Gauhati High Court
Page No.# 1/23 vs The State Of Assam And 7 Ors on 10 November, 2023
Page No.# 1/23
GAHC010181682022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5902/2022
RANJAN BORDOLOI AND 2 ORS.
S/O LATE ASHOK BORDOLOI, R/O HOUSE NO. 224, NORTH GUWAHATI,
MADHYAMKHANDA, GUWAHATI-781030, DIST-KAMRUP(M), ASSAM
2: KARAMJIT NATH
S/O SIDDHESWAR NATH
R/O SATGAON
DALBARI
GUWAHATI-781171
DIST-KAMRUP(M)
ASSAM
3: MANOJ KR. BARUAH
S/O JITEN BARUAH
R/O HOUSE NO. 22
ASOMI PATH
GUWAHATI-781006
DIST-KAMRUP(M)
ASSA
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT
OF FOREST AND ENVIRONMENT, DISPUR, GUWAHATI-781005
2:THE CHAIRMAN
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
GUWAHATI-781021
3:THE MEMBER SECRETARY
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
Page No.# 2/23
GUWAHATI-781021
4:ANOL BARMAN
ASSISTANT ENVIRONMENTAL SCIENTIST
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
GUWAHATI-781021
5:MD. RABIUL HAQUE
ASSISTANT ENVIRONMENTAL SCIENTIST
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
GUWAHATI-781021
6:GAKUL TAMULI
ASSISTANT ENVIRONMENTAL SCIENTIST
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
GUWAHATI-781021
7:AMARENDRA CHOUDHURY
ASSISTANT ENVIRONMENTAL SCIENTIST
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
GUWAHATI-781021
8:MS. MEENAKSHI GOHAIN
ASSISTANT ENVIRONMENTAL SCIENTIST
POLLUTION CONTROL BOARD
BAMUNIMAIDAM
GUWAHATI-78102
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner: Mr. M.K. Choudhury, Senior Advocate
Mr. A. Barkataki, Mr. P. Bhardwaj,
Ms. Anasuya C, Mr. M. Sarma, Adv.
For the respondents: Mr. M. Talukdar, Mr. K.R. Patgiri, Md. S. Hoque,
Mr. M. Smith, Mr. N. Borpatragohain,
Mr. J. Barman, Mr. F.A. Farooque.
Date of hearing : 27.09.2023.
Date of judgment : 10.11.2023.
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JUDGMENT AND ORDER
(C.A.V.)
Heard Mr. M.K. Choudhury, learned senior counsel, assisted by
Mr. M. Sarma, and Mr. T. Chakraborty, learned counsel for the petitioners. Also
heard Mr. R.R. Gogoi, learned standing counsel for Forest and Environment
Department, representing respondent no.1, Mr. S. Baruah, learned standing
counsel for the Pollution Control Board, Assam, representing respondent nos. 2
and 3, Mr. S. Hoque, learned counsel for the respondent no. 5 and Mr. A.C.
Borbora, learned senior counsel, assisted by Mr. M. Smith, learned counsel for
the respondent no.8. The respondent nos. 4, 6 and 7 have remained
unrepresented.
2) By filing this writ petition under Article 226 of the Constitution of
India, the petitioners have challenged the office order dated 27.07.2022, by
which they were demoted from the rank of Environmental Scientist to the rank
of Assistant Environmental Scientist in the Pollution Control Board, Assam
(hereinafter referred to as "PCBA" for short). Consequently, the petitioners have
also prayed for directing the respondent authorities to allow them to discharge
their duty as Environmental Scientist.
Case of the petitioners, in brief:
3) The case of the petitioners, in brief is that in the year 1994-95,
when they were appointed as Scientific Assistant in the PCBA, they were having
the requisite B.Sc. Degrees. Although by office order dated 23.09.2013, pending
approval of the PCBA the petitioners were upgraded to the newly created post
of Environmental Scientist, but the petitioners maintain that they were
promoted and not 'upgraded'. Thereafter, vide office order dated 12.08.2014,
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their service was regularized in the rank and post of Environmental Scientist.
However, by the office order dated 27.07.2022, they were demoted to the rank
and post of Assistant Environmental Scientist. The case of the petitioner is that
the provision of Regulation 9(III)(a) and (c) of the Pollution Control Board,
Assam (Employees' Service) Regulation, 2012 (hereinafter referred to as "2012
Regulation" for brevity) has been applied to them retrospectively.
Submission of the learned counsel for the petitioners:
4) The learned senior counsel for the petitioners had submitted
that on 23.09.2013, not only the posts of Assistant Environmental Scientists in
the Board were upgraded to the level of Environmental Scientist, but the
petitioners, who were then holding the posts of Assistant Environmental
Scientists, were also upgraded to the level of Environmental Scientist. It was
submitted that the said office order dated 23.09.2013, did not contain any
direction that the petitioners would be required to obtain higher educational
qualification of Masters Degree in Physical/ Chemical/ Biological/ Environmental
Science.
5) It was submitted that it was also mentioned in the said office
order dated 23.09.2013 that "the pay and other promotional benefit will accrue
to these Scientists with retrospective effect only after approval of upgradation
by the Board."
6) It was also submitted that under Regulation 1(3) of the 2012
Regulation, it was provided that " These Regulations shall be applicable to all
whole-time regular employees of the Board whether appointed on a time scale
of pay or on fixed monthly pay or salary appointed either before or after these
regulations come into force."
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7) Accordingly, in his reply submissions, the learned senior counsel
for the petitioners had submitted that neither the office order dated 23.09.2013
nor the 2012 Regulation does not contain any clause that Assistant
Environmental Scientists who were up-graded to the post of Environmental
Scientists would have to obtain higher educational qualification. Accordingly, it
was submitted that the interpretation sought to be given by the learned
departmental counsel, learned senior counsel for respondent no. 8 and the
learned counsel for the respondent no. 5 cannot be accepted to be correct
interpretation of Regulation 1(3) of the 2012 Regulations.
8) By referring to Table-1 of 2012 Regulations, it was submitted
that the post of Environmental Scientist was Class-I post. As per the said Table-
1, in respect of the post of Environmental Scientist, when the Regulation was
published, filled up post was '0' (zero); there were 3 (three) vacant posts; new
posts created was 7 (seven); total revised cadre strength of the post of
Environmental Scientist in the year 2013 was 10 (ten). Therefore, it was
submitted that irrespective of the fact that the nomenclature used in office order
dated 23.09.2013 was that the 7 (seven) Assistant Environmental Scientists,
including the petitioners were up-graded, but in fact the petitioners had actually
been promoted to the post of Environmental Scientist.
9) Moreover, it was submitted that the final draft 2012 Regulation
was approved in the 94th Board meeting of the PCBA, held on 20.03.2013.
Hence, it was submitted that the promotion of the petitioners was saved by
operation of Regulation 52(b) of the 2012 Regulations.
10) In support of his submissions, the learned senior counsel for the
petitioners has cited the following cases, viz., (i) Tejshree Ghag & Ors. v.
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Prakash Parashuram Patil, (2007) 6 SCC 220 , (ii) Chairman, Railway Board &
Ors. v. C.R. Rangadhamaiah & Ors., (1997) 6 SCC 623 , (iii) Hitendra Vishnu
Thakur v. State of Maharashtra, (1994) 4 SCC 602.
11) Para-26 of the case of Hitendra Vishnu Thakur (supra), which was
referred to by the learned senior counsel for the petitioners is quoted below:-
"25. The Designated Court has held that the amendment would operate
retrospectively and would apply to the pending cases in which investigation was
not complete on the date on which the Amendment Act came into force and the
challan had not till then been filed in the Court. From the law settled by this Court
in various cases, the illustrative though not exhaustive, principles which emerge
with regard to the ambit and scope of an Amending Act and its retrospective
operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective
in operation, unless made retrospective, either expressly or by necessary
intendment, whereas a Statute which merely affects procedure, unless such a
construction is textually impossible is presumed to be retrospective in its
application, should not be given an extended meaning, and should be strictly
confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law
relating to right of action and right of appeal, even though remedial, is
substantive in nature.
(iii) Every litigant has a vested right in substantive law, but no such right
exists in procedural law.
(iv) A procedural Statute should not generally speaking be applied
retrospectively, where the result would be to create new disabilities or
obligations, or to impose new duties in respect of transactions already
accomplished.
(v) A Statute which not only changes the procedure but also creates a new
rights and liabilities, shall be construed to be prospective in operation, unless
otherwise provided, either expressly or by necessary implication ."
12) Para 12, 13 and 19, of the case of Tejshree Ghag (supra), which
were relied by the learned senior counsel for the petitioners are quoted below:-
12. The terms and conditions of their service, thus, unless altered expressly,
would be governed by the rules which were in existence at the time when the
impugned orders were passed. It is true that the State has the power to alter the
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terms and conditions of service even with retrospective effect by making rule
framed under proviso appended to Article 309 of the Constitution of India, but it is
also well settled that the rules so made ordinarily should state so expressly.
13. It has been contended that 2005 Rules are retrospective in nature or have
retroactive operation.
19. In this case we are not concerned with enforcement of the Rules. They
were brought in force at a later stage. It is for the State to apply the provisions of
the said rules only if any occasion arises therefor but keeping in view the fact that
the said rules have not been given a retrospective effect, the impugned orders
cannot be supported by reason thereof or otherwise."
13) Para 20 and 24 of the case of Chairman, Railway Board (supra),
which has been referred to by the learned senior counsel for the petitioner are
quoted below:-
"20. It can, therefore, be said that a rule which operates in futuro so as to
govern future rights of those already in service cannot be assailed on the ground of
retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule
which seeks to reverse from an anterior date a benefit which has been granted or
availed, e.g., promotion or pay scale, can be assailed as being violative of Articles
14 and 16 of the Constitution to the extent it operates retrospectively.
24. In many of these decisions the expressions "vested rights" of "accrued
rights" have been used while striking down the impugned provisions which had
been given retrospective operation so as to have an adverse affect in the matter of
promotion, seniority, substantive appointment, etc. of the employees. The said
expressions have been used in the context of a right flowing under the relevant
rule which was sought to be altered with effect from an anterior date and thereby
taking away the benefits available under the rule in force at that time. It has been
held that such an amendment having retrospective operation which has the effect
of taking away a benefit already available to the employee under the existing rule
is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14
and 16 of the Constitution. We are unable to hold that these decisions are not in
consonance with the decisions in Roshan Lal Tandon v. Union of India, AIR 1967 SC
1889, B.S. Yadav v. State of Haryana, (1980) Supp SCC 524, and State of Gujarat v.
Raman Lal Keshav Lal Soni and Ors., (1983) 2 SCC 33 .
Submissions by the learned counsel for the petitioner nos. 2 and 3:
14) It may be mentioned herein that the petitioner nos. 3 and 4 along
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with two others, namely, Karuna Thakuria and Hiten Sarma were arrayed as
respondent nos. 3, 5, 7 and 9 respectively in W.P.(C) Nos. 5061/2021. The
above named Karuna Thakuria and Hiten Sarma were also arrayed as
respondent nos. 4 and 5 in W.P.(C) 8263/2022. The said two writ petitions were
filed by Md. Rabiul Islam, who is arrayed as the respondent no. 5 in W.P.(C)
5902/2022. These three writ petitions were being heard analogously. However,
in course of hearing, on 27.09.2023, W.P.(C) Nos. 5061/2021 and 8263/2022
were withdrawn. The learned counsel for the petitioner nos. 2 and 3 on being
allowed by the Court had also made his submissions by supporting the
submissions made by the learned senior counsel for the petitioners.
15) It was submitted that in para-20 of the affidavit-in-opposition filed
by the respondent nos. 2 and 3 in W.P.(C) 8263/2022, they had specifically
admitted as follows:-
"... Rest of the respondent of the said writ petition, namely, Sri Ranjan Bordoloi, Sri
Karamjit Nath, Sri Jibon Sarkar and Sri Monoj Baruah along with 3 others were
upgraded to the post of Environmental Scientist vide order no. WB/E-101/09-
10/176 date 23/09/2013 (Annexure-XIX) subject to approval of the Board and
accordingly they joined as Environmental Scientist on 23/09/2013. Subsequently
the Board in its 96th meeting approved the upgradation of Sri Ranjan Bordoloi, Sri
Karamjit Nath, Sri Jibon Sarkar and Sri Monoj Baruah only with effect from their
date of joining i.e. from 23.09.2013 i.e. prior to the date of the 'Pollution Control
Board, Assam (Employees' Service) Regulation- 2012' came into force w.e.f. 24 th
February, 2014 (Annexure-I)."
16) It was also submitted that in paragraphs 21 and 22 of the
affidavit-in-opposition filed by the respondent nos. 2 and 3 in W.P.(C)
8263/2022, it was stated as under:-
"21. That ... the deponent begs to state that there is a Writ Petition No. 5061/2021
Rabiul Haque vs. State of Assam & others in the Gauhati High Court. It is a fact
that PCBA, though the Environmental Scientists who were promoted prior to the
Regulation came into force vide office order No. WB/E-09-10/176 date 23/09/2013
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(Annexure-XIX), i.e. prior to the Regulation came into force were reverted back to
its original cadre vide Office Order circulated vide No. WB/G-16/ 22-23/05-D/922
date 27/07/2022 (Annexure-XX). Being considered aggrieved Sri Ranjan Bordoloi,
Sri Karamjit Nath, and Sri Monoj Baruah has filed a write (sic.) petition No. W.P.(C)
No. 5049 of 2022 in the Hon'ble Gauhati High Court which still pending in the
Gauhati High Court.
22. That ... it is reiterated that the respondent no. 4 & 5 were promoted prior to
the Regulation came into force and hence the applicability of the Regulation in their
promotion that has been done prior to 24/02/2014 does not arise."
17) Hence, it was submitted that the contrary stand of the respondent
nos. 2 and 3 in this present writ petition ought not to be accepted. Moreover,
doubt was raised on the neutrality of the respondent nos. 2 and 3.
Stand of the respondent nos. 2 and 3 in their respective affidavit-in-opposition:
18) It was stated that the petitioner nos. 1 and 2 were appointed as
Scientific Assistant vide office order dated 31.12.1994 and the petitioner no. 3
was appointed Scientific Assistant vide office order dated 27.11.1995. In the
year 1996, the post of Scientific Assistant was re-designated as Assistant
Chemist. By three separate office orders dated 02.03.2007, the petitioners were
promoted to the next higher post of Chemist. Thereafter, vide office order dated
07.04.2012, the post of Chemist was re-designated as Assistant Environmental
Scientist. Moreover, a post of Environmental Scientist was created between the
post of Assistant Environmental Scientist and Assistant Executive Environmental
Scientist. It was also stated that the post of Environmental Scientist is to be
filled up by Director Recruitment and Promotion in the ration of 2:1.
19) It was stated that the post of 7 (seven) nos. of Assistant
Environmental Scientist were provisionally upgraded to the post of
Environmental Scientist vide office order dated 23.09.2013, which was subject
to approval by the Board. However, pursuant to the decision taken in the 96 th
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Board Meeting of PCBA held on 05.08.2014, vide office order dated 12.08.2014,
the office order dated 23.09.2013 was annulled and four persons including the
three petitioners were allowed to hold the upgraded post of Environmental
Scientist. It was also stated that the said decision did not have any impact on
the provisions of Regulation 9(III) of the 2012 Regulation.
20) It was stated that by letter written to 6 (six) employees including
the petitioners, they were asked to inform if they had applied for permission for
pursuing Post Graduate course from a recognized University, which was a pre-
requisite qualification to hold the post of Environmental Scientist under the 2012
Regulation. Thereafter, by letter dated 29.06.2016, the petitioners were
informed about initiation of action against them for failure to comply with the
relevant provision of the 2012 Regulation. Thereafter, show cause notices dated
08.12.2016 were issued to the petitioners to show cause as to why appropriate
action should not be initiated against them for non-compliance to the relevant
provisions of 2012 Regulation, to which the petitioners had submitted a joint
reply dated 14.12.2021 and by invoking Regulation 49, applied for relaxation of
the provision of Regulation 9(III)(c) of 2012 Regulation on the ground that the
said 2012 Regulation had come into existence on 24.02.2013, i.e. after their
provisional upgradation to the rank of Environmental Scientist on 22.09.2013. It
was also stated that after 2012 Regulation had come into force, the condition
contained in the office order dated 07.04.2012 became redundant. It was
further stated that as per 2012 Regulation and as per decision of the 104 th
Board Meeting of PCBA held on 02.07.2022 and considering the view of their
learned standing counsel, the service of the petitioners and another were
reverted back to the rank of Assistant Environmental Scientist with immediate
effect. It was also stated that vide letter dated 03.08.2022, the petitioners had
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filed an appeal against the order dated 27.07.2022, by which the petitioners
were reverted back to the post of Assistant Environmental Scientist, but as the
same was done pursuant to decision of 104 th Board Meeting and 2012
Regulation, the said appeal had no merit. Thus, according to the respondent
nos. 2 and 3, the writ petition was liable to be dismissed.
Submissions by the learned counsel for the respondent nos. 2 and 3:
21) It was submitted that in the 94 th Board Meeting of PCBA held on
20.03.2013, in which the 2012 Regulation was approved. Regulation 1(3) covers
all the employees appointed in the PCBA before or after the said Regulation
came into force. The Government's approval was given on 24.02.2014.
22) It was submitted that the petitioners were aware that they had to
acquire M.Sc. Degree in Physical/ Chemical/ Biological/ Environmental Science
and therefore, vide their reply letter dated 14.12.2021, the petitioners had
prayed for exemption/ relaxation of Regulation 9(III)(c) of the 2012 Regulation,
which is also one of the prayers made in this writ petition. It was submitted that
the power of the PCBA to relax is provided for in Regulation 31.
23) It was submitted that the petitioners were given an opportunity to
acquire Degree of Master in Science in Physical/ Chemical/ Biological/
Environmental Science, which they did not. Hence, it was submitted that the
reversion of the petitioners to their previous cadre of Assistant Environmental
Scientist was legal and justified.
Stand of the respondent no. 5 in his affidavit-in-opposition:
24) The respondent no. 5 had taken a stand that the notification
dated 07.04.2012, which has been issued as per the decision of the 90 th Board
Meeting dated 03.03.2012 is false and baseless because in the Board decision
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there was no whisper of creating or re-designation of the Scientific posts in the
PCBA, but the said decision was taken in the 91 st Board Meeting of PCBA as
agenda item no. 4. The posts had been mentioned in form of the following
chart:-
Sl. No. Present designation Re-designation
1. Board Analyst Senior Environmental
Scientist.
2. Deputy Analyst Executive Environmental
Scientist.
3. Assistant Analyst Assistant Executive
Environmental Scientist.
4. Environmental Scientist [Newly Created post]
5. Chemist Assistant Environmental
Scientist.
25) It was projected that the entry level of officer for Scientific Cadre
in the PCBA would be at the level of Environmental Scientist in the grade pay of
Assistant Engineers of the PCBA or PHE Department and minimum qualification
would be Post Graduate Degree in Physical/ Chemical/ Biological/ Environmental
Science. It was also provided that at this level direct recruitment and promotion
quota of Chemist (approved to be re-designated as Assistant Environmental
Scientist) would be in the ratio of 2:1.
26) It was also stated that the respondent no. 5 was having Post
Graduate Degree in Environmental Science and was qualified to be promoted to
the newly created post of Environmental Scientist as per the 91 st Board
resolution of PCBA, and the 2012 Regulation, which was approved in the 94 th
Board meeting of PCBA held on 20.03.2013 and that he was illegally reverted
back to the post of Assistant Environmental Scientist vide order dated
12.08.2014.
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27) It was stated that the petitioners were provisionally up-graded to
the post of Environmental Scientist vide office order dated 23.09.2013, after the
Draft 2012 Regulation was adopted in the 94th Board Meeting of PCBA held on
20.03.2013. The 2012 Regulation came into force after its approval by the
Government by communication dated 24.02.2014. The upgradation of the
petitioners was approved vide office order dated 12.08.2014. Hence, petitioners
could not escape from complying with Regulation 9 (III) (a) and (c) of 2012
Regulation. Thus, according to the respondent no. 5, the impugned order was
justified as the petitioners did not acquire Post graduate Degree as per
prescription of Regulation 9(III)(c) within the stipulated time. Accordingly, it was
prayed that the writ petition be dismissed.
Submissions of the learned counsel for respondent no. 5:
28) The learned counsel for the respondent no. 5 had made
submissions in consonance with the stand taken in the affidavit-in-opposition
filed by the respondent no. 5. Moreover, he had adopted the submissions made
by the learned counsel for the respondent nos. 2 and 3.
Stand of the respondent no. 8 in her affidavit-in-opposition:
29) The stand of the respondent no. 8 was somewhat similar to the
one taken by the respondent no. 5 to the effect that as per the requirement of
Regulation 9(III)(c), Post graduate Degree was essential qualification to be
appointed to the post of Environmental Scientist and that the petitioners were
required to obtain such qualification within 5 (five) years of their upgradation in
the year 2014. It was also stated that before passing the impugned order, the
authorities of the PCBA had asked the petitioners to respond as to whether they
had sought for permission to undertake Post Graduate Course as per the said
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Regulation. Hence, according to the respondent no. 8, the reversion of the
petitioners to the post of Assistant Environmental Scientist was justified. It was
stated that she has the requisite educational qualification of M.Sc. and
therefore, she has the requisite eligibility to be promoted to the post of
Environmental Scientist. Hence, it was prayed that the writ petition be
dismissed.
Submissions of the learned senior counsel for the respondent no. 8:
30) The learned senior counsel for the respondent no. 8 had also
reiterated the submissions made by the learned standing counsel for the
respondent nos. 2 and 3.
31) It was submitted that the petitioners were Assistant
Environmental Scientist. As the said posts were upgraded to Environmental
Scientist, the petitioners were merely allowed to hold charge of their upgraded
post of Environmental Scientist. It was submitted that 'promotion' and 'allowed
to hold charge' were different and cannot be treated of having same effect.
Hence, it was submitted that the reversion of the petitioners back to their own
substantive post cannot be said to be demotion, as projected by the petitioners.
32) Extensive reference was made to the various schedules appended
to the 2012 Rules to show the prescribed educational qualification. By referring
to the provision of Rule 9(F)(III) relating to Qualification, experience and
promotion of employees of Laboratory and Scientific Service of the 2012 Rules,
it was submitted that the Rules prescribed that for recruitment to the cadre of
Environmental Scientist, the minimum qualification shall be Master's Degree in
Chemical/ Biological/ Life or Environmental Sciences from any Indian or Foreign
University or Institution recognized by the Government of India. Thus, it was
submitted that as the petitioners did not obtain Master's Degree in Chemical/
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Biological/ Life or Environmental Sciences, they would not be entitled to any
relief in this writ petition.
Stand of the petitioners in their affidavit-in-reply against the affidavit-in-
opposition filed by the respondent nos. 2 and 3:
33) It was stated that the promotion of the petitioners to the post of
Environmental Scientist was under Executive Instructions dated 23.09.2013 and
that vide office order dated 12.08.2014, their service was regularized in the rank
and post of Environmental Scientist. Accordingly it was stated that their
promotion was not done under the 2012 Regulation.
Reasons and decision:
34) As per the 2012 Regulation, the hierarchy in Laboratory and
Scientific Service under PCBA are as follows, viz., (1) Chief Environmental
Scientist (CES), (2) Additional Chief Environmental Scientist (ACES) (3) Senior
Environmental Scientist (SES); (4) Executive Environmental Scientist (EES); (5)
Assistant Executive Environmental Scientist (AEES); (6) Environmental Scientist
(ES); (7) Assistant Environmental Scientist (AES); (8) Scientific Assistant I (SA-
I); (9) Scientific Assistant-II (SA-II) (Old Field Assistant); (10) Scientific
Assistant-III (SA-III) (Old Laboratory Assistant).
35) The date-wise sequence of events that are relevant to the case
are as follows:-
a. In the year 1996, the post of Scientific Assistant was re-designated
as Assistant Chemist (now SA-I).
b. By three separate office orders dated 02.03.2007, the petitioners
were promoted to the next higher post of Chemist.
c. Thereafter, vide office order dated 07.04.2012, the post of Chemist
was re-designated as Assistant Environmental Scientist.
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d. 94th Board meeting of PCBA held on 20.03.2013, where the 2012
Regulation was approved. The minutes was signed by the then
Chairman, PCBA on the same date and circulated.
e. It was noticed by the PCBA that the 2012 Regulation that was
approved in the 94th Board Meeting of PCBA contained some
typographical omission. Therefore, the corrigendum to the 2012
Regulation was circulated by a letter dated 02.08.2013, issued by the
Member- Secretary, PCBA.
f. As per the office order dated 23.09.2013, subject to approval of the
Board, the posts of Assistant Environmental Scientists in the Board
were upgraded to the level of Environmental Scientist. Moreover, the
following Assistant Environmental Scientists, namely, (1) Karuna
Thakuria; (2) Ranjan Bordoloi (petitioner no.1); (3) Karamjit Nath
(petitioner no.2); (4) Jibon Sarkar (5) Manoj Baruah (petitioner no.3);
(5) Anol Barman (respondent no.4); (6) Md. Rabiul Haque (respondent
no.5); (7) Gakul Tamuli (respondent no.6) were upgraded to the level
of Environmental Scientist. In the said order it was mentioned that the
pay and other promotional benefit will accrue to these scientists with
retrospective effect only after approval by the PCBA.
g. The 2012 Regulation came into force after its approval by the
Government was conveyed by the Environment and Forest Department
by communication dated 24.02.2014.
h. 96th Board Meeting of PCBA was held on 05.08.2014. In the said
meeting, as per resolution taken in respect of agenda no. 5, the
upgradation of Ranjan Bordoloi (petitioner no.1); (3) Karamjit Nath
(petitioner no.2); (4) Jibon Sarkar and (5) Manoj Baruah (petitioner
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no.3), being four senior- most personnel were approved.
i. By office order dated 12.08.2014, the office order dated
23.09.2013 was annulled and four persons including the three
petitioners were allowed to hold the up-graded post of Environmental
Scientist.
36) At the outset, it may be stated that the learned counsel for the
respondent no. 5 had stated that in the two copies of the 2012 Rules, there was
a difference in the entries made in serial nos. 3 and 4 of Appendix-III relating to
Senior Environmental Scientist and Executive Environmental Scientist. In this
case, we are not concerned with the said entries. Nonetheless, we do not make
any comment thereon because it has been brought to the notice of the Court
that the 2012 Regulation was approved in the 94 th Board meeting of PCBA held
on 20.03.2013. The minutes was signed by the then Chairman, PCBA on the
same date and circulated. Later on, it was noticed by the PCBA that the 2012
Regulation that was approved in the 94 th Board Meeting of PCBA contained
some typographical omission. Therefore, the corrigendum to the 2012
Regulation was circulated by a letter dated 02.08.2013, issued by the Member-
Secretary, PCBA. Therefore, the PCBA has some explanation regarding existence
of two sets of 2012 Regulations, one as originally approved and the other after
corrigendum was incorporated vide letter dated 02.08.2013. Hence, the said
point is kept open to be decided in a more appropriate case. However, it is
provided that this order shall not be a bar for the respondent authorities to issue
their clarification in the matter, if so advised.
37) The qualification, experience and promotion of employees of
Laboratory and Scientific Service under PCBA is as per the provision of
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Regulation 9(III)(c) of the 2012 Regulation. It would be appropriate to quote
Regulation 9(III) (a) to (d) thereof:-
a. For recruitment to the cadre of Environmental Scientist, the minimum
qualification shall be Master's Degree in Chemical/ Biological Life or Environmental
Sciences from any Indian or Foreign University or Institution recognized by the
Government of India.
b. The promotional criteria for Assistant Environmental Scientist (AES) &
Environmental Scientist (ES) to the higher cadre shall be as per Table-3 in
Appendix-III
c. All those AES of the Board who possess the minimum Educational Qualification
for ES as stipulated in clause (a above) or have completed a minimum of 5 years of
service in the Board as AES (or Chemist) shall be brought under the category of ES
along with the post provided that they acquire post graduate qualification within 5
years of their service in disciplines stated in (clause a) above.
d. The promotion from the level of ES to AEES and EES shall be on time scale
basis subject to availability of post and suitability of the person(s) as considered by
the Selection Committee.
e. * * *
f. * * *
g. * * *"
38) In Appendix-III to the 2012 Rules, in column nos. 5 and 6 relating
to the column for "promotional avenues", it has been mentioned against the
post of Environmental Scientist (ES) as follows - "Direct recruitment of M.Sc. or
promotion from AES (i.e. Assistant Environmental Scientist) with 10 years
experience in the ratio 2:1.
39) On a conjoint reading of the provisions of Regulation 9(III)(a) to
(d) as well as Appendix-III of the 2012 Regulation, it appears that the provisions
of Regulation 9(III)(a) is applicable for direct recruitment. Regulation 9(III)(c)
requires all those AES of the Board who possess the minimum educational
qualification for ES as stipulated in Clause (a) [of Regulation 9(III)(a)] or have
completed a minimum of 5 (five) years of service in the Board as AES (or
Chemist) shall be brought under the category of ES along with the post
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provided that they acquire post graduate qualification within 5 years of their
service in disciplines stated in Clause (a) [of Regulation 9(III)(a)].
40) Therefore, there is no doubt that as per Regulation 9(IIII)(c) of
the 2012 Regulation, there are twin requirement for an Assistant Environmental
Scientist (AES) to be promoted to the post of Environmental Scientist (ES), and
they are (a) the Assistant Environmental Scientist must possess educational
qualification prescribed for Environmental Scientist; or (b) the Assistant
Environmental Scientist must have completed 5 years of service in the said post
and they must acquire post graduate qualification within 5 years of their service
in disciplines stated in Regulation 9(III)(a) of the 2012 Regulation.
41) However, there appears to be variance in the educational
qualifications as provided in Regulation 9(III)(c) of 2012 Regulation, as
mentioned herein before and Appendix-III to the 2012 Regulation. Relevant row
nos. 4 to 7 and relevant column nos. 1, 2, 3, 5, 6, 8 and 9 of Table 3 of
Appendix-III are quoted below:-
Sl. Service Education Promotion Promotion Minimum Remarks
Cadre and al from the to the post year of
designatio qualificati post of of experience
n of the on
post
* * * * * * *
4 Ex. Env. M.Sc. in AEES EES 5 years of For
Scientist Chemical/ service as promotee
(EES) Biological AEES in the Scientists
/ Board the
Life/Envir qualification
o- nmental shall be
Science B.Sc. only.
5. Asstt. Ex. - do - ES AEES 5 years of - do -
Env. service as
Scientist ES in the
(AEES) Board
Page No.# 20/23
6. Env. - do - Direct rec- ruitment
Scientist M.Sc. or of ------- -------
(ES) from AES Promotion
years exp- with 10
the ratio erience in
2:1
7. Asstt. Env. B.Sc. in 100% AES Min. 5 years
Scientist Chemistry promotion experience - - - - - - -
(AES) / Botany/ from SAI as SAI
Zoology/
Env. Sc.
42) From the above, it appears to be strange that for being promoted
to the higher post of Assistant Executive Environmental Scientist, the
requirement is that a candidate must have 5 years experience as Environmental
Scientist in the Board, and that for promotee Scientists, the prescribed
qualification is B.Sc. only. However, if the herein before referred Table-3 at
Annexure-III of 2012 Regulation and Regulation 9(III)(c) is perused, the
educational qualification is M.Sc. as per Regulation 9(III)(a).
43) The next promotional post of Environmental Scientist (ES) is the
Assistant Executive Environmental Scientist (AEES). In other words, the post of
Environmental Scientist (ES) is the feeder post for Assistant Executive
Environmental Scientist (AEES). For Environmental Scientist, the educational
qualification is Master's Degree in Science as per Regulation 9(III)(a) of the
2012 Regulation. As per Regulation 9(III)(c), a non-post-graduate promotee
Environmental Scientist would have to obtain Master's Degree within 5 (five)
years. Therefore, under the 2012 Regulations, all Environmental Scientist must
be a Master Degree holder in Chemical/ Biological/ Life or Environmental
Sciences from any Indian or Foreign University or Institution recognized by the
Government of India. Then, when all persons in feeder posts is Master Degree
holders, it remains unexplained how come it is prescribed in Table-3 of
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Annexure-III of the 2012 Rules that to hold the post of Assistant Executive
Environmental Scientist (AEES), the educational qualification for promotee
Scientists shall be B.Sc. only.
44) Coming to the claim of the petitioners that they were promoted
from the post of Assistant Environmental Scientist (AES) to the promotional post
of Environmental Scientist (ES) before the 2012 Regulation came into force. In
this regard, the learned counsel for the petitioners have heavily relied on the
statement made by the respondent nos. 2 and 3 in their affidavit-in-opposition
filed in connection with W.P.(C) 8263/2022, which is referred to herein above
and therefore, not repeated again.
45) The 2012 Regulation came into force after its approval by the
Government was conveyed by the Environment and Forest Department by
communication dated 24.02.2014. However, the 96 th Board Meeting of PCBA
was held on 05.08.2014. In the said meeting, as per resolution taken in respect
of agenda no. 5, the upgradation of Ranjan Bordoloi (petitioner no.1); (3)
Karamjit Nath (petitioner no.2); (4) Jibon Sarkar and (5) Manoj Baruah
(petitioner no.3), being four senior- most personnel were approved. The PCBA
in its 96th Board meeting, failed to consider the provisions of 2012 Regulation,
including educational qualification prescribed for the post of Environmental
Scientists.
46) The 2012 Regulation had come into force after its approval by the
Government was conveyed by the Environment and Forest Department by
communication dated 24.02.2014. Therefore, the Court is inclined to hold that
the resolution taken in the 96 th Board Meeting of PCBA held on 05.08.2014,
under agenda no. 5, thereby approving the "upgradation" of 4 (four) senior-
Page No.# 22/23
most personnel, namely, Ranjan Bordoloi (petitioner no.1); (3) Karamjit Nath
(petitioner no.2); (4) Jibon Sarkar and (5) Manoj Baruah (petitioner no.3),
without requiring the said four personnel including the petitioners to obtain the
prescribed educational qualification within 5 (five) years, was done in violation
of the educational qualification prescribed under Rule 9(III) (a) to 9(III)(c) of
the 2012 Regulation.
47) It is reiterated even at the cost of repetition that by office order
dated 23.09.2013, pending approval of the PCBA the petitioners were upgraded
to the newly created post of Environmental Scientist. Therefore, as the approval
of the upgradation of the petitioners and another personnel vide 96 th Board
resolution of PCBA under agenda no.5 is not found sustainable.
48) The Court is of the considered opinion that the PCBA was bound
by the 2012 Regulations, which had come into force on 24.02.2014, when the
Government granted approval for the same. It could not be shown that on
05.08.2014, when 96th Board meeting of the PCBA was held, it had been vested
power to wish away the essential requirement of the petitioners to obtain the
essential educational qualification of Master's Degree in Chemical/ Biological/
Life or Environmental Sciences in terms of Regulation 9(III)(c) of 2012
Regulation within 5 (five) years of their service as Environmental Scientists.
Therefore, the approval granted in respect of the upgradation of the petitioners
and another personnel is held to be not in accordance with the requirement
and/ or prescription of the 2012 Regulation. Therefore, such approval cannot
create an indefeasible right in favour of the petitioners.
49) In view of the above, the cases of (i) Tejshree Ghag (supra), (ii)
Chairman, Railway Board (supra) , and (iii) Hitendra Vishnu Thakur (supra) , do
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not help the petitioners in any way.
50) Therefore, in light of the discussions above, the petitioners are
not found entitled to any relief in this writ petition, which fails and is dismissed.
51) Before parting with the records, it is clarified that nothing
contained in this order shall preclude the PCBA to invoke its power to relax
under Regulation 49 of the 2012 Regulation, and to grant opportunity to the
petitioners to obtain Master's Degree and on acquiring such educational
qualification, it would be open to the PCBA to reconsider the candidature of the
petitioners for upgradation from Assistant Environmental Scientist to
Environmental Scientist.
52) Moreover, when the feeder cadre of Environmental Scientist is
required to have minimum educational qualification of M.Sc., the PCBA may, if it
is so advised, revisit the column 9 of row no. 4 and 5 of Table 3 of Annexure-III
to the 2012 Regulation, prescribing B.Sc. as educational qualification for
promotees to hold the post of Assistant Executive Environmental Scientist
(AEES) and Executive Environmental Scientist (EES). A scientist in superior
position of EES and AEES, but having educational qualification lower than ES
appears to be unconscionable. This is left to the wisdom of the respondent nos.
2 and 3 of the PCBA.
53) The parties are left to bear their own respective cost.
JUDGE
Comparing Assistant
