‘No Justifiable Ground To Withhold Promotion By Adopting A ‘Sealed Cover’ Procedure’: Gauhati HC Allows PWD Executive Engineer’s Plea For Promotion

The Gauhati High Court recently directed the Assam Government to give effect to the recommendation of the Selection Committee for promoting an Executive Engineer to the rank of Superintending Engineer in the PWD. The Selection Board had earlier decided that the case of the petitioner be kept in a “sealed cover” until the adverse remark received from the Additional Chief Secretary of Department of Housing and Urban Affairs against him is resolved by the Public Works Department.

Justice Suman Shyam observed:

“………it is apparent that merely because there were some interdepartmental/preliminary/in-house enquiry going on against the petitioner, the same could not have been a ground for the authorities to adopt a “sealed cover” procedure, more so, when in the decision of the Committee dated 28.09.2021 the DPC had already disclosed the fact that the petitioner has been recommended for promotion to the post of Superintending Engineer. Therefore, there was hardly any scope of having a “sealed cover” proceeding in this case as has been projected in the minutes dated 28.09.2021.”

The petitioner was serving as an Executive Engineer under the Public Works Department (PWD), Assam and was posted in the Nagaon Division.

It was the case of the petitioner that while working as Executive Engineer, PWD, Nagoan, he was supervising the additional work of “Improvement of Nehrubali Ground including walking and Cycle Track and Development of Lakhi Prasad Goswami Open Stage at Nagaon” for which the PWD was the nodal agency for execution of the work but the project was under the Department of Housing and Urban Affairs.

It was further stated by the petitioner that after execution of the work, the Housing and Urban Affairs Department alleged that he had prepared the estimate of the work without obtaining approval of the administrative department. After a preliminary enquiry was conducted, the Additional Chief Secretary of the concerned department had made a recommendation that the petitioner should not be promoted to the post of Superintending Engineer. Consequently, a show cause notice dated April 6, 2022 was served upon the petitioner by the Special Commissioner and Secretary, Public Works (Roads) Department, Dispur.

On receipt of the show cause notice, the petitioner submitted his reply and after taking note of the same, the Special Commissioner of Public Works (Roads) Department closed the departmental proceeding drawn against him by imposing the minor penalty of ‘censure’. However, on September 28, 2021, the when Departmental Selection Board met and considered the candidature of a number of departmental candidates for promotion to the rank of Superintending Engineer, it said his case be kept in a ‘sealed cover’ until such time, the adverse remark received from the Additional Chief Secretary of Department of Housing and Urban Affairs is resolved.

Aggrieved by the aforesaid decision of the DPC to keep his case in ‘sealed cover’, the petitioner filed the writ petition before the High Court.

The court noted that materials on record indicates that some preliminary enquiry was going on against the petitioner in the Department of Housing and Urban Affairs but what is significant to note is that the only enquiry contemplated under the law against a Government servant is as per the procedure prescribed under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964.

“There is no dispute about the fact that the enquiry allegedly conducted by the Housing and Urban Affairs Department was not an enquiry coming within the ambit of Rule 9 of the Rules of 1964. As a matter of fact, the proceedings initiated against the petitioner under Rule 9 of the Rules of 1964 was by serving the show-cause notice dated 06.04.2022 which culminated in the order dated 01.07.2022 imposing the penalty of ‘censure’. Therefore, there can be no doubt about the fact that on the date of holding the DPC/Selection Committee meeting i.e. 28.09.2021 there was no departmental proceeding pending against the petitioner,” said the court.

The Court relied upon the decisions of the Supreme Court in Union of India & Ors. v. K. V. Jankiraman & Ors (1991) 4 SCC 109 and Union of India & Ors. v. Anil Kumar Sarkar (2013) 4 SCC 161 wherein it was held that it is only when a charge memo in a departmental proceeding or a charge-sheet in a criminal prosecution is issued to an employee then it can be said that the departmental proceedings or criminal prosecution has been initiated against the employee and the ‘sealed cover’ procedure is to be resorted to only after the charge-memo or charge-sheet is issued.

Thus, the court held that there was no justifiable ground for the respondents to withhold the promotion of the petitioner by adopting a ‘sealed cover’ procedure.

“The mere fact that a minor penalty of ‘censure’ had been imposed upon the petitioner in a proceeding initiated at a stage subsequent to holding of the DPC cannot in any way denude the right of the writ petitioner to be promoted on the basis of recommendations made by the Selection Committee prior to initiation of the departmental proceeding,” the court said.

The court directed the respondents to give effect to the recommendation of the Selection Committee dated September 28, 2021 by promoting the petitioner to the rank of Superintending Engineer in the PWD by giving him seniority with effect from the date on which his juniors were promoted as Superintending Engineer within 2 weeks.

Case Title: Hiten Kalita v. The State of Assam & 4 Ors.

Citation: 2023 LiveLaw (Gau) 63

Coram: Justice Suman Shyam

Appearances: Advocate A. Phukan for the Petitioner; P. Nayak, Standing Counsel for PWD Assam; D. Borah, Government Advocate for the Government of Assam

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