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2005 DIGILAW 481 (GAU)

Ramfangzuavi Khiangte v. Secretary to The Govt. of Meghalaya

2005-06-24

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. All the three writ petitions are on the same set of facts and are based on same cause of action. Thus, they have been heard analogously and are being disposed of by this common judgment and order. The three writ Petitioners involved in the writ petitions are aggrieved by the impugned order by which the order of promotions made in favour of the Petitioners from LDA to UDA has been withdrawn reverting them back to their original posts of LDA. 2. The Petitioner in W.P. (C) No. 123/2005 was first appointed as LDA cum Typist under the Respondents on adhoc basis with effect from 10.9.80. The Petitioner in the second writ petition was also appointed on temporary basis as LDA cum Typist by an order dated 2.3.81. The third writ Petitioner was appointed by order dated 15.9.80 as LDA cum Typist for a period of 90 days against a leave vacancy. All the Petitioners continued in their services as LDA cum Typist. Their such initial appointments were admittedly on adhoc and temporary basis without following the recruitment rules. 3. A selection was conducted for the posts of LDA cum Typist and the Petitioners were directed to appear in the selection. Such selection was conducted in the year 1989 by the District Selection Committee, East Khasi Hills District, Shillong. The Petitioners could qualify in the selection and a letter dated 5.9.89 signed on 5.12.89 (Annexure-III) was issued by the Secretary of the District Selection Committee to the Superintendent of Police, East Khasi Hills with copies to the Petitioners on the subject of regularization of adhoc appointees. By the said letter, the factum of recommending the Petitioners for regularization of their services pursuant to the selection conducted by the District Selection Committee (DSC) was intimated. 4. Thereafter, by Annexure-IV letter dated 12.3.90, the Superintendent of Police, East Khasi Hills intimated the Assistant Inspector General of Police (Admn.), about regularization of the adhoc services of the Petitioners with effect from their initial date of appointments on 10.9.80, 15.9.80 and 1.3.81 respectively. By yet another order dated 21.11.90 (Annexure-V), the services of the Petitioners were stated to be regularized with effect from the date of the recommendation made by the DSC. By yet another order dated 21.11.90 (Annexure-V), the services of the Petitioners were stated to be regularized with effect from the date of the recommendation made by the DSC. Thus, on the strength of the order, the Petitioners came to be borne in the regular cadre of LDA cum Typist from the date of regularization of their services from the date of recommendation made by the DSC vide Annexure-III letter dated 5.12.89. 5. After the aforesaid regularization of their services with effect from 5.12.89, the Petitioners were promoted to the cadre of UDA on the recommendation of the Departmental Promotion Committee (DPC). Their such promotion was effected by Annexure-VI order dated 14.4.2004 and their promotions were stated to be temporary and on officiating basis. The Petitioners on being released vide order dated 16.4.2004 from their posts of LDA cum Typist pursuant to the order of promotions, joined the promotional posts of UDA. After rendering about one year of service, the impugned order dated 28.4.2005 (Annexure-X) has been issued giving rise to the present writ proceeding. By the said impugned order, the earlier order of promotions promoting to the Petitioners to the rank of UDA has been withdrawn and they have been reverted to the original posts of, LDA cum Typist. According to the Petitioners such a course of action has been adopted by the Respondents in gross violation of the principles of natural justice. 6. The Respondents have entered appearance by filing their counter affidavit. The basic stand of the Respondents is that the temporary and officiating promotions of the Petitioners had to be withdrawn, inasmuch as, their cases were considered by the DPC taking their seniority from their initial dates of adhoc appointment and not from the date of regularization of their services by the DSC. According to them, the counting of seniority of the Petitioners erroneously resulted in recommendation of the Petitioners and their eventual promotion to the rank of UDA superseding six seniors in the cadre of LDA cum Typist. The impugned decision had to be taken pursuant to the representation dated 24.6.2004 made by the six LD As senior to the Petitioners. 7. It is the case of the Respondents that while considering the representation, the error committed by the DPC was detected. The impugned decision had to be taken pursuant to the representation dated 24.6.2004 made by the six LD As senior to the Petitioners. 7. It is the case of the Respondents that while considering the representation, the error committed by the DPC was detected. According to the Respondents, the Petitioners were provided with due opportunity of being heard by calling them to the chamber of the Respondent No. 2 on 28.2.2005 and apprising them of the fact situation resulting in withdrawal of their promotions. The Respondents have justified their action by stating that no stigma has been attached to the Petitioners and that the same has been taken for the ends of justice and equity. 8. I have heard Mr. A.H. Hazarika, learned Counsel for the Petitioner and Mr. H.S. Thangkhiew, learned State Counsel appearing for the Respondents. 9. Mr. Hazarika, learned Counsel for the Petitioners strenuously argued that there was nothing wrong in taking into account the continuous services of the Petitioners from their initial dates of adhoc appointments. He submitted that although by Annexure-V order dated 21.11.90, the services of the Petitioners were regularized with effect from 5.12.89 as against the earlier regularization by Annexure-IV communication dated 12.3.90 from their initial dates of appointments, the Petitioners were entitled to count their seniority from their initial dates of appointment. On being pointed out as to whether any challenge to the prospective regularization of services of the Petitioners by Annexure-V order dated 21.11.90 was or has been made, he submitted that the Petitioners all along made representations for retrospective regularization of their services. He also submitted that the promotions of the Petitioners to the rank of UDA could not have been withdrawn without notice to them in gross violation of the principles of natural justice. 10. Countering the above arguments made on behalf of the Petitioners, Mr. Thangkhiew, learned Counsel for the State Respondents made his submissions on the basis of the stand in the counter affidavit. Producing the copy of the representation dated 24.6.2004 made by the six LDA cum Typists, who are admittedly senior to the Petitioners (if we go by the date or regularization of adhoc services of the Petitioners) and the gradation list of UDAs as on 2004, Mr. Thangkhiew, learned State Counsel pointed as to how the six representationists were illegally superseded taking wrong seniority of the Petitioners. 11. Thangkhiew, learned State Counsel pointed as to how the six representationists were illegally superseded taking wrong seniority of the Petitioners. 11. Learned Counsel for the parties submitted that in the matter of promotion to the rank of UDA, seniority plays the all important role, unless person concerned is found to be unfit for promotion. The crucial question for determination is as to whether the Petitioners are entitled to count their seniority from their initial dates of adhoc appointments as LDA cum Typist or from the date of regularization of their services through regular process of selection and consideration of their case for promotions to the rank of UDA on that basis. 12. There is no dispute that the Petitioners were initially appointed on purely temporary and adhoc basis and all of them subsequently appeared in a selection conducted by the DSC for regularization of their such services. Even in the recommendation made by the DSC it was clearly indicated that the selection was conducted for the purpose of regularization of adhoc services. It is true that in Annexure-IV communication dated 12.3.90 about which a mention has been made above, intimating regularization of services of the Petitioners, their such regularization was stated to be effective from their initial dates of appointment on adhoc basis. However, the matter was later on clarified by Annexure-v. order dated 21.11.90 that their services stood regularized with effect from 5.12.89, the date on which the DSC made the recommendation for regularization of their services. But, the DPC, while considering the case of the Petitioners erroneously took their seniority from their initial dates of adhoc appointment i.e. 10.9.80, 15.9.80 and 1.3.81 respectively instead of 5.12.89 on which date the DSC made the recommendation for regularization of their services. 13. It was on the above background and on being pointed out by 6 seniors to the Petitioners, the Respondents issued the impugned order dated 28.4.2005 withdrawing the order of promotions of the Petitioners and reverting them back to their original posts of LDA cum Typist. 14. The issue relating to counting of seniority of the Petitioners from the date of regularization of their services i.e. from 5.12.89 and not from the date of their initial appointments on adhoc and temporary basis is no longer res-integra. Following the decision in Dr. Satyabrat Dutta Choudhury v. State of Assam and Ors. 14. The issue relating to counting of seniority of the Petitioners from the date of regularization of their services i.e. from 5.12.89 and not from the date of their initial appointments on adhoc and temporary basis is no longer res-integra. Following the decision in Dr. Satyabrat Dutta Choudhury v. State of Assam and Ors. as reported in (1976) 1 SCC 283 and other decisions of the Apex Court, this Court has held in W.A. No. 21 (SH)/2003 (Shri Tennyson Giri Negnong and Ors. v. The State of Meghalaya and Ors., decided on 10.6.2005) that the adhoc period of service cannot be counted for the purpose of seniority. In the said case also, as in the instant case, the issue involved was as to whether the temporary and adhoc services rendered before regularization would be counted for seniority. Following the aforesaid decision of the Apex Court and other decisions holding the field, it has been held that the said period would not be counted for seniority. Thus, there is no manner of doubt that the Petitioners are not entitled to counting of their seniority from their initial date of appointments on adhoc and temporary basis and that they are entitled to count their seniority only with effect from 5.12.89 on which date they were recommended for regular appointment. 15. In the instant case the above position was made known to the Petitioners by Annexure-V order dated 21.11.90. The Petitioners never made any challenge to the same. The assertion that they have been making representation all these years, cannot save the situation. The order is also not under challenge even in this proceeding. Thus, if the DPC on an erroneous vide in the matter, took seniority of the Petitioners with effect from their respective dates of initial appointments made on adhoc and temporary basis instead of counting their seniority from the date of regularization of their services by the DSC i.e., 5.12.89, there is nothing wrong in restoring back the situation by issuing the impugned order dated 28.4.2005. If the seniors were left out from the purview of selection which is stated to be primarily on the basis of seniority, the Respondents are entitled to retrieve the situation by appropriate action. 16. If the seniors were left out from the purview of selection which is stated to be primarily on the basis of seniority, the Respondents are entitled to retrieve the situation by appropriate action. 16. The above position now leads us to the question, so seriously argued by the learned Counsel for the Petitioners, i.e. violation of the principles of natural justice in not issuing any show cause notice to the Petitioners before reverting them to their former posts of LDA cum Typist. According to the Respondents, the Petitioners were duly informed of the situation by calling them to the chamber of the Respondent No. 2, which position the Petitioners have not denied. The Petitioners have fully placed their case before this Court. It is not a case of bringing out something more, had there been an occasion for the Petitioner to have their say in the matter pursuant to a notice before effecting their reversion. It is in this context the Apex Court in the case of M.C. Mehta v. Union of India as reported in (1999) 6 SCC 237 has held that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice. 17. Similar view has been expressed in Aligarh Muslim University v. Mansoor Ali Khan as reported in (2000) 7 SCC 529 in which the Apex Court has held that if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. This view has been reiterated in the case of Badrinath v. Government of Tamilnadu as reported in (2000)8 SCC 395 . 18. In the case of Canara Bank v. Debasis Das as reported in (2003) 4 SCC 557 , while dealing with the concept, meaning, object, scope and applicability of the principles involving natural justice, the Apex Court held that in some cases where grant of opportunity in terms of principles of natural justice does not improve the situation, "useless formality theory" can be pressed into service. It has further been held that the administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It has further been held that the administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. It was emphasised that legal formulations cannot be divorced from the fact situation of the case. It was also observed that in a given case, post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing. 19. In the case of Escorts Farms Ltd. v. Commissioner, Kumaon Division as reported in (2004) 4 SCC 281 , the Apex Court dealing with the question of opportunity of hearing, having found that all possible plea available to the transferees were projected before High Court in the writ petition and they were given full opportunity of hearing, the Apex Court refrained from making any order of remand just for the sake of completing a formality of granting full opportunity of hearing. 20. In a recent decision of the Apex Court as reported in AIR 2005 SC 2090 (Canara Bank v. V.K. Awasthy) dealing with the question of violation of principles of natural justice, the Apex Court emphasised on post-decisional hearing so as to obliterate procedural deficiency of a pre-decisional hearing. In the instant case, apart from the fact that the Petitioners were apprised of the factual aspect of the matter and the natural consequences on the basis of that, they got full opportunity of placing their case with all material particulars before this Court during the course of hearing of the writ petitions. It will be a useless formality if on the same set of facts and materials, the matter is remanded back to the Respondents to issue notice to the Petitioners just for the sake of observing the formalities. The Petitioners have availed the opportunity to have their say in the matter in this proceeding. In the given fact situation I am of the considered opinion that the matter need not be remanded back to the Respondents just to meet with the principles of natural justice theoretically. 21. The Petitioners have availed the opportunity to have their say in the matter in this proceeding. In the given fact situation I am of the considered opinion that the matter need not be remanded back to the Respondents just to meet with the principles of natural justice theoretically. 21. The position as has emerged in the present proceeding from the foregoing discussions on facts and law is that the Petitioners are entitled to count their seniority with effect from the date of regularization of their services i.e. 5.12.89 and not from the date of their initial appointment on 10.9.80, 15.9.80 and 1.8.81 respectively. This position was made known to them by Annexure-V order dated 21.11.90 which has settled the position relating to their seniority and the same has not been challenged over all these years. 22. The DPC considered the case of the Petitioners erroneously taking their seniority from their initial dates of appointment instead of 5.12.89, the date on which their services were regularized. The six representationist who are admittedly senior to the Petitioners were deprived of their promotions on such erroneous conferring of seniority to the Petitioners and they made their representation for redressal of their grievances. In consideration of the same and the materials on record when it was detected that the seniors to the Petitioners were superseded in the matter of promotion, the Petitioners were given a personal hearing by the Respondent No. 2 and thereafter the impugned order was issued. Thus, I do not find any infirmity in the action of the Respondents. I am of the considered opinion that technicality cannot prevail upon the factual and legal aspect of the matter as has been discussed above. 23. It appears that although the Petitioners have been reverted to their former posts of LDA cum Typist on withdrawal of their order of promotions to the posts of UDA, no seniors have been promoted to the posts of UDA. The case of the seniors will have to be considered by the DPC as was done in the case of the Petitioners and others. In that view of the matter, the Respondents may consider to allow the Petitioners to continue in their promotional posts of UDA which posts they have been occupying presently by virtue of the interim orders passed by this Court, till such time their seniors are promoted in accordance with the rules. In that view of the matter, the Respondents may consider to allow the Petitioners to continue in their promotional posts of UDA which posts they have been occupying presently by virtue of the interim orders passed by this Court, till such time their seniors are promoted in accordance with the rules. However, it is made clear that with the issuance of the orders of promotions in favour of the seniors to the Petitioners, they would no longer continue in the promotional posts. This interim arrangement may be considered by the Respondents in view of the fact that nothing has been brought on record that the Petitioners have been replaced by any other seniors to them pursuant to recommendation made by the DPC. 24. While considering the case of the seniors by the DPC/Review DPC, the case of the Petitioners may also be considered if they come within the zone of consideration. Their replacement by their seniors will be only on the basis of the recommendation to be made by DPC/Review DPC and if in the process the seniors get preference over them. In other words the seniors will replace the Petitioners, unless they are found unfit for promotions. Till this arrangement is made, if not already made, the Respondents may consider to allow the Petitioners to continue in their promotional posts of UDA. Interim orders passed earlier stand vacated in terms of this observation and direction. 25. All the writ petitions stand disposed of in terms of the above order and direction, leaving the parties to bear their own costs.