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2009 DIGILAW 445 (UTT)

BHRIGURASHAN PRASAD v. STATE OF UTTARAKHAND

2009-08-24

V.K.BIST

body2009
Judgment With the consent of parties this writ petition is being decided at admission stage. 2. Only question to be answered in the present writ petition is that whether a person can be reverted to the lower post than the post on which he was initially appointed. 3. Brief facts of the present case are that the petitioner was appointed through direct selection on the post of Survey Kanoongo on 23.02.1977. On 28.10.2005 Shri Radhapati Ghildiyal preferred a complaint before District Magistrate, Dehradun with the allegations that he is the owner of land bearing Khasra No. 1134 area 0.575 Hectare situated at village Arkediyagrant, Dehradun and his name was recorded in Khautoni 1399 Fasli to 1404 Falsi at Khata no. 1587. It was further mentioned in the complaint that his name was deleted from the revenue record showing him dead and in his place, names of Shri Ram Chandra son of Shri Osan, Smt. Kamla Devi wife of late Sri Ram Awtar and Rajesh son of Ram Awtar were mutated by the order of Survey Naib Tehsildar (Sadar) Dehradun, as such mutation was done under a conspiracy. Upon the said complaint the District Magistrate, Dehradun asked the Sub Divisional Magistrate (for short S.D.M.) Sadar, Dehradun to conduct an inquiry in the matter. S.D.M., Sadar, Dehradun conducted an inquiry and submitted his report to District Magistrate, Dehradun on 07.06.2006. He held the petitioner as well as Survey Lekhpal Shri Vijendra Goyal guilty. Thereafter, the District Magistrate, Dehradun passed an order on 07.08.2007 and reverted the petitioner from the post of Survey Kanoongo to Survey Lekhpal. Against the order passed by the District Magistrate, Dehradun, the petitioner referred an appeal before the Commissioner Garhwal Division, Pauri. Commissioner Garhwal Division, Pauri vide order dated 17.11.2008 dismissed the appeal of the petitioner. Aggrieved by the orders dated 07.08.2007 and 17.11.2008 the present petition has been preferred. 4. According to counsel for the petitioner, the petitioner was not given any opportunity to place his case during the inquiry and inquiry report was submitted against him without affording opportunity of hearing. He for the first time came to know about the inquiry which was conducted by S.D.M., Sadar, Dehradun on 19.07.2006 when the District Magistrate, Dehradun served a show cause notice on the petitioner. He for the first time came to know about the inquiry which was conducted by S.D.M., Sadar, Dehradun on 19.07.2006 when the District Magistrate, Dehradun served a show cause notice on the petitioner. The petitioner replied the show cause notice with the fact that he has unblemished service record and he has never indulged himself in any corrupt practice. He also replied that the report was prepared by Survey Lekhpal in his writing. At the time the petitioner was posted in the office of Survey Naib Tehsildar, Doiwala and was assigned a job at village Markham Grant. 5. Learned counsel for the petitioner argued that the orders are illegal as consequent of the same is that the petitioner has been reverted to a post lower than the post on which he was appointed, which cannot be done under the law. Learned Brief Holder for the State submitted that the orders dated 07.08.2007 and 17.11.2008 are in accordance with law as inquiry was conducted in the matter and the petitioner was found guilty. 6. It is not disputed that in the year 1977, the petitioner was substantively appointed on the post of Survey Kanoongo. He continued to work on this post till reversion order was passed. Article 311(2) of the Constitution of India provides reduction in rank of a person holding Civil post by giving him reasonable opportunity of being heard in respect of those charges. A person substantively appointed on a post by direct recruitment cannot be reverted to a lower post. This preposition, being elementary, was not considered to be mentioned in the aforesaid Article of the Constitution of India. In my view the order of respondent no. 3 reverting the petitioner on the post of Survey Lekhpal is patently illegal. 7. The writ petition is allowed with cost of Rs. 5,000/-. Orders dated 07.08.2007 and 17.11.2008 passed by District Magistrate, Dehradun and Commissioner Garhwal Division, Pauri respectively are quashed. It will be open for the respondents to pass fresh order in accordance with law after giving reasonable opportunity of hearing to the petitioner.