Page No.# 1/ vs The State Of Assam And Ors on 18 December, 2025

                                                              Page No.# 1/11

GAHC010075902025




                                                         2025:GAU-AS:17600

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

                       Case No. : WP(C)/1987/2025

         SRI NABA THAKURIA
         S/O-LATE JAGENSWAR THAKURIA,R/O- VILL-BARNALIKUCHI,P.O AND
         P.S-PATACHARKUCHI,DIST- BAJALI,ASSAM



         VERSUS

         THE STATE OF ASSAM AND ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         HOME AND POLITICAL DEPARTMENT,DISPUR,GUWAHATI-06

         2:THE DIRECTOR GENERALOF POLICE
         ASSAM POLICE HEAD QUARTER
         ULUBARI
         GUWAHATI-07

         3:THE INSPECTOR
          GENERAL OF POLICE (ADMN)
         ASSAM POLICE HEAD QUARTER
         ULUBARI
         GUWAHATI-07

         4:THE SUPERINTENDENT OF POLICE
          SB(E)
         ASSAM
         KAHILIPARA
         GUWAHATI-19

         5:THE PRINCIPAL
          LACHIT BORPHUKAN POLICE ACADEMY
         DERGAON
         ASSA
                                                                           Page No.# 2/11

Advocate for the Petitioner   : MR. T J MAHANTA, MR D MAHANTA,MR T GOGOI

Advocate for the Respondent : GA, ASSAM,

Date of Hearing                            : 28.11.2025
Date of Judgment                           : 18.12.2025

Whether the pronouncement is of the
operative part of the Judgment?     : NA

Whether the full Judgment has been
pronounced?                            : Yes


                                 BEFORE
                 HONOURABLE MR. JUSTICE ANJAN MONI KALITA

                                JUDGMENT & ORDER (CAV)

Heard Mr. T. J. Mahanta, learned Senior Counsel assisted by Mr. D. Mahanta, learned counsel for the petitioner. Also heard Mr. C. K. S. Baruah, learned Government Advocate, representing on behalf of all the respondents.

2. The instant writ petition has been filed by the petitioner, assailing the order dated 27.03.2025, issued by the Principal, Lachit Barphukan Police Academy, Dergaon, Assam, whereby, the petitioner was discharged from his training w.e.f. 27.03.2025, as the promotion of the petitioner was directed to be kept in abeyance pending the clearance of vigilance case pending against the petitioner.

3. The case of the petitioner in the instant case is summarized herein below: -

(i) The petitioner was appointed as Constable in the Assam Police in the year 1987. Thereafter, the petitioner was promoted to the rank of Assistant Sub-

Inspector (ASI) in the year 2012. For the promotion in the rank of Sub- Inspector (SI) (UB), a departmental examination was held on 19.01.2025, Page No.# 3/11

which was passed by the petitioner, vide a select list prepared by the respondent authorities wherein, the petitioner's name featured at Serial No.

(ii) On 03.03.2025, the respondent authority was pleased to appoint the petitioner as Sub Inspector (SI) along with other candidates who have passed the departmental examination held on 19.01.2023 and accordingly, the petitioner had joined the promotional post wherein, his name has been reflected at Serial No. 307. It is contended by the petitioner that in the aforesaid order dated 03.03.2025, it was mentioned that the petitioner along with other candidates were promoted, provided, no Court case/departmental proceeding were pending/contemplated against them and the period of punishment, if any, was not operative at that point of time.

(iii) The respondent authority, thereafter, sent the petitioner along with other candidates who were newly promoted to Sub Inspectors (UB) for Induction Course at Lachit Barphukan Police Academy, Dergaon, vide letter no. I/991963/2025 dated 12.03.2025. In pursuant to the aforesaid letter dated 12.03.2025, the respondent no. 3 issued movement order dated 17.03.2025, whereby, 118 newly promoted Sub-Inspectors (UB) were deputed to report the Principal, Lachit Borphukan Police Academy, Dergaon on 19.03.2025 for attending Induction Course w.e.f. 20.03.2025, for a duration of 4(four) weeks. Thereafter, the petitioner joined the Induction Course at Lachit Borphukan Police Academy, Dergaon, on 20.03.2025. After joining the aforesaid academy, the petitioner was undergoing the Induction Course, however, on 27.03.2025, the petitioner received a communication i.e. Memo No. FA/XI-12/2025/Pt/32 dated 26.03.2025, issued by the Inspector General Page No.# 4/11

of Police (a), Assam, whereby, the petitioner was discharged from the training with immediate effect. Accordingly, vide the aforesaid order, the petitioner was reverted from the Induction Course and he was posted again at Special Branch, Kahilipara, Assam.

(iv) The petitioner was informed that a Regular Enquiry bearing RE No. 03/2014 was pending in the office of the Anti-Corruption and Vigilance Cell, Assam, while he was posted as Assistant Sub-Inspector (ASI) of Police in Panikhaiti Police Out-Post. The petitioner contended that the petitioner has been in service for more than 13 years in the rank of ASI (UB) of Police and he has no adverse record in his service career except the aforesaid pending Regular Enquiry. Therefore, by not allowing the petitioner to complete the Induction Course as well as keeping his promotion at abeyance, the respondent authority has done an illegal act which is arbitrary, malafide and total non-application of mind on the part of the respondent authorities.

(v) In view of the aforesaid order of discharging the petitioner and keeping his promotion at abeyance, the petitioner has filed this writ petition, assailing the aforesaid order dated 27.03.2025.

4. Mr. T. J. Mahanta, the learned Senior Counsel appearing for the petitioner submits that an affidavit-in-opposition has been filed in the instant case by the Assistant General of Police, (Estt.), APHQrs, Guwahati, on behalf of the respondent nos. 2 & 3, wherein, it was contended that as there was no departmental proceeding pending against the petitioner and in pursuance to the order dated 03.03.2025, the petitioner was allowed to join as SI(UB) of Police from 05.03.2025 at SB Organization. However, a vigilance report was received from the Directorate of Vigilance and Anti-Corruption, vide letter no.

Page No.# 5/11

DGVA/RI/VC/2025/1388 dated 13.03.2025, wherein a Regular Enquiry, vide RE No. 03(3)/2014 was shown to be pending against the petitioner. In view of the aforesaid Regular Enquiry, in terms of the order dated 03.03.2025, APHQrs, vide order dated 26.03.2025, the promotion of the petitioner along with another person was kept in abeyance until the vigilance cases pending against them get cleared. Therefore, they were reverted back from Induction Course to their previous rank and previous place of posting until further order. It was also contended that due to the interim order dated 11.04.2025, passed by the Hon'ble High Court in the instant case, the petitioner was allowed to continue the Induction Course, vide APHQrs Memo No. FA/XI-12/2025/Pt/62 dated 22.04.2025. Therefore, the primary stand of the respondent department is that due to the pendency of the Regular Enquiry pending against the petitioner, the aforesaid impugned order dated 27.03.2025 was passed by the respondent authority.

5. Mr. Mahanta, the learned Senior Counsel appearing for the petitioner submits that the petitioner was discharged from the Induction Training and his promotion was kept in abeyance without serving him any notice as well as without giving any opportunity of hearing. Therefore, the aforesaid impugned order is bad in law and liable to be set aside and quashed.

6. The learned Senior Counsel submits that the respondent authority had not served any document regarding any enquiry against him rather, verbally informed him about the pendency of the Regular Enquiry and till date, neither any charge- sheet nor, any departmental proceeding as been drawn up against the petitioner. He, therefore, submits that pending of Regular Enquiry cannot be a ground for depriving the petitioner of his legitimate right of promotion as well as training. The learned Senior Counsel submits that, till date, no Court case/departmental Page No.# 6/11

proceeding is pending against the petitioner except the present Regular Enquiry, therefore, the impugned order dated 27.03.2025 is illegal, unjust and arbitrary and in violation of laws laid down by the Hon'ble Apex Court in this regard.

7. To support his aforesaid submission, the learned Senior Counsel has referred to the case of Prasanta Konwar Vs. The State of Assam and 5 Ors., (WP(C) No. 7054/2023), decided by Gauhati High Court, vide order dated26.06.2024. In this connection, the learned Senior Counsel submits that the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. K. V. Jankiraman & Ors., reported in (1991) 4 SCC 109 has specifically laid down that the promotion of an employee can be denied only in the event as envisaged in the case of K.V. Janakiraman (supra).The learned counsel further submits that following the decision of the Hon'ble Supreme Court in the case of K.V. Jankiraman (supra), the Government of Assam in the Department of Personnel, issued an OM dated 09.05.2006, pertaining to the manner in which a promotion of a government servant against whom departmental/disciplinary/Court proceedings are pending and whose conduct is under investigation. The learned Senior Counsel submits that in the instant case, no departmental/disciplinary/Court proceedings are pending against the petitioner except the Regular Enquiry, which cannot be termed as departmental/disciplinary or Court proceedings. In view of the aforesaid, the learned Senior Counsel submits that the impugned order dated 27.03.2025 is not in terms of the aforesaid OM dated 09.05.2006. In this connection, the learned Senior Counsel has referred to paragraphs-26 & 27 of the case of Prasanta Konwar (supra), which are extracted herein below: -

"26. Promotion in respect of a government servant can be withheld or kept in abeyance only in terms of valid rules. The Office Memorandum, dated 09.05.2006, in the absence of a Rule made in the matter, would hold the field and the same having Page No.# 7/11

not provided that even when a vigilance inquiry is pending against a government servant, his case for promotion cannot be considered and would be deemed to have been kept in "sealed cover"; the respondent authorities could not have only on the basis of pendency of a regular inquiry by the Vigilance Department against the petitioner, herein, denied to the petitioner, his valuable right to be promoted to the cadre of Junior Grade-I of the Assam Finance Service, in pursuance of his selection for the same.

27. The materials as brought on record, including the contentions made in the Affidavits filed by the Respondents reveals that an enquiry in connection with Regular Enquiry No. 42 (a) 2016 is pending against the petitioner and the collection of materials against him was underway. It is further brought to light that the stage for requiring the petitioner to have his say in the matter, had also not reached. Accordingly, it can be safely construed that the respondent authorities in connection with the said vigilance enquiry, had not drawn a satisfaction that a Disciplinary Proceeding and/or a criminal proceeding is required to be instituted against the petitioner, herein. It being the settled position of law that a Disciplinary Proceeding can be said to be instituted only on the issuance of a Show Cause Notice/memorandum in the matter and the criminal proceeding would be so construed to be instituted when a charge-sheet in the matter is filed against the government servant; the said aspect of the matter not having occasioned in the case of the petitioner, herein, the bar for his promotion to the cadre of Junior Grade-I of the Assam Finance Service, in terms of his selection, cannot be said to have arisen in the matter and the conditions as mandated in paragraph No. 6 of the said Office Memorandum, dated 09.05.2006, do not stand attracted to the case of the petitioner, herein."

8. Per contra, Mr. C. K. S. Baruah, learned Government Advocate has submitted that there is no violation in issuance of the aforesaid discharge order dated 27.03.2025. He submits that promotion is not a fundamental right though right to be considered for promotion is a fundamental right. He submits that since the vigilance case is pending against the petitioner, no promotion could have been Page No.# 8/11

given to the petitioner, pending the conclusion of the enquiry. In this connection, he referred to the case of Union of India & Ors., Vs. Sangram Keshari Nayak, reported in (2007) 6 SCC 704, wherein, the Hon'ble Apex Court had held that the suitability or otherwise of the candidate concerned, must be left in the hands of the DPC, but the same has to be determined in terms of the Rules applicable there from.

9. This Court has heard the submissions of the learned counsel representing the respective parties.

10. In this connection, it would be relevant to extract herein below paragraphs 16 & 17 of the case of K.V. Jankiraman (supra), which is extracted herein below: -

"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times, they never result in the issue of any charge-memo/charge-sheet. If the Page No.# 9/11

allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p. 196, para 39)

"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;

(2) **********************

(3) **********************

(4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;"

17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge- memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions."

11. It is also seen that following the proposition laid down by the Hon'ble Apex Court, the Government of Assam, Department of Personnel has already issued an OM dated 09.05.2006, wherein, at paragraph-2, it provides that at the time of consideration of cases of government servant in the zone of consideration for Page No.# 10/11

promotion, the fact as to whether a show-cause notice has been issued and a disciplinary proceeding has been pending and/or whether in respect of such government servant, a criminal charge is pending, has to be brought into the notice of the Selection Committee, to enable it to place it's recommendations for such government servant in "sealed cover". It was further provided in paragraph no. 3 of the said OM that no other details about any pending inquiry of the nature of charges are called upon to be furnished to the Selection Committee in the matter. Paragraph-6 of the said OM dated 09.05.2006, further proceeds to stipulate that if the circumstances as noticed in paragraph no. 2 of the said OM arises only after the Selection Committee had made its recommendations and the same could not be placed in "sealed cover", the recommendations would be deemed to have been placed in "sealed cover" and such person shall not be promoted until he is exonerated of the charges.

12. In the instant case on hand, it is seen that there is a mention of pending of a Regular Enquiry, no charge-memo in a disciplinary proceeding or charge-sheet in a criminal prosecution is pending against the petitioner. It is also seen that the Regular Enquiry bearing RE No. 03/2024 which was pending in the office of the Anti-Corruption and Vigilance, Assam, no enquiry report has been submitted in spite of passing of almost a decade's time. It being a settled position of law that a disciplinary proceeding can be said to be instituted only on issuance of a Show- Cause notice/Memorandum of allegations in the matter and a criminal proceeding could be instituted when a Charge-sheet in the matter is filed against the employee; and in the instant case, both being absent, there is no bar for promotion of the petitioner to the post of Sub-Inspector (UB). Therefore, taking into account the ratios laid down in the aforesaid cases of Jankiraman (supra) as well as Page No.# 11/11

Prasanta Konwar (supra), it is the considered view of this Court that in absence of any pending departmental proceeding by way of submission of Show-Cause Notice/Memo of allegations and a Charge-sheet in a criminal proceeding, the deprival of the petitioner to the next upper post in spite of his selection by way of passing the departmental examination, is not tenable under the law.

13. In view of the conclusions arrived at by this Court, this Court sets aside the discharge order dated 27.03.2025 and the same is quashed in respect of the petitioner.

14. It is seen that, vide an interim order of this Court, the petitioner has been allowed to undergo the Induction Training, therefore, needless to say that the petitioner shall be allowed to complete his Induction Training and on his successful completion of such Induction Training, his promotion so effected vide the order dated 03.03.2025, wherein, his name featured at Serial No. 307 shall remain untouched.

15. Further, this Court hastens to mention that on completion of the induction programme, the respondent authorities shall be at liberty to post the petitioner at a suitable place as deemed fit by the respondent authorities in terms of his promotion dated 03.03.2025.

16. In view of the aforesaid directions passed by this Court, the instant writ petition is disposed of as allowed.

JUDGE

Comparing Assistant