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2007 DIGILAW 120 (DEL)

SHERGILL G. v. DELHI STATE CIVIL SUPPLIES CORP.

2007-01-17

HIMA KOHLI

body2007
JUDGMENT Hima Kohli, J.-Rule. 2. With the consent of both the parties, this matter is taken up for final disposal at this stage itself. 3. This writ petition has been filed by the petitioner, who is an employee of the respondent, Delhi State Civil Supplies Corporation Limited (hereinafter referred to as "the Corporation") and presently working as Chief Manager in the respondent Corporation. The petitioner is aggrieved by the order dated 12.11.2006 issued by the respondent Corporation by virtue of which the earlier re-designation order dated 1.7.2005 issued by the respondent Corporation, stands cancelled. 4. In nutshell, facts of the case are that the petitioner joined the Corporation in June, 1991. He was promoted to the post of Manager in 1996 and in October, 2002, he was re-designated as Senior Manager. In July, 2005, pursuant to the office order dated 1.7.2005 issued by the respondent Corporation re-designating its officers in supersession of all previous orders, the petitioner, who was holding the post of Senior Manager and had more than 15 years of service, was re-designated as Chief Manager. 5. The petitioner has impugned the aforementioned subsequent order dated 12.11.2006 as arbitrary and not being preceded by an opportunity of hearing and thus being in violation of the principles of natural justice. It is further submitted that it is not open to the respondent Corporation to withdraw the re-designations once provided to the officers after due deliberation, without putting to notice, the petitioner and other similar placed officers likely to be adversely affected, for the reason that by the earlier order dated 1.7.2005, vested rights had accrued in favour of the petitioner and cancelling the said order after a period of 11/2 years, amounts to demotion of the petitioner to two grades below. 6. On the other hand, learned Counsel for the respondent has submitted that the petitioner has no legal right to insist on a particular nomenclature of the post held by him and that decision of the Board of Directors of the respondent Corporation to re-designate the petitioner and other officers of the respondent Corporation has been taken after due deliberation. It is stated that the Board of Directors of the respondent Corporation has taken such a decision after having due regard to the administrative exigencies and the same cannot be termed as arbitrary or irrational. It is stated that the Board of Directors of the respondent Corporation has taken such a decision after having due regard to the administrative exigencies and the same cannot be termed as arbitrary or irrational. It is further submitted on behalf of the respondent Corporation that its Employees Association strongly represented against the earlier decision of the Board dated 1.7.2005 to re-designate its officers from Assistant Managers till Senior Managers, as it was two steps ahead of other comparable organizations as well as per hierarchical setup of the respondent Corporation, while the lower staff from Helper to Assistant Gr.(I) were not given any benefit of re-designation by the said order. Consequently, the Employees Association requested that in the event of their suggestion for re-designation of the lower staff of the respondent Corporation is not acceded to by the respondent Corporation, the re-designation given to the managerial cadre should also be withdrawn. It is submitted that taking in view the aforesaid representation, a decision was taken to withdraw the re-designation of the managerial cadre to ensure impartiality and equality by adopting uniform standard amongst all cadres of staff which would tantamount to discrimination against the others. Hence, the Counsel for the respondent Corporation has justified the decision of the Corporation dated 9.11.2006 cancelling the previous order dated 1.7.2005 and has stated that as neither of the two orders have any bearing on the respective seniority of the officers of the Corporation or have any pecuniary or other benefits, the grievance of the petitioner is fanciful and baseless. In support of his contention, learned Counsel for the respondent has relied upon a judgment of the Supreme Court entitled as P. U. Joshi v. Accountant General, reported in I (2003) SLT 146=(2003) 2 SCC 632. 7. I have perused the record and given my thoughtful consideration to the submissions of Counsel for both the parties. In my opinion, once the posts of managerial level were re-designated by the Corporation to two posts higher, though without any pecuniary or other benefits, a vested right accrued in favour of the petitioner and the principles of fair play, equity and natural justice demand that if such a vested right is sought to be taken away from the petitioner, the same can be done only after granting an opportunity of hearing to the petitioner. Upon injury from learned Counsel for the respondent as to whether any such opportunity of hearing was granted to the petitioner before arriving at the decision to cancel the earlier order dated 1.7.2005 re-designating the petitioner and passing the subsequent order dated 9.11.2006, it has been submitted that the respondent Corporation did not deem it necessary to issue any notice to show cause to the petitioner to make his representation, for the reason that even the earlier re-designation was done by the Corporation unilaterally and, hence, it was not deemed necessary to grant an opportunity of hearing to the petitioner and other similarly placed officers while issuing the order dated 9.11.2006. 8. It is settled law that whenever any rights or benefit in the nature of advance increment, re-designation in higher posts, etc., are acquired, granted or get accrued, it is impermissible for the concerned authority to reverse such decisions or recover amounts without issuing proper notice and granting opportunity of hearing to the adversely affected employees. It does not lie in the mouth of the respondent Corporation to contend that though they were willing to consider the representation of the Employees Association for re-considering the earlier decision taken by the Board dated 1.7.2005, but it was not deemed necessary or proper to grant an opportunity of hearing to the petitioner and similarly placed officers, who were likely to be adversely affected by any decision taken to withdraw the re-designation of the managerial cadre. In case the Corporation proposed to dislodge the vested rights that had accrued in favour of the petitioner, then the petitioner and similarly placed officers in the managerial cadre ought to have been issued a notice to show cause and granted an opportunity of hearing. 9. Reliance placed by the learned Counsel for the respondent on the case of P.U. Joshi (supra), is misplaced as even in the said judgment, the Supreme Court has not held that no right accrues in favour of an employee to challenge any order passed by an authority even in cases where rights and benefits have been granted, earned, acquired or accrued in favour of the employee. In this context, the following observations made by the Supreme Court may be referred to: ".....There is no right in any employee of the State to claim that rules governing conditions of his service should forever be the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service." 10. In the aforesaid context, I may also refer to a judgment rendered by a Division Bench of this Court in the case of Munna Ram & Ors. v. U.O.I. & Ors., reported as 113 (2004) DL T 232 (DB). in the said judgment the issue before the Court was with respect to withdrawal of a benefit of re-designation granted to the Assistant Sub-Inspectors, carrying higher pay-scales. The re-designation stood reversed as a result of which there was reduction in the pay-scales of the petitioner, which order was impugned by him in this Court. The Division Bench, after considering the facts of the case, held as below: "5. .......... We are of the considered opinion that re-designation of the petitioners and adjusting them in the pay-scale of Rs. 4,000-Rs. 6,000 after re-designating them as Assistant Sub-Inspectors, created vested right in favour of the petitioners and if such vested rights are sought to be taken away from the petitioners, the same can also be done after following the rules of principles of natural justice. The petitioners were entitled to a show-cause notice whereupon the petitioners could have represented and shown to the respondents that the adjustment of the petitioners in the pay-scale of Rs. 4,000, Rs. 6,000 and re-designating them as Assistant Sub-Inspectors, was legal and valid. They have admittedly been deprived of such right without giving them an opportunity of hearing. Their vested rights are being sought to be taken away vide the impugned order dated 27th December, 2001. (7) In our considered opinion, the ratio of the aforesaid decision is squarely applicable to the facts of the present case. They have admittedly been deprived of such right without giving them an opportunity of hearing. Their vested rights are being sought to be taken away vide the impugned order dated 27th December, 2001. (7) In our considered opinion, the ratio of the aforesaid decision is squarely applicable to the facts of the present case. In our considered opinion, taking a unilateral decision on a subject as the present one whereby the vested right of the petitioner is being affected is not permissible without following the principles of natural justice and without affording an opportunity to represent and being heard to the petitioners. The said action cannot be sustained. We are not going into the other contentions raised by the parties, for the present. Liberty is given to the parties to urge the same and seek adjudication of those pleas in the future in any appropriate proceedings, if the need arises. The impugned order dated 27th December, 2001 is set aside and quashed for the aforesaid reasons. The order passed by the respondents in the case of the petitioners directing reduction of their pay-scales and recovery from their salary, is set aside and the petitioners shall be permitted to work as Assistant Sub-Inspectors till an order is passed by the respondents in accordance with Jaw. Such order, when passed can also be challenged by the petitioners on all available grounds, if so advised, in accordance with law." 11. To my mind, the ratio of the aforesaid decision applies squarely to the facts of the present case, as admittedly the Corporation did not issue any notice to show cause to the petitioner nor any opportunity of hearing was granted to the petitioner or similarly placed officers before reversing the earlier order dated 1.7.2005 and passing the impugned order dated 9.11.2006, thus affecting the re-designation granted in favour of the petitioner. 12. In these facts and circumstances, the impugned order dated 9.11.2006 is set aside and quashed. The respondents are directed to re-designate the petitioner in terms of the order dated 1.7.2005. However, liberty is granted to the Corporation to issue a notice to show cause in respect of any decision that it proposes to take in the matter. 12. In these facts and circumstances, the impugned order dated 9.11.2006 is set aside and quashed. The respondents are directed to re-designate the petitioner in terms of the order dated 1.7.2005. However, liberty is granted to the Corporation to issue a notice to show cause in respect of any decision that it proposes to take in the matter. In such an eventuality, the petitioner shall be granted a reasonable opportunity to make a representation to the respondent Corporation and the latter shall consider the said representation and only, thereafter, decide the same by passing a specific order thereon. The writ petition is allowed to the above extent. Rule is made absolute. The interim application is disposed of in the light of the aforementioned decision. 13. No order as to costs. Writ Petition allowed.