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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Michael Zothankhuma, J.
Sri Debajit Das, S/o Late Dharani Dhar Das - Petitioner
Versus
The State of Assam, Represented by the Commissioner & Special Secretary to the Government of Assam, Public Works Department and ors. – Respondents
WP(C) 4958 & 3021 of 2021
Decided On : 29-06-2022
Constitution of India, 1950 - Article 166(1) - Assam Engineering (PWD) Service Rules, 1978 - Assam Rules of Executive Business, 1968 - Rule 9, 11 and 12 - Notification - Post of Assistant Executive Engineer - Ex-cadre post of Executive Engineer – Abolished - Provisional inter-se seniority list - Whether an administrative action or decision in form of impugned speaking order, can nullify or make redundant a decision of this Court and Hon’ble Apex Court, wherein issue of petitioner’s promotion to post of Assistant Executive Engineer was never an issue and had attained finality - Petitioner’s case is that he was appointed as an Assistant Engineer in the PWRD, Govt. of Assam and he was promoted to post of Assistant Executive Engineer (A.E.E.). Petitioner was thereafter, promoted to ex-cadre post of Executive Engineer (E.E.). Post of E.E. to which petitioner was promoted to was created as an ex-cadre post and was personal to petitioner. Promotion order of petitioner stated that said ex-cadre post was to stand abolished, as soon as petitioner got regular promotion as E.E., PWD into parent cadre - Impugned Order set aside, to extent that inter-se-seniority of petitioner as A.E.E. (Civil) has been re-fixed in parity with other incumbents in said cadre, on basis of inter-se-seniority list of Assistant Engineer(C) notified vide Government Notification, wherein petitioner was placed. (Para 46)
Finding of the court:
Orders and other instruments made and executed in the name of the Governor of a State is required to be authenticated in such manner, as may be specified in rules to be made by the Governor under Article 166(2). Article 166 (3) states that the Governor shall make rules for more convenient transaction of business of Government of the State, and for the allocation among Ministers to the said business in so far as it is not business with respect to which the Governor is by or under Constitution required to act in his discretion - With respect to stand taken by the petitioner’s counsel that the Minister in charge of the Public Works Department (Road) had not given approval to the decisions enumerated in the impugned Order, in terms of Rule 9, 11 and 12 of Rule , 1968, this Court finds that no approval had been given by the Minister in charge in the Note Sheets annexed to the additional affidavit of the petitioner.
Result: Writ petitions disposed of.
JUDGMENT :
Heard Mr. U.K. Nair, learned Senior Counsel assisted by Mr. A. Chakraborty, learned counsel for the petitioner. Also heard Mr. D. Mazumder, learned Additional Advocate General, Assam assisted by Mr. P. Nayak, learned Standing Counsel, PWD for the respondents. Mr. A. Phukan, learned counsel appears for the respondent No. 8.
Both the writ petitions being inter-related are taken up together for disposal.
2. The petitioner is aggrieved by the impugned order dated 27.04.2021, issued by the Commissioner & Special Secretary to the Government of Assam, PWRD, wherein, the following decision had been made:
2) To retrospectively abolish the ex-cadre post of Executive Engineer created solely for Sri Debajit Das to restore legality, pursuant to the judgment dated 23.10.2018 of the Hon’ble Supreme Court.
3. To revert Sri Debajit Das to the post of Assistant Executive Engineer (AEE) to restore rule. Necessary corrections to be done in the relevant inter-se seniority list of AEE as Sri Debajit Das was given undue benefit of promotion from AE to AEE on 19.12.2002 by clubbing vacancies of 2001 & 2002 which was also one of the findings of the Enquiry Report of Sri. Subhash Ch. Das, the then Chief Secretary, Personnel Department and the same has been endorsed by the Hon’ble Gauhati High Court and the Hon’ble Supreme Court subsequently.
4) To re-fix the inter-se seniority of Sri Debajit as Assistant Executive Engineer (Civil) in parity with other incumbents in the said cadre on the basis of the inter-se seniority list of Assistant Engineers (C) notified vide Government Notification No.RBEB.132/2002/6 dated 31.05.2002, wherein Sri Debajit Das was at Sl. No.164 just below Sri Hrishikesh Goswami and above Fakrul Islam-II. Correspondingly, position of Sri Debajit Das in the cadre of Assistant Executive Engineer (Civil) should be at Sl. No.210 below Sri Hrishikesh Goswami, who is at Sl. No.209 in the inter-se seniority list notified dated 20.02.2019”
3. The petitioner’s case is that he was appointed as an Assistant Engineer in the PWRD, Govt. of Assam on 30.09.1996 and he was promoted to the post of Assistant Executive Engineer (A.E.E.) on 19.12.2002. The petitioner was thereafter, promoted to the ex-cadre post of Executive Engineer (E.E.) on 02.04.2005. The post of E.E. to which the petitioner was promoted to was created on 02.04.2005 as an ex-cadre post and was personal to the petitioner. The promotion order of the petitioner stated that the said ex-cadre post was to stand abolished, as soon as the petitioner got regular promotion as E.E., PWD into the parent cadre.
4. The petitioner’s service as E.E. (ex-cadre) was thereafter regularized and he was en-cadred into the grade of regular E.E., PWD on 07.09.2005. The petitioner’s service was confirmed as E.E., vide order dated 27.11.2009 w.e.f. 01.02.2008.
5. The petitioner was promoted to the post of Superintending Engineer (S.E.) on 28.10.2014, on the basis of recommendation of the DPC meeting minutes dated 17.10.2014.
6. As complaints had been submitted against the petitioner’s regularization/encadrement into the regular grade of E.E. and subsequent promotion as S.E., the State Government constituted a committee under Mr. S.C. Das, Ex-Chief Secretary to make an enquiry. The Committee under Mr. S.C. Das gave its report on 16.12.2014. The report observed that the petitioner got the benefit of promotion from A.E. to A.E.E., PWD in the year 2002, because of the clubbing of vacant posts of the year 2001 & 2002. However, since more than 12 (twelve) years had elapsed, the S.C. Das committee report dated 16.12.2014 recommended that the promotion of the petitioner to the post of A.E.E. need not be reopened and th
Promotion eligibility must align with established seniority rules; arbitrary criteria violate judicial mandates requiring reasoned decisions in service matters.
Promotions on seniority-cum-merit basis require using final seniority list of feeder cadre from immediately preceding year; initial joining date irrelevant; non-speaking orders invalid; settled lists....
The court determined that a petitioner cannot claim seniority or promote based on service from a distinct establishment due to separate seniority rules.
Promotions take effect from the date granted, not from the date of vacancy, and retrospective seniority cannot be assigned.
Promotions in public service are prospective and take effect from the date duties are assumed, not from earlier dates, emphasizing a distinction between the right to be considered for promotion and t....
Promotions under the Assam Engineering (Irrigation Department) Service Rules take effect from the date granted, not from the date of vacancy, and no retrospective promotion is allowed post-retirement....
Promotion from non-gazetted to gazetted posts requires statutory provisions; absence of such rules denies entitlement to promotion.
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