WP(C)/4990/2025
2025 Latest Caselaw 6965 Gua

Gauhati High Court

WP(C)/4990/2025 on 3 September, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

                                                                    Page No. 1/9
GAHC010193252025




                                                             2025:GAU-AS:12132



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



                   WRIT PETITION (C) NO. 4990/2025


                          Simanta Bordoloi, Son of Hara Kanta Bordoloi,
                          Resident of Loukhowa Road, Town Telia Gaon,
                          P/O. and Dist. Nagaon, Assam, Pin-782002.


                                                        ..................Petitioner


                                        -VERSUS-


                       1. The   State    of    Assam    to   be   Rep.   by   the
                          Commissioner and Secretary to the Govt. of
                          Assam, Power Department, Dispur, Guwahati-
                          781006.
                       2. The Assam Power Generation Corporation Ltd.
                          [APGCL] to be Rep. by the Chairman and
                          Managing      Director,   APGCL,    Bijulee    Bhawan,
                          Guwahati-781001.
                       3. The Chief General Manager [HR], APGCL, Bijulee
                          Bhawan, Guwahati-781001.
                       4. The   General       Manager   [HR], APGCL,      Bijulee
                          Bhawan, Guwahati-781001.
                                                                     Page No. 2/9


                        5. Supriyo Das, S/O. Sitangshu Das, R/O. Shiv Bari
                            Road, Diphu, Karbi Anglong-782460.


                                                      ...................Respondents

Advocates :

Petitioner                   : Mr. S. Borthakur, Advocate
Respondents                  : Mr. D. Nath, Senior Government Advocate,
                                Assam & Standing Counsel, Assam Power
                                Generation Corporation Limited [APGCL]
Date of Judgment & Order     : 03.09.2025



                            BEFORE
             HON'BLE MR. JUSTICE MANISH CHOUDHURY
                            JUDGMENT & ORDER

The petitioner has instituted the instant writ petition under Article 226 of the Constitution of India to assail an Office Order dated 04.08.2025 [Annexure-17] issued under the hand of the respondent no. 4, whereby, the respondent no. 4 has reverted the petitioner back from the post of Assistant Manager [F&A] to his previous post of Accounts Officer with immediate effect. A further direction has been made to the effect that the higher amount of salaries and allowances the petitioner had drawn on account of his promotion to the post of Assistant Manager [F&A] with effect from 21.06.2024 would be recovered from the petitioner.

2. I have heard Mr. S. Borthakur, learned counsel for the petitioner; and Mr. D. Nath, learned Senior Government Advocate, Assam & Standing Counsel, the Assam Power Generation Corporation Limited [APGCL] for the respondent nos. 1 & 2 - 4.

3. As the learned counsel appearing for the respondent nos. 1 & 2 - 4 has submitted that he has received the necessary instructions from the respondent APGCL authorities, the writ petition is taken up for final consideration, as agreed to by the learned counsel for the parties. Notice issued is, therefore, made returnable forthwith, as urged by the learned counsel appearing for the parties.

4. The Assam State Electricity Board [ASEB] was established in the year 1958 under the Electricity [Supply] Act, 1948. The ASEB used to manage generation, transmission and distribution of powers in the State of Assam as per the duties defined under the Electricity [Supply] Act, 1948. A process of reform was carried out and the ASEB was trifurcated into three new entities viz. [i] Assam Power Generation Corporation Limited [APGCL]; [ii] Assam Electricity Grid Corporation Limited [AEGCL]; and [iii] Assam Power Distribution Company Limited [APDCL]. All the new entities are State Public Sector Enterprises and are inter-alia governed by the provisions of the Indian Electricity Act, 2003.

5. The petitioner came to be appointed as an Assistant Accounts Officer in the APGCL after his selection through a recruitment process and he was appointed to the said post vide an Office Order dated 04.05.2010. The petitioner joined in the post on 13.05.2010 by submitting a joining letter. It is stated that the respondent no. 5 was also selected in the said recruitment process and also appointed in the post of Assistant Accounts Officer. In the Office Order dated 04.05.2010, the names of the petitioner and the respondent no. 5 appeared at

serial nos. 12 and 9 respectively. The Office Order mentioned that the appointees' inter-se-seniority would be fixed in due course.

5.1. Subsequently, both the petitioner and the respondent no. 5 along with others were promoted to the post of Deputy Accounts Manager vide an Office Order dated 03.08.2012 with a note that the inter-se-seniority would be notified by the concerned authority in due course. By another Office Order dated 18.02.2017, the petitioner was promoted to the rank of Accounts Officer with usual pay and allowances along with two other Deputy Accounts Officer. As on 18.02.2017, the respondent no. 5 was not promoted to the rank of Accounts Officer. In an inter-se-seniority list published for ten nos. of Accounts personnel in the rank of Accounts Officer on 05.07.2017, the name of the petitioner figured at serial no. 8 whereas the name of the respondent no. 5 did not figure.

5.2. By an Office Order dated 04.11.2019, the respondent APGCL had published an inter-se-seniority list of the personnel in the rank of Accounts Officer wherein the petitioner's name appeared above the respondent no. 5 as his name appeared at serial no. 11 against the name of the respondent no. 5 at serial no. 12. In another inter-se-seniority list published on 30.11.2021 also, the names of the petitioner and the respondent no. 5 appeared at serial nos. 7 and 8 respectively.

5.3. By an Office Order dated 01.08.2023, the Board of the APGCL conveyed its decision regarding implementation of the State Government's Policy of Reservation in Promotion, notified vide Office Memorandum no. ABP.81/2022/58 dated 18.01.2023, in the APGCL w.e.f. 18.01.2023. The Office Order dated 01.08.2023 was followed by a Notification dated 21.12.2023 regarding implementation of the Policy of Reservation in Promotion with indication of the post-based roster points.

5.4. It was on 20.06.2024, the petitioner was promoted to the rank of Assistant Manager [F&A] on the recommendation of the Departmental Promotion Committee [DPC] vide an Office Order dated 20.06.2024. On being so promoted, the petitioner joined on 21.06.2024 in the post of Assistant Manager [F&A] and started discharging the duties of Assistant Manager [F&A] receiving salaries of the said post.

5.5. The APGCL had, thereafter, issued a Notification dated 30.09.2024 outlining the incumbency position as per the post-based roster for appointment for promotion in the various cadres in the APGCL which is stated to be uploaded in the website of the APGCL. The respondent no. 5 had submitted a representation on 18.11.2024 for consideration of his case for promotion from the post of Accounts Officer to Assistant Manager on the basis of the Roster Registrar.

6. In the above backdrop, the impugned Office Order has been issued on 04.08.2025. From the Office Order dated 04.08.2025, it emerges that prior to 04.08.2025, the petitioner was serving in the rank of Assistant Manager in Accounts cadre and the respondent no. 5 was serving as an Accounts Officer. By the impugned Order, the respondent no. 5 has been promoted to the rank of Assistant Manager with retrospective effect from the date of promotion of the petitioner to the rank of Assistant Manager in the accounts cadre of APGCL, that is, 21.06.2024. On the other hand, but simultaneously, the petitioner has been reverted back to his previous post of Accounts Officer with immediate effect with a further direction that the amounts received by the petitioner as Assistant Manager in Accounts cadre of APGCL towards pay and allowances from 21.06.2024 till 04.08.2025 would be recovered from him.

7. It has been strenuously contended by Mr. Borthakur that before issuing the Office Order dated 04.08.2025, no notice whatsoever was issued to the petitioner. It is, therefore, a case of no notice simpliciter and therefore, there was blatant violation of the principles of natural justice. By the Office Order dated 04.08.2025, the petitioner has come to know that certain Resolutions were adopted in the 119th Meeting of the Board of Directors of the APGCL and it was pursuant to those Resolutions, the Office Order has come to be issued. The petitioner is not aware of the Resolutions taken by the Board of Directors of the APGCL whereby he has been reverted back to his previous post of Accounts Officer. He has further contended that since after he was promoted to the post of Assistant Manager with effect from 21.06.2024 he had discharged the duties of the said post, the direction to make recovery of the pay and allowances is clearly uncalled for as there was no hand of the petitioner in the promotion given vide the Office Order dated 20.06.2024.

8. Mr. Nath, learned Senior Government Advocate, Assam & Standing Counsel, APGCL appearing for the afore-mentioned respondents has fairly submitted that it is correct that the petitioner was not put to any notice before passing of the impugned Office Order dated 04.08.2025. He has submitted that the decision behind the Office Order is relatable to implementation of the Policy of Reservation in matters of Promotion and the process to fill up the post-based roster points. He has fairly submitted that the decision of the Board of Directors of the APGCL ought to have been informed to the petitioner as the subsequent actions taken vide Office Order dated 04.08.2025. He has, otherwise, supported the decision of reversion. He has further submitted that as no notice was served upon the petitioner, to remedy the situation, the petitioner could be afforded post-decisional hearing by apprising him about the factors which had been considered by the Board of Directors of the APGCL to take the Resolutions, which ultimately resulted in the passing of the Office Order dated 04.08.2025. The petitioner would also be afforded a proper

opportunity of hearing and to represent his case during the post-decisional hearing.

9. In response, Mr. Borthakur, learned counsel for the petitioner while agreeing to the submissions of Mr. Nath regarding post-decisional hearing, without prejudice to the petitioner's right to assail the final decision to be taken after post-decisional hearing, has submitted that since the impugned Office Order dated 04.08.2025 was admittedly passed without any kind of notice, the petitioner's position in the rank of Assistant Manager in Accounts Cadre in APGCL obtaining after 20.06.2024 and prior to 04.08.2025 should not be disturbed till the final decision is taken after the post-decisional hearing by the competent authority, and the petitioner must be afforded a proper and reasonable opportunity of being heard after apprising about the factors which had gone into the Resolutions of the Board of Directors of the APGCL resulting in reversion of the petitioner by the impugned Officer Order dated 04.08.2025.

10. I have considered the submissions of the learned counsel for the parties and have taken into account the fact situation obtaining in the case.

11. The learned counsel for the parties have submitted, on instructions, that they are agreeable to a post-decisional hearing. Therefore, I am of the considered view that instead of keeping this writ petition pending, the same can be disposed of at this stage.

12. There is no doubt that in an appropriate case, an employee can be reverted back to his previous post but such an action should be subject to adherence to the principles of natural justice and as per the rule of law. Evidently, there was no notice issued to the petitioner prior to the passing of impugned Office Order dated 04.08.2025, by which the petitioner has been visited with adverse civil consequences. No prior opportunity of hearing was afforded to the

petitioner. A pre-decisional hearing is the norm whereas a post-decisional hearing is exception and the post-decisional hearing is not considered as a strong substitute of the pre-decisional hearing. Be that as it may, the learned counsel for the petitioner has agreed to hold and participate in a post- decisional hearing.

13. As certain Resolutions of the Board of Directors of the APGCL are found to be behind the impugned Office Order dated 04.08.2025 and the same, according to the petitioner, are not made known to the petitioner, the petitioner must be provided with all the requisite materials which were taken into consideration by the Board of Directors of the APGCL while adopting the Resolutions plus the copies of the Resolutions along with the notice to be issued to him for post-decisional hearing so as to enable the petitioner to submit an effective representation to the said notice, preferably within a period of fifteen days. On receipt of the notice along with the Resolutions and the materials whereupon the reliance had been placed for passing the impugned Office Order dated 04.08.2025, the petitioner shall submit his reply within a period of fifteen days from the date of receipt of the notice. After submission of the reply, the petitioner should also be provided with an opportunity of personal hearing, if he desires to be heard in person. The competent authority in the APGCL shall, thereafter, pass a speaking order as expeditiously as possible and it should be communicated to the petitioner forthwith thereafter.

14. Since the petitioner had served in the post of Assistant Manager in the Accounts cadre since 21.06.2024 and an order of status quo was passed earlier on 29.08.2025, the respondent APGCL authorities shall not disturb the position of the petitioner in the rank of Assistant Manager till the final decision to be taken after the post-decisional hearing. The competent authority shall also revisit the order of recovery afresh by keeping in mind that the petitioner had rendered service in the post of Assistant Manager during the reference

period. Therefore, there shall not be any recovery process in the meantime till such final decision. The impugned Office Order dated 04.08.2025 would also abide by the final decision taken after the post-decisional hearing.

15. As the above directions for post-decisional hearing are not likely to bring any civil consequence directly to the respondent no. 5, issuance of notice to the respondent no. 5 has been dispensed with. It is made clear that if the competent authority in the APGCL is of the view that any decision to be taken in the course of the post-decisional hearing is likely to visit the respondent no. 5 with any civil consequences then he should also be put to prior notice.

16. With the observations made and the directions given above, the writ petition is disposed of. There shall, however, no order as to cost.

JUDGE

Comparing Assistant