Page No.# 1/6 vs The State Of Assam And Anr
2022 Latest Caselaw 3375 Gua

                                                                 Page No.# 1/6

GAHC010133412017




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/3952/2017

         PADUM BAHADUR LAMA and 2 ORS.
         S/O- LATE NANDA LAL LAMA, ENFORCEMENT INSPECTOR, R/O-
         DHARMAPUR PATH, BELTOLA TINIALI HOUSE NO.21, GHY-28

         2: LILY TRIPURA DEORI
          D/O- LATE SHYAM MOHAN TRIPURA
          ENFORCEMENT INSPECTOR
          R/O- DAKHINGAON TINIALI
          H NO. 83
          DGM ROAD
          P.O- KAHILIPARA
          P.S- DISPUR
          GHY- 19
         ASSAM

         3: PRASANTA KUMAR SARMAH
          S/O- LATE PHANIDHAR SARMA
          ENFORCEMENT INSPECTOR
          R/O- CHANDMARI
          MILANPUR
          P.O- BAMUNIMAIDAM
          GHY- 2

         VERSUS

         THE STATE OF ASSAM and ANR.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
         TRANSPORT DEPTT., DISPUR, GHY-06

         2:THE COMMISSIONER OF TRANSPORT
         ASSAM
          DISPUR
          GHY-0
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Advocate for the Petitioner   : MS.A B KAYASTHA

Advocate for the Respondent : MS. M D BORAH, SC, TRANSPORT DEPARTMENT




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

Date : 06-09-2022

Heard Mr. R. Dubey, learned counsel for the petitioners. Also heard Ms. M.D. Bora, learned Standing counsel Transport Department, appearing for all the respondents.

2. The petitioners were promoted as Enforcement Inspector on 21.04.2014, on the recommendation of the Departmental Promotion Committee (DPC) proceedings held on 30.07.2013. The challenge is made to the Order dated 06.06.2017 passed by the Commissioner & Secretary to the Government of Assam, Transport Department, by which the petitioners have been demoted to the post of Assistant Enforcement Inspectors/Senior Assistants, vide the impugned Order dated 06.06.2017. In the impugned Order dated 06.06.2017, it is reflected that the said action has been taken in terms of the Order dated 10.02.2014 passed in WP(C) No. 4424/2013, wherein the Departmental Promotion Committee (DPC) proceedings held on 30.07.2013 has been held to be illegal.

3. Mr. R. Dubey, learned counsel for the petitioners submits that the Order dated 10.02.2014 was passed in WP(C) No. 4424/2013, wherein a challenge had been made to the promotion of the private respondents therein and not to the promotion of the petitioners. The petitioners were not parties in WP(C) No. Page No.# 3/6

4424/2013. The finding made by this Court in the Order dated 10.02.2014 passed in WP(C) No. 4424/2013 was that Assistant Enforcement Inspectors above the age of 50 years were ineligible to be considered for promotion by the DPC. As the petitioners were below the age of 50 years at the time of consideration by the DPC on 30.07.2013, the Order dated 10.02.2014 passed in WP(C) No. 4424/2013 could not be made applicable to the petitioners. Further, in WP(C) No. 4424/2013, there was no challenge made by the petitioners therein to the legality or illegality of the DPC proceedings dated 30.07.2013. The petitioners' counsel submits that the impugned Order dated 06.06.2017 should accordingly be set aside.

4. Ms. M.D. Bora, learned counsel for all the respondents, on the other hand submits that the impugned Order dated 06.06.2017 had been issued in view of the finding of this Court in WP(C) No. 4424/2013 that the DPC proceedings held on 30.07.2013 was illegal. She further submits that the issues raised by the petitioners herein had also been raised by one Ganesh Chandra Pathak in WP(C) No. 4224/2018. WP(C) No. 4224/2018 was disposed of vide Judgment & Order dated 20.04.2021, by holding that the DPC held on 30.07.2013 was declared to be illegal by this Court in WP(C) No. 4424/2013. As such, the petitioner therein, i.e., Ganesh Chandra Pathak would have to either file an appeal or a review against the said Order dated 10.02.2014 passed in WP(C) No. 4424/2013. She accordingly submits that the impugned Order dated 06.06.2017, having been made in pursuance to the Order dated 10.02.2014 passed in WP(C) No. 4424/2013, the writ petition should be dismissed.

5. I have heard the learned counsels for the parties.

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6. The petitioners herein have been promoted on the basis/recommendation of the DPC proceedings held on 30.07.2013, vide Order dated 24.01.2014. However, this Court in WP(C) No. 4424/2013, in which the petitioners were not made parties, has held that the DPC proceedings held on 30.07.2013 was illegal. In that view of the matter, the respondents issued the impugned Order dated 06.06.2017, by which the promotions given to the petitioners vide Order dated 24.01.2014, made in pursuance to the DPC proceedings dated 30.07.2013 was interfered with. However, vide the same Order dated 06.06.2017, the petitioners were again promoted to the post of Enforcement Inspectors, in pursuance to the DPC proceedings held on 23.06.2016.

7. The relevant paragraph No. 15, passed in the Order dated 10.02.2014 in WP(C) No. 4424/2013, is reproduced below:-

"15. Here since the Government is yet to decide on relaxation of upper age limit as has been stated by the Departmental lawyer, and since the proceeding of the DPC held on 30.07.2013 is declared to be illegal, the State respondents are at liberty to consider promotion to the cadre of Enforcement Inspector in accordance with the applicable Rules. But to give finality to the aspiration of the respondents, the Government should decide on age relaxation either way, before starting the fresh process. Unless the Government considers it expedient to relax the age cap of 50 years, only those Asstt. Enforcement Inspectors who are below 50 years of age can be considered by the DPC as per Rules".

8. As stated earlier, one Ganesh Chandra Pathak had also made a challenge to the impugned Order dated 06.06.2017 vide WP(C) No. 4424/2013. This Court in its Judgment & Order dated 20.04.2021 passed in WP(C) No. 4224/2018, has held in paragraph Nos. 8 & 21 as follows:-

"8. Per contra, the learned Govt. advocate has placed strong reliance on the judgment dated 10.02.2014, passed by this Court in W.P.(C) 4424/2013, and she has justified the consequential order dated 24.01.2014 passed by the respondent Page No.# 5/6

no.2 to restore the earlier position of the petitioner as SA. It is submitted that once this Court had set aside the selection process undertaken by the DPC, the respondent authorities had to comply with the orders passed by this Court. By referring to the case of (i) Union of India Vs. Nareshkumar Badrikumar Jagad, (2019) 18 SCC 586, and (ii) Haobam Sunil Singh Vs. State of Manipur & Ors., (1995) 3 GLR 390, it is submitted that though the petitioner is apparently aggrieved by the order dated 06.06.2017 issued by the respondent no.2, but the said order was issued pursuant to directions contained in the judgment and order dated 10.02.2014, passed by this Court in W.P.(C) 4424/2013, as such, the petitioner would be entitled to relief only after successfully assailing the said judgment and order dated 10.02.2014 either by filing appeal or by preferring a petition for review of the said order. It is urged that this coordinate Bench of equal strength should be slow to interpret the said judgment and order dated 10.02.2014, and as the DPC dated 30.07.2013 was held by this Court to be illegal, the order dated 24.01.2014, promoting the petitioner from SA to EI could not stand. The learned Govt. Advocate has also placed reliance on the case of Ram Janam Singh Vs. State of Uttar Pradesh & Ors., (1994) 2 SCC 622, to support hercontention that as the recommendation made by the DPC dated 30.07.2013 was assailed, it was not necessary to implead all those who may be affected by such challenge.

21. The case of Shiv Kumar Tiwari (supra), was pressed to bring home the point that previous judgment could not be pressed to the detriment or prejudice of the interest of a party who was not heard. The brief facts of the said case was that the appellant was temporarily appointed as a Teacher in Mathematics in the college in reference, and the District Inspector of Schools accorded approval for session 1969-70, and fresh approvals were granted for subsequent academic session 1970-71, 1971-72 and 1972-73. Before the expiry of the term on 30.06.1973, the College Management gave a notice dated 19.05.1973, which was questioned by filing cs Case No. 108/1973 without impleading State, or Education Department, or the first respondent, who was appointed as Lecturer in Mathematics on 06.09.1973 in the said college after a selection process. The suit was decreed on 25.05.1979, declaring the appellant to be permanent Lecturer in Mathematics. Thereafter, on a representation filed by the petitioner, the authorities, without hearing the first respondent, not only terminated his service but it was also held that salary, etc. have to be paid to the appellant. The first respondent challenged the order dated 09.11.1979 by filing CMWP No. 9255/1979 and the appellant filed WP No. 17209/1992 for payment of salary. The High Court allowed the writ petition of the first respondent and dismissed the writ petition filed by the appellant. In that factual context, it was held by the Supreme Court of India that non-joinder of necessary parties was fatal and the judgment passed in the suit filed by the appellant would not benefit him. Thus, on facts, the present case is distinguishable. Moreover, in this writ petition, there is no prayer by the petitioner that the judgment and order dated 10.02.2014 in W.P.(C) 4424/2013 was a nullity".

A reading of the above extracts shows that the issue raised by the Page No.# 6/6

petitioners herein have already been decided against the petitioners in WP(C) No. 4224/2018.

9. On considering all the above facts, this Court finds that though the petitioners were not parties in WP(C) No. 4424/2013 and no challenge had been made to their promotion order, this Court had disposed of WP(C) No. 4424/2013 by holding that the DPC proceedings held on 30.07.2013 was illegal.

10. In view of the above, this Court is of the view that unless the petitioners make a challenge to the Order dated 10.02.2014 passed in WP(C) No. 4424/2013, by way of an appeal or a review, this Court does not have the jurisdiction or competence to set aside/modify the Order dated 10.02.2014 passed in WP(C) No. 4424/2013 and neither can it hold that the DPC proceedings held on 30.07.2013 is valid/legal in the case of the petitioners.

11. Accordingly, in view of the reasons stated above, the prayer of the petitioners for setting aside the impugned Order dated 06.06.2017 cannot be granted.

12. Writ petition is accordingly dismissed.

JUDGE

Comparing Assistant