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Gauhati High Court · body

2006 DIGILAW 718 (GAU)

Bhuban Chandra Sarma v. State of Assam and Ors.

2006-08-04

B.K.SHARMA

body2006
1. The challenge made in this writ petition is in respect of an order by which the petitioner has been reverted from the promotional post of Assistant Engineer to the substantive grade of Junior Engineer. 2. The petitioner, while was serving as Junior Engineer (Civil) under the respondents, was promoted as Assistant Engineer by Annexure-'A' notification dated 28.10.2002. By the said notification, many other Junior Engineers were also promoted. Upon such promotion, the petitioner joined the promotional post-by submitting joining report on 1.11.2002. After about one and half years of such promotion, the petitioner was issued with the Annexure-'C' notice dated 3.4.2004 conveying the decision of the Government to revoke the order of promotion of the petitioner and asking him to state his case against such decision. The reason assigned was that the name of the petitioner was wrongly included in the list for promotion and that his position in the seniority list did not make him eligible for consideration of such promotion being not within the zone of consideration. 3. In response to the said notice, the petitioner submitted his reply dated 21.4.2004. The petitioner stated that his reversion from the promotional post after nearly one and half years would be painful and that the Government ought to have corrected the mistake at the earliest opportunity. He also stated that since his retirement from service was fast approaching (31.08.2004), he should be allowed to continue in the promotional post. Thereafter, by Annexure-'E' notification dated 25.8.2004, the petitioner was reverted to the post of Junior Engineer. It was stated in the order that the petitioner was wrongly promoted against the Rules. By the said notification, the promotion of the petitioner vide the aforesaid Annexure-'A' notification dated 28.10.2002 was cancelled. The notification was issued in reference to the aforesaid notice and the reply submitted by the petitioner. 4. After the aforesaid order dated 25.8.2004, which is under challenge in this writ petition, the petitioner was released from his service with effect from 1.9.2004 (forenoon) on superannuation pension after attaining the age of 58 years of age. The notification was issued in reference to the aforesaid notice and the reply submitted by the petitioner. 4. After the aforesaid order dated 25.8.2004, which is under challenge in this writ petition, the petitioner was released from his service with effect from 1.9.2004 (forenoon) on superannuation pension after attaining the age of 58 years of age. Thus, irrespective of the impugned order dated 25.8.2004 reverting him to the post of Junior Engineer, the petitioner continued in the promotional post up to the age of retirement (31.8.2004), However, the petitioner is aggrieved by the impugned notification dated 25.8.2004 so far as the same relates to the condition that the wrong promotion granted to the petitioner would not be reckoned for the purpose of increments or for any other purpose to which he would not normally be entitled, but for the erroneous promotion. 5. According to the petitioner, he having been promoted by the respondents and he having continued to occupy the promotional post till he retired from service on attaining the age of superannuation, the respondents were estopped from taking the impugned action. His prayer is to grant him the retirement benefit taking his promotion as Assistant Engineer to be valid. 6. The respondents have filed their counter affidavit supporting the impugned action. Their stand is that the petitioner was wrongly promoted, because his seniority position did not permit such promotion, they have placed reliance on clause 11(2) of the finance Department's notification dated 16.6.1964 which provides that orders and/or notification of promotion or appointment of a Government servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the Government servant concerned should immediately on such cancellation be brought to the position he should have held but for the incorrect order of promotion or appointment. The clause further provides that the service rendered by the Government servant concerned in the post to which he was wrongly confirmed or appointed as a result of error should not be reckoned for the purpose of increments or for any other purpose in that grade or post to which lie would not normally be entitled, but for the erroneous appointment or promotion. 7. Mr. G.C. Phukan along with Mr. 7. Mr. G.C. Phukan along with Mr. J.N. Sarma, learned counsel for the petitioner, during the course of his submission, emphasized that the impugned order dated 25.8.2004 having remained only on paper without any practical effect and the petitioner having continued in the promotional post till the date of his retirement, i.e., 31.8.2004, adverse consequence as stipulated in the order cannot be made operative which is non est in the eye of law. 8. Countering the above argument, Mrs. B. Bhuyan, learned Standing Counsel, P.W.D, made her submission in reference to the counter affidavit as well as the records produced by her. She submitted that the promotion of the petitioner being the result of a factual error, by operation of clause 11(2) of the aforesaid notification, the petitioner although continued in the promotional post, is not entitled to any incremental benefits and the said period in the promotional post cannot give any benefit to the petitioner towards fixation of his pension. 9. I have given my anxious consideration to the submission made by the learned counsel for the parties. I have also gone through the materials on record. On perusal of the records produced by the learned Standing Counsel, P.W.D. (File No. RBEB.200/79/pt.IV), it appears that the petitioner was promoted erroneously as his seniority position did not permit him for such promotion. He was wrongly identified as Bhuban Chandra Borah, whose seniority position in the gradation list was 703. It was said Sri Bhuban Chandra Borah, whose seniority position was 703, in fact, was to be promoted, but it was the petitioner whose name was forwarded for promotion wrongly identifying him in his place. It was first pointed out by the Chief Engineer, P.W.D. by his communication dated 21.11,2002 addressed to the Under Secretary to the Government of Assam in the Public Works Department. It appears that the petitioner was also aware of the same and accordingly, he by his letter dated 22.1.2003 addressed to the Secretary to the Government of Assam in the Public Works Department made a request to allow him to continue in the promotional post. The petitioner has not disclosed this fact of making the representation on 22.1.2003 in the writ petition accepting that there was anomaly in the matter of his promotion. 10. The petitioner has not disclosed this fact of making the representation on 22.1.2003 in the writ petition accepting that there was anomaly in the matter of his promotion. 10. The records have revealed that it was Sri Bhuban Chandra Borah and not the petitioner, who was entitled to get promotion inasmuch as Shri Borah was much senior to the petitioner and the petitioner was not within the zone of consideration to earn the promotion. However, it was by mistake, that said Sri Bhuban Chandra Borah came to be replaced by the petitioner. The respondents having detected the same, issued notice to the petitioner and upon consideration of the factual aspect of the matters as well as the reply submitted by the petitioner, passed the impugned order, the promotion of the petitioner being based on factual error and consequently being erroneous, the respondents were within their competence and jurisdiction to take the impugned action and no fault can be attributed to them. It is not a case of taking any arbitrary decision to revert the petitioner. The factual error having been detected, it was pointed out to the authority and thereafter, the relevant file was processed towards cancellation of the erroneous promotion, the petitioner was given an opportunity to have his say in the matter. In fact, he was aware of his position as reflected in his own representation dated 22.1.2003 available in the record file, but not mentioned in the writ petition. 11. A public servant may be reverted from a higher post to a lower post under certain circumstances, every reversion is not penal and does not amount to imposition of punishment of reduction in rank by way of disciplinary action. The reversion will be illegal and void if it is made by way of punishment and without complying with the principles of natural justice contrary to the statutory provisions or Rules ; mala fide or for a collateral purpose ; arbitrary or by way of discrimination; by way of glaring injustice, etc. The question of reversion can only arise when a valid and proper promotion has been given. In the instant case, the promotion had been given by mistake. Thus, the subsequent reversion made with a view to rectify such mistake cannot, in the strict sense, be considered as reversion and, fortiore as a punishment. The question of reversion can only arise when a valid and proper promotion has been given. In the instant case, the promotion had been given by mistake. Thus, the subsequent reversion made with a view to rectify such mistake cannot, in the strict sense, be considered as reversion and, fortiore as a punishment. For the same reason, whether the initial promotion of the petitioner was void ab initio and it was found that he was not entitled to hold the post, the reversion to his original position was not a punishment. The reversion has been effected on the basis that the promotion given to him was without jurisdiction and the same was erroneous. 12. In view of the above, I do not find any infirmity in the impugned order dated 25.8.2004 by which the petitioner was reverted from the post of Assistant Engineer to that of Junior Engineer on ground of erroneous promotion. However, the matter does not end here. There is no dispute that, the petitioner after his promotion by order dated 28.10.2002, continued in the promotional post till he retired from service on 31.8.2004 on attaining the age of superannuation. Although the impugned order of reversion was passed before the date of his retirement, but the same did not come into operation as would be evident from Annexure-'F' order dated 1.9.2004 by which the petitioner was released from Government service with effect from 1.9.2004 (FN) describing him as Assistant Engineer. It was submitted that: the petitioner has not been paid his salary in the promotional post of Assistant Engineer. Learned Standing Counsel, P.W.D. was requested to obtain instructions in this regard. She has been furnished with the instructions vide letter dated 24.7.2006 addressed to her by the Government of Assam in the Public Works Department under the signature of the Deputy Secretary. In the letter, it has been stated that since the petitioner, although was reverted from the promotional post, but since he continued to occupy the same from 1.11.2002 to 26.8.2004, he might be entitled to get his salary in the promotional post subject to concurrence of the Finance Department and the final outcome of this case. 13. In the letter, it has been stated that since the petitioner, although was reverted from the promotional post, but since he continued to occupy the same from 1.11.2002 to 26.8.2004, he might be entitled to get his salary in the promotional post subject to concurrence of the Finance Department and the final outcome of this case. 13. When the petitioner has worked in the promotional post from the date of assumption of charge till he retired from service on 31.8.2004,1 see no reason as to why he should be deprived of the salary of the promotional post. He may not be entitled to increments and/or for the said period of service may not be counted for any other purpose but he cannot be deprived of his salary in the promotional post. It will be unfair if he is paid salary of Junior Engineer, although he had worked in the promotional post of Assistant Engineer. 14. Although as per clause 11(2) of the Finance Department's Notification dated 16.6.1964, the petitioner may not be entitled to increments and the period of service rendered in the promotional post may not be counted for any other purpose, but the respondents may also consider to extend relaxation, if permissible under the Rules, the petitioner having worked in the promotional post on being promoted and continued as such till 31.8.2004, when he retired from service, in the normal circumstances, he would be entitled to receive salary in the promotional post with appropriate fixation of pay and all consequential service and pensionary benefits, but for the impugned order dated 25.8.2004. It is in this context, the learned counsel for the petitioner submitted that the impugned order dated 25.8.2004 remained on paper only with theoretical application, but in reality and in practice, the petitioner continued in the promotional post till his retirement entitling him to all consequential benefits. 15. For all the foregoing reasons, discussions and conclusion, while not interfering with the impugned order dated 25.8.2004,1 leave it open to the respondents to consider the case of the petitioner for extending relaxation, if permissible, so that his status remains as Assistant Engineer with consequential benefits. In any case, he will be entitled to salary of the promotional post. 15. For all the foregoing reasons, discussions and conclusion, while not interfering with the impugned order dated 25.8.2004,1 leave it open to the respondents to consider the case of the petitioner for extending relaxation, if permissible, so that his status remains as Assistant Engineer with consequential benefits. In any case, he will be entitled to salary of the promotional post. This observation for considering the case of the petitioner by extending relaxation, if permissible under the law, has been made in view of the fact that although erroneous promotion of the petitioner was detected immediately after his promotion as indicated by letter dated 21.11.2002, but it took almost two years in reverting the petitioner and that he continued in the promotional post till he retired From service with effect from 3 1.8.2004 on attaining the age of superannuation. 16. With the above observation and direction, the writ petition stands disposed of.