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2007 DIGILAW 4 (JK)

Rifat Yasmeen v. State

2007-01-30

MANSOOR AHMAD MIR

body2007
1. Petitioner as Junior Assistant applied for grant of earned leave for a period of 60 days with effect from 11th December, 2000-came to be granted vide order No.285 HE of 2000 dated 07.12.2000-annexure-D with a condition that petitioner will not extend her leave beyond the said period. Thereafter, it appears that she in terms of annexures-D1, D2, G, Gl, G2, G3, G4,G5 and G6 applied for extension of leave as alleged but there is nothing on the file suggesting the fact that said applications/communications were received by the official respondents. 2. It appears that respondent-General Administration Department vide order No.GAD(Estt)APR/J.A. dated 06.02.2002-annexure-D3 asked Principal Secretary/Commissioner Secretary to Government, Higher Education Department to furnish APRs of the petitioner for considering her promotion as Senior Assistant under rules. APRs came to be submitted in terms of annexures forming page Nos.16, 17 and 18 to the writ petition. Petitioner came to be promoted as Senior Assistant in terms of Government order No.516 GAD of 2002 dated 22.03.2002- annexure-E. 3. It appears that petitioner applied for allowing her to join on 13.09.2005. Accordingly, she was allowed to join and respondents 2 and 3 submitted her case on 14th of October, 2005 for settlement of her period of un-authority absence as extra ordinary leave. 4. Respondent No.l instead of settling the case of the petitioner passed Government Order No.415-GAD of 2006 dated 04.04.2006, whereby and whereunder the promotion order came to be recalled and period was treated as, "Dies-non". 5. Feeling aggrieved, the petitioner has preferred this writ petition challenging the order dated 04.04.2006 -- annexure-H on the grounds taken in the writ petition. 6. Respondent No.l has filed reply Respondents 2 and 3 have not filed any reply but adopted the reply filed by respondent No.1. 7. It appears that respondent No. 1 got knowledge of unauthorized absence of the petitioner on 14th October, 2005 when Higher Education Department -- respondents 2 and 3 referred the case of the petitioner for settlement of the un-authorized absence as extra ordinary leave. Respondents 2 and 3 have not filed reply. It is not known whether the extension of leave was sanctioned after expiry of 60 days with effect from 11th of December, 2000 and how/when she was allowed to join and how Higher Education Department referred her case for settlement of the period of unauthorized absence as extra ordinary leave. 8. Respondents 2 and 3 have not filed reply. It is not known whether the extension of leave was sanctioned after expiry of 60 days with effect from 11th of December, 2000 and how/when she was allowed to join and how Higher Education Department referred her case for settlement of the period of unauthorized absence as extra ordinary leave. 8. The crucial point involved in this petition is whether the impugned order could have been passed without hearing the petitioner. It is beaten law of the land that Government Employee cannot ask for promotion as a matter of right but employee has a Fundamental Right to be considered for promotion. 9. Apex Court in case titled S.B. Bhattacharjee v. S. D Majumdar, reported as 2007 AIR SCW 3619 has held as under: "13. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefore. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India." 10. Once the case of the petitioner came to be considered and promotion order came to be passed, it could not be revoked without hearing her. Impugned order/revocation/cancellation is violative of her Fundamental Rights. 11. Calcutta High Court in a case titled Deilip Kumar Dev v. Superintendent of Police & ors, reported in 1986(1)A11 India Services Law Journal 429, has held that once promotion order is issued, it cannot be cancelled without affording an opportunity to show cause. It is profitable to reproduce relevant portion of para-6 of the said judgment herein: "6. ......... They have abruptly and without any notice to the petitioner reverted him to the post which he held three years back. This was done without giving him an opportunity and without communication to him the main order by which after three years his appointment as Inspector was cancelled. 12. The argument of the learned counsel for the respondents is that promotion order came to be passed by mistake is also devoid of force. 13. Honble Gujarat High Court in case titled Mrs. 12. The argument of the learned counsel for the respondents is that promotion order came to be passed by mistake is also devoid of force. 13. Honble Gujarat High Court in case titled Mrs. J.S. Pandya v. Director General of Police, reported in 1986(1) A11 India Services Law Journal 473 held that if a promotion order is outcome of a mistake, it cannot be cancelled without hearing the employee. It is profitable to reproduce para-3 of the said judgment herein: "3. ............. But once the promotion is given it cannot be cancelled even though it turns out subsequently that such a promotion could have been withheld. The respondent should have considered the position before passing the order of promotion........" 14. Keeping in view the peculiar circumstances of the case, I am of the considered view that impugned order merits to be quashed. Accordingly, the impugned order is quashed. However, the respondents are at liberty to examine the case of the petitioner afresh and pass appropriate orders after affording her an opportunity of hearing. Writ petition is accordingly disposed of along with all connected CMP(s).