NO.07 OF 2013 Petitioners :
1. Shri Tilak Ch. Das, S/o-late Jibaneswar Das, R/o-Santipur, P/S- Bharalumukh, Guwahati-9.
2. Shri Chandan Sarma, S/o Sri Dhireswar Deb, R/o-Kumarpara Pach Ali, PS- Bharalumukh, Guwahati-9.
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By Advocates :
Mr. M.K. Choudhury, Sr. Advocate,
Mr. A. Barkataki,
Mr. N. Barua.
Respondents :
1. State of Assam,
represented by the Commissioner & Special Secretary, Public Works Department (Roads), Dispur, Guwahati-781006.
2. Commissioner & Special Secretary, Public Works Department (Building & National Highways), Dispur, Guwahati-781006.
3. Chief Engineer (Building), Public Works Department, Chandmari, Guwahati-781003.
4. Chief Engineer (Roads), Public Works Department, Chandmari, Guwahati-781003.
5. Commissioner & Secretary, Government of Assam, Finance Department, Dispur, Guwahati-781006.
6. Secretary, Government of Assam, Personnel (B) Department, Dispur, Guwahati- 781006.
7. Shri Debajit Das, S/o late Dharani Dhar Das, R/o Elora Path, Ajanta Path, Survey Road, Guwahati-781028.
By Advocates:
Mr. D.P. Borah, SC, PWD (Roads), Ms. V.L. Singh, SC, PWD (Bld. & NH), Ms. A. Verma, SC, Finance, W .P (C) N o.07 OF 2013 P age 6 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 Mr. H.K. Mahanta, SC, Personnel Dept., Mr. A. Bhattacharjee.
BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN Dates of hearing : 02-03-2015, 04-03-2015, 10-03-2015 & 31-03-2015.
Date of Judgment : 30-04-2015.
JUDGMENT & ORDER WP(C) Nos. 7/2013, 2958/2014, 5470/2014 and 05/2015 being inter-related, those were heard together and are being disposed of by this common judgment.
02. WP(C) No.07/2013 has been filed by Shri Tilak Chandra Das and Shri Chandan Sarma as the petitioners seeking quashing of encadrement of respondent No.7 Shri Debojit Das in the post of Executive Engineer (Civil), PWD (Roads) vide order dated 07-09-2005 issued by the Deputy Secretary to the Government of Assam, PWD. Petitioners are serving as Assistant Executive Engineer (Civil) and seek promotion to the post of Executive Engineer (Civil), PWD (Roads).
03. WP (C) No. 2958/2014 has been filed by Shri Pranab Kumar Rabha as the petitioner challenging the encadrement of respondent No.4 Shri Debojit Das in the post of Executive Engineer (Civil) in PWD (Roads) vide order dated 07-09-2005. Further prayer made is for a direction to the respondents to promote the petitioner to the post of Executive Engineer (Civil) providing consequential seniority by recasting the gradation list of Executive Engineer (Civil). Like WP(C) No.07/2013, petitioner in this case also seeks promotion to the post of Executive Engineer (Civil) from the feeder post of Assistant Executive Engineer (Civil) where petitioner is presently serving.
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04. In WP(C) No.5470/2014, petitioner is Shri Abdul Kader. He is serving as Executive Engineer (Civil) in the PWD. Challenge made in this petition is to the selection held on 17-10-2014 for promotion to the rank of Superintending Engineer (Civil) in the PWD and the consequential notification dated 21-10-2014 issued by the Secretary to the Government of Assam, PWD notifying the select list of officers for promotion to Superintending Engineer (Civil). Further prayer made is for a direction to the respondents to promote the petitioner to the post of Superintending Engineer (Civil). In this case, Shri Debojit Das is arrayed as respondent No.13 and he was also promoted to the post of Superintending Engineer (Civil) vide the impugned selection and the consequential notification.
05. The last case in the bunch is WP(C) No.05/2015 which has been filed by Shri Debojit Das. In the writ petition challenge has been made to the decision of the PWD to hold Review Selection Board meeting to review the selection for promotion to the rank of Executive Engineer (Civil) and Superintending Engineer (Civil) in the PWD. By filing additional affidavit, petitioner Shri Debojit Das has brought on record the minutes of the meeting of the Review Selection Board held on 05-01-2015 whereby the Selection Board recommended reversion of the petitioner Shri Debojit Das to the ex-cadre post of Executive Engineer, PWD. In the light of the above, petitioner Shri Debojit Das has extended his challenge to the proceedings of the Review Selection Board held on 05-01-2015.
06. Before deliberating in detail on the various facets of the lis involving the four writ petitions, it would be apposite to briefly mention at the outset that the controversy involved in this lis is basically two fold- firstly, encadrement of Shri Debojit Das in the cadre of Executive Engineer (Civil), PWD which amounts to regular promotion from the rank of Assistant Executive Engineer to the rank of Executive Engineer, and, secondly, promotion of Shri Debojit Das to the rank of Superintending Engineer (Civil) in the PWD. Both has been held to be illegal by the Review Selection Board pursuant to which W .P (C) N o.07 OF 2013 P age 8 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 consequential notifications were issued by the Government which have however been kept in abeyance in view of the interim order passed by this Court. Such decision of the State has been questioned by Shri Debojit Das in WP(C) No.05/2015. It is thus seen that any decision rendered in WP(C) No.05/2015, one way or the other, will have a material bearing on the outcome of the other three writ petitions. Accordingly WP(C) No.05/2015 is taken up first for consideration.WP(C) No.05/2015
07. As noticed above, Shri Debojit Das is the petitioner in this case and accordingly, he will be referred to as the petitioner hereinafter.
08. Petitioner is a graduate in Civil Engineering. He was appointed as Assistant Engineer (Civil) on 03-09-1996 in the Public Works Department (PWD), now re-structured as PWD (Roads). On 19-12-2002 he was promoted to the post of Assistant Executive Engineer (Civil).
09. Government of Assam in the PWD issued notification dated 02-04-
2005 promoting the petitioner temporarily and allowing him to officiate as Executive Engineer, PWD, Research Development and Quality Planning (RD & QP) Cell in the Office of the Chief Engineer, PWD (Roads). In this connection, an ex-cadre post was created which was made personal to the petitioner. Thus, petitioner was promoted to an ex-cadre post of Executive Engineer.
10. In the Selection Board meeting held on 27-07-2005 for selection of officers for promotion from Assistant Executive Engineer (Civil) to the rank of Executive Engineer (Civil) in the PWD and for encadrement of the ex-cadre post held by the petitioner in the cadre of Executive Engineer (Civil), petitioner was found suitable and eligible for promotion to Executive Engineer and was recommended for his encadrement. The Selection Board was considering 13 vacancies. Pursuant thereto petitioner was placed at Sl. No.13 in the recommended list against the 13 vacancies in the post of Executive Engineer for the year 2004. Following the same, formal notification was issued on 03-08-
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2005 conveying governmental approval to the select list as per recommendation of the Selection Board. Thereafter, notification dated 07-09-2005 was issued by the Deputy Secretary, PWD (Confidential Cell) regularising the service of the petitioner in the rank of Executive Engineer and posting him as Executive Engineer, RD & QP Cell in the office of the Chief Engineer, PWD (Roads).
11. In the Selection Board meeting held on 17-10-2014 for selection of officers for promotion to the rank of Superintending Engineer (Civil), PWD from Executive Engineer (Civil), 13 vacancies were considered for the year 2014. Prior to that, in the common final gradation list in the cadre of Executive Engineer (Civil), PWD, both Roads and Building and NH Departments, petitioner was placed at Sl.No.52. In the selection petitioner came within the zone of consideration by virtue of being placed at Sl.No.52 since zone of consideration was four times the number of vacancies which was 13 x 4=52. He was recommended at Sl.No.9 for such promotion. Thereafter, consequential notification dated 28-10-2014 was issued by the Secretary to the Government of Assam, PWD promoting the petitioner to the rank of Superintending Engineer (Civil), PWD (Roads) and posting him as Deputy Secretary (Materials) to the Government of Assam, PWD (Roads).
12. In the meanwhile, one Shri Dipu Dutta, Assistant Executive Engineer (Civil) in the PWD (Roads) filed a writ petition before this Court which was registered and numbered as WP(C) No.4293/2014 challenging the legality and validity of the promotion of the petitioner to the post of Executive Engineer. A single bench of this Court vide order dated 19-09-2014 dismissed the said writ petition on the ground of delay and laches as the impugned promotion was made on 07-09-2005 whereas the challenge was instituted in the year 2014.
13. Petitioner's promotion to the post of Superintending Engineer has been challenged in WP(C) No.5470/2014 filed by Shri Abdul Kader. A single bench of this Court vide order dated 07-11-2014 observed that promotion to the post of Superintending Engineer shall be subject to further orders in the said proceeding.
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14. PWD(Roads) Confidential Cell issued letter dated 24-12-2014 to various high officials of the Department informing them that a Review Selection Board meeting would be held on 02-01-2015 under the chairmanship of Additional Chief Secretary (Works) regarding promotion to the rank of Executive Engineer (Civil) and Superintending Engineer (Civil) in the PWD.
15. Petitioner apprehended that the Review Selection Board was specifically constituted to review his encadrement in the post of Executive Engineer and his promotion to the post of Superintending Engineer. He therefore submitted representation before the Additional Chief Secretary (Works) requesting the said authority to prevail upon the departmental authorities from not holding Review Selection Board meeting.
16. According to the petitioner, his representation was ignored and the Review Selection Board decided to go ahead with its meeting.
17. At this stage petitioner filed the present writ petition.
18. On 05-01-2015 when the case was taken up in the second half on motion being made, Mr. RM Deka, learned Standing Counsel, PWD (Roads) submitted that meeting of the Review Selection Board was already held on that day at 10AM and produced a copy of the minutes of the meeting wherein recommendation was made to revert the petitioner alongwith five other officers to the rank of Executive Engineer, with petitioner to his ex-cadre post. This Court while issuing notice, restrained the respondents from issuing the consequential notification pursuant to the decision of the Review Selection Board dated 05-01- 2015.
19. Thereafter petitioner has filed an additional affidavit placing on record the minutes of the meeting of the Review Selection Board held on 05-01- 2015. It is also stated that thereafter two consequential notifications were issued both dated 05-01-2015. However by order dated 07-01-2015 it was decided not to give effect to the said notifications in view of the order of this Court dated 05- 01-2015.
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20. Respondents 1, 2, 3, 6 and 7 have filed a common affidavit through Shri VK Pipersenia, Additional Chief Secretary, PWD (Roads), PWD (Building & NH) etc. Stand taken in the affidavit is that petitioner first got the benefit of promotion from Assistant Engineer to Assistant Executive Engineer in the year 2002 because of clubbing of vacancies of two years 2001 and 2002, which is not permissible. Otherwise he would not have come within the zone of consideration and got the promotion. Again he was given promotion to the rank of Executive Engineer in the year 2005 against an ex-cadre post which was specifically created for him. Subsequently, in the same year petitioner was encadred in the cadre of Executive Engineer when his regular promotion was not at all due and without following the provisions of the Assam Engineering (Public Works Department) Service Rules, 1978 (the 1978 Rules hereafter). Thereafter, he was given further out of turn promotion to the post of Superintendent Engineer in the year 2014. The Assam PWD Engineers Service Association had submitted a memorandum before the Hon'ble Chief Minister against the repeated illegal promotions granted to the petitioner and the Hon'ble Chief Minister directed the Additional Chief Secretary, Personnel Department to conduct enquiry. Accordingly, enquiry was conducted and report submitted. As per enquiry report, promotion of the petitioner to the cadre of Executive Engineer from the ex-cadre post was illegal and it was done by the Selection Board in its meeting held on 27-07-2005 without any authority. Petitioner's position in the gradation list of Assistant Executive Engineer was 318. In the year 2004 there were only 13 vacancies in the cadre of Executive Engineer. Therefore, zone of consideration comprised of 52 officers in the feeder-cadre of Assistant Executive Engineer, being four times the number of vacancies. However, by misrepresentation and misinterpretation of the endorsements of the Personnel and Finance Departments, Annual Confidential Reports (ACRs) of the petitioner were placed before the Selection Board and the Selection Board in its meeting held on 27-07-2005 recommended the petitioner for promotion to the cadre of Executive Engineer by placing his name at Sl.No.13 in the select list. From the ex-cadre post of Executive Engineer, petitioner was given regular promotion to the post of Executive Engineer by way of encadrement in the cadre of W .P (C) N o.07 OF 2013 P age 12 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 Executive Engineer which was notified on 07-09-2005. The report of the Additional Chief Secretary was accepted by the Government of Assam which was forwarded to the PWD for implementation. Thereafter, decision was taken to hold Review Selection Board meeting. It is also stated that the notification dated 07- 09-2005 stated to be published in the Assam Gazette dated 28-12-2005 at page 400 is a forged one as no such notification was published in the Assam Gazette dated 28th December, 2005. The then Deputy Secretary, PWD (Confidential Cell) is suspected to be involved in such irregularity and he has been put under suspension. Promotion of the petitioner to the rank of Executive Engineer was an out of turn promotion and was totally illegal. It is further stated that there were 6 vacancies in the cadre of Superintending Engineer for the year 2011 and 4 vacancies in the year 2014. In the cadre of Executive Engineer, the inter-se seniority position of the petitioner was wrongly fixed at a higher position i.e., at Sl.No.52. Even then he did not come within the zone of consideration. Shri Jatindra Nath Sarma, who as the Deputy Secretary had granted undue promotion to the petitioner to the rank of Executive Engineer, now as the Secretary of the Department, committed further irregularity as Chairman of the Selection Board in the year 2014 by again giving undue promotion to the petitioner to the post of Superintending Engineer, firstly by clubbing the vacancies of the two years and secondly, by adding 3 more vacancies which were infact not available, thus enlarging the zone of consideration to include the petitioner. However, following the enquiry, Shri Jatindra Nath Sarma has been placed under suspension. On the recommendation of the Review Selection Board dated 05-01-2015, petitioner has been reverted to the ex-cadre post of Executive Engineer vide order dated 05-01- 2015. Five other officers have also been reverted from the post of Superintending Engineer to the post of Executive Engineer as they were not within the zone of consideration at the time of selection. They came into the zone of consideration because of clubbing of vacancies for the years 2011 and 2014 and also because of addition of 3 vacancies which could not be filled up. However the above orders have been kept in abeyance because of the stay order of this Court. Petitioner was given opportunity of personal hearing on 07-01-2015 vide letter dated 03-01-2015 but the petitioner did not attend the hearing.
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21. Thereafter respondent Nos.2, 3, 6 and 7 have jointly filed an affidavit in response to the additional affidavit filed by the petitioner. It is stated that enquiry report submitted by the Additional Chief Secretary, Personnel Department was accepted by the Government which forwarded the enquiry report to the PWD on 22-12-2014 for implementation. Review Selection Board meeting was initially scheduled on 02-01-2005 but was ultimately held on 05-01- 2015 at 10AM. After due deliberation and on consideration of the record, it was held that encadrement of the petitioner in the cadre of Executive Engineer and thereafter promotion to Superintending Engineer were illegal and were out of turn promotions. Petitioner was given benefit of illegal promotion to the cadre of Executive Engineer by way of encadrement on misrepresentation and misinterpretation of the views of the Personnel and Finance Departments when Shri Jatindra Nath Sarma was the Deputy Secretary (Confidential Branch) of PWD. Again, petitioner was given illegal promotion from Executive Engineer to Superintending Engineer by clubbing the vacancies of the years 2011 and 2014 and adding three non-existent vacancies which led to enlargement of the zone of consideration. Shri Jatindra Nath Sarma as Secretary to the PWD and as Chairman of the Selection Board was involved in such illegalities and he has since been placed under suspension. The views of the Personnel Department at the time of promotion of the petitioner to the ex-cadre post of Executive Engineer and thereafter at the time of encadrement in the cadre of Executive Engineer have been placed on record. Personnel (B) Department in the note dated 15-02- 2005 stated that it had no objection to the creation of ex-cadre post in the rank of Executive Engineer as was proposed subject to the condition that the post would be personal to the petitioner and that he would be encadered as soon as he got regular promotion to the cadre of Executive Engineer. This was subject to concurrence of the Finance Department. In the note dated 12-07-2005, Personnel (B) Department stated that it had no objection to the encadrement as was proposed subject to two conditions, viz.; -
1. The ex-cadre post of Executive Engineer was to be encadered alongwith the incumbent and this post would be placed in the lowest position in the cadre of Executive Engineer;
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2. On encadrement, the incumbent officer would be at the lowest position in the cadre till his seniors in the feeder category got promoted. His scale of pay fixed in the ex-cadre post would be personal to him in the encadered post.
Record shows that regular promotion of the petitioner to the post of Executive Engineer was not due in the year 2005 as his inter-se seniority position in the feeder-cadre was 318. Even if his promotion to Executive Engineer is accepted, as per condition of encadrement, his position in the cadre ought to have been the lowest or the last. Therefore, assigning seniority position to the petitioner at 52 in the cadre of Executive Engineer was illegal. Even then he would not have been eligible for promotion to the post of Superintending Engineer as there were 6 vacancies in the year 2011 and 4 vacancies in the year 2014. Vacancies for both the years were illegally clubbed together and 3 non- existent vacancies were added to make the number of vacancies in the cadre of Superintending Engineer 13 which led to enlarging the zone of consideration to 52, being four times the number of vacancies. This is how petitioner at serial No.52 in the gradation list of Executive Engineer was brought within the zone of consideration and was thereafter promoted. The officer responsible for this is Shri Jatindra Nath Sarma who has since been placed under suspension.
22. Respondent No.9 who got himself impleaded as a respondent in the writ proceeding subsequently has filed a detailed and exhaustive affidavit. He has stated that he joined PWD as Assistant Engineer on 06-06-1980. In the year 1989, he was promoted to the post of Assistant Executive Engineer. After 13 years i.e. in the year 2002 he was promoted to the post of Executive Engineer. Since 2002 for the last more than 12 years he has continued as Executive Engineer without any promotion. On the other hand, petitioner was appointed as Assistant Engineer in the year 1996. Within 6 years i.e. in the year 2002 he was promoted to the post of Assistant Executive Engineer. Within 3 years he was promoted to the post of Executive Engineer by creating an ex-cadre post and thereafter encadred in complete violation of the 1978 Rules which prescribes minimum of 5 years qualifying service in the feeder post. In the recent exercise W .P (C) N o.07 OF 2013 P age 15 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 for promotion to the post of Superintending Engineer, petitioner was promoted overlooking the case of respondent No.9 though he is far senior to the petitioner. Assam PWD Engineers Service Association submitted a representation dated 08- 11-2014 before the Hon'ble Chief Minister, Assam against the repeated undue promotions given to the petitioner. An enquiry was ordered which was conducted by Additional Chief Secretary, Personnel Department who thereafter submitted his report. On the basis of such report, Review Selection Board meeting was held on 05-01-2015. Promotion of the petitioner both to the posts of Executive Engineer and Superintending Engineer were held to be illegal. Accordingly recommendation was made for reverting the petitioner to the ex-cadre post of Executive Engineer. Additionally the Review Selection Board examined the vacancy position in the rank of Superintending Engineer for the year 2014 and after due consideration recommended four officers including the respondent No.9 for promotion to the post of Superintending Engineer. Two consequential notifications dated 05-01-2015 were issued, which have not been challenged by the petitioner. Reference has been made to the two notings of the Personnel (B) Department dated 15-02-2015 and 12-07-2005. It is also stated that encadrement of the petitioner in the post of Executive Engineer was not only illegal but the petitioner in connivance with Shri Jatindra Nath Sarma, the then Deputy Secretary, PWD had resorted to forgery by showing the encadrement notification dated 07-09-2005 as published in the Assam Gazette dated 28-12- 2005 at page 400 whereas the original Assam Gazette dated 28-12-2005 at page 400 contains a totally different notification.
23. Petitioner has filed separate reply affidavits to the common affidavit filed by respondent Nos. 1, 2, 3, 6 and 7 and the affidavit filed by respondent No.9. Reiterating the statements made in the writ petition and the additional affidavit, it is contended that promotion of the petitioner to the post of Executive Engineer in the year 2005 has attained finality. It cannot be reopened in the year 2014 after 9 years. Challenge made to such promotion has already been rejected by this Court on the ground of delay and laches. Promotion to the post of Superintendent Engineer is justified. The enquiry and the proceedings of W .P (C) N o.07 OF 2013 P age 16 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 the Review Selection Board have been challenged on the ground of violation of the principles of natural justice as the petitioner was not heard.
24. Assam PWD Engineers Service Association (Association hereafter) has filed an application seeking impleadment as a respondent in the writ proceeding of WP(C) No.5/2015. It is stated that the Association had submitted a representation before the Hon'ble Chief Minister highlighting grievances of its members regarding repeated undue promotion given to the petitioner. This led to holding of enquiry by the Additional Chief Secretary, Personnel Department suggesting holding of review selection. The said application has been registered as Misc. Case No.93/2015. Petitioner has filed objection to the prayer for impleadment to which reply affidavit has been filed by the Association. Petitioner has also filed additional affidavit in support of the objection. On 04-03-2015, an order was passed to the effect that the miscellaneous application would be heard alongwith the writ petition.
25. Heard Mr. KN Choudhury, learned Senior Counsel assisted by Mr. J. Patowory, learned Counsel for the petitioner in WP(C) No.05/2015, Mr. AC Buragohain, learned Advocate General, Assam, who has also produced the record, Ms. A. Verma, learned Standing Counsel, Finance Department, Mr. HK Mahanta, learned Standing Counsel, Personnel Department and Ms. VL Singh, learned Standing Counsel, PWD (Building & NH). Also heard Mr. DK Mishra, learned Senior Counsel assisted by Mr. SC Neogi, learned Counsel for respondent No.9, Mr. TJ Mahanta, learned Senior Counsel for respondent No.10 and Mr. N. Dutta, learned Senior Counsel assisted by Mr. PN Goswami, learned Counsel for the Association. Also heard Mr. MK Choudhury, learned Senior Counsel for the petitioner in WP(C) No.07/2013, Mr. DK Das, learned Counsel for the petitioner in WP(C) No.2958/2014 and Mr. SK Medhi, learned Counsel for the petitioner in WP (C) No.5470/2014.
26. Mr. KN Choudhury, learned Senior Counsel for the petitioner submits that the Association has no locus-standi to challenge the promotion of the petitioner either to the rank of Executive Engineer or to the rank of W .P (C) N o.07 OF 2013 P age 17 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 Superintending Engineer. Association is not an aggrieved person. It cannot raise service related grievances of individual officers. The yardstick which is applicable to an association in respect of a judicial proceeding relating to a service matter of individual officer would be equally applicable while approaching the executive authority. Since the officers who were primarily affected by the encadrement of the petitioner did not protest, the Association cannot maintain its belated objection complaining of secondary injury. Therefore, acting on the representation of the Association by the executive authority was impermissible. Secondly, he submits that the Additional Chief Secretary, Personnel Department, who had conducted the enquiry as the Enquiry Officer on the representation submitted by the Association neither issued notice nor heard the petitioner before submitting his report to the Government. The report is highly prejudicial to the petitioner and entails adverse civil consequences. Petitioner's promotion to the rank of Superintending Engineer as well as his encadrement in the cadre of Executive Engineer have been held to be illegal. Yet no opportunity of hearing was given to the petitioner. Thus there was clear violation of the principles of natural justice which vitiated the decision to hold review selection. Third submission of Mr. Choudhury was regarding constitution of the Review Selection Board. Referring to Rule 15(2) of the 1978 Rules, he submits that for selection to the post of Executive Engineer and Superintending Engineer, the Secretary, PWD is the Chairman of the Selection Board. In the instant case, though a Secretary in-charge, PWD was available, the Review Selection Board was constituted under the Chairmanship of Additional Chief Secretary (Works). The Review Selection Board having not been constituted in terms of the 1978 Rules, there was no valid Review Selection Board. Consequently, the proceedings of the Review Selection Board are nonest in the eye of law. On merit also, learned Senior Counsel has justified the promotion of the petitioner to the rank of Superintending Engineer by making detailed reference to the minutes of the previous selection board meetings. In so far his promotion/encadrement to the post of Executive Engineer is concerned, learned Senior Counsel submits that the same was carried out by the Selection Board in the year 2005 after due consideration in consultation with the Personnel and Finance Departments. Thereafter, petitioner's name was W .P (C) N o.07 OF 2013 P age 18 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 included in the gradation list of Executive Engineer. No grievance or objection was raised from any quarter all this while. Nine long years have gone by since then. Such promotion/encadrement cannot be reopened at this stage belatedly. It would amount to unsettling a settled position. Writ petition filed by one Shri Dipu Dutta challenging promotion of the petitioner to the rank of Executive Engineer has been rejected by this Court on the ground of delay and laches. Therefore, petitioner's promotion to the rank of Executive Engineer has attained finality. Learned Senior Counsel for the petitioner has placed reliance on the following decisions in support of his submissions :-
1. 1969 (1) SCC 110 (M/S Tilokchand and Motichand -Vs- HB Munshi)
2. 1970 (1) SCC 709 (State of Assam -Vs- Mahendra Kr. Das)
3. (1975) 1 SCC 152 (P.S. Sadasivaswamy -Vs- State of TN)
4. 1981 (Supp) SCC 87 (S.P. Gupta -Vs- Union of India)
5. (1982) 1 SCC 379 (R.S. Makashi -Vs- IM Menon)
6. (1987) 2 SCC 602 (State of Haryana -Vs- PC Wadhwa)
7. (1994) 5 SCC 118 (Md. Quaramuddin -Vs- State of AP)
8. (1997) 10 SCC 779 (M. Raghavelu -Vs- Govt. of AP)
9. (1999) 1 SCC 685 (Ram Ujarey -Vs- Union of India)
10. (2000) 6 SCC 562 (LIC -Vs- Jyotish Chandra Biswas)
11. (2001) 4 SCC 734 (Vinoy Kr. -Vs- State of UP) W .P (C) N o.07 OF 2013 P age 19 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015
12. (2007) 1 SCC 331 (Shekhar Ghosh -Vs- Union of India)
13. (2008) 12 SCC 481 (K.D. Sarma -Vs- Steel Authority of India)
14. (2009) 15 SCC 169 (I. Chuba Jamir -Vs- State of Nagaland)
15. (2010) 14 SCC 389 (Union of India -Vs- A. Durairaj)
16. (2012) 7 SCC 610 (Vijay Kr. Kaul -Vs- Union of India)
17. (2013) 4 SCC 465 (Ayaaub Khan Noorkhan -Vs- State of Maharashtra)
27. Mr. AC Buragohain, learned Advocate General, Assam submits that the writ petition suffers from incomplete pleadings. Challenge made in the writ petition is to the convening of Review Selection Board meeting on 02-01-2015. As a matter of fact, no meeting took place on that day. Review Selection Board meeting was held on 05-01-2015 which held encadrement of the petitioner in the cadre of Executive Engineer and the promotion from Executive Engineer to Superintending Engineer as illegal and recommended his reversion to the ex- cadre post of Executive Engineer. There is no challenge to the recommendation of the Review Selection Board meeting held on 05-01-2015. Therefore, no relief can be granted to the petitioner. To that extent writ petition has become infructuous. As such, writ petition is liable to be dismissed on this count alone. On merits, learned Advocate General submits that petitioner was the beneficiary of what he termed "fly over promotions". Petitioner while serving as Assistant Executive Engineer was illegally promoted to the post of Executive Engineer in the year 2005. Petitioner was promoted to the post of Assistant Executive Engineer in the year 2002. A per the 1978 Rules, a minimum of 5 years qualifying service in the feeder-cadre is required to be eligible for promotion to W .P (C) N o.07 OF 2013 P age 20 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 the next higher cadre. In the year 2005, petitioner had not yet completed 3 years of service as Assistant Executive Engineer. Yet he was promoted to the rank of Executive Engineer in an ex-cadre post. When the petitioner was sought to be encadred in the cadre of Executive Engineer, Personnel (B) Department had put up a note agreeing to such proposal subject to certain conditions. As per the said conditions, on encadrement petitioner was to be placed at the bottom of the gradation list of Executive Engineer and he would continue to remain in that position till all the officers above him in the feeder-cadre were promoted. This condition was totally overlooked by the Selection Board in its meeting held on 27- 07-2005 when it was decided to encadre the petitioner in the cadre of Executive Engineer. In a most illegal manner petitioner was placed in the 13th position out of 25 in the select list of Assistant Executive Engineer for promotion to Executive Engineer since the Selection Board was considering promotion to 13 vacancies in the higher cadre of Executive Engineer. He however submits that this illegality was nothing compared to what followed thereafter. A notification bearing No. CON.39/2001/Pt./176 dated 07-09-2005 was issued by Shri J.N. Sarma the then Deputy Secretary, PWD (Confidential Cell) regularizing the service of the petitioner in the rank of Executive Engineer on his promotion and posting him in the RD & QP cell in the office of the Chief Engineer, PWD (Roads). This was shown to have been published in the Assam Gazette dated 28-12-2005 at page 400 but the original Assam Gazette dated 28-12-2005 at page 400 contains a totally different notification. Thus, promotion of the petitioner to the post of Executive Engineer was never notified in the Gazette. Therefore such promotion is nonest in the eye of law. Not only that, it is clearly evident that a mischief was played by showing the notification dated 07-09-2005 as published in the Assam Gazette. All copies of the Assam Gazette dated 28-12-2005 except one are now missing. Only one copy could be traced out. This matter is now under police investigation. He further submits that when the petitioner's promotion to the cadre of Executive Engineer is ex-facie illegal, his further promotion to the cadre of Superintending Engineer cannot be sustained which otherwise also suffers from serious illegalities, such as, clubbing of vacancies of two years and addition of three non-existent vacancies to show the number of vacancies at 13 which led W .P (C)N o.07 OF 2013 P age 21 of 48 W .P (C)N o.2958 OF 2014 W .P (C)N o.5470 OF 2014 W .P (C)N o.05 OF 2015 to enlarging the zone of consideration to 52 officers in the cadre of Executive Engineer to include the petitioner who was illegally placed at Sl.No.52 in the gradation list of Executive Engineer. He submits that these promotions are totally illegal and cannot be sustained under any circumstances. Therefore, the Government was justified in acting on the representation submitted by the Association. Association brought the grave illegalities committed to the notice to the Government. When the matter was enquired into, the illegalities became apparent which necessitated holding of review selection. Accordingly, Review Selection Board meeting was held. He submits that this is an exceptional case where application of principles of natural justice would serve no useful purpose. Even if opportunity of hearing was given to the petitioner, it would not have made any material difference to the ultimate status of the petitioner. Interference with the decision of Review Selection Board on the ground of violation of the principles of natural justice will only lead to revival of an illegality, which the Court exercising the power of judicial review will not permit. Lastly he submits that there was no illegality in the constitution of the Review Selection Board which was constituted in accordance with Rule 15 of the 1978 Rules. Additional Chief Secretary was competent to be the Chairman of the Review Selection Board. He finally submits that the writ petition filed by the petitioner is liable to be dismissed. In support of his submissions, learned Advocate General places reliance on the following decisions -
1. (1980) 4 SCC 379 (SL Kapoor -Vs- Jagmohan and others)
2. (1984) 4 SCC 329 (GP Doval and others -Vs- Chief Secretary, Government of UP and others)
3. 1989 Supp. (2) SC 351 (Bal Kishan -Vs- Delhi Administration and another)
4. (2000) 7 SCC 529 (Aligarh Muslim University and others -Vs- Mansoor Ali Khan) W .P (C) N o.07 OF 2013 P age 22 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015
5. (2001) 9 SCC 54 (T. Aruna and others -Vs- Secretary, AP Public Service Commission and others)
6. (2002) 2 SCC 712 (G.N. Nayak -Vs- Goa University and others)
7. (2007) 10 SCC 635 (Raj Kumar Soni and another -Vs- State of UP and another)
28. Mr. HK Mahanta, learned Standing Counsel, Personnel Department and Ms. VL Singh, learned Standing Counsel, PWD (Building & NH) supported the stand taken by the learned Advocate General.
29. Ms. A. Verma, learned Counsel appearing for the Finance Department while supporting the stand of the learned Advocate General additionally submits that on receipt of proposal from PWD, Finance Department concurred to the creation of an ex-cadre post of Executive Engineer in the PWD for the period upto 28-02-2006 to accommodate the petitioner vide endorsement dated 31-03-2005.
30. Mr. DK Mishra, learned Senior Counsel appearing for respondent No.9 has made detailed reference to the factual background of the case. Right from his first promotion, petitioner had manipulated the system to gain undue promotional benefits. In this petitioner was blessed by some of the superior officials of the Department including Shri Jatindra Nath Sarma who has since been placed under suspension. Petitioner's promotion from Assistant Executive Engineer to Executive Engineer was outright illegal for more than one reason. Firstly, he had not completed 5 years of qualifying service in the feeder-cadre of Assistant Executive Engineer. Therefore, he was not even eligible for such promotion in the year 2005. However, to circumvent this, he was initially promoted to an ex-cadre post. Thereafter, in the same year, he was encadred in the cadre of Executive Engineer. Secondly, his position in the gradation list of Assistant Executive Engineer was 318. Without considering his seniors in the W .P (C) N o.07 OF 2013 P age 23 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 cadre for promotion, he was promoted. His position in the gradation list of Executive Engineer was illegally fixed at a higher position of 52 violating the condition of encadrement imposed by the Personnel Department which stated that petitioner would be placed in the last position in the cadre of Executive Engineer till all his seniors in the feeder-cadre of Assistant Executive Engineer got promoted. Thereafter he was again given illegal promotion to the post of Superintending Engineer by clever manipulation of vacancies which has been explained by the learned Advocate General. Vacancies were inflated to enlarge the zone of consideration which led to inclusion of the petitioner in the zone of consideration facilitating his promotion. He submits that in any case when the petitioner's encadrement in the cadre of Executive Engineer was illegal, which was further compounded by non-publication of the encadrement notification in the official Gazette, the further promotion to the higher post of Superintending Engineer is null and void. He further submits that what has been witnessed in the present case is not commission of illegality but commission of fraud which has vitiated the promotions rendering them a nullity. Government has every right to correct such illegalities based on information furnished by the Association which have been found to be correct on enquiry. Question of delay does not arise in such cases. There can be no two views on the illegality of the encadrement of the petitioner in the cadre of Executive Engineer and promotion of the petitioner to Superintending Engineer. Therefore even if any notice or hearing was given to the petitioner, it would not make any material difference to the ultimate service status of the petitioner, which is that he is not entitled to promotions to Executive Engineer and Superintending Engineer. In such a case, non-compliance of the principles of natural justice would not render the impugned decision void. In respect of constitution of the Review Selection Board, Mr. Mishra submits that a meaningful reading of Rule 15(2) of the 1978 Rules would show that the constitution was valid and the contention to the contrary advanced by Mr. Choudhury, learned Counsel for the petitioner is untenable. In support of his submissions Mr. Mishra has placed reliance on the following decisions:-
1. (1966) 2 SCR 172 W .P (C) N o.07 OF 2013 P age 24 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 (Gadde V. Rao -Vs- Government of AP)
2. (1988) 2 SCC 142 (G. Ramegowda -Vs- Special Land Acquisition Officer)
3. (1999) 6 SCC 237 (MC Mehta -Vs- Union of India)
4. (2005) 9 SCC 129 (State of Bihar -Vs- Bihar Rajya MSESKK Mahasangh).
31. Mr. N. Dutta, learned Senior Counsel appearing for the Association submits that the plea of delay and laches taken by the petitioner is untenable in the facts and circumstances of the case. It is not a case where legal challenge has been instituted against the promotion of the petitioner to the cadre of Executive Engineer. Association has not filed the case challenging petitioner's promotion. He submits that even the petitioner admits that there is no delay in so far challenge to petitioner's promotion to the post of Superintending Engineer is concerned. Therefore, the plea of delay and laches has been raised only in respect of petitioner's promotion to Executive Engineer. He submits that from the documents on record it is absolutely clear that encadrement of the petitioner in the cadre of Executive Engineer was totally untenable and illegal. There can be no two views on this. Such illegality needed to be rectified. There is no bar for the Government to correct an illegality, that too an illegality of such magnitude. Technical plea of delay and laches cannot be pressed into service to perpetuate an illegality. He submits that the repeated undue promotions given to the petitioner had adversely affected the service prospects of a large number of graduate engineers in the Department which in turn had caused resentment amongst them. Being the umbrella body of the service engineers serving in the PWD, the Association conveyed the grievance of its members to the Hon'ble Chief Minister. The grievance of the members of the Association have been found to be correct after detail enquiry was made. Thereafter, corrective steps have been taken to rectify the situation. On the contention of the petitioner that there was violation of the principles of natural justice, Mr. Dutta submits that if the Court upholds such contention and interferes with the recommendation of the W .P (C) N o.07 OF 2013 P age 25 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 Review Selection Board dated 05-01-2015, it will lead to revival of an illegality. Therefore the writ Court exercising its discretionary powers under Article 226 of the Constitution may refuse to entertain such a plea. In support of his submissions, Mr. Dutta places reliance of the following decisions:-
(1) (1991) 2 GLR 384 (Haren Hazarika -Vs- State of Assam and others) (2) WP (C) No.4254/2014 (Matiur Rahman Laskar and another -Vs- State of Assam and others) decided on 16-03-2015.
32. Mr. TJ Mahanta, learned Senior Counsel has appeared on behalf of respondent No.10. While reiterating the submissions made by the learned Advocate General and by Mr. DK Mishra, learned Senior Counsel for respondent No.9, Mr. Mahanta additionally submits that petitioner in collusion with certain officials of the Department, notably Shri J.N. Sarma, had not only committed fraud by ensuring his illegal promotions but had also resorted to forgery by tampering with the official Assam Gazette dated 28-12-2005 to show that encadrement notification dated 07-09-2005 was published at page 400 of the said Gazette whereas the original copy of the Gazette does not disclose publication of any such notification. This position has been vividly highlighted by the petitioners in WP(C) No.7/2013 by filing additional affidavit on 27-08-2013; thereafter, Commissioner and Special Secretary, PWD (Roads) by filing Misc. Case No.2554/2013 on 02-09-2013 has admitted that the notification dated 07- 09-2005 was not published in the Assam Gazette dated 28-12-2005. Impugned action is therefore fully justified.
33. Since WP (C) No.5/2015 has been taken up first for consideration, submissions made by learned Counsel for the parties in the other three cases are not being addressed at this stage. However, the submissions made by Mr. MK Choudhury, Senior Counsel, Mr. DK Das and Mr. SK Medhi learned Counsel appearing for the respective petitioners have been taken note of.
W .P (C) N o.07 OF 2013 P age 26 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015
34. Submissions made at the bar have received the due consideration of the Court. Record produced has also been perused.
35. At the outset, the relevant provisions of the 1978 Rules may be referred to. The cadre of Superintending Engineer is included in Class-I (Senior Grade) of the Assam Engineering (PWD) Service (Service hereafter). The posts of Executive Engineer and Assistant Executive Engineer are placed in Class-I (Junior Grade). As per Rule 12 there shall be promotion from Assistant Engineer to Assistant Executive Engineer, from Assistant Executive Engineer to Executive Engineer and from Executive Engineer to Superintending Engineer. For promotion from Assistant Executive Engineer to Executive Engineer, the officer must have rendered minimum of 5 years of continuous service in the rank of Assistant Executive Engineer. The general procedure for promotion is laid down in Rule 13. Amongst others, the zone of consideration consists of four times the number of vacancies. Assessment of the likely number of vacancies to be filled up by promotion is to be made year wise. Therefore, vacancies are to be considered year wise. The select list recommended by the Selection Board and approved by the appointing authority shall be published in the Assam Gazette within 15 days from the date of approval. Rule 15 deals with constitution of Selection Board. Selection Board for promotion from Executive Engineer to Superintending Engineer shall comprise of the following :-
(1) Chairman & -- Secretary, PWD
Secretary
(2) Member -- Chief Engineer, PWD
(3) Member -- A representative of the Personnel
Department not below the rank of Deputy
Secretary, nominated by the Secretary,
Personnel and Administrative Reforms
Department.
36. Having briefly noticed the relevant provisions of the 1978 Rules, the facts of the case as could be culled out from the pleadings, annexures and the record may now be stated so that the rival submissions can be considered in the proper context.
W .P (C) N o.07 OF 2013 P age 27 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015
37. Validity of petitioner's promotion from Assistant Engineer to Assistant Executive Engineer in the year 2002 has been doubted in the affidavit of respondent Nos. 1, 2, 3, 6 and 7 because of clubbing of vacancies for the years 2001 and 2002. In the enquiry report dated 16-12-2014 of the Additional Chief Secretary, Personnel Department, it is stated that there were 23 vacancies available for the year 2001 and 21 vacancies for the year 2002 in the cadre of Assistant Executive Engineer. Petitioner's position in the gradation list of Assistant Engineer was at Sl. No.164. For 23 vacancies, the zone of consideration was 92 (23 x 4 = 92) and for 21 vacancies, the zone of consideration was 84 (21 x 4 = 84). By clubbing of vacancies, the number of vacancies stood enlarged to 44 (23 + 21 = 44) and this led to enlargement of the zone of consideration to 176 (44 x 4 = 176). Thus petitioner at Sl. No.164 came within the zone of consideration and on the basis of outstanding gradings in the ACRs he was placed in the first position in the selection and accordingly was promoted to the post of Assistant Executive Engineer in the year 2002. Thus the petitioner was the beneficiary of clubbing of vacancies for the years 2001 and 2001. Because of the long lapse of time the Enquiry Officer suggested that such promotion may not be reopened. Moreover, neither the State nor the other respondents have contested the promotion of the petitioner from Assistant Engineer to Assistant Executive Engineer though Mr. Mishra and Mr. Dutta have pointed out in their respective arguments that right from the beginning petitioner had shown scant regard for the Rules and his tendency for seeking out of turn undue promotions was clearly visible right from the first promotion. In view thereof, Court would not like to comment on the validity or otherwise of the aforesaid promotion of the petitioner.
38. It would therefore be apposite to commence the factual narrative from the stage of promotion of the petitioner from Assistant Executive Engineer as the base. As noticed earlier, petitioner was promoted to the post of Assistant Executive Engineer on 19-12-2002. In the gradation list of Assistant Executive Engineer, PWD (Civil) notified on 11-01-2005, position of the petitioner was at Sl.
W .P (C) N o.07 OF 2013 P age 28 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015
No.318. At this stage it may be noted that Shri Debabrata Naug was placed at Sl. No. 17 in the said gradation list of Assistant Executive Engineer.
39. It appears that a proposal was mooted by the PWD for creation of an ex-cadre post of Executive Engineer for upgradation of the petitioner. When the matter was brought before the Personnel (B) Department, an endorsement dated 15-02-2005 was made by the said Department stating it had no objection to the creation of ex-cadre post in the rank of Executive Engineer subject to the condition that the post would be personal to the petitioner and that he would be encadred as soon as he would get regular promotion to the cadre of Executive Engineer. Personnel (B) Department stated that its endorsement was subject to concurrence of the Finance Department. The Finance Department in its endorsement dated 31-03-2005 concurred to the creation of an ex-cadre post of Executive Engineer, PWD for the period upto 28-02-2006 w.e.f the date of creation of the post to accommodate the petitioner. It was stated that the ex- cadre post would be personal to the petitioner and would stand abolished on the petitioner getting regular promotion as Executive Engineer. Beyond 28-02-2006, PWD would move for further retention of the ex-cadre post, if necessary, with name of the incumbent. PWD was advised to initiate the process of regular promotion from Assistant Executive Engineer to Executive Engineer. Thereafter notification dated 02-04-2005 was issued by the PWD promoting the petitioner to the post of Executive Engineer against the ex-cadre post and allowing the petitioner to discharge duties as Executive Engineer in the office of the Chief Engineer, PWD (Roads).
40. It appears that PWD had again moved the Personnel (B) Department regarding encadrement of the petitioner in the cadre of Executive Engineer. The endorsement of the Personnel (B) Department dated 12-07-2005 reads as under :-
"P.W. (Estt.) Deptt. U/O Your endt. at prepage.
Personnel (B) Deptt. have no objection to the en-cadrement as proposed by you subject to formalities and on condition that :-
W .P (C) N o.07 OF 2013 P age 29 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015
1. The Ex-cadre post of E.E. will be en-cadred along with the officers who is holding the post presently and this lone post will be in the lowest position in the cadre of E.E. under PWD.
2. The Officer along with the post so en-cadred will be in the lowest position till his seniors in the feeder category come to the position. His present scale of pay fixed in the ex-cadre post will be personal to him in the en-cadred post.
Sd/- illegible 12-07-2005 Joint Secretary, Per.(B) Deptt."
41. It is thus clear that the Personnel (B) Department, which is the cadre controlling department had given its concurrence to the proposal for encadrement of the petitioner in the cadre of Executive Engineer subject to certain conditions. The conditions were that the ex-cadre post on encadrement alongwith the incumbent would be placed in the lowest position in the cadre of Executive Engineer. The incumbent would remain in the lowest position in the cadre of Executive Engineer till all his seniors in the feeder category i.e. Assistant Executive Engineer got promotion to the cadre of Executive Engineer.
42. Selection Board meeting for selection of officers for promotion from Assistant Executive Engineer to Executive Engineer and for encadrement of the ex-cadre post of Executive Engineer held by the petitioner was held on 27- 07-2005. The Selection Board considered promotion against 13 vacancies. Against 13 vacancies, the zone of consideration was 52 (13 x 4 = 52). Accordingly, the zone of consideration of 52 officers in the feeder cadre of Assistant Executive Engineer was drawn up. Sl. No.1 in the zone of consideration was Shri Dhiren Ch. Kakoty who was at Sl. No.2 in the gradation list of Assistant Executive Engineer dated 11-01-2005 and Sl. No.52 was Shri Bhagaban Dev Choudhury whose seniority position in the gradation list dated 11-01-2005 was
54. As already noticed, petitioner's position in the gradation list dated 11-01- 2005 was 318, way below Shri Bhagaban Dev Choudhury at 54. In respect of the petitioner, the Selection Board noted that as per instruction of the Finance Department vide their endorsement dated 31-03-2005 and on perusal of the W .P (C) N o.07 OF 2013 P age 30 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 relevant records / ACRs of the petitioner, petitioner was suitable for promotion to Executive Engineer on encadrement. Accordingly, the Selection Board recommended and placed him at Sl. No.13 out of 25 selected candidates. Shri Debabrata Naug, whose position in the gradation list of Assistant Executive Engineer was at 17, was placed below the petitioner at Sl. No.14 in the select list. Infact, the candidates from Sl. Nos.14 to 25 in the select list were placed from Sl. Nos. 17 to 29 in the gradation list of Assistant Executive Engineer way above the petitioner at Sl. No.318. This select list was approved on 03-08-2005. Thereafter, notification bearing No.CON.39/2001/Pt./176 dated 07-09-2005 was issued under the signature of Shri JN Sarma, Deputy Secretary, PWD (Confidential Cell) regularizing the service of the petitioner and promoting him to the rank of Executive Engineer (encadred). Petitioners in WP(C) No.7/2013 have asserted that the said notification was not published in the Assam Gazette and that petitioner in collusion with certain officials of the Department had committed forgery by showing publication of the above notification dated 07-09-2005 in the Assam Gazette dated 28-12-2005 at page 400 above one notification No. TAD/BC/343/205/124 dated 21-10-2005 of the WPT and BC Department. As the font of the two notifications dated 07-09-2005 and 21-10-2005 appearing in the same page of the Assam Gazette dated 28-12-2005 appeared to be different, petitioners in WP(C) No.7/2013 traced out a copy of the Assam Gazette dated 28-12-2005 and have annexed portion of the same from pages 394 to 400 to show the seriatim of the notifications published in the said issue of the Assam Gazette. The font of all the notifications appeared to be the same and at page 400, a notification bearing No.BD.53/2005/36 dated 19-10-2005 of the Border Areas Department appears above the notification No. TAD/BC/343/205/124 dated 21-10-2005 of the WPT and BC Department. No such notification dated 07- 09-2005 of the PWD appears to have been published in the Assam Gazette dated 28-12-2005. Infact, Commissioner and Special Secretary, PWD (Roads) has filed Misc Case No. 2554/2013 in WP(C) No.7/2013 supporting the contention of the petitioners in WP(C) No.7/2013. This position has been reiterated by the learned Advocate General who has asserted that the notification dated 07-09-2005 was never published in the Assam Gazette dated 28-12-2005 . Therefore, in view of W .P (C) N o.07 OF 2013 P age 31 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 the categorical stand taken as above, a prima-facie view can be taken that the notification dated 07-09-2005 was not published in the Assam Gazette. In this connection, the Commissioner and Special Secretary has lodged a complaint before the Commissioner of Police, Guwahati alleging forgery. It is stated at the bar that CID Case No.8/2015 u/s 120(B)/167/468/471/409 IPC has been registered and police investigation is presently on.
43. Leaving aside that aspect of the matter for the time being, it is seen that in the gradation list of Executive Engineer, PWD (Civil) notified on 07- 10-2005, petitioner was placed at Sl.No.136 ahead of Shri Debabrata Naug at Sl. No. 137 which was in violation of the condition of encadrement laid down by the Personnel (B) Department since Shri Debabrata Naug was admittedly senior to the petitioner in the feeder-cadre of Assistant Executive Engineer. It may also be noted that respondent No.10 Shri Ameetav Sarma was placed at Sl. No.51 and respondent No.9 Shri Ajit Kumar Bhuyan was placed at Sl. No.73 in the said gradation list of Executive Engineer. Shri Abdul Kader, petitioner in WP(C) No.5470/2014, was placed at Sl. No.75. This pattern of seniority in the cadre of Executive Engineer was continued in the subsequent gradation lists dated 06-09- 2007, 05-05-2011 and 14-10-2014. However, a brief reference may be made to the final gradation list dated 14-10-2014. In this gradation list of Executive Engineer, Shri Ameetav Sarma is placed at Sl. No.2, Shri Ajit Kumar Bhuyan at Sl. No.10 and Shri Abdul Kader at Sl. No.12. Petitioner was placed at Sl. No.52 and Shri Debabrata Naug at Sl. No.53. This gradation list comprises of 131 Executive Engineers. Starting from Shri Debabrata Naug at Sl. No.53 to Sl. No. 131, all these officers were above the petitioner in the feeder-cadre of Assistant Executive Engineer from Sl. Nos. 17 to 71 in the gradation list of Assistant Executive Engineer dated 11-01-2005 where petitioner was placed at Sl. No.318. But all of them were placed below the petitioner in the cadre of Executive Engineer. Officers from Sl.Nos.72 to 317 in the cadre of Assistant Executive Engineer were yet to be promoted to Executive Engineer when petitioner was promoted. Thus, the condition of encadrement stipulated by the Personnel (B) Department in its endorsement dated 12-07-2005 that petitioner would be placed W .P (C) N o.07 OF 2013 P age 32 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 in the lowest position till promotion of his seniors in the feeder category stood violated.
44. Selection Board meeting for selection of officers for promotion from Executive Engineer (Civil), PWD to Superintending Engineer (Civil), PWD was held on 17-10-2014 with Shri JN Sarma, Secretary, PWD as the Chairman. As per the minutes of the meeting, the Selection Board considered 13 vacancies in the rank of Superintending Engineer for the calendar year 2014. Therefore, zone of consideration comprised of 52 officers (13 x 4 = 52). It was stated that due to non-availability of ACRs promotion of 12 officers could not be considered which included Shri Ameetav Sarma. The Selection Board recommended 13 officers for promotion against 13 vacancies for the year 2014 which included petitioner at Sl. No.9. Consequential notification was issued thereafter on 28-10- 2014 promoting the petitioner to Superintending Engineer and posting him as Deputy Secretary (Materials), PWD (Roads) which notification was published in the Assam Gazette dated 29-10-2014.
45. It is seen that Commissioner and Special Secretary, PWD had written to the members of the Selection Board on 17-10-2014 itself stating that the agenda note for the Selection Board meeting was not prepared by the Department but was prepared by the Chairman of the Selection Board for his own interest. It was stated that consideration of 13 vacancies for the year 2014 was totally wrong as 13 vacancies were not available. For the year 2011 there were 6 vacancies and for the year 2014 there were 4 vacancies. Details of these vacancies were given. It was finally stated that selection was to be made for 10 vacancies only and as per the 1978 Rules, clubbing of vacancies was not allowed.
46. The effect of the above would have been that for the 6 vacancies for the year 2011, the zone of consideration would have been 24 (6 x 4 = 24). Likewise, for the 4 vacancies for the year 2014, the zone of consideration would have been 16 (4 x 4 = 16). Even if vacancies for the two years of 2011 and 2014 were clubbed together to make it 10 (6 + 4 = 10), the zone of consideration W .P (C) N o.07 OF 2013 P age 33 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 would have been 40 (10 x 4 = 40). Either way, petitioner at Sl. No.52 in the gradation list would not have made it to the zone of consideration. 3 additional vacancies were therefore considered by the Selection Board to make the total number of vacancies 13 which would enlarge the zone of consideration to 52 (13 x 4 = 52) in which case petitioner would come within the zone of consideration at Sl. No.52. The 3 additional vacancies considered by the Selection Board were as under :-
(i) Recommendation for promotion of Shri Jiauddin Ahmed from Superintending Engineer to Additional Chief Engineer was kept in sealed cover since departmental proceeding was pending against him.
(ii) One Shri Kamakhya Bezbaruah was on deputation to the National Highway Authority of India (NHAI) for more than 5 years, therefore he should be treated as absorbed in NHAI.
(iii) Shri BN Bhattacharjee, Additional Chief Engineer had retired from service. Therefore, there would be one resultant vacancy in the rank of Superintending Engineer on promotion of one such officer to the rank of Additional Chief Engineer.
47. It is evident that none of the above 3 "vacancies" were available for consideration by the Selection Board. Firstly, Sri Jiauddin Ahmed was not yet promoted; therefore, there was no available vacancy. Secondly, there was no absorption of Sri Kamakhya Bezbarua in NHAI. Being on deputation, he continued to hold lien in the post of Superintending Engineer in his parent department. Therefore, this post was also not available to be filled up on regular basis. Lastly, though Sri BN Bhattacharjee had retired as Additional Chief Engineer, no promotion from Superintending Engineer had taken place to fill up the said vacancy. Therefore, no consequential vacancy could be said to have arisen in the rank of Superintending Engineer. Thus consideration of these 3 "vacancies" by the Selection Board was not justified. In any case, it was for the concerned department to notify the vacancies available for consideration and not for the Selection Board to take it upon itself to determine the vacancies against which recommendations were to be made. Therefore, if these 3 "vacancies" are taken out of consideration, petitioner does not come within the zone of W .P (C) N o.07 OF 2013 P age 34 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 consideration in which case his promotion to Superintending Engineer becomes wholly untenable.
48. The Association submitted a representation dated 08-11-2014 to the Chief Minister making a grievance to the promotions given to the petitioner. The Chief Minister vide his endorsement dated 11-11-2014 asked the Additional Chief Secretary, Personnel Department to conduct enquiry into the matter. Accordingly enquiry was conducted by the Additional Chief Secretary who thereafter submitted his report dated 16-12-2014. The relevant findings and recommendations of the enquiry as contained in the report of enquiry conducted by the Additional Chief Engineer are as follows :-
" 10. Findings & Recommendations :-
(1) Shri Debajit Das got the benefit of promotion from Assistant Engineer to Assistant Executive Engineer, PWD in the year 2002 because of clubbing of the vacant posts of the year 2001 & 2002. However, since more than 12 years have elapsed since his last promotion and in the meantime, he has been given an ex-cadre post of Executive Engineer personal to him, this matter may not be re-opened.
(2) The en-cadrement of Shri Debajit Das and his regular promotion to the post of Executive Engineer is irregular and it has been done by the Selection Board meeting on 27-07-2005 without any authority and therefore, he has to be considered being an Executive Engineer in the ex-cadre post and the PWD is to re-
examine all the minutes of meetings of Selection Board held after 27-07-2005 and see if Shri Debajit Das has in the meantime become eligible for regular promotion. Till such time he is given the regular promotion, he has to be treated to be in an ex-cadre post of Executive Engineer, PWD.
(3) The six (6) vacancies of 2011 are to be filled up by holding review meetings of the Selection Board for the years 2011, 2012, 2013 & 2014. The officers who have been already promoted are to be re-adjusted in the posts of Superintending Engineer, PWD based on the recommendations of the review meetings of the Selection Board. If PW Department decides to treat these 6 (six) W .P (C) N o.07 OF 2013 P age 35 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 vacancies as fresh vacancies in light of Court order etc. at best there will be maximum of 10 (ten) vacancies. But it is recommended that the Selection Board meetings be held afresh for 2011, 2012, 2013 and 2014. If any officer who is already promoted to the rank of Superintending Engineer, PWD is to be demoted because of his name being not recommended in review meetings, he or she should be given a due opportunity of being heard before he or she demoted.
(4) At present the Selection Board in the department is headed by the Secretary, though there are three (3) officers senior to him, namely, Additional Chief Secretary, PWD, Commissioner and Special Secretary, PWD (Roads), & Commissioner and Special Secretary, PWD (B & NH). As per Assam Rules of Executive Business 1968, Secretary includes Additional Chief Secretary/Commissioner and Special Secretary/ Secretary. It is suggested that all Selection Board meeting of the PWD henceforth should be chaired by the Sr. most Secretary in the PWD as was done till 2011.
(5) It is seen that Shri JN Sarmah, Secretary, PWD was the Deputy Secretary, PWD when the Selection Board meeting dated 27-07-2005 was held and the notification No.CON.39/2001/PT-I/176 dated 7th September, 2005 was issued. Shri JN Sarmah, Secretary, PWD was also the Chairman of the Selection Board meeting held on 17-10- 2014. It is recommended that Shri JN Sarmah, Secretary, PWD should not be involved in the review meetings as recommended above. Further on perusal of the records, it appears that Shri JN Sarmah, Secretary, PWD has substantially contributed to the incorrect interpretations of endorsements of Personnel and Finance Department and assessment of the vacancy position for the meeting of Selection Board held on 17-10-2014. The agenda note for the meeting on 17-10-2014 is not signed by any officer of the PW Department. The Chairman, Selection Board should have acted on an authenticated agenda note and should have given due cognizance to the letter No. CON.29/2011/Pt.-III/15 dated 17-10-2014 from Commissioner & Spl. Secretary, PWD (Roads) giving the total number of vacancies.
(6) The Department may also re-examine the grading/marking system for promotions as it appears that this system of awarding marks against ACR grading has W .P (C) N o.07 OF 2013 P age 36 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 not been able to do justice to all the efficient and senior officer."
49. Thereafter meeting of the Review Selection Board was held on 05- 01-2015. The Review Selection Board comprised of the Additional Chief Secretary, PWD (Roads) and PWD (Building & NH) as the Chairman, Chief Engineer (Border Roads & NEC Works) and Deputy Secretary, Personnel Department as Members. The Review Selection Board after due consideration was of the opinion that the petitioner was not eligible for promotion to the regular cadre of Executive Engineer and thereafter to Superintending Engineer and therefore he should be reverted back to the ex-cadre post of Executive Engineer. The Review Selection Board recommended 6 officers for promotion to Superintending Engineer against the 6 vacancies for the year 2011, which included Shri Ameetav Sarma at Sl. No.2. Promotions for the years 2012 and 2013 were found to be in order. Against 4 vacancies for the year 2014, Review Selection Board recommended 4 officers for promotion which includes Shri Ajit Kumar Bhuyan and Shri Abdul Kader. 6 officers including the petitioner were found to be not eligible for promotion to Superintending Engineer and accordingly recommendation has been made for their reversion to the post of Executive Engineer. Relevant portion of the minutes of the meeting of the Review Selection Board held on 05-01-2015 reads as under:-
"1. The Selection Board perused the Enquiry Report and recommendations of Shri SC Das, Addl. Chief Secretary, Personnel Deptt., which have been accepted by the Government of Assam.
2. The Selection Board also went through all the relevant office records and files in respect of the encadrement of Shri Debajit Das and his regular promotion to the post of Executive Engineer (EE) and found that an ex-cadre post of EE was created in the year 2005, with NOC from Personnel "B" Deptt., subject to the condition that the post will be personal to Sri Debajit Das and he will be encadred as soon as he gets regular promotion to the cadre of EE, PWD.
3. The Selection Board, after considering all records, has reached the conclusion that the encadrement and the W .P (C) N o.07 OF 2013 P age 37 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 promotion of Shri Debajit Das to the post of EE was irregular, untenable and ab initio void as it had been done based on the minutes of the meeting of the Selection Board held on 27-05-2005 (sic) for which the Selection Board did not have any authority.
4. The Selection Board also found that the Selection Board in its meeting held on 27-05-2005 (sic) had totally misinterpreted the endorsement of Personnel (B) Deptt.
5. The Selection Board also examined the subsequent promotion of the officers in the cadre of EE since 2005 till 31st December/2014 and found that Sri Debajit Das was not eligible to get his regular promotion to the cadre of EE as according to inter-se-seniority list his position in feeder post (Assistant Executive Engineer post) was at serial 318 whereas the last man in the zone of consideration of inter-se-seniority list was at serial 152.
6. The Selection Board also perused all records relating to the promotion of Sri Debajit Das to the post of Superintending Engineer (SE), PWD and found that it was totally erroneous and ab initio void because on the date of the meeting of the Selection Board, he was not even eligible for getting promotion to the regular cadre of EE, PWD. Besides while making its recommendations, the Selection Board had clubbed together the vacancies in the cadre of SE for the years 2011 and 2014 which is in contravention of Rule 13 of the Assam Engineering Service Rules, 1978.
7. Considering the above facts, the Selection Board is of the opinion that Sri Debajit Das is not eligible for promotion to the regular cadre of EE and SE, PWD and therefore, Sri Debajit Das should be reverted to the post of ex-cadre post of EE, PWD with immediate effect.
8. The Selection Board also examined the relevant office records, minutes and ACRs of the officers for the year for filling vacancies for the years 2011, 2012, 2013 and 2014.
9. According to the minutes of the meeting of the Selection Board for the post of SE for the year 2011, the total number of vacancies is 12 (twelve) out of which the Selection Board decided to keep 6(six) posts reserved for filling up the backlog of vacancies of ST(P) and ST(H).
W .P (C) N o.07 OF 2013 P age 38 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015
10. After taking into account the verdict of the Hon'ble Gauhati High Court in case No. WP(C) 2752/2013, the verdict of the Hon'ble Supreme Court in UP Power Corporation Ltd Vs Rajesh Kumar and others (2012) 7 SCC 1 and the opinion of the learned Legal Remembrancer (LR), Assam Dt. 25-11-2013 in file No. CON.68/2013/Pt-I, the Selection Board is of the view that 6 (six) posts of SE should be filled up from amongst the General candidates.
11. Accordingly, after considering the inter-se-seniority and ACRs of the officers coming under the zone of consideration, the Selection Board recommends the following officers from the cadre of EE, PWD for promotion to the cadre of SE, PWD:
1. Shri Jyotish Kr Sarma- Category-A
2.Shri Ameetav Sarma - Category-B
3. Shri Surjya Kr. Talukdar - Category-B
4. Shri Anwarul Haque Laskar - Category-B
5. Sri Jogendra Nath Sutradhar- Category-B
6. Shri Gobin Ch. Saikia - Category-B
12. The Board also examined the records relating to the promotion of EEs to SEs, PWD for the years 2012 and 2013 and found them to be in order.
13. The Selection Board also examined the vacancy position of SEs for the year 2014 and found that there are a total of 6 (six) vacancies. By leaving aside one post for an officer on deputation with NHAI and another post for another officer for whom the recommendations of the Selection Board (made in the meeting held on 03-02-
2014) are in sealed cover, only 4 (four) posts can be filled. After considering the ACRs and relevant records of all officers in the zone of consideration, the Selection Board recommends the following 4 (four) officers for promotion to the post of SE for the year 2014 :
1. Shri Ajit Kr. Bhuyan - Category-A
2. Shri Abdul Kader - Category-A
3. Shri Shyamal Bordoloi - Category-A
4. Shri Rubul Gohain - Category-A
14. The Selection Board also concluded that after filling up 6 (six) vacancies for year 2011 and 4 (four) vacancies for the year 2014 as per recommendations given in para 11 and 13 above, the following officers, who were earlier W .P (C) N o.07 OF 2013 P age 39 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 selected and promoted to the cadre of Superintending Engineer as per recommendations of the Selection Board meeting held under the Chairmanship of Shri Jatindra Nath Sarma, Secretary, PWD on 17-10-2014, are not eligible for promotion to the cadre of SE as they are not found to be in the zone of consideration in terms of the Assam Engineering (Public Works Department) Service Rules, 1978.
1. Shri Debabrata Acharjee
2. Shri Afzal Karim
3. Shri Pabitra Kr. Sarma
4. Shri Shymanta Bezbarua
5. Shri Sibendra Kr. Mazumdar
6. Shri Debajit Das.
15. Under the above circumstances, the Selection Board recommends the reversion of the above named 6 (six) officers to the post of EE, PWD, with immediate effect."
50. It appears that Commissioner and Special Secretary, PWD wrote to the Commissioner of Police, Guwahati City on 17-01-2015 regarding alleged forgery in publication of the notification dated 07-09-2005 in the Assam Gazette dated 28-12-2005. On the basis of the same, CID Case No. 8/15 u/s 120 B/167/468/471 /409 IPC has been registered.
51. The facts as stated above are self explanatory and speak for themselves. The facts are startling to say the least. The facts reflect clear manipulation of the system at various stages and at different levels which has resulted in out of turn undeserving promotions of the petitioner. Though learned Advocate General has referred to the promotions of the petitioner as "fly over promotions", petitioner has virtually parachuted from Assistant Executive Engineer to Superintending Engineer leaving behind his senior colleagues in the cadre of the Assistant Executive Engineer stranded in the same cadre. What has happened is really unfortunate and should be an eye-opener to all concerned. If such type of promotion is given and repeated, it will lead to demoralisation of the super-ceded officials who will feel let down by the system. This in turn will have an adverse impact on the morale of the service and in the process public interest will suffer.
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52. Having noticed the factual position as above, the contentions advanced by learned Counsel for the petitioner may now be addressed.
53. Learned Senior Counsel for the petitioner has contended that the process for reversion of the petitioner was initiated at the instance of the Association. The Association has no locus-standi to question the promotions of the petitioner. It is contended that in a service matter, an Association has no role to play since it is not a person aggrieved. This submission of the petitioner though appears to be attractive at the first blush, on a deeper scrutiny it is untenable for more than one reason. It is true that in service related matters Court would not ordinarily entertain a litigation at the instance of an Association because it is the affected party who must institute the challenge. An Association by its very nature and character cannot be said to be an aggrieved person to clothe it with the locus to institute a challenge to say, in a matter of promotion or inter-se seniority dispute. But the same is not the position here. The Association as the collective body of its members placed the grievance of the members before the Chief Minister by submitting a representation dated 08-11-2014. The grievance portrayed before the Chief Minister was the repeated undeserving promotions given to the petitioner superceding a large number of senior engineers in the ranks of Assistant Executive Engineer and Executive Engineer. As already noticed, the representation was acted upon by the State the result of which has been noted in the preceding paragraphs of the judgment. Had the Association instituted any judicial challenge to such promotions of the petitioner, the objection raised by the petitioner would have been legitimate. But that is not the case here. The Association had furnished the requisite information based on which the State initiated action. To that extent the Association acted as information provider. The State could have acted suo-motu since it is an acknowledged position that the State has the inherent power to rectify its own mistakes. If it can act suo-motu, it can as well act on the basis of information furnished by others. Therefore, the test which is applied to determine an aggrieved person while entertaining a writ petition or a judicial proceeding W .P (C) N o.07 OF 2013 P age 41 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 cannot be extended to grievances expressed before the executive authority because the Courts and the executive authorities do not stand on the same footing and they exercise jurisdiction of different nature. In view of above this ground of the petitioner is untenable and cannot be accepted.
54. The next ground urged on behalf of the petitioner is that there is gross violation of the principles of natural justice. No notice or opportunity of hearing was given to the petitioner either in the course of the enquiry conducted by the Additional Chief Secretary, Personnel Department or before holding of review selection. It is contended that the consequence of the above is highly prejudicial to the petitioner and would entail adverse civil consequences. If the recommendation of the Review Selection Board is accepted, it will lead to reversion of the petitioner from Superintending Engineer to the ex-cadre post of Executive Engineer. Therefore observance of the rules of natural justice is mandatory in such cases and non-observance of the same has rendered the impugned decision to hold review selection null and void. Consequently, the recommendations of the Review Selection Board dated 05-01-2015 are nonest in the eye of law. There can be no two opinion that observance of the rules of natural justice is the norm and non-observance is the exception. It is a settled legal principle that an act, whether judicial or quasi-judicial or administrative, must be made consistently with the rules of natural justice when such an act involves civil consequences. In the case of SL K apoor (supra) , the Apex Court was of the view that the principles of natural justice know of no exclusionary rule. Non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. However, in the said case, the Apex Court identified one exception to the above rule. The exception is that where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice not because it approves the non-observance of natural justice but because Courts do not issue futile writs. Similar view has been taken by the Apex Court in the case of Aligarh M uslim University (supra) . Additionally, the Apex Court referring W .P (C) N o.07 OF 2013 P age 42 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 to the earlier decision in Gadde Venkatesw ara R ao -Vs- State of AP reported in AIR 1966 SC 828 held that if the quashing of the order passed in breach of natural justice is likely to result in revival of another order which is in itself illegal, it is not necessary to quash the order merely because of violation of the principles of natural justice. Similarly, in R aj K um ar Soni (supra) , the Apex Court held that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court under Articles 32 or 226 of the Constitution can refuse to exercise its discretion of striking down an order if such striking down will result in restoration of another order passed earlier in favour of the petitioner in violation of the principles of natural justice or is otherwise not in accordance with law. In the case of Shekhar Ghosh (supra) , the Apex Court noted that where a mistake is apparent on the face of the record, a rectification thereof is permissible without giving a hearing to the aggrieved party as compliance with the principles of natural justice would not have made any material difference. From the factual scenario of the present case it is clearly evident that mistakes in the promotions of the petitioner to the cadres of Executive Engineer and Superintending Engineer are apparent on the face of the record. On admitted and in-disputable facts, only one view is possible and that view is that petitioner was not entitled to promotion to the cadres of Executive Engineer and Superintending Engineer. Therefore even if opportunity of hearing was granted to the petitioner, it would not have made any material difference to the final outcome. Petitioner was not entitled to promotion either to Executive Engineer or to Superintending Engineer and therefore he has to be reverted back. Interference with the recommendation of the Review Selection Board on the ground of violation of the principles of natural justice will lead to revival of the petitioner's promotions which are ex-facie illegal. It has been held that principles of natural justice cannot be pressed into service to revive and restore an illegality. Consequently this ground of challenge also fails.
55. Learned Counsel for the petitioner has also challenged constitution of the Review Selection Board under the Chairmanship of the Additional Chief W .P (C) N o.07 OF 2013 P age 43 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 Engineer, PWD (Roads) and PWD (Building & NH). It is contended that the constitution of the Review Selection Board was in violation of Rule 15(2) of the 1978 Rules. Since the Review Selection Board was not constituted in accordance with the law, the proceedings of such Board would have no legal consequence since there was no valid Review Selection Board. To appreciate this submission, provision of Rule 15(2) of the 1978 Rules may be referred to which has already been noticed at an earlier stage of this judgment. As per Rule 15(2), Selection Board for promotion from Executive Engineer to Superintending Engineer and from Assistant Executive Engineer to Executive Engineer is to comprise of the following officials:-
(i) Chairman & -- Secretary, PWD
Secretary
(ii) Member -- Chief Engineer, PWD
(iii) Member -- A representative of Personnel (A)
Department not below the rank of
Deputy Secretary nominated by the
Secretary, Personnel and Administrative
Reforms Department.
It is seen that the Review Selection Board which met on 05-01-2015 comprised of the following officials:-
(i) Shri VK Pipersenia, IAS, Addl. Chief -- Chairman Secretary, PWD (Roads) and PWD (Building & NH)
(ii) Shri BK Das, Chief Engineer, PWD -- Member (Border Roads & NEC Works)
(iii) Shri Ikramul Hussain, Deputy -- Member Secretary, Personnel Department While no dispute or objection has been raised regarding participation by the Chief Engineer, PWD (Border Roads & NEC Works) and Deputy Secretary, Personnel Department, it is the presence and participation of the Additional Chief Secretary as the Chairman which has been hotly disputed by the petitioner.
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Respondents 1, 2, 3, 6 and 7 in their common affidavit have stated that as per Assam Rules of Executive Business, 1968, Secretary means Secretary to the Government of Assam and includes Chief Secretary, Additional Chief Secretary, Principal Secretary, Commissioner and Secretary, Commissioner and Special Secretary, Deputy Secretary and Under Secretary. Therefore, Additional Chief Secretary in-charge of PWD (Roads), PWD (Building & NH) etc. is a Secretary within the meaning of the 1978 Rules who is also placed above the departmental Secretary in the administrative hierarchy. Coming back to the facts of the present case, Sri Jatindra Nath Sarma, Secretary, PWD was already placed under suspension. In his place Sri Banikanta Das, Chief Engineer has been allowed to hold additional charge of the post of Secretary, PWD in addition to his existing duties. As noticed above, Sri Banikanta Das was already a member of the Review Selection Board as Chief Engineer. Therefore, in such circumstances, this Court in unable to accept the contention of the petitioner that participation of the Additional Chief Secretary in the Review Selection Board Meeting had vitiated the proceeding dated 05-01-2015. Therefore, this ground of challenge cannot also be accepted.
56. The last argument advanced on behalf of the petitioner is that promotion of the petitioner by way of encadrement in the cadre of Executive Engineer has by now attained finality. The said promotion was carried out in the year 2005. 9 years have gone by since then. The settled promotion and seniority of the petitioner cannot be unsettled at this stage. Promotion of the petitioner cannot be re-opened now. Referring to Dipu Dutta's case it has been contended that challenge to the petitioner's promotion to the cadre of Executive Engineer was rejected by this Court on the ground of delay and laches. Therefore, such promotion of the petitioner has attained finality and has become settled. This argument advanced on behalf of the petitioner will not be tenable in the facts and circumstances of the present case i.e. WP(C) No.5/2015 in as much as it is the petitioner who has instituted legal challenge to the recommendation of the Review Selection Board for his reversion. Neither the Association nor the State has questioned the promotion of the petitioner in a legal proceeding. As already W .P (C) N o.07 OF 2013 P age 45 of 48 W .P (C) N o.2958 OF 2014 W .P (C) N o.5470 OF 2014 W .P (C) N o.05 OF 2015 discussed above, it is the Association which had set the ball rolling by submitting representation before the Chief Minister on 08-11-2014. The State did not turn down the representation on the ground of delay and laches. Rather the representation was acted upon and following enquiry, the grievance of the Association has been found to be correct. The result of the enquiry clearly revealed fraud committed while granting promotion to the petitioner to the rank of Executive Engineer and subsequently to the rank of Superintending Engineer. While granting promotion to the rank of Executive Engineer by way of encadrement, the endorsement of the Personnel (B) Department was conveniently ignored. On the other hand, there was what appeared to be deliberate misinterpretation of the endorsement of the Finance Department which suggested consideration of regular promotion from Assistant Executive Engineer to Executive Engineer. This suggestion was given in the context of the proposal to create an ex-cadre post of Executive Engineer. It did not and could not be understood to mean that Finance Department had suggested granting promotion to the petitioner in derogation of the 1978 Rules. The law is very clear and requires no restatement that fraud vitiates every thing and technical pleas of delay will not come to the aid of the beneficiary of the fraud. Therefore, this ground of the petitioner cannot also be accepted.
57. There is one more aspect of the matter. In the cadre of Assistant Executive Engineer petitioner's position in the gradation list was 318. He leaped over 300 officers in the said grade while securing promotion to the cadre of Executive Engineer. This was done by adopting a novel method. Firstly, an ex- cadre post of Executive Engineer was created and petitioner was promoted to that post. Thereafter, he was encadred which amounted to regular promotion to the post of Executive Engineer though he was not even eligible as he had not completed 5 years as Assistant Executive Engineer. As per condition imposed by the Personnel (B) Department, petitioner was to be placed in the cadre of Executive Engineer in the last position till all his seniors in the feeder-cadre of Assistant Executive Engineer got promoted to Executive Engineer. But this was not done and petitioner was finally placed wrongly at a higher position at Sl.
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No.52 in the gradation list of Executive Engineer above Shri Debabrata Naug at Sl. No.53 whereas in the cadre of Assistant Executive Engineer, Shri Debabrata Naug was 300 position above the petitioner at Sl. No.17. Not only that in the final gradation list of Executive Engineer dated 14-10-2014 the last ranked officer is Shri Binoy Kumar Bora at Sl. No.131. His position in the gradation list of Assistant Executive Engineer was at Sl. No.71. This shows that officers in the cadre of Assistant Executive Engineer from Sl. No.72 to 317 barring the reserve category candidates are yet to be promoted to the cadre of Executive Engineer. The Apex Court in the case of B al K ishan -Vs- Delhi Adm inistration and another reported in 1989 Supp.(2) SCC 351 held that no junior shall be confirmed or promoted without considering the case of his senior. Any deviation from this principle will have demoralising effect in service apart from being contrary to Article 16(1) of the Constitution. Petitioner could not show that his seniors in the cadre of Assistant Executive Engineer were not suitable for promotion when he was promoted to Executive Engineer. He also could not show that they were considered before being superceded by the petitioner. Petitioner's promotion to Executive Engineer was therefore ex-facie illegal and had to be corrected. There is a distinction between a judicial approach and the approach by an administrative authority while considering delay in matters of seniority and promotion. Test applied in judicial proceeding is very strict in as much as in a judicial proceeding there is assertion of one's right and adjudication based thereon. Therefore, before entertaining such challenge the Court looks into various aspects, such as, delay and laches as belated interference by the Court may upset settled positions as because of the delay interest of third parties may get ripened. Such belated interference may also lead to administrative dislocation causing serious complication. Therefore, belated challenge or stale claims to seniority and promotion are ordinarily not entertained by the Courts. But that is not the case here. Firstly, without any Court intervention, in view of the indisputable facts leading to only one possible conclusion, the State decided to review the promotions of the petitioner and accordingly, Review Selection Board was constituted which has recommended reversion of the petitioner. Secondly, reversion of the petitioner to the ex-cadre post of Executive Engineer will not W .P (C)N o.07 OF 2013 P age 47 of 48 W .P (C)N o.2958 OF 2014 W .P (C)N o.5470 OF 2014 W .P (C)N o.05 OF 2015 cause any administrative complication or dislocation. Rather, it will only restore some sanity and orderliness in the Department, thereby removing the grievance of a large number of engineers.
58. For all the aforesaid reasons, this Court finds no merit in the writ petition. Accordingly WP(C) No.5/2015 is dismissed. Interim order passed on 05- 01-2015 stands vacated.
59. In view of the decision rendered in WP(C) No. 5/2015, no further order is called for in the other three writ petitions which are disposed of in terms of the stand taken by the State impugned in WP(C) No.5/2015 which has been upheld. WP(C) Nos.7/2013, 2958/2014 and 5470/2014 are accordingly disposed of.
60. Record produced by learned Advocate General is returned back. No cost.
Judge
BIPLAB
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