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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Kalyan Rai Surana, J.
Ganesh Chandra Pathak, S/O Lt. Sanatan Pathak - Petitioner
Versus
The State Of Assam Rep. By The Principal Secretary And Ors. – Respondents
WP(C)/4224 of 2018
Decided On : 20-04-2021
Assam Public Service Commission (L&F) Regulation, 1951 – Rule 4 – Assam Transport Service Rules, 2003 – Rule 5 – Constitution of India, 1950 – Article 226 – Promotion Of Petitioner – Petitioner had joined service asLower Division Assistant vide order – By order, he was promoted to post of Upper Division Assistant – Transport Department held Departmental Promotion Committee for selecting candidates for promotion to post of EI for vacancies arising in year 2010, 2012 and 2013, and name of petitioner and others were recommended by DPC – Petitioner was promoted to post of EI vide notification issued by Principal Secretary to Govt. of Assam, Transport Department (respondent no.1) – Petitioner joined in post of EI and superannuated in said post – By filing this writ petition under Article 226 of Constitution of India, petitioner has challenged legality of order passed by Addl. Secretary to Govt. of Assam, Transport Department by which respondent authorities had revoked promotion of petitioner to post of Enforcement Inspector despite fact that he had superannuated.
Finding of the court : It is seen that judgment and order in W.P, declaring DPC to be illegal did not stand in way of respondent no.2 to apply Rule 4(d) of Assam Public Service Commission (L&F) Regulation, 1951 to promote as many as 22 numbers of AEI/HA/SA to post of EI including the (i) Sri PadumBahadur Lama (AEI), (ii) Smt. Lily Deori (SA), and (iii) Sri Prasanta Kr. Sarmah (SA), who were purportedly promoted to post of EI by order – It is apparent that respondent no.2 had not assigned any reason for not considering promotion to similarly situated petitioner, though notionally and for calculating his retiral benefits – Court is of considered opinion that it is not permissible for respondent no.2 to have left out petitioner from being considered for promotion, notionally and for retiral benefits – Court is of considered opinion that for reasons as indicated above, this is a fit and proper case to permit petitioner to submit his written representation before respondent no.2 to consider his case for promotion to post of EI (Enforcement Inspector), notionally and for calculating retiral benefits, by applying Rule 4(d) of Assam Public Service Commission (L&F) Regulation, 1951, as was done vide order issued by respondent no.2 to promote as many as 22 numbers of AEI/HA/SA to the post of EI including (i) Sri PadumBahadur Lama (AEI), (ii) Smt. Lily Deori (SA), and (iii) Sri Prasanta Kr. Sarmah (SA) petitioner – Exercise to consider and dispose of representation submitted by petitioner shall be completed within a period of 6 (six) weeks from date of submission of such representation accompanied with a certified copy of this order – It is deemed appropriate to make it clear thatin event the petitioner is still aggrieved by judgment and order, passed by this Court in W.P, he may be well advised to take appropriate steps in that regard – Cases cited by Govt. Advocate has not been discussed so that parties herein shall not be prejudiced in event judgment and order is put to review and/or if an appeal is preferred by petitioner herein.
Result : Order Accordingly
JUDGMENT :
Heard Mr. R. Dubey, learned counsel for the petitioner and Mrs. M.D. Borah, learned Govt. Advocate, appearing for the respondents.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the legality of the order dated 06.06.2017, passed by the Addl. Secretary to the Govt. of Assam, Transport Department by which the respondent authorities had revoked the promotion of the petitioner to the post of Enforcement Inspector (‘EI’ for short), despite the fact that he had superannuated as EI on 31.03.2017.
3. The facts which are not in dispute is that the petitioner had joined service as Lower Division Assistant (‘LDA’ for short) vide order dated 04.10.1985. Thereafter, by order dated 16.09.2013, he was promoted to the post of Upper Division Assistant (‘UDA’ for short). The Transport Department held Departmental Promotion Committee (‘DPC’ for short) on 30.07.2013 for selecting candidates for promotion to the post of EI for the vacancies arising in the year 2010, 2012 and 2013, and the name of the petitioner and others were recommended by the DPC. Accordingly, the petitioner was promoted to the post of EI vide notification no. TMV.43/2010/163 dated 24.01.2014 issued by the Principal Secretary to the Govt. of Assam, Transport Department (respondent no.1). The petitioner joined in the post of EI on 27.01.2014 and superannuated in the said post on 31.03.2017.
4. In the meantime, the petitioner had submitted his pension papers before the respondent no.4, who had forwarded the proposal to the respondent no.5 vide letter dated 25.04.2017. However, vide letter dated 15.09.2017, the respondent no.2 had informed the respondent no.3 that the pension papers of the petitioner was returned back to the respondent no.4 with a request to re-submit the pension proposal as per the office order dated 06.06.2017. Thereafter, the petitioner came to know that by the order dated 06.06.2017, impugned herein, the promotion order of the petitioner to the post of EI had been revoked, and the petitioner also came to know about the judgment and order dated 10.02.2014, passed by this Court in W.P.(C) 4424/2013.
5. By referring to the contents of the impugned order dated 06.06.2017, the learned counsel for the petitioner has submitted that only on the perusal of the said order the petitioner could come to know for the first time that W.P.(C) 4424/2013 (ChitraKumar Nath& 4 others Vs. The State of Assam & 7 others) was filed before this Court to assail the promotion recommended by the DPC held on 30.07.2013 to the cadre of EI from AEI and Ministerial Cadre. Accordingly, this Court by interim order dated 08.08.2013 had stayed the promotion recommended by the DPC on 30.07.2013 to the cadre of EI from the rank of AEI. The relevant part of the said interim order dated 08.08.2013 is quoted below:-
6. The said writ petition was allowed by directing the respondent authorities the liberty to start a fresh process for considering promotion of the AEI, to the extent of 25% vacancies in the cadre of EI. It was also directed that the process should be preceded by finalizing the gradation list in the feeder cadre. Thereafter, on the basis of the judgment and order dated 10.02.2014, passed by this Court in W.P.(C) 4424/2013, the impugned order dated 06.06.2017 was passed.
7. The learned counsel for the petitioner has submitted that neither the petitioner was impleaded as a party respondent in W.P.(C) 4424/2013 nor the order no. TMV.43/2010/163-163(A) dated 24.01.2014, whereby the petitioner was promoted from the post of Senior Assistant (‘SA’ for short) to the post of EI was assailed by the writ petitioners. The learned counsel for the petitioner has refe
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