Page No.# 1/10 GAHC010240862019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7436/2019 DEEPJYOTI NEOG S/O LT. BADAN CH. NEOG, R/O GRRNHOME APARTMENT, RUKMINIGAON PATH, P.O. KHANAPARA, P.S. DISPUR, DIST. KAMRUP (M), GUWAHATI-22, ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS. REP. BY THE PRINCIPAL SECRETARY TO THE TRANSPORT DEPTT. DISPUR, GUWAHATI-6 2:THE COMMISSIONER THE TRANSPORT DEPTT. DISPUR GUWAHATI-6 3:THE SECRETARY TO THE GOVT. OF ASSAM THE TRANSPORT DEPTT. DISPUR GUWAHATI-6 4:THE JOINT SECRETARY TO THE GOVT. OF ASSAM THE TRANSPORT DEPTT. DISPUR GUWAHATI-6 5:UNDER SECRETARY TO THE GOVT. OF ASSAM THE TRANSPORT DEPTT. DISPUR GUWAHATI- Advocate for the Petitioner : MR. A K BHUYAN, MS. Y S PHOM,MR. M BORAH,MS. P PATHAK,MS. N CHOUDHURY,MS. B BHUYAN Page No.# 2/10 Advocate for the Respondent : SC, TRANSPORT, BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 25.05.2026 Heard Ms. B Bhuyan, Learned Senior Counsel assisted by Ms. R Das, Learned Counsel for the Petitioner. Also heard Ms. M D Borah, Learned Standing Counsel, Transport Department, Assam, appearing for all the Respondents. 2. The Petitioner, herein, by way of instituting the present Writ Petition, has prayed for a direction upon the Respondent authorities, to promote him to the post of District Transport Officer (DTO), with retrospective effect, by granting notional benefit, with effect from the date, his junior was so promoted. 3. The Petitioner, who was working as an Enforcement Inspector, on adhoc basis, since the year 1991, had appeared for recruitment against the post of Enforcement Inspector, in a recruitment process, instituted by Assam Public Service Commission (APSC). On conclusion of the said selection process, the Assam Public Service Commission (APSC), vide its communication dated 26.05.1995, recommended the name of the Petitioner for appointment against the post of Enforcement Inspector, so advertised. Accordingly, the Petitioner was regularized in his services, Page No.# 3/10 w.e.f 26.05.1995. 4. In the gradation list of Enforcement Inspectors, published on 11.05.2018, the name of the Petitioner figures at Sl. No. 6, thereof. Accordingly, the Petitioner was within the zone of consideration for his promotion to the post of District Transport Officer (DTO), in terms of the provisions of the Assam Transport Service Rules, 2003. The Petitioner, not being considered for such promotion and his junior being so considered for promotion, had led the Petitioner to institute the present Writ Petition, praying for the reliefs, as noticed, hereinabove. 5. Ms. B Bhuyan, Learned Senior Counsel for the Petitioner by reiterating the facts noticed, hereinabove, has submitted that there was no valid reason for depriving the Petitioner of his due promotion, w.e.f the date, his junior Shri. Dwijendra Nath Das, was so promoted, vide the order dated 20.02.2019. Accordingly, Ms. B Bhuyan, Learned Senior Counsel submits that the Petitioner is entitled to be so promoted to the rank of District Transport Officer (DTO), w.e.f the date, his junior was so promoted. Ms. B Bhuyan, Learned Senior Counsel has further submitted that during the pendency of the present Writ Petition, the Respondent authorities, vide an order dated 21.11.2020, proceeded to promote the Petitioner to the cadre of District Transport Officer (DTO), under regulation 4 (d) of the Assam Public Service Commission (Limitations & Functions) Regulations, 1951. She submits that such promotion was Page No.# 4/10 given retrospective effect, i.e. w.e.f 20.02.2019, i.e. the date when his immediate junior Shri. Dwijendra Nath Das, was promoted to the post of District Transport Officer (DTO). 6. Ms. B Bhuyan, Learned Senior Counsel further submits that the Respondent authorities, while proceeding to regularize the promotion of the Petitioner, committed an illegality in regularizing such promotion, with effect from the date the Petitioner had assumed the charge of the post of District Transport Officer (DTO), in pursuance to the order dated 21.11.2020. She submits that vide the order dated 12.06.2024, while regularizing the promotion of the Petitioner, the retrospective effect, already granted for such promotion, initially, was ignored and the Petitioner’s promotion, was made prospective, w.e.f 21.11.2020. Ms. B Bhuyan submits that the reasons assigned by the Respondent authorities, for not regularizing the promotion of the Petitioner, w.e.f 20.02.2019, is clearly unsustainable and the Petitioner is entitled to have his promotion, against the post of District Transport Officer (DTO), regularized, w.e.f 20.02.2019. 7. Per Contra, Ms. M D Borah, Learned Standing Counsel, Transport Department, Assam, appearing for all the Respondents submits that although the Petitioner was, vide order dated 21.11.2020, promoted to the post of District Transport Officer (DTO), with retrospective effect, i.e. w.e.f 20.02.2019, by maintaining parity with the promotion granted to Page No.# 5/10 his junior Shri. Dwijendra Nath Das, subsequently, it was found that Shri. Dwijendra Nath Das was not entitled to be so promoted to the post of District Transport Officer (DTO), w.e.f 20.02.2019, inasmuch as, on the date, he was so considered for promotion, he had already crossed the age of superannuation. Ms. Ms. M D Borah, Learned Standing Counsel, Transport Department, Assam, submits that, vide an order dated 05.01.2026, the Respondent authorities had cancelled the promotion granted to Shri. Dwijendra Nath Das, vide the order dated 20.02.2019. Accordingly, she submits that there arises no occasion for granting parity to the Petitioner, in the matter of promotion to the cadre of District Transport Officer (DTO), with that of Shri. Dwijendra Nath Das, inasmuch as, the promotion of Shri. Dwijendra Nath Das, was already cancelled. Ms. M D Borah, by producing a notification dated 18.05.2026, has submitted that the Respondent authorities have now promoted the Petitioner, w.e.f 14.12.2020 and the period, w.e.f 14.12.2020 and to 16.12.2020, i.e. the date on which the Petitioner had joined against the promotional post, would be treated as to have been spent in the promotional post and the Petitioner was held to be Senior to the said Sri. Asif Ahmed, who was promoted, w.e.f 21.11.2020. 8. I have heard the Learned Counsel for the Parties and also perused the materials available on record. 9. The name of the Petitioner, herein, was also forwarded before the Page No.# 6/10 Departmental Selection Committee for consideration of his case against the vacancies, available in the year 2018-19. The minutes of the Selection Board meeting, held on 08.06.2018, would go to reveal that as there was a departmental proceeding, pending against the Petitioner, on the date of his consideration, his case was not recommended for promotion to the post of District Transport Officer (DTO). The said aspect of the matter would have required the Respondent authorities to have kept the name of the Petitioner in a sealed cover. However, there is no disclosure from the materials available on record that the recommendation of the Selection Committee, in respect of the Petitioner, herein, was kept in a sealed cover. 10. Be that as it may, the case of the Petitioner was, thereafter, again considered by the Departmental Selection Committee, in its meeting held on 03.02.2020 and it is found that the case of the Petitioner was recommended for promotion to the post of District Transport Officer (DTO). Basing on the recommendations made in favour of the Petitioner, by the Departmental Selection Committee, the Petitioner was, vide order dated 21.11.2020, promoted to the post of District Transport Officer (DTO), invoking the provisions of Regulation 4 (d) of the said Regulations of 1951. The promotion of the Petitioner was also made with retrospective effect, i.e. w.e.f 20.02.2019, i.e. the date when his immediate junior Shri. Dwijendra Nath Das, was promoted to the post of Page No.# 7/10 District Transport Officer (DTO). Thereafter, vide a notification dated 12.06.2024, on the recommendation of the Assam Public Service Commission (APSC), the promotion of the Petitioner made under the provisions of Regulations 4 (d) of the said Regulations of 1951, was regularized. However, while regularizing the Petitioner’s promotion, against the post of District Transport Officer (DTO), the same was so regularized w.e.f his date of joining as District Transport Officer (DTO). In other words, the retrospective effect given to the promotion of the Petitioner w.e.f 20.02.2019, vide the order dated 21.11.2020, was ignored by the Respondent authorities, while regularizing his such promotion and his promotion, now, was made effective from the date he had joined against the post of District Transport Officer (DTO), in pursuance to the issuance of the order dated 21.11.2020. 11. It is to be noted that at this stage, the promotion granted to his junior Shri. Dwijendra Nath Das, to the post of District Transport Officer (DTO), came to be cancelled. The promotion effected in respect of his said junior Shri. Dwijendra Nath Das, was cancelled by the Respondent authorities, only with the issuance of an order dated 05.01.2026. Accordingly, on the date the service of the Petitioner was so regularized, Shri. Dwijendra Nath Das, continued to be considered to have been promoted to the post of District Transport Officer (DTO), w.e.f 20.02.2019. Accordingly, the Petitioner ought not to have been deprived Page No.# 8/10 of his promotion, with retrospective effect, i.e. w.e.f 20.02.2019, which was so granted to him, vide the order dated 21.11.2020. It is to be noted that there is no order, brought on record, modifying the retrospective effect, granted to the promotion of the Petitioner to the post of District Transport Officer (DTO), vide the order dated 21.11.2020. This Court further would also notice that in the event the promotion of his junior Shri. Dwijendra Nath Das, was so cancelled with retrospective effect, would result in a post of District Transport Officer (DTO), remaining vacant, w.e.f the date he was so promoted. 12. Accordingly, the Petitioner, being senior to said Shri. Dwijendra Nath Das, in the cadre of Enforcement Inspector and from the materials brought on record, there being nothing adverse existing against the petitioner, it is the Petitioner who is to be held to be now eligible for being promoted, w.e.f the date Shri. Dwijendra Nath Das, was so promoted. As noticed hereinabove, the Respondent authorities have not placed on record, the nature of the departmental proceedings, instituted against the Petitioner which was pending, when his case was so considered by the Departmental Selection Committee, in its meeting held on 08.06.2018. However, this Court finds that in the subsequent meeting, the case of the Petitioner was duly considered and recommended for promotion by the Departmental Selection Committee, which can only be indicative of the fact that the departmental Page No.# 9/10 proceedings, instituted against the Petitioner, came to be dropped. Accordingly, in the event of such dropping of the departmental proceeding, instituted against the Petitioner, the Petitioner would be entitled to have his case considered for promotion, with retrospective effect, upon opening of the sealed cover. 13. Considering the fact that the Petitioner has already superannuated from his service, w.e.f 31.01.2024, this Court in view of the materials available on record, more particularly the order dated 21.11.2020, promoting the Petitioner to the post of District Transport Officer (DTO), w.e.f 20.02.2019, proceeds to direct the Respondent authorities to deem that the Petitioner, on such promotion was also regularized w.e.f 20.02.2019. The Petitioner in the present Writ Petition, having prayed for only grant of notional benefits for the period, w.e.f 20.02.2019 till the date he had assumed charge of the post of District Transport Officer (DTO), in pursuance to the order dated 21.11.2020, the Respondent authorities are directed to re-fix the pay of the Petitioner, as on the date he had assumed charge of the post of District Transport Officer (DTO), in pursuance to the order dated 21.11.2020, by notionally fixing of his pay, w.e.f 20.02.2019, till the date of his such assumption of charge of the post of District Transport Officer (DTO). Thereafter, the pay and allowances of the Petitioner be re-computed till the date of his superannuation, occasioning on 31.01.2024 and the arrears so working Page No.# 10/10 out, be released to the Petitioner. The re-computation of the pay of the Petitioner in the above manner, would also now call for a re-computation of the pension and other pensionary benefits, received by the Petitioner, the Respondent authorities shall also make the computation, in this connection, and release to the Petitioner, his arrears of pension and other pensionary benefits. 14. The said exercise be initiated and concluded within a period of 4 (Four) months, from the date of receipt of a certified copy of this order. The arrears of pay, as well as of pension and other pensionary benefits, be also released to the Petitioner within the period of 4 (Four) months, permitted for the completion of the exercise, now directed to be undertaken for compliance of the directions passed, hereinabove. 15. With the above observations and directions, the present Writ Petition stands disposed of. JUDGE Comparing Assistant