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2007 DIGILAW 110 (HP)

ARUN SOOD v. STATE OF H. P.

2007-04-20

NARINDER SINGH THAKUR

body2007
JUDGEMENT Narinder Thakur Vice Chairman:- The matter was taken in pursuant to the directions of Honble High Court of Himachal Pradesh in CWP No.502/2006 titled as Arun Sood vs of HP Dated 8.1.2007 to decide the issue of interim order by passing a speaking order before 28.2.2007. Since the pleadings in the matter were complete, the learned counsels for the parties prayed that the matter be heard finally and disposed of. As such with the consent of parties, the matter has been heard finally. 2. The present Original application has been filed by the applicant mainly praying for the following reliefs: "(a) Quash the impugned orders contained in annexure A-8. A-9 and A-11 being arbitrary, mala-fide and illegal; (b) Direct the respondents to continue the applicant as regional Transport Officer in pursuant to A-3 to A-5 with all the consequential benefits and interest on the arrears @ 18 % PA. 3. The grievance of the applicant is that he initially joined service as a clerk on 20.11.1970. Thereafter, he got promotions as Junior Assistant, Senior Assistant and was promoted as superintendent (Grade-11) on 14.5.1998. As per the seniority position (Annexure A-1) he is at No.1 in the seniority list as Sh. Shyam Sunder Sharma, Sh. Pratap Singh Rana and Sh. Manic Chand have since retired. Even at entry grade, i.e. Clerk, the applicant is senior to respondent No.3 as is amply evident from the position reflected in A-1. 4. Next promotion from the cadre of Superintendent Grade-11 is to the cadre of Superintendent Grade-1 and Regional Transport Officer. Vide a notification dated 26.2.2005 (A-3) the applicant was promoted on officiating basis as Regional Transport Officer. 5. Thereafter on the recommendation of DPC and in consultation with HP Public Service Commission, the applicant was promoted as Regional Transport Office vide notification dated 22.8.2005 (A-5). He further averred that as per the notification issued by the State government dated 24.10.2002 (A-6) all the promotions are to be made on ad hoc/officiating basis in view of pendency of litigation before the Honble Supreme Court. As such, the promotion of the applicant made vide annexure A-3 to A-5 was virtually regular promotion, save and except that it was to be termed as officiating in view of the notification A-6, due to the pendency of the litigation before the Honble Supreme court. 6. As such, the promotion of the applicant made vide annexure A-3 to A-5 was virtually regular promotion, save and except that it was to be termed as officiating in view of the notification A-6, due to the pendency of the litigation before the Honble Supreme court. 6. As a consequence of his promotion, the salary was also accordingly re-fixed vide office order Annexure A-7 (colly) and the applicant started getting the salary on the basis of re-fixed pay. 7. Vide impugned order dated 18.3.2006 (A-8) the applicant has been reverted from the post of Regional Transport Officer without affording an opportunity of being heard and thus such an action on the part of the respondent department is arbitrary and illegal as well as against the principles of natural justice in as much as the applicant has been condemned unheard and thus principle of audi alterm partem is attracted. 8. Vide further notification of same date i.e. 16.3.2006 (Annexure A-9), the respondent department has promoted the respondent No.3 as Regional Transport Officer in place of applicant. 9. Against the impugned orders the applicant made a representation to the Honble Transport Minister on 21.3.2006, Annexure A-10, but noting has been heard in this regard so far. In the meanwhile on 7.4.2006, vide Annexure A-11 the respondent department promoted the applicant as Superintendent Grade-1 which post is lower in status to the post of Regional Transport Officer, and the same is not acceptance to the applicant. 10. In the reply filed by the respondent department it has been averred that the applicant was firstly appointed to officiate and hod charge of the post of Regional Transport Officer, Bilaspur vide Annexure A-4 and this was a matter regulated under FR 49 (Combination of appointments). He was merely holding charge of the post of Regional Transport Officer, Bilaspur, whereas his principal charge was that of Superintendent Grade-11 which is his substantive post. This order of holding additional charge does not vest any right on the applicant to claim substantive position as Regional Transport Officer. 11. It is future stated that the applicant was recommended for promotion officiating basis against sealed cover of respondent No.3 by the DPC that met on 30.7.2005 convened by the HP Public Service Commissions. Even his exclusion from the panel by the DPC held on 3.2.2006 was convened by the HP Public Service Commission. 11. It is future stated that the applicant was recommended for promotion officiating basis against sealed cover of respondent No.3 by the DPC that met on 30.7.2005 convened by the HP Public Service Commissions. Even his exclusion from the panel by the DPC held on 3.2.2006 was convened by the HP Public Service Commission. The Commission in its DPC held on 30.7.2005 had committed a grave error by adopting sealed cover procedure in respect of respondent No.3 and recommended the name of the applicant for officiating promotion against this sealed cover as on the date of DPC i.e. 30.7.2005, the respondent No.3 was neither under suspension, nor charge sheet was served upon him, no departmental proceedings were pending against him, no prosecution for a criminal charge was pending. Thus the act of commission was in violation of the decision of Apex Court in UOI vs. KV Jankiraman (AIR 1991 SC 2010). In order to rectify its error, the commission convened another DPC on 3.2.2006 and the name of the respondent No.3 was recommended for promotion by deleting the name of the applicant who was adjudged lower in merit as the post is to be filled in on the basis of merit cum seniority being a selection post, hence the applicant cannot lay claim on the bass of erroneous action of the commission which was illegal. 12. A separate reply has been filed by respondent No.3 in which it has been stated that vide DPC dated 30.7.2005, two persons namelySh. Gian Chand and Arun Sood were selected in the order of their merit and the proceedings with respect to the respondent No.3 were kept in sealed cover. Sh. Gian Chand too was junior to the applicant, but he was given regular promotion vide R-3/1 on 22.8.2005, whereas the applicant was given officiating promotion (A-5) on the same date. In case, the applicant has made it in the merit, he could also have been given regular promotion. He was thus given officiating promotion, so that as and when the sealed cover of the respondent No.3 is opened, if he is found above the applicant in merit then he can be given regular promotion and the applicant can be reverted back. 13. I have heard the rival contentions of the learned counsels representing their parties and gone trough the pleadings and the record of the case. 13. I have heard the rival contentions of the learned counsels representing their parties and gone trough the pleadings and the record of the case. The reasons given by the respondents in their reply seems to be correct and acceptable. However, the learned counsel for the applicant stressed the point that even if the respondent department was to issue the impugned order, the barest minimum requirement of issuing a show cause notice or affording an opportunity of being heard before passing the impugned order should have been afforded to the applicant. To this proposition, the parties are not at variance and similarly, it is admitted that no such show cause notice or opportunity was afforded to the applicant. Be it as it is, but looking to the entirety of the matter, I am of the view that in the given facts and circumstances of the case, the show cause notice of opportunity being heard would not have served any fruitful purpose and would have been merely a useless formality, when the end result was well discernible and was going to the same. There was certainly an error in keeping the proceedings of the respondent No.3 under sealed cover. As such, the action under taken by the respondent or the commission was just to rectify the said error in accordance with the laid down law. By such an inadvertent act on the part of the respondent, though heart burn may have been caused to the applicant but his reply cannot be the his ground for challenge of the impugned action. No other legal basis has been made out. 14. It is well established that where the "admitted" or indisputable facts leads only to one conclusion, the theory of useless formality has been evolved by the courts. The Honble Apex Court in MC Mehta vs UOI reported in 1999 (6) SCC 237 has pointed that in certain situations in which an order passed in violation of natural justice the same need not be set aside under article 226 of the constitution of India. It is also pointed out in the above authority that at one time, it was held in Ridge vs Baldwin that no other "De facto" prejudice need to be proved. But since then the rigor of the rule has been relaxed not only in England but also in our country. It is also pointed out in the above authority that at one time, it was held in Ridge vs Baldwin that no other "De facto" prejudice need to be proved. But since then the rigor of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor vs. Jagmohan reported in 1980 (4) SCC 379, the Honble apex court laid down two exceptions to the Ridge vs. Baldwin and these exceptions, were if, upon "admitted" or "indisputable" facts only one conclusion was possible, then in such a case, the Principle that breach of natural justice was in itself prejudice, would not apply. In other words 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. The principle that in addition to breach of natural justice, prejudice must also be prove has been developed in several cases. In KL Tripathi vs. State Bank of India reported in 1984 (1) SCC 43, the Honble Apex Court has also laid down the principle that ho mere violation of natural justice but de facto prejudice had to be proved. In wades Administrative Law (5th Etfrt. PP 472-75) it is stated as under;- "It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case were, the nature of the inquiry, the rules under which the tribunal is acting, the subject mater to be dealt with, and so forth." It is admitted position from the pleadings that the applicant was holding charge of Regional Transport Officer, Bilaspur where as his principal charge was that of Superintendent Grade -II which is his substantive post and this order of holding additional charge does not hold any right to hold the substantive post of Regional Transport officer. It is pertinent to mention here that Gian Chand though Junior to the applicant holding the charge of Regional Transport Officer vide order dated 22.8.2005.Annexure A. The said officiating promotion of applicant was subject to the recommendation of DPC qua respondent No.3 which had been kept under sealed cover. Since the promotion of applicant vide notification dated 22.8.2005, Annexure A-5 was only on officiating basic , which had been made on account of the fact that in that DPC recommendation qua respondent No.3 had been kept under sealed cover, the arrangement of officiating promotion of applicant was required to be dispensed with for implementing the recommendations of DPC for regular promotion of respondent No.3. Since no other vacant post of regional Transport Officer was available therefore as a consequence of regular promotion of respondent No.3, the notification dated 18.3.2006, Annexure A-8 was issued the applicant to his substantive past of superintendent Grade-11. Taking into consideration the above facts and circumstances of the case coupled with the law laid down by the Honble Apex Court. I find no merit in the original application and the same is dismissed. Interim order dated June 9, 2006 is hereby vacated. Original Application stands finally disposed of. No order as to cost. Record be returned to the Learned Addl. Advocate General.