Gauhati High Court
Jagat Deka vs The State Of Assam And 16 Ors on 11 August, 2022
Page No.# 1/6
GAHC010018702021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/630/2021
JAGAT DEKA
S/O LT. HARICHARAN DEKA, R/O VILL. BELSOR P.O. BELSOR, P.S BELSOR
CHUPA PATOWARY PARA, DIST. NALBARI, PIN-781304
VERSUS
THE STATE OF ASSAM AND 16 ORS.
REP. BY THE PRINCIPAL SEC. TO THE GOVT. OF ASSAM, ENVIRONMENT
AND FOREST DEPTT. DISPUR-781006
2:THE SECRETARY
TO THE GOVT. OF ASSAM
ENVIRONMENT AND FOREST DEPTT. DISPUR GUWAHATI-6
3:THE POLLUTION CONTROL BOARD
REP. BY ITS CHAIRMAN BAMUNIMAIDAM
GUWAHATI-781021
4:THE CHAIRMAN
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
GUWAHATI-781021
5:THE MEMBER SECRETARY
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
GUWAHATI-781021
6:THE ASSISTANT PUBLIC INFORMATION OFFICER AND EXECUTIVE
ENGINEER
POLLUTION CONTROL BOARD
HEAD OFFICE BAMUNIMAIDAM
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GUWAHATI-781021
7:DHIREN SHARMA
ASSISTANT EXECUTIVE ENGINEER
REGIONAL LABORATORY CUM OFFICE
POLLUTION CONTROL BOARD ASSAM
RATNAWALI HEIGHT
1ST FLOOR
OPP. BIRJHORA H.S. SCHOOL
BONGAIGAON
PIN-783380
DIST. BONGAIGAON
ASSAM
8:JAYANTA KULADHIPAT NATH
ASSISTANT EXECUTIVE ENGINEER
REGIONAL OFFICE
POLLUTION CONTROL BOARD ASSAM
COLLEGE TINIALI
NEAR CIRCUIT HOUSE PIN-785621
DIST. GOLAGHAT
ASSAM
9:BENUDHAR TALUKDAR
ASSISTANT EXECUTIVE ENGINEER
REGIONAL LABORATORY CUM OFFICE
POLLUTION CONTROL BOARD ASSAM
RATNAWALI HEIGHT
1ST FLOOR
OPP. BIRJHORA H.S. SCHOOL
BONGAIGAON
PIN-783380
DIST. BONGAIGAON
ASSAM
10:PATHAK CHANDRA BORO
ASSISTANT EXECUTIVE ENGINEER
REGIONAL OFFICE GUWAHATI 1 POLLUTION CONTROL BOARD
ASSAM
BAMUNIMAIDAM NEAR GOVT. PRESS
GUWAHATI
PIN-781021
DIST. KAMRUP M ASSAM
11:ARABINDA DAS
ASSISTANT EXECUTIVE ENGINEER
REGIONAL LABORATORY CUM OFFICE
POLLUTION CONTROL BOARD ASSAM
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PARK ROAD
SILCHAR DEVELOPMENT AUTHORITY BUILDING SILCHAR
PIN-788002
DIST. CACHAR
12:DIPRAJ ARDAO
ASSISTANT EXECUTIVE ENGINEER
POLLUTION CONTROL BOARD ASSAM
HEAD OFFICE BAMUNIMAIDAM GUWAHATI-781021 DIST. KAMRUP M
ASSAM
13:BIJOY BARLA
ASSISTANT EXECUTIVE ENGINEER
POLLUTION CONTROL BOARD ASSAM
BY LANE NO. 2 NABAPUR
MAZGAON
TEZPUR SONITPUR PIN-784001 DIST. SONITPUR
ASSAM
14:GAUTAM NANDI
ASSISTANT EXECUTIVE ENGINEER
POLLUTION CONTROL BOARD ASSAM
HEAD OFFICE BAMUNIMAIDAM GUWAHATI-781021 DIST. KAMRUP M
ASSAM
15:JAYANTA KUMAR DUTTA
ASSISTANT EXECUTIVE ENGINEER
REGIONAL OFFICE
POLLUTION CONTROL BOARD ASSAM
BAIRAGIMATH DIBRUGARH
PIN-786001 DIST. DIBRUGARH
ASSAM
16:UJJAL KUMAR SARMA
ASSISTANT EXECUTIVE ENGINEER
POLLUTION CONTROL BOARD ASSAM
HEAD OFFICE BAMUNIMAIDAM GUWAHATI-781021 DIST. KAMRUP M
ASSAM
17:NAGEN CHANDRA BORO
ASSISTANT EXECUTIVE ENGINEER
HEAD OFFICE BAMUNIMAIDAM GUWAHATI-781021 DIST. KAMRUP M
ASSA
Advocate for the Petitioner : MR. U K NAIR
Advocate for the Respondent : SC, FOREST
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
11.08.2022
Heard Mr. U.K. Nair, learned Senior Counsel for the petitioner, who submits
that the promotion of the private respondents to the next higher cadre of
Assistant Executive Engineer (AEE), vide the impugned orders dated 8 th & 9th
October, 2020, should be set aside, in view of the fact that the private
respondents, except for the private respondent No. 12, are not promotees to
the post of Assistant Engineer (AE) in terms of Appendix - II of the Pollution
Control Board, Assam (Employees' Service) Regulation. 2012, herein after
referred to as the 2012 Regulation.
2. The petitioner's counsel further submits that the up-gradation of the
private respondent Nos. 13 to 17 to the post of AEE, vide the impugned office
order dated 09.10.2020, has to be set aside also, as there is no provision for
up-grading an Assistant Engineer to AEE without there being any selection
process being undertaken. He also submits that in terms of Regulation 7 (i) of
the 2012 Regulation, there are 5 methods of promotion which can be resorted
to by the Pollution Board, which are as follows:
(a) By direct recruitment
(b) By promotion
(c) On deputation
(d) On compassionate ground
(e) On contract.
However, the office order dated 09.10.2020, up-grading the private
respondent Nos. 13 to 17 (except for respondent No. 12), to the post of AEE,
has not been made in terms of Regulation 7 (i) of the 2012 Regulation.
3. The petitioner's counsel has referred to Regulation 4 (iii), 7 (v), 9 (i), 9 (ii)
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(b) and 9 (ii) (d), in support of his submission that the private respondent Nos.
13 to 17 could not have been promoted to the post of AEE by way of up-
gradation in the absence of any selection process. In this regard, he has relied
upon the judgments of the Apex Court in the case of Bharat Sanchar Nigam
Limited Vs. R. Santhakumari Velusamy & Ors. reported in (2011) 9 SCC
510 (para Nos. 2 & 29) and Chief Secretary, Government (NCT of Delhi)
& Anr. reported in (2020) 9 SCC 208 (para No. 11).
4. The petitioner's counsel submits that in terms of the office order dated
30.12.2005 issued by the Pollution Control Board, the private respondents
(except for respondent No. 12), were up-graded to the post of Assistant
Engineer from Junior Engineer with immediate effect. The petitioner, on the
other hand, was directly appointed as Assistant Engineer on 31.07.2012. As
such, the petitioner is junior to the private respondents in the cadre of Assistant
Engineer. However, by way of the impugned orders dated 8 th & 9th October,
2020, the private respondent Nos. 13 to 17 have been up-graded to the post of
AEE, while the other private respondents have been promoted to the post of
AEE. He submits that none of the private respondents can be up-graded to the
post of AEE, as the same can be done by way of promotion only. Further, the
private respondents (except respondent No. 12) having been up-graded to the
post of AEE in the year 2005 and as the 2012 Regulation only provides for
promotion to the cadre of AEE only for promotees, the private respondents
could not have been up-graded/promoted to the cadre of AEE. He also submits
that the private respondents could not have been up-graded to the post of AE
along with up-gradation of their posts.
5. Mr. S.K. Das, learned counsel for all the private respondents, except for
private respondent Nos. 12 & 15 prays for time to make a reply to the
petitioner's counsel submission. Mr. S. Baruah, learned counsel for the Pollution
Control Board submits that he needs time to produce the records. Mr. D. Gogoi,
learned counsel appears for the State Government and submits that he has no
comments to make in this case.
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6. The issue as to whether promotions would have to be made on the basis
of selection/merit would also have to be considered, keeping in view the fact
that in terms of Regulation 9 (ii)(b), promotion from the level of AE to AEE is to
be made on time scale basis, subject to availability of post and suitability of the
persons as considered by the Selection Committee.
7. List the matter after 3 (three) weeks.
JUDGE
Comparing Assistant
