JUDGMENT : Heard Mr. S. Kataki, the learned counsel appearing for the petitioners. The respondent Assam Urban Water Supply and Sewerage Board (hereinafter referred to as the “Urban Board”) and its Managing Director (MD) are represented by the learned counsel Mr. S.C. Keyal. The learned Sr. counsel Mr. D. Mazumdar, appears for the respondent No.4. The Govt. advocate Ms. B. Devi, appears for the respondent No.5. 2. The petitioner No.1 is an association of the engineers of the Urban Board and the 2nd petitioner is the General Secretary of the association. They challenge the order dated 19.12.2006 (Annexure-F), whereby the Public Relation Officer (PRO) Surjya Kanta Bora (respondent No.4) was appointed as the Secretary of the Urban Board. The legality of the appointment is questioned by alleging that the post of PRO is a much lower level post and the respondent No.4 was appointed to a post of higher pay and responsibility, on pick and choose basis. 3. The Urban Board was established through a statutory enactment i.e. Assam Urban Water Supply and Sewerage Board Act, 1985 (hereinafter referred to as the “1985 Act”) and constitution of the Board is stipulated in Section 4 thereof. The power of appointment to the higher positions like the Secretary, Chief Engineer, Chief Accounts Officer is vested on the Board and under Section 8 of the Act, appointment to these posts are to be made with prior approval of the Government. Under the proviso to Section 8, the M.D. can make temporary appointment for a period not exceeding 3(three) months. 4. In the 1st meeting of the Urban Board held on 18.01.1989 presided over by the Board Chairman, under the resolution No.4, the post of Secretary was created and it was also decided that the post(s) of Secretary, Accounts Officer, Senior Research Officer, etc. should be filled up on deputation from Government service. In the same meeting it was further resolved that the Assam Civil Service (ACS) Officer Mr. P. Mazumdar is being appointed as part time Secretary and the Board authorized the M.D. to move the Government for deputing Mr. Mazumdar on whole time basis as Secretary of the Urban Board. should be filled up on deputation from Government service. In the same meeting it was further resolved that the Assam Civil Service (ACS) Officer Mr. P. Mazumdar is being appointed as part time Secretary and the Board authorized the M.D. to move the Government for deputing Mr. Mazumdar on whole time basis as Secretary of the Urban Board. The decision of the Board to appoint the Secretary through deputation of an ACS Officer gets reflected in the Government letter dated 30.01.1989, where it was shown that P. Mazumdar should be transferred and posted as full time Secretary of the Urban Board on deputation basis. When the tenure of Mr. Mazumdar ended, another ACS Officer Mr. R.P. Das was similarly appointed as Secretary to the Urban Board on deputation basis. Following the repatriation of Mr. Das, the M.D. through his letter(s) dated 17.02.1993 and 17.03.2004, requested the Government to depute a senior ACS Officer as the Secretary of the Urban Board. 5.1 Referring to the departure from prevalent practice as narrated above, Mr. S. Kataki, the learned counsel submits that when ACS officers are to be appointed as Secretary, a junior employee of the Urban Board couldn’t be appointed as that will be against the notified procedure. 5.2 The petitioners refer to the pay scale of the PRO to project that he was a lower level employee in the Board, who was still to be regularized and yet the respondent No.4 was posted as Secretary by the M.D. by taking recourse to the emergent power conferred upon him under the proviso to Section 8 of the 1985 Act. 5.3 Reading the impugned appointment order of 19.12.2006 (Annexure-F), Mr. S. Kataki submits that the appointment of respondent No.4 was dictated to the M.D. and thus it is argued that appointment was wrongfully made by disregarding the mode prescribed under Section 8 of the Act. 6. On the other hand, Mr. S.C. Keyal, the learned counsel appearing for the Urban Board submits that the respondent No.4 was appointed as the PRO on 18.03.1996 and before that, he was working as the Chemist-cum-Purchase Officer in the Nagaon Cooperative Sugar Mills Limited. He further submits that since approval of the Government was secured for appointment of the PRO as the Secretary of the Urban Board, the appointment was made through due process under Section 8 of the Act. 7. He further submits that since approval of the Government was secured for appointment of the PRO as the Secretary of the Urban Board, the appointment was made through due process under Section 8 of the Act. 7. On behalf of the respondent No.4, the Sr. counsel Mr. D. Mazumdar submits that when qualification is not prescribed for the post of Secretary, the respondent No.4 cannot be said to be disqualified to be appointed. He further submits that the respondent No.4 was posted as the I/C Secretary on earlier occasions and since he efficiently discharged his responsibilities, the Government has rightly approved the appointment of the PRO for the post of Secretary of the Urban Board. 8. The impugned appointment order of 19.12.2006 (Annexure-F) refers to the Government letter dated 07.07.2006 by which, the no objection of the Government for appointment of the PRO as the Secretary of the Urban Board was conveyed. But it was specified that appointment should be made only when the requirement of Section 7(1)(a) of the Assam Fiscal Responsibility and Budget Management Act, 2005 (hereinafter referred to as the “Fiscal Act”) are satisfied. Thus it was mandatory to make appointment in accordance with the laid down Rules, procedures and orders, as was specified under Section 7(1)(a) of the Fiscal Act. 9. In the context of the conditional approval issued by the Government for appointment of the PRO, it is necessary to examine the procedure for appointment. When the post of Secretary was created in the first meeting of the Board held on 18.01.1989, it was clearly specified that the Secretary should be appointed on deputation of ACS Officers and that is how the various senior Officers were deputed from time to time, to man the post of Secretary in the Urban Board. How a departure was made from the first Board’s resolution to appoint the PRO as Secretary of the Urban Board was the question addressed to both Mr. Keyal and Mr. Mazumdar who appeared for the respondents, but unfortunately the respondents failed to show any resolution/decision of the Board, which authorize appointment of a serving employee of the Urban Board to the post of Secretary. Keyal and Mr. Mazumdar who appeared for the respondents, but unfortunately the respondents failed to show any resolution/decision of the Board, which authorize appointment of a serving employee of the Urban Board to the post of Secretary. Therefore the appointment of the respondent No.4, who was serving in a lower scale in the organization, is found to be inconsistent with the decision taken in the first Board’s meeting to man the post of Secretary through appointment of ACS Officer, on deputation basis. 10. It must also be noted that the respondent No.4 at the relevant time as the PRO carried the pay scale of Rs.8,100-13,025/-, whereas the higher pay scale of Rs.9,075-14,625/- was prescribed for the post of Secretary. Therefore it is clear that the respondent No.4 was not appointed to an equivalent post and that is why he was initially given a lower pay scale on 19.12.2006. But subsequently his pay scale was enhanced to conform to the Secretary’s salary in the Urban Board. This indicates that undeserved indulgence was shown to a junior employee. 11. The power of appointment is conferred on the Board and the M.D. is not competent to make regular appointment to the post of Secretary. Moreover although request was made by the M.D. to depute ACS Officer to man the post of Secretary, steps were taken to appoint junior employee to the high post of Secretary without waiting for the ACS Officer. 12. If any of the serving employees of the Urban Board could be considered for the Secretary’s post, the appointing authority should have considered all eligible employees and the exercise undertaken to comfine the consideration to single employee reflects the biasness of the decision making process. Thus it is apparent that the appointment was made on pick and choose basis and that too by departing from the existing procedure of appointing ACS Officers to the post of Secretary to the Urban Board. 13. The so called govt. approval to appoint the respondent No.4 does not authorize the appointing authority to depart from the established procedure as the approval letter specifically refers to Section 7(1)(a) of the Fiscal Act. In such circumstances the appointment of respondent No.4 as Secretary of the Urban Board is clearly inconsistent with the Board’s resolution dated 18.01.1989. Therefore the impugned order dated 19.12.2006 (Annexure-F) is found to be illegal and the same is quashed and set aside. In such circumstances the appointment of respondent No.4 as Secretary of the Urban Board is clearly inconsistent with the Board’s resolution dated 18.01.1989. Therefore the impugned order dated 19.12.2006 (Annexure-F) is found to be illegal and the same is quashed and set aside. Thus the Board should take consequential steps to appoint a Secretary in accordance with Section 8 of the 1985 Act and the Board’s first resolution dated 18.01.1989. With this direction the case stands allowed. No cost.