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2019 DIGILAW 916 (GAU)

Hiten Sarma v. State Of Assam

2019-08-19

KALYAN RAI SURANA

body2019
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. A.D. Choudhury, the learned counsel for the petitioner. Also heard Mr. P.J. Phukan, the learned standing counsel for respondents No.2, 3 and 4 as well as Mr. U.K. Nair, learned senior counsel assisted by Mr. S. Hoque, learned counsel for the private respondent No. 5. None appears on call for the respondent No.1. 2. Common issues arise in these two writ petitions and, as such, both the writ petitions have been heard analogously. 3. By the two writ petitions filed under Article 226 of the Constitution of India, the petitioners have challenged the impugned order No. WB/PF-300/94-95/229 dated 24.06.2016, by which the respondent No.5 was given promotion and making him senior to the petitioners and consequently, the petitioners have prayed for restoration of their seniority over the respondent No.5. As the two writ petitions assail the same impugned order, the facts narrated herein is based on pleadings in W.P.(C) No. 5055/2016. 4. The petitioners and the respondent No.5 are members of Laboratory and Scientific Service under the Pollution Control Board, Assam. They had started their service in the post of Assistant Chemist, now redesignated as Scientific Assistant-I (SA-1). It is projected that all throughout the petitioners were placed senior to the respondent No.5. However, the seniority position got disturbed when the respondent No.5 was upgraded and promoted with retrospective effect (i) from the post of Assistant Environment Scientist (AES for short) to Environment Scientist (ES for short) w.e.f. 30.07.2013, (ii) from the post of ES to Assistant Executive Environmental Scientist (AEES for short) w.e.f. 01.01.2014. 5. The learned counsel for the petitioners has submitted that while the petitioners, who at the relevant time were working as Assistant Chemist (now SA-I), were promoted to the post of Chemist (now AES) by order dated 02.03.2007. However, the respondent No.5 was promoted to the post of Assistant Chemist (now SA-I) by order dated 03.04.2010. In the said order, the respondent No.5 is shown to have joined the post of Assistant Chemist (now SA-1) on 27.05.2003. It is submitted that by an office order dated 28.02.2011, subject to the approval from the concerned authorities, one Anal Chandra Barman as well as the respondent No.5 were promoted from the post of Assistant Chemist (now SA-I) to the post of Chemist (now AES). It is submitted that by an office order dated 28.02.2011, subject to the approval from the concerned authorities, one Anal Chandra Barman as well as the respondent No.5 were promoted from the post of Assistant Chemist (now SA-I) to the post of Chemist (now AES). By an order dated 30.07.2013, three persons including Sri Hiten Sarma [petitioner in W.P.(C) 5055/16], who was working in the post of AES was promoted to the post of Environment Scientist (ES for short). It may be stated that in the meeting of the Selection Committee held on 27.12.2013, the names of two others were promoted with effect from the date of their joining. However, in terms of the decision taken in the meeting of the Selection Committee held on 27.12.2013, the petitioner in W.P.(C) 5055/16 was promoted to ES by order dated 03.03.2014 with effect from the date of joining. 6. In the meanwhile, by an order dated 23.09.2013, 7 persons, including Sri Manoj Baruah [petitioner in W.P.(C) 5431/16], as well as the respondent No.5, who were working in the post of AES were promoted to the post of ES. However, in the said order, the name of the petitioner W.P.(C) 5431/16 was at Sl. No.4 and the name of the respondent No.5 was at Sl. No. 6. In the said order, it was also provided that the pay and other promotional benefits will accrue to the Scientists named therein with retrospective effect only after the approval by the Board. 7. The respondent No.5 had submitted his representations dated 24.02.2014 and 20.03.2014 seeking promotion. The said representations were disposed of by order dated 20.05.2014, thereby rejecting the said representation, inter-alia, mentioning therein that M.Sc. is an essential qualification for the level of SES and above, and further stating therein that as per Rules, M.Sc. is not the essential qualification for promotion from the level of ES to the level of AEES. In the said order dated 20.05.2014, it was mentioned that it was issued with the approval of the Chairman. Thereafter, by order dated 21.07.2014, the promotion of the petitioner in W.P.(C) 5055/16 from ES to the post of AEES by order dated 03.03.2014 was fixed w.e.f. 03.03.2014. In the said order dated 20.05.2014, it was mentioned that it was issued with the approval of the Chairman. Thereafter, by order dated 21.07.2014, the promotion of the petitioner in W.P.(C) 5055/16 from ES to the post of AEES by order dated 03.03.2014 was fixed w.e.f. 03.03.2014. Thereafter, pursuant to the decision taken in the 96th Board Meeting, 4 (four) posts of AES were upgraded to the level of ES and 4 (four) senior most AES including the petitioner in W.P.(C) 5431/16 were allowed to hold the upgraded post of ES w.e.f. the date of joining as shown against their names. Moreover, in view of the Board s decision, the name of three personnel including the respondent No.5 were to continue to be of the level of AES by clarifying that their designation shall be AES only. Moreover, in view of the said decision of the Board, the order dated 23.09.2013 was annulled. Thereafter, the member Secretary, Pollution Control Board (respondent No.4) issued a notification dated 18.08.2015, by which the revised and updated cadre list/ gradation/seniority list was published, wherein the name of Hiten Sarma [petitioner in WP(C) 5055/16] appeared at Sl. No.5 in the cadre list of AEES with date of joining as Chemist is shown as 02.03.2007, the name of Manoj Baruah [petitioner in WP(C) 5431/16] appeared at Sl. No. 4 of the cadre list of ES with date of joining as Chemist is shown as 02.03.2007, and the name of respondent No.5 appeared at Sl. No. 2 of the cadre of AES with date of joining as Chemist is shown as 01.03.2007. 8. The aggrieved respondent No.5 had submitted his representation before the authorities on 27.10.2015. On examining the grievance raised by the respondent No.5, the Chairman of Pollution Control Board, Assam by his order dated 2.06.2016, allowed up-gradation and promotion of the respondent No.5 (i) from AES to ES w.e.f. 30.07.2013, and (ii) from ES to AEES w.e.f. 01.01.2014. 9. The aggrieved petitioners had submitted their respective representation before the Chairman, Pollution Control Board, Assam but as no favourable action was taken, the petitioners have approached this Court. 10. 9. The aggrieved petitioners had submitted their respective representation before the Chairman, Pollution Control Board, Assam but as no favourable action was taken, the petitioners have approached this Court. 10. The learned counsel for the petitioner in both the writ petitions has submitted that by order dated 12.08.2014, the post of four persons including the petitioner in W.P.(C) 5431/16 was upgraded from AES to ES w.e.f. 23.09.2013 in terms of the decision taken in the 96th Board Meeting and that by the same order it was provided that in view of the Board s decision, the respondent No.5 and two others named therein would continue to be of the level of the AES and accordingly, the office order dated 23.09.2013 was annulled. Hence, it is submitted that the respondent No.5 was not even borne in the cadre of AES as on 23.09.2013. It is submitted that thereafter vide notification No. 18.08.2015, in fulfillment of Regulation 4 of the Pollution Control Board, Assam (Employees Service Regulation, 2012 the revised and updated cadre list as on 01.08.2015 of all the categories of the posts along with name of the incumbents in order of seniority was published. In the said list, the name of the petitioner in WP(C) 5055/16 appeared at Sl. No. 5 in Cadre List of AEES; name of petitioner in W.P.(C) 5431/16 appeared at Sl. No. 4 in Cadre List of ES; and the name of the respondent No.5 appeared at Sl. No. 2 in cadre List of AES. It is further submitted that by passing the impugned order, the Chairman of the Pollution Control Board, Assam though not the appellate authority over the Board, had set aside the decision of the 96th Meeting of the Board by giving promotion to the petitioner with retrospect effect, thereby upsetting the seniority list, as notified on 18.08.2015. 11. It is also submitted that by the office order dated 03.03.2014, the petitioner in W.P.(C) 5055/16 was promoted from the post of ES to the post of AEES as per decision taken in the meeting of the Selection Committee held on 27.12.2013. 11. It is also submitted that by the office order dated 03.03.2014, the petitioner in W.P.(C) 5055/16 was promoted from the post of ES to the post of AEES as per decision taken in the meeting of the Selection Committee held on 27.12.2013. The aggrieved respondent No.5 had submitted his representation dated 24.02.2014 and 10.03.2014, but the said representations was closed with a note that he and 6 others would be given promotional benefit with retrospective effect when the Board will rectify the office order dated 23.09.2013 and accordingly, the claim of the respondent No.5 for promotion to the level of AEES was rejected vide letter dated 20.05.2014 by the Member Secretary, PCB, Assam. The aggrieved respondent No.5 had thereafter filed a writ petition, being W.P.(C) 2385/14 to challenge the said promotional order. However, upon the rejection of his two representations by letter dated 20.05.2014, the said writ petition was withdrawn. Thereafter, a composite challenge was made to challenge the order of promotion of the two petitioners as well as the rejection of the two representations submitted by the said respondent No.5, which was registered as W.P.(C) 2721/2014. The said writ petition was also withdrawn by order dated 02.02.2016. Accordingly, it is submitted that having withdrawn the said writ petition, the order of promotion of both the petitioners had attained finality and, as such, the Chairman of PCB, Assam had no power and authority to pass the impugned order so as to disturb the seniority of the petitioner. 12. It is further submitted that the PCB, Assam has altered their stand in this writ petition because while they had opposed the previous writ petition filed by the respondent No.5, they are now opposing the present writ petition and supporting the promotion granted to the respondent No.5. In this regard, the learned counsel for the petitioners has referred to the statements made in the affidavit- in- opposition filed by the PCB, Assam in W.P.(C) 2385/14. It is submitted that as the resolutions adopted in the 96th Board Meeting was never challenged, the Chairman had no power and authority to override the resolutions of the Board as if he was sitting in appeal. 13. In support of his submissions, the learned counsel for the petitioners has placed reliance on the following case citations:- i. National Institute of Technology & Anr. Vs. Pannalal Choudhury & Anr., (2015) 11 SCC 669 . ii. 13. In support of his submissions, the learned counsel for the petitioners has placed reliance on the following case citations:- i. National Institute of Technology & Anr. Vs. Pannalal Choudhury & Anr., (2015) 11 SCC 669 . ii. P. Sudhakar Rao & Ors. Vs. U. Govinda Rao & Ors., (2013) 8 SCC 693 . iii. Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy & Ors., (2011) 9 SCC 510 . iv. Union of India Vs. Pushpa Rani & Ors., 2008 9 SCC 242 . v. Nani Sha & Ors. Vs. State of Arunachal Pradesh & Ors., (2007) 15 SCC 406 . vi. State of Bihar & Ors. Vs. Akhouri Sachindra Nath & Ors., (1991) Supp1 SCC 334. vii. Rabiul Haque Vs. The State of Assam & Ors., W.P.(C) 2721/14, dismissed on withdrawal by order dated 02.02.2016. viii. Mridul Dev Adhikary Vs. The State of Assam & Ors., W.P.(C) 912/2011, decided on 06.04.2015. ix. B. Nongrum & Anr. Vs. Govt. of Meghalaya & Ors.,(2014) 2 GauLT(ML) 257. x. Rabiul Haque Vs. The State of Assam & Ors., W.P.(C) 2385/2014, dismissed on withdrawal by order dated 21.05.2014. xi. Union of India & Ors. Vs. Akbar Ali, (2013) 3 GauLR 231 . 14. Per contra, the learned senior counsel for the respondent No.5 has opposed the two writ petitions and it is submitted that the impugned order reflects that the respondent No.5 had been deprived all along. It is submitted that as the petitioner had the qualification of M.Sc., he ought to have been promoted to the post of ES and then to the post of AEES and placed as senior to the petitioners. It is submitted that the office order dated 24.06.2015 reveals that no decision was taken in the 94th Board Meeting for amendment of Table 3 (Annexure-III), Column 9, Sl. No. 4 and 5 and thus, it was held that the issuance of corrigendum was to deprive the respondent No.5 only and that it also reflects therein that the respondent No.5 was debarred from promotion for no fault of his own and that the action taken by the then authority was not in accordance with the Service Regulation [Reg.9(III); (4) and (C)]. It is submitted that in the case of the petitioners the provisions of Clause III(C) of 2012 Regulation was applied and column 5 and 6 of Appendix III. It is submitted that in the case of the petitioners the provisions of Clause III(C) of 2012 Regulation was applied and column 5 and 6 of Appendix III. Accordingly, it is submitted that though it was a promotion, but as the petitioners did not have the qualifying 10 years of service, the petitioners were actually upgraded. 15. It is submitted that as the respondent No.5 has not come in writ, the principle of res judicata, as urged by the learned counsel for the petitioner by relying on few case citations, shall not apply or operate against the respondent No.5. It is also submitted that both the petitioners did not have the requisite educational qualification to make them eligible for promotion, as such, the learned senior counsel for the respondent No.5 has justified the impugned order. It is submitted that seniority in a particular cadre alone does not entitle the petitioners in the two writ petitions for promotion to a higher post unless he fulfills the eligibility conditions prescribed by the extant rules. In this connection, the learned counsel for the respondent No.5 has submitted that the respondent No.5 had M.Sc. degree and, as such, he was entitled to be promoted to the next higher post after putting in 5 years service in the cadre of AES. Hence, as the respondent No.5 was deprived of his due promotion by not considering his case, the respondent No.3 had exercised powers vested in him under Rule 21(3) of the Air (Prevention And Control of Pollution) Assam Rules, 1991 or as per Rule 22(iii) of the Water (Prevention And Control of Pollution) (Assam) Rules, 1981. 16. The various facets arising therefrom have been elaborately submitted by the learned Senior Counsel for the respondent No.5. In support of his submissions, the learned senior counsel for the respondent No.5, while distinguishing the cases cited by the learned counsel for the petitioners, has placed reliance on the case of Palure Bhaskar Rao & Ors. Vs. P. Ramaseshaiah & Ors., (2017) 5 SCC 783 . 17. The learned standing counsel for the PCB, Assam i.e. respondents No.2 to 4 has submitted that the Govt. had only approved the draft 2012 Regulation and not the corrigendum dated 01.08.2013. Accordingly, it is submitted that the authorities could not have taken steps in terms of corrigendum dated 01.08.2013. 18. P. Ramaseshaiah & Ors., (2017) 5 SCC 783 . 17. The learned standing counsel for the PCB, Assam i.e. respondents No.2 to 4 has submitted that the Govt. had only approved the draft 2012 Regulation and not the corrigendum dated 01.08.2013. Accordingly, it is submitted that the authorities could not have taken steps in terms of corrigendum dated 01.08.2013. 18. Some undisputed facts are as follows:- a. Previous and present designation of posts:- i. Assistant Chemist is now re-designated as Scientific Assistant- I (SA-I). ii. Chemist is now Assistant Environment Scientist (AES). iii. Environment Scientist (ES) created on 07.04.2014. iv. Assistant Analyst is now Assistant Executive Environment Scientist (AEES). v. Deputy Analyst is now Executive Environment Scientist (EES). vi. Board Analyst is now Senior Environment Scientist (SES). b. Dates of promotion given to the petitioners in both writ petition and the respondent No.5: Post Hiten Sarma, M.Sc., Petitioner in W.P.(C) 5055/16 Manoj Baruah, B.Sc., Petitioner in W.P.(C) 5431/16. Rabiul Haque, M.Sc., respondent No.5. SA-1 31.12.1994 27.11.1995 26.05.2003 AES 02.03.2007 02.03.2007 28.02.2001 ES 30.07.2013 (Upgradation) 29.03.2013 (Upgradation) 29.03.2013 (Upgradation) AEES 03.03.2014 c. Effect of impugned order:- Post Hiten Sarma, M.Sc., Petitioner in W.P.(C) 5055/16 Manoj Baruah, B.Sc., Petitioner in W.P.(C) 5431/16 Rabiul Haque, M.Sc., ES 30.07.2013 (Upgradation) 29.03.2013 (Upgradation) 30.07.2013 AEES 03.03.2014 01.03.2014 19. The affidavit- in- opposition filed by the Chairman, PCB, Assam, Member Secretary, PCB, Assam [respondents No.2 and 3 in W.P.(C) 2721/14], is Annexure-A to the affidavit- in- reply filed by the petitioner in W.P.(C) 5055/16. On a perusal thereof, it is seen that the stand of the said respondents was that the name of the respondents No.4, 5 and 6 therein, namely, Sri Karuna Thakuria, Smt. Rupamoni Gogoi and Sri Hiten Sarma [petitioner in W.P.(C) 5055/16] were at Sl. No.1, 2 and 3 respectively as AES and, as such, they were senior to the respondent No.5 herein whose name was at Sl. No. 9 in Cadre list of AES. It was mentioned that 96th Board Meeting held on 05.08.2014, the upgradation of the respondent No.5 was not approved, the question of further promotion to the level of AEES did not arise. The further stand of the said respondents in their said affidavit-in-opposition filed in W.P.(C) 2721/14 was that the persons who had joined the Board with B.Sc. qualification their promotion is open to the level of EES without any preference to M.Sc. The further stand of the said respondents in their said affidavit-in-opposition filed in W.P.(C) 2721/14 was that the persons who had joined the Board with B.Sc. qualification their promotion is open to the level of EES without any preference to M.Sc. degree holders as per Rule 9(III)(c) of 2012 Service Regulation. Read with remarks in column 9 of Table 3 of Appendix-III of the said 2012 Regulation. The further stand of the PCB, Assam was that as on the date of filing of their affidavit- in-opposition in W.P.(C) 2721/14 the respondent No.5 was not yet confirmed as ES while he was seeking further promotion to the next level i.e. AEES. 20. Thus, on the perusal of the Affidavit- in- opposition filed by the respondents No.2 to 4 in the present writ petition, there is no doubt that compared to the stand of the said respondents in W.P.(C) 2721/14, there is a marked change in the stand of the said respondents in the present writ proceedings inasmuch as in the present cases, the stand of the respondents No.2 to 4 is that the respondent No.5 herein was most eligible for promotion to the post of ES, but the Selection Committee prepared a list of candidates only on the basis of seniority without considering the essential qualification, which is in violation of the provisions of Regulation 9 of the 2012 Service Regulation. It is the further stand of the respondents No.2 to 4 that for the promotion to the post of ES from the post of AES, the provision of Regulation 10 with reference to 9(III) are to be followed by the Selection Committee, but the Selection Committee constituted as per Regulation 14 did not follow the relevant provisions of Regulation 10 during the preparation of the selection list and the then authority also did not follow the relevant provisions of the Regulation 10, as such, the petitioners along with other 2 (two) AES were promoted to the post of ES in violation of the provisions of the said Regulations. Accordingly, the respondents No.2 to 4 had justified the upgradation and promotion of the respondent No.5 with retrospective effect from the post of AES to ES w.e.f. 30.07.2013, and from the post of ES to AEES w.e.f. 01.01.2014. Accordingly, the respondents No.2 to 4 had justified the upgradation and promotion of the respondent No.5 with retrospective effect from the post of AES to ES w.e.f. 30.07.2013, and from the post of ES to AEES w.e.f. 01.01.2014. Thus, on comparing the contents of the said two affidavits- in- opposition, it is clearly exposed that the respondents No. 2 to 4 are shifting their stand in the two affidavits- in- opposition filed by them. Therefore, the changing stand by the PCB, Assam, which is a statutory authority, is deprecated. It is seen that although the respondents No.2 to 4 had been served with the affidavit- in- reply filed on 01.02.2018 against the affidavit- in- opposition filed by the said respondents No.2 to 4, where the change of stand was disclosed, yet as the respondents No.2 and 4 have not disowned their previous stand as taken in W.P.(C) No. 2721/14, which was against the interest of the respondent No.5 herein cannot be obliterated or wished away. 21. It is seen that as per the provisions of Rule 21(3) of the Air (Prevention And Control of Pollution) Assam Rules, 1991 it is provided that Subject to rules, if any made under sub-section (3) and (5) of section 14, the Chairman shall have full power in matters of appointment, promotion, confirmation transfer, disciplinary proceedings and termination of service of the officers and employees of the Board. Therefore, as the Government of Assam had notified the Pollution Control Board, Assam (Employees Service) Regulation, 2012 in exercise of powers conferred under Sub- Section 3(A) of Section 12 of Water (Prevention And Control of Pollution) Act, 1974 as amended and Sub- Section (4) of Section 14 of the Air (Prevention And Control of Pollution) Act, 1981 as amended, in the opinion of the Court, the Chairman would not have unfettered power, inter-alia, in the matter of promotion to the employees and officers of the Board. The Board shall have to follow the procedure prescribed under the said 2012 Regulations for giving effect to promotion of employees and officers. 22. It is seen from the Affidavit-in- opposition filed by the respondents No.2 to 4 it is made to appear that a Selection Committee had considered the cases of various officers and had recommended their promotion. The Board shall have to follow the procedure prescribed under the said 2012 Regulations for giving effect to promotion of employees and officers. 22. It is seen from the Affidavit-in- opposition filed by the respondents No.2 to 4 it is made to appear that a Selection Committee had considered the cases of various officers and had recommended their promotion. Accordingly, on the basis of the recommendations given by the Selection Committee, in the 96th Board Meeting, 4 (four) posts of AES were upgraded to the level of ES and 4 (four) senior most AES including the petitioner in W.P.(C) 5431/16 were allowed to hold the upgraded post of ES w.e.f. the date of joining as shown against their names. Moreover, in view of the Board s decision, the name of three personnel including the respondent No.5 were to continue to be of the level of AES by clarifying that their designation shall be AES only. Moreover, in view of the said decision of the Board, the order dated 23.09.2013 was annulled. Thereafter, the member Secretary, Pollution Control Board (respondent No.4) issued a notification dated 18.08.2015, by which the revised and updated cadre list/ gradation/seniority list was published, wherein the name of Hiten Sarma [petitioner in W.P.(C) 5055/16] appeared at Sl. No.5 in the cadre list of AEES with date of joining as Chemist is shown as 02.03.2007, the name of Manoj Baruah [petitioner in W.P.(C) 5431/16] appeared at Sl. No. 4 of the cadre list of ES with date of joining as Chemist is shown as 02.03.2007, and the name of respondent No.5 appeared at Sl. No. 2 of the cadre of AES with date of joining as Chemist is shown as 01.03.2007. 23. From the tone and tenor of the impugned office order No. WB/PF-300/94-95/229 dated 24.06.2016 issued by the Chairman, Pollution Control Board, Assam (respondent No.3), it appears that the said authority was of the view that that (a) the respondent No.5 was debarred from promotion for no fault of his own;(b) no decision was taken in the 94th Board Meeting for amendment of Table 3 (Annexure-III), Column 9, Sl. No. 4 and 5 and thus, the issuance of corrigendum was to deprive the respondent No.5 only, as it appears; and (c) that the action taken by the then authority was not in accordance with the Service Regulation [Reg.9(III); (4) and (C)]. No. 4 and 5 and thus, the issuance of corrigendum was to deprive the respondent No.5 only, as it appears; and (c) that the action taken by the then authority was not in accordance with the Service Regulation [Reg.9(III); (4) and (C)]. It is seen that by the decision taken in the 96th Board Meeting as reflected in the Office Order under Memo No. WB/G-891/13-14/26 dated 12.08.2014, the petitioner in W.P. (C) 5431/16 was promoted from AES to ES, showing the date of joining as ES on 23.09.2013, and simultaneously it was confirmed that the respondent No.5 would continue to be at the level of AES only. Thus, it is seen the respondent No.3 had found fault with the decision taken in the 96th Board Meeting. Moreover, the petitioner in W.P.(C) 5055/16 was promoted from AES to ES by order dated 30.07.2013. The said office orders dated 23.09.2013 and 12.08.2014 had attained finality and without interfering with the said two orders, the respondent No.3 had passed the impugned order dated 24.06.2016. It is relevant to remember herein that the respondent No.5 had assailed the denial of his promotion and rejection of his two representations by filing W.P.(C) No. 2721/2014, but the said writ petition was abandoned by withdrawing the same. 24. Moreover, no provisions under the 2012 Employees Regulation or under the Water (Prevention And Control of Pollution) Act, 1974 and the Air (Prevention And Control of Pollution) Act, 1981 of Rules framed thereunder has been placed to show that the Chairman of the Board can sit over as appellate authority over the decision taken in the 96th Meeting of the Board, as such, the said action of the respondent No.3 is not found to be supported by any Act, Rules or the Employees Regulation in force. 25. In the present case in hand, the respondent No.3 had promoted the respondent No.5 without considering comparative merit and/or seniority of any other person in the cadre of AES, which was also done without subjecting the respondent No.5 through any selection process whatsoever. 26. It is also seen that by letter under Memo No. WB/PF-300/94-95/83 dated 20.05.2014, the Member Secretary, PCB, Assam (respondent No.4) had rejected the representation submitted by the respondent No.4 on 24.02.2014 and 10.03.2014. 26. It is also seen that by letter under Memo No. WB/PF-300/94-95/83 dated 20.05.2014, the Member Secretary, PCB, Assam (respondent No.4) had rejected the representation submitted by the respondent No.4 on 24.02.2014 and 10.03.2014. It was specifically mentioned therein that the said letter was issued with the approval of the Chairman, PCB, Assam (respondent No.5) and a copy thereof was marked to the respondent No.5. The effect of the impugned order dated 24.06.2016 would also be mean that the effect of the letter under Memo dated 20.05.2014 would also be totally negated. Consequently, if the impugned order dated 24.06.2016 is allowed to stand, it would also have an impact on the seniority/gradation list which was declared by notification dated 18.08.2015. In the case of Akhouri Sachindra Nath (supra), the Supreme Court of India has reiterated the observation made in the case of A.K. Subraman Vs. Union of India, (1975) 1 SCC 319 to the effect that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. 27. It is also seen that under the 2012 Employees Regulation, the Selection Committee constituted under Regulation 14 conducts the selection and gives its recommendation and accordingly, as per the prevailing practice, the Board takes a decision in its Board Meeting. The said procedure was not followed by the respondent No.3 by directly promoting the respondent No.5 by virtue of the impugned order dated 24.06.2016, which is in aberration of the said 2012 Employees Regulation. As discussed above, upon the 2012 Employees Regulation being notified by the State Government, the Chairman, Pollution Control Board, Assam cannot exercise his powers as per Rule 21(3) of the Air (Prevention And Control of Pollution) Assam Rules, 1991 or as per Rule 22(iii) of the Water (Prevention And Control of Pollution) (Assam) Rules, 1981. 28. The Court is of the considered opinion that the case of Palure Bhaskar Rao (supra), cited by the learned senior counsel for the respondent No.5 would not apply under the facts of the case because of the fact that in this case the respondent No.5 has not challenged the promotion orders in respect of the petitioners in the two writ petitions on the ground that they did not have the requisite qualification. As indicated herein before, the respondent No.5 had assailed the promotion of the petitioners by filing W.P.(C) 2385/14, which was withdrawn and W.P.(C) 2721/14 was thereafter filed, however, the said writ petition was withdrawn, thus, allowing the order of promotion of the two petitioners to attain finality. 29. Therefore, in view of the discussions above, the Court is of the considered opinion that the impugned office order No. WB/PF-300/94-95/229 dated 24.06.2016 issued by the Chairman, Pollution Control Board, Assam (respondent No.3) is not sustainable on facts. Hence, the Court has no hesitation to set aside and quash the said office order No. WB/PF-300/94-95/229 dated 24.06.2016 issued by the Chairman, Pollution Control Board, Assam (respondent No.3). As a sequel, the seniority position of Sri Hiten Sarma [petitioner in W.P.(C) No. 3055/2016], and Manoj Baruah [petitioner in W.P.(C) No. 5431/2016] stands restored in terms of the revised and updated cadre list as on 01.08.2015 as per notification No. WB/G-884/13-14/59 dated 18.08.2015. The Chairman, Pollution Control Board, Assam (respondent No.3) is directed to forthwith pass consequential orders to revert the respondent No.5 to the same position as he was prior to passing of the said order dated 24.06.2016. 30. There shall be no order as to cost.