Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 83 (JK)

Madan Lal v. Director School Education, Jammu

2001-04-04

T.S.DOABIA

body2001
JUDGMENT 1. Facts which are relevant as well as regarding which parties were not at variance need to be briefly noted. 2. Petitioner joined the Education Department of the State Government as a Peon in the year 1981. He was under matric at that point of time. He did matriculation in the year 1986 and 10+2 in the year 1990. His designation was changed in the year 1994 to Lab Bearer. Entry to this effect has been made in the Service Book. Thereafter he was promoted as Laboratory Assistant on 6th May, 999. This order dated 6th May, 99 has been cancelled on 25.8.1999 which is subject matter of dispute in this writ petition. 3. According to learned counsel for the petitioner this order cannot be sustained as the position of Lab Bearer and Peon is the same, both being Class IV posts. According to him change of cadre could be treated to be a case of new appointment of the petitioner. Therefore his subsequent promotion to the post of Lab. Assistant could not be cancelled. Impugned order has been passed in violation of principles of natural justice, equity and fair play as no hearing was afforded to him before passing the said order by the respondents. This was the minimum requirements excepted of the petitioner before passing the said order. Thus he alleges violation of Article 16 of the Constitution of India. 4. Respondents when put to notice have filed their objections. They have justified the order in question. Amongst other things, their specific case is that as per Schedule B, attached to J&K Educational (Subordinate) Service Recruitment Rules, 1979 recruitment to the post of Laboratory Assistant is to be made from amongst the matriculate with science. 75% of these posts are meant to be recruited through direct recruitment and 25% by promotion from Laboratory bearers who are matriculates with two years experience as such. 5. Further case of the respondents is that cadre of petitioner was changed from Peon to Lab Bearer by the then Principal, Government Higher Secondary School, Khour, Akhnoor illegally and without any authority of law. It was on this assumption that petitioner came to be promoted. Once this mistake was detected: within no time impugned order was issued. 5. Further case of the respondents is that cadre of petitioner was changed from Peon to Lab Bearer by the then Principal, Government Higher Secondary School, Khour, Akhnoor illegally and without any authority of law. It was on this assumption that petitioner came to be promoted. Once this mistake was detected: within no time impugned order was issued. It is further case of the respondents that petitioner in his position as a Peon could be considered and if found suitable as also being within the zone of consideration could be promoted as Junior Assistant. Thus according to them this is a clear cut case of erroneous promotion. Petitioner could only claim promotion to the post of Laboratory Assistant if his initial engagement as Lab bearer was in accordance with law or his cadre having been changed by a competent authority. Faced with this situation Shri Kalgotra persisted that it will not be in the fitness of things to promote the respondents to take up this matter again. By placing reliance on 2000 AIR SCW4513, Pratap Singh vs. Registrar, IGIT he submitted that the petitioner is entitled to the relief claim in the present writ petition. Thus, he submitted that the pleas to the contrary needs to be rejected. 6. When a reference is made to this judgment of Supreme Court, it does not advance the case of petitioner. Here argument addressed by Sh. Chouhan needs to be taken note of. According to him no doubt both posts i.e. Peon and Lab Bearer are Class IV, but according to him these are not inter-changeable. Reason given by him is that the channel of promotion of Peon and Lab Bearer are different and simply because both are Class IV posts does not make these interchangeable as was the case before the Supreme Court. In this view of the matter this decision does not advance the case of petitioner in any manner whatsoever. 7. It is not in dispute nor any order has been placed on record as to whether the cadre of petitioner was changed by a competent authority from Peon to Lab Bearer. This is the basis for further promotion of the petitioner as Lab Assistant. In order to sustain his claim in the writ petition it is necessary for the petitioner to show that this was lawfully done. This is the basis for further promotion of the petitioner as Lab Assistant. In order to sustain his claim in the writ petition it is necessary for the petitioner to show that this was lawfully done. Nothing has been brought on record except of the entry in the Service Book nor at the time of hearing could be shown. Petitioner harped on the entry made in the Service Book. Entry in the service book is the subsequent act and is to be preceded by a proper order from a competent authority. Admittedly there is no such order brought out by the petitioner on record. In the absence of such an order, plea of the petitioner cannot be accepted that this order was made by a competent authority clothed with the power to have ordered the change of cadre from Peon to Lab Bearer. Once this conclusion is arrived at, no benefit can be derived by the petitioner from his subsequent promotion as Lab Assistant. No fault can be found with the impugned order cancelling his promotion as Lab Assistant. 8. So far denial of hearing before passing of the impugned order is concerned, matter need not detain us any further. Learned counsel for the petitioner was called upon to show as to how the said order is bad in the absence of an order from the competent authority to change the cadre of his client from Peon to Lab Bearer so that if he is able to persuade the court, some relief may follow to him. He could not bring out anything before the court so as to persuade it to take a different view during the course of such post decisional hearing. In this behalf it may be appropriate to say that if argument of Mr. Kalgotra is accepted it will result in putting premium on the unauthorised acts of incompetent officers by upholding those mere non-following of principles of natural justice does not always vitiate the action impugned. Reason being that by following such principles, cause of justice is advanced and nothing more. How the petitioner has been prejudiced in the facts of this case could not be explained by the learned counsel. For taking this view reference can be made to Ashwani Kumar Vs. Reason being that by following such principles, cause of justice is advanced and nothing more. How the petitioner has been prejudiced in the facts of this case could not be explained by the learned counsel. For taking this view reference can be made to Ashwani Kumar Vs. State of Bihar, AIR 1996 SC 2833; M.C. Mehta vs. Union if India & Others, AIR 1999 SC 2583; Gadde Vankateswara Rao vs. Govt. of Andhra Pradesh, AIR 1966 SC 828 and Managing Director ECIL, Hyderabad vs. B. Karunakar, AIR 1994 SC 1074. 9. After following the aforesaid decisions of the Supreme Court, this court in SWP No. 10O/ 01, Sushil Kumar vs. State of J&K & Ors., dismissed the writ petition. In this case promotion was allowed to the writ petitioner after taking his date of having passed M.Sc. in the year 1984, whereas infact he had actually passed the said examination in the year 1994. Identical plea was raised to the effect that petitioner ought to have been heard before passing of the said order which was negatived. 10. No other point is urged. 11. In view of the aforesaid discussion there is merit in this writ petition which is accordingly dismissed. 12. No orders in view of the disposal of main case.