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2021 Supreme(Gau) 460
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KALYAN RAI SURANA, J.
Ashok Kumar Sarma, S/o. Late Uma Kanta Sarma - Petitioner
Versus
The State of Assam, rep. by the Addl. Chief Secretary to the Govt. of Assam Cum Agriculture Production Commissioner (APC), Agriculture Deptt. & Ors. - Respondents
W.P.(C) No. 3305 of 2021
Decided On : 29-10-2021
For the Petitioner: Mr. U.K. Nair, Sr. counsel, Mr. R. Sarma, Ms. Purabi Barman.
For the Respondents: Mr. V. Choudhury.
Point of Law: As the petitioner is stated to be superannuating on 31.10.2021, in the event the promotion of the petitioner is recommended by the DPC, the petitioner would become entitled to all notional benefits associated therewith from the date on and from which he becomes entitled for promotion in accordance with law.
Headnote:
Delhi Special Police Establishment Act, 1946 - Section 6 and 5(1) – Criminal Procedure Code,1973 - Section 482 - Prevention of Corruption Act, 1988. - Sections 13(1)(c)(d)/12 - Delhi Special Police Establishment Act, 1946 - Section 6 and 5(1) – Saving of inherent power of high court - Petitioner is that in he was appointed as Assistant Agriculture Engineer in Agriculture Department in he was promoted to next higher post of Executive Engineer and presently, he is senior-most Executive Engineer in Agriculture Department. - Accordingly, it is projected that petitioner has become entitled to be considered for promotion to next higher post Superintending Engineer - It is projected that 2 posts of Superintending Engineer is lying vacant in Agriculture Department - Whether said learned Court could proceed with Spl. Case in absence of any notifications under Section 6 and 5(1) of Delhi Special Police Establishment Act, 1946 without having any State Government consent and approval extending power and jurisdiction of said DPSE Act to establishment of Executive Engineer (Agriculture), Haflong under Government of Assam
Finding of the court: Effect that there was absence of any notification by Government of Assam under Section 6 and Section 5(1) of DSPE Act, 1946 thereby granting consent and approval to establishment of Executive Engineer (Agriculture), Haflong - However, despite said categorical finding, learned trial Court deemed it appropriate not to discharge petitioner on ground that order passed earlier for framing charge could not be reviewed and as such trial of case of petitioner is still pending - Therefore, aggrieved petitioner has approached Court again under Section 482 Cr.P.C., which was registered and numbered as Crl. Pet. and that Court by order had suspended proceeding of Spl. Case in respect of petitioner - Petitioner is to effect that if DSPE Act, 1946 was not extended to establishment of Executive Engineer (Agriculture), Haflong, trial of petitioner in respect of investigation done by Central Bureau of Investigation has to fail - However, no comment on said submission is desirable by Court in regard in connection with present proceeding as petitioner has already approached Court by way of an appropriate proceeding under Section 482 Cr.P.C., being Crl. and therefore, that aspect is left to be dealt with in said proceeding - . Court factual matrix in case is concerned, not with standing that Court by order had suspended proceeding of Spl. Case in respect of petitioner, yet for all practical purpose, criminal proceeding against petitioner is still pending. - Under such circumstances, the submissions made by the learned standing counsel for the Agriculture Department has to be accepted in light of the OM issued by the Personnel (B) Department, Government of Assam, inter-alia, providing for adopting DPC recommendation to be kept under “sealed cover” procedure as directed by the Supreme Court of India in the case of Union of India
Result: Writ Petition partly allowed
JUDGMENT :
Heard Mr. U.K. Nair, learned senior counsel, assisted by Mr. R. Sarma, learned counsel for the petitioner and Mr. V. Choudhury, learned standing counsel for the respondents.
2. In brief, the case of the petitioner is that in the year 1984 he was appointed as Assistant Agriculture Engineer in the Agriculture Department and in the year 2006, he was promoted to the next higher post of Executive Engineer and presently, he is the senior-most Executive Engineer in the Agriculture Department. Accordingly, it is projected that the petitioner has become entitled to be considered for promotion to the next higher post Superintending Engineer. It is projected that 2 (two) posts of Superintending Engineer is lying vacant in the Agriculture Department. In course of his career, the petitioner was transferred as the Executive Engineer (Agriculture), North Cachar Hills Division, where he served between 04.01.2006 to 31.10.2008 and it is projected that during his tenure although he was the ‘Head of Office’, but the assigned duty of the petitioner was only to prepare schemes, presentation of Annual Operational Plan, supervision of execution of various schemes and it is categorically asserted that the petitioner was not empowered as “Drawing and Disbursing Officer (hereinafter referred to as ‘DDO’ for short).
3. It is projected that the Government had constitute a Commission under Justice (Retd.) R.K. Manisana Singh to make an enquiry in respect of alleged misappropriation of Government funds in North Cachar Hills District (hereinafter referred to as ‘NC Hills District’ for short). The said Commission had submitted its report on 18.12.2008 to the Government. Pursuant to the said report, on 18.07.2009, an Expert Committee was constituted by the Government. The said Expert Committee had submitted its report on 13.12.2010. It is projected that in so far as the Agriculture Department is concerned, the Expert Committee had found irregularity in respect of the District Agriculture and Horticulture Mission. As per the said report, the constitution of the said Mission was opined to be unauthorised and an unjustified decision. It is projected that as per the said Expert Committee’s report submitted on 03.12.2010, expenditures and payments were made out of funds withdrawn from Bank account by the Mission Director, Agriculture and Horticulture, Haflong. It is specifically averred in the writ petition to the effect that the establishment of the Mission Director, Agriculture and Horticulture, Haflong is distinct and separate from the establishment of the Executive Engineer (Agriculture), Dima Hasao Division. It is also the pleaded case of the petitioner that there is no internal transaction between the said two separate establishments. It is also projected that no adverse comments were made either by the Justice (Retd.) R.K. Manisana Commissioner or by the Expert Committee in respect of any financial affairs of the establishment of the Executive Engineer (Agriculture), Dima Hasao Division, Haflong during the tenure of the petitioner. It is also projected that the Special Audit by the State had allegedly detected large scale financial irregularities in various departments in North Cachar Hills District period from 2007-2008 to 2009-2010. Bereft of unnecessary details, it would be sufficient to mention that by a letter dated 03.03.2011, the Commissioner & Secretary to the Government of Assam, Political (A) Department had directed, amongst others, the Principal Secretary to the Government of Assam, Agriculture Department to lodge FIR in respect of financial irregularities of their respective departments at the CID Head Quarters so that CID can commence investigation and in addition, direction was also issued to take departmental action against the departmental officers. Thereafter, vide letter dated 19.05.2011 by the respondent no. 3 to the Additional Director of Agriculture, Haflong to lodge an FIR, purportedly against one Md. S.A. Alim, retired Distric
