Back
2019 Supreme(Gau) 1010
IN THE HIGH COURT OF GAUHATI
Kalyan Rai Surana, J.
Hiten Sarma - Appellant
Vs.
State Of Assam And Others - Respondent
Writ Petition (Civil) No. 5055 of 2016
Decided On : 19-08-2019
N.J. Choudhury, Adv., S. Hoque, Adv., A.D. Choudhury, Adv., D. Choudhury, Adv., T. Chakraborty, Adv., U.K. Nair, Adv., S. Hoque, Adv., M. Deka, Adv., P.J. Phukan, Adv.
Headnote:
Constitution of India – Article 226 – Pollution Control Board, Assam (Employees Service Regulation, 2012 – Regulation 4 14 – Air (Prevention And Control of Pollution) Assam Rules, 1991 – Rule 21 – Water (Prevention And Control of Pollution) (Assam) Rules, 1981 – Rule 22 – Water (Prevention And Control of Pollution) Act, 1974 – Section 12 – Air (Prevention And Control of Pollution) Act, 1981 – Section 14 – Promotion And Seniority in Service – The petitioners have challenged the impugned order, by which the respondent No.5 was given promotion and making him senior to the petitioners and consequently, the petitioners have prayed for restoration of their seniority over the respondent No.5 – It is submitted that as the resolutions adopted in the 96th Board Meeting was never challenged, the Chairman had no power and authority to override the resolutions of the Board as if he was sitting in appeal – Held, Thus, it is seen the respondent No.3 had found fault with the decision taken in the 96th Board Meeting – Moreover, no provisions under the 2012 Employees Regulation or under the Water (Prevention And Control of Pollution) Act, 1974 and the Air (Prevention And Control of Pollution) Act, 1981 of Rules framed thereunder has been placed to show that the Chairman of the Board can sit over as appellate authority over the decision taken in the 96th Meeting of the Board, as such, the said action of the respondent No.3 is not found to be supported by any Act, Rules or the Employees Regulation in force – In the present case in hand, the respondent No.3 had promoted the respondent No.5 without considering comparative merit and/or seniority of any other person in the cadre of AES, which was also done without subjecting the respondent No.5 through any selection process whatsoever – It is also seen that under the 2012 Employees Regulation, the Selection Committee constituted under Regulation 14 conducts the selection and gives its recommendation and accordingly, as per the prevailing practice, the Board takes a decision in its Board Meeting. The said procedure was not followed by the respondent No.3 by directly promoting the respondent No.5 by virtue of the impugned order which is in aberration of the said 2012 Employees Regulation. As discussed above, upon the 2012 Employees Regulation being notified by the State Government, the Chairman, Pollution Control Board, Assam cannot exercise his powers as per Rule 21(3) of the Air (Prevention And Control of Pollution) Assam Rules, 1991 or as per Rule 22(iii) of the Water (Prevention And Control of Pollution) (Assam) Rules, 1981 – Therefore, in view of the discussions above, the Court is of the considered opinion that the impugned office respondent No.3 is not sustainable on facts – Hence, the Court has no hesitation to set aside and quash the said office order issued by the Chairman, respondent No.3 – As a sequel, the seniority position of petitioner in W.P. stands restored in terms of the revised and updated cadre list as per notification – Respondent No.3 is directed to forthwith pass consequential orders to revert the respondent No.5 to the same position as he was prior to passing of the said order – Order Accordingly
JUDGMENT :
Kalyan Rai Surana, J.
Heard Mr. A.D. Choudhury, the learned counsel for the petitioner. Also heard Mr. P.J. Phukan, the learned standing counsel for respondents No.2, 3 and 4 as well as Mr. U.K. Nair, learned senior counsel assisted by Mr. S. Hoque, learned counsel for the private respondent No. 5. None appears on call for the respondent No.1.
2. Common issues arise in these two writ petitions and, as such, both the writ petitions have been heard analogously.
3. By the two writ petitions filed under Article 226 of the Constitution of India, the petitioners have challenged the impugned order No. WB/PF-300/94-95/229 dated 24.06.2016, by which the respondent No.5 was given promotion and making him senior to the petitioners and consequently, the petitioners have prayed for restoration of their seniority over the respondent No.5. As the two writ petitions assail the same impugned order, the facts narrated herein is based on pleadings in W.P.(C) No. 5055/2016.
4. The petitioners and the respondent No.5 are members of Laboratory and Scientific Service under the Pollution Control Board, Assam. They had started their service in the post of Assistant Chemist, now redesignated as Scientific Assistant-I (SA-1). It is projected that all throughout the petitioners were placed senior to the respondent No.5. However, the seniority position got disturbed when the respondent No.5 was upgraded and promoted with retrospective effect (i) from the post of Assistant Environment Scientist (AES for short) to Environment Scientist (ES for short) w.e.f. 30.07.2013, (ii) from the post of ES to Assistant Executive Environmental Scientist (AEES for short) w.e.f. 01.01.2014.
5. The learned counsel for the petitioners has submitted that while the petitioners, who at the relevant time were working as Assistant Chemist (now SA-I), were promoted to the post of Chemist (now AES) by order dated 02.03.2007. However, the respondent No.5 was promoted to the post of Assistant Chemist (now SA-I) by order dated 03.04.2010. In the said order, the respondent No.5 is shown to have joined the post of Assistant Chemist (now SA-1) on 27.05.2003. It is submitted that by an office order dated 28.02.2011, subject to the approval from the concerned authorities, one Anal Chandra Barman as well as the respondent No.5 were promoted from the post of Assistant Chemist (now SA-I) to the post of Chemist (now AES). By an order dated 30.07.2013, three persons including Sri Hiten Sarma [petitioner in W.P.(C) 5055/16], who was working in the post of AES was promoted to the post of Environment Scientist (ES for short). It may be stated that in the meeting of the Selection Committee held on 27.12.2013, the names of two others were promoted with effect from the date of their joining. However, in terms of the decision taken in the meeting of the Selection Committee held on 27.12.2013, the petitioner in W.P.(C) 5055/16 was promoted to ES by order dated 03.03.2014 with effect from the date of joining.
6. In the meanwhile, by an order dated 23.09.2013, 7 persons, including Sri Manoj Baruah [petitioner in W.P.(C) 5431/16], as well as the respondent No.5, who were working in the post of AES were promoted to the post of ES. However, in the said order, the name of the petitioner W.P.(C) 5431/16 was at Sl. No.4 and the name of the respondent No.5 was at Sl. No. 6. In the said order, it was also provided that the pay and other promotional benefits will accrue to the Scientists named therein with retrospective effect only after the approval by the Board.
7. The respondent No.5 had submitted his representations dated 24.02.2014 and 20.03.2014 seeking promotion. The said representations were disposed of by order dated 20.05.2014, thereby rejecting the said representation, inter-alia, mentioning therein that M.Sc. is an essential qualification for the level of SES and above, and further stating ther
