Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 975 (GAU)

State of Assam v. Bharat Bhusan Rajkhowa

2019-08-30

ARUP KUMAR GOSWAMI, MANISH CHOUDHURY

body2019
ORDER : Arup Kumar Goswami, J. 1. Heard Mr. R.K.D. Choudhury, learned Senior Government Advocate, Assam, for the appellants. Also heard Ms. D. Borgohain, learned counsel-appearing for the respondent. 2. The challenge in this writ appeal is to an order dated 14.08.2019 passed by the learned Single Judge in WP(C) No. 5562/2019 allowing the writ petition with a direction to constitute the review DPC to consider the case of the writ petitioner for promotion to the post of Assistant Engineer from the post of Junior Engineer within 10 days from the date of the order. 3. The respondent/writ petitioner is going on superannuation on 31.08.2019. 4. The order dated 14.08.2019 reads as follows:- "Heard Ms. D. Borgohain, learned counsel for the petitioner and Mr. D. Nath, learned Govt. Advocate, Assam. On 5.8.2019, the following order was passed:- "Petitioner is serving as Junior Engineer in the Public Works Department (PWD). He seeks promotion to the next higher grade of Assistant Engineer. Ms. Borgohain submits that on 24.07.2019 against 115 vacancies in the post of Assistant Engineer, promotions were made to 111 vacancies overlooking the claim of the petitioner. There are still 4 (four) vacancies left. Petitioner is retiring on attaining the age of superannuation on 31.08.2019. Considering the above, Mr. Nath shall obtain instruction why petitioner has not been promoted and whether his case will be considered for promotion against the available 4 (four) vacancies. List on 14.08.2019." Today when the matter is called upon, Mr. Nath submits on the basis of instructions furnished by Deputy Secretary to the Government of Assam, PWD (Roads), Establishment (B) Branch that case of the petitioner was placed before the Selection Board meeting held on 21.06.2019 but could not be considered as the petitioner had failed to submit annual property return statement within the stipulated time which is a mandatory requirement for promotion to Class-I rank of officers as per Office Memorandum of the Personal Department, Government of Assam dated 05.02.2014. It is stated that though not mentioned in the Assam Engineering Service Rules, 1978, submission of such annual property return statement is mandatory. Regarding contention of the petitioner that he had submitted annual property return statement on 29.07.2019, it is stated that since Selection Board meeting was already held on 21.06.2019, question of consideration of such statement did not arise. It is stated that though not mentioned in the Assam Engineering Service Rules, 1978, submission of such annual property return statement is mandatory. Regarding contention of the petitioner that he had submitted annual property return statement on 29.07.2019, it is stated that since Selection Board meeting was already held on 21.06.2019, question of consideration of such statement did not arise. Learned counsel for the petitioner submits that requirement of submission of annual property return statement was not informed to the petitioner. That apart, it is not part of the requirement under the Assam Engineering Service Rules, 1978. As noticed in the order dated 05.08.2019, petitioner is superannuating from service on 31.08.2019. At the fag end of his service career, he is seeking promotion from Junior Engineer to Assistant Engineer. Denial of promotion to the petitioner on such a ground does not appear to be justified. In such circumstances, Court is of the view that a review DPC should be constituted immediately to consider promotion of the petitioner as above which should be done before superannuation of the petitioner. Let the review DPC be constituted and meeting be convened within 10 days from today whereafter case of the petitioner for such promotion shall be considered. Whatever decision is taken, the same shall be communicated to the petitioner before his scheduled date of superannuation. This disposes of the writ petition." 5. A perusal of the order goes to show that the case of the writ petitioner was not considered on the ground that the writ petitioner had failed to submit annual property return statement within the stipulated time, which is the mandatory requirement for promotion of Class-I rank officers as per Office Memorandum or the Personal Department, Government of Assam dated 05.02.2014. 6. Though Mr. R.K.D. Choudhury submits that opportunity was not granted to file affidavit, it is evident that the ground of rejection of the case of the petitioner was duly instructed to the counsel appearing for the State of Assam and the same was also noted in the order and therefore, to that extent, it cannot be said that due opportunity was not granted to the State to place its case. 7. The Assam Engineering Service Rules, 1978 provides categories of posts in Class-I Sr. Grade, Class-I and Class-II. Class-II includes, amongst others, the post of Assistant Engineer. 7. The Assam Engineering Service Rules, 1978 provides categories of posts in Class-I Sr. Grade, Class-I and Class-II. Class-II includes, amongst others, the post of Assistant Engineer. Class-I comprises of the post of Executive Engineer, Architect, Research Officer of Road Research Laboratory. It is not in dispute that the writ petitioner is serving as Junior Engineer and was to be considered for promotion to the post of Assistant Engineer. 8. The post of Assistant Engineer is in Class-II and therefore, evidently the post of Junior Engineer cannot be in Class-I. While the office memorandum dated 05.02.2014 is on the subject of submission of annual property return statement by Class-I officers of Government of Assam, clause 2 of the said memorandum requires all officers to submit their annual property returns in prescribed format. The State Government may take appropriate action in this regard to remove the apparent ambiguity. 9. By a letter dated 12.02.2019, the Under Secretary to the Government of Assam, Public Works (Building & NH) Department had asked the Chief Engineers of PWD (Building) and PWD (NH Works) to submit a detailed report in respect of senior-most Junior Engineers (Civil), who are working for the last 5 years in respect of (i) pendency of departmental proceedings of such Junior Engineer (Civil), (ii) statement of property return and (iii) status of departmental exam passed. Based on the said letter, the Superintending Engineer, NH(P) wrote a letter, amongst others, to the Executive Engineer, PWD, Golaghat, under whose jurisdiction the writ petitioner was working. However, by the said letter, only ACR was requested to be submitted within a period of 2(two) days. It is not understood why the other particulars sought for were not mentioned in the said letter. Another letter dated 25.04.2019 was issued by the Deputy Secretary to the Government of Assam, Public Works Roads Department, Establishment (B) Branch to the Chief Engineers of PWD (Roads), PWD (Border Roads & NEC Works) & PWD (EAP), requesting them to submit property return statement of the concerned Junior Engineer (Civil) positively within 15(fifteen) days. No document has been placed, even in this writ appeal, indicating that despite asking for the property return statement from the petitioner, the same was not furnished by the writ petitioner. On the contrary, on 30.05.2015, only the ACRs were forwarded in respect of 9 persons, wherein the name of the writ petitioner figured at Sl. No document has been placed, even in this writ appeal, indicating that despite asking for the property return statement from the petitioner, the same was not furnished by the writ petitioner. On the contrary, on 30.05.2015, only the ACRs were forwarded in respect of 9 persons, wherein the name of the writ petitioner figured at Sl. No. 1, being the Sr. Grade Junior Engineer. 10. In the attending facts and circumstances of the case, it cannot be said that the petitioner had deliberately not submitted the property return statement and it was a result of improper communication of the requirement by the superior authorities. 11. It is not in dispute that there are 4(four) vacant posts available. 12. In view of the above discussion, we find no good ground to interfere with the order of the learned Single Judge and consequently, the writ appeal stands dismissed. No cost.