Point of Law: Petitioner would not gain any advantage out of it because one illegality cannot be justified by the Court exercising jurisdiction under Article 226 of the Constitution of India by issuing directions upon the respondent authorities to continue committing repetitive illegality.

JUDGMENT :

KALYAN RAI SURANA, J.

1. Heard Ms. G. Goswami, learned counsel for the petitioner and also heard Mr. P. Nayak, learned standing counsel for the respondent nos. 1 and 2 and Mr. N. Upadhyay, learned counsel standing counsel for the respondent nos. 3 and 4.

2. Be it stated that the learned counsel for the petitioner had urged that an additional affidavit had been filed by the petitioners to demonstrate before this Court that the petitioner was promoted along with many other similarly situated persons, but only the petitioner was singled out for being reverted back to his original post, whereas few other similarly persons were also given subsequent promotion. The said affidavit has not been tagged with record. However, the learned counsel for the petitioner had insisted that the matter be heard out of turn hearing on the basis of materials on record at the ‘admission’ stage as the petitioner was superannuating on 30.09.2021. The learned departmental counsel had not objected to such prayer. Accordingly, the matter had been heard.

3. In brief, the case of the petitioner, is that he had joined service in the establishment of Public Works Department, Assam as a muster roll worker. His service was regularised w.e.f. 22.07.2005 and he worked as a peon till 27.02.2019. By an order dated 27.02.2019, the Chief Engineer (Irrigation) (Respondent no. 4) had allowed the Executive Engineer, Nalbari Division (Irrigation) (respondent no. 3) to fill up the vacant post of Junior Assistant by way of promotion of the petitioner as per the decision of the Selection Committee meeting held on 06.02.2019 under the Chairmanship of Superintending Engineer, North Kamrup Circle (Irrigation), Nalbari. This was followed by an order dated 01.03.2019 by the respondent no. 3, thereby promoting the petitioner to the next higher post of Junior Assistant. Thereafter, on the basis of query raised by the Finance EC-I Department, vide letter dated 12.07.2019, the Under Secretary (E) to the Government of Assam, Irrigation Department (respondent no. 2) wrote to the respondent no. 4 to clarify as to how the petitioner, who was holding a personal post, was promoted to the post of Junior Assistant. The respondent no. 3 responded to the said query vide letter under Memo no. EE/IRRI/N/ESSTT-I/(illegible) dated illegible, thereby informing that the petitioner, who was holding personal post was promoted by following due promotional process after selection committee meeting and approval from the Chief Engineer (Irrigation), however, instructions was solicited regarding admissibility of promotion of employees holding personal post and if the petitioner may be reverted to his original post. The said letter was followed by the impugned order dated 27.11.2019, thereby cancelling his promotion and reverting the petitioner, who was holding personal post as per letter dated 27.02.2019 by the Chief Engineer, to his original post. Assailing the said impugned order, the petitioner has filed this writ petition under Article 226 of the Constitution of India.

4. The learned counsel for the petitioner had submitted that the respondents had, of their own volition, promoted the petitioner after following due promotional process, for which the Selection Committee had taken a decision, as such, reversion of the petitioner amounted to reduction in rank, which could not have been done without following due process and without affording a reasonable opportunity to the petitioner of being heard. It is submitted that the respondent authorities were required to comply with the mandate of Article 311 of the Constitution of India. It is further submitted that reversion of the petitioner from Grade-III to Grade-IV post amounted to award of punishment within the meaning of Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964, which was done without serving any show-cause notice and without hearing the petitioner, as such, it is submitted that the petitioner was condemned unheard without f