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2009 DIGILAW 475 (JK)

Afshan Mushtaq v. State

2009-10-05

SUNIL HALI

body2009
1. This writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K has been filed for issuance of writ in the nature of mandamus commanding the respondents to release their pay in the grade of Rs. 5000-8000/-, which was notified at the time of advertisement of posts against which the petitioners applied and subsequently got selected. 2. The brief facts for the disposal of this petition are that the respondents issued advertisement notice for the post of Draftsman including some other posts referred to in the said advertisement notice-annexure P-D. So far as the post of Draftsman is concerned against which the petitioners applied, the same was advertised in the pay scale of Rs. 1400-2600/- which scale is said to have been revised to Rs. 5000-8000/-. After the selection process was initiated by the respondents, the petitioners came to be appointed as Draftsmen in pursuance to the order dated 20.7.1998 and accordingly joined their services. 3. The further fact which is apparent from the record is that respondents issued an order bearing No. 352/Esstt of 1998 dated 5.10.1998, whereby the petitioners were directed to report for duties in the respective workshop centers shown against the name of each. The respondents further issued a Corrigendum dated 21.10.1998, whereby the petitioners were shown to have been placed in the grade of Rs. 4000-6000/- instead of Rs. 5000-8000/-against which their appointment came to be initially made by the respondents in terms of order dated 20.7.1998 referred to above. It is this order which is being thrown to challenge by the petitioners. 4. The grievance of the petitioners is that they had applied for the post in question taking into consideration the grade attached with the said post, which was reflected in the advertisement notice itself, but the respondents without any reason, and in an arbitrary manner, changed the grade of the petitioners from Rs. 5000-8000/- to 4000-6000/- whereas, they were, in fact, selected in the grade of Rs. 5000-8000/-. The said action on the part of the respondents is said to be violative of Articles 14 and 16 of the Constitution of India. It is averred in the writ petition that in the similar circumstances, when the grade of Rs. 5000-8000/- to 4000-6000/- whereas, they were, in fact, selected in the grade of Rs. 5000-8000/-. The said action on the part of the respondents is said to be violative of Articles 14 and 16 of the Constitution of India. It is averred in the writ petition that in the similar circumstances, when the grade of Rs. 1400-2600/- was shown to be attached against some other posts which were advertised vide same advertisement notice and the selection was also made, the selectees have been released the said grade, but the same has been denied to the petitioners. The petitioners thus, invoking doctrine of equality have sought the direction as mentioned in para 1 of the judgment. 5. This writ petition came to be admitted on 3.11.1999. Despite availing plethora of opportunities, counter affidavit has not been filed by the respondents. The pleadings, therefore, have remained un-rebutted and would be deemed to have been admitted. 6. Perusal of order dated 20.7.1998 shows that petitioners have been selected as Draftsman in the grade of Rs. 5000-8000/- (revised) on regular temporary basis. Thereafter another order dated 5.10.1998 was passed by the respondents, whereby the petitioners were directed to report for their duties. This order makes mention of the following fact:- "posting of newly appointed Draftsman (Rs. 5000-8000)." 7. As indicated above, order dated 20.7.1998 shows that the petitioners were selected in the grade of Rs. 5000-8000/- which was reflected in the advertisement notice as Rs. 1400-2600/- (un-revised). Therefore, petitioners are right in their submission that they have been wrongly denied the benefit of the scale of Rs. 5000-8000/- in which their selection was made and they joined their services. The further fact apparent from the record is that similar situated persons who came to be selected against the posts which were advertised in the same pay scale have been allowed the benefit of release of their salary in the grade reflected in the advertisement notice, but in the case of the petitioners, it stands withdrawn that too without affording them any opportunity of being heard. What was least required of respondents was to put the petitioners on notice before withdrawing the pay scale against which they were selected. Having not done this, the action of the respondents is held to be violative of principles of natural justice. What was least required of respondents was to put the petitioners on notice before withdrawing the pay scale against which they were selected. Having not done this, the action of the respondents is held to be violative of principles of natural justice. In this regard, it would be apt to refer to the judgment of Apex Court, reported in AIR 2005 SC 2090, Canara Bank v. V. K. Awasthy, wherein the Apex Court has held as under: 8. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal -way. Justice is based substantially on natural ideals and human value. 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. 9. The expressions `natural justice and legal justice do not present a water-tight classification. It is the substance of justice which is to be secured by both and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a procedure should ever be permitted to exclude the presentation of a litigants defence. 10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principles is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the `Magna Carta. The classic exposition of Sir Edward Coke of natural justice requires to `vacate interrogate and adjudicate. In the celebrates case of Cooper vs. Wandswarth Board of Works (1963(143) ER 414), principles was thus stated: Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "Where are thou has thou not eaten of the tree whereof I commanded tree though should not eat". Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, kike polishing of a diamond. " In para 12 of the aforesaid judgment, the apex Court has further held as under: "What is meant by the term `principles of natural justice is not each to determine. `Lord Summer (then Hamilton, L.J.) in Ray vs. Local Government Board (1914) I KB 160.at p. 199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education and Registration of U.K. vs. Sanckman (1943 AC 627): (1948) 2 All ER 337), Lord Wright observed that it was not desirable to attempt `to force it into any procusteam bed and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give `a full and fair opportunity to every party of being heard.... " 8. For the reasons mentioned above, this writ petition is allowed. The respondents are directed to release the grade of Rs. 1400-2600/- (un-revised), which subsequently came to be revised to Rs. 5000-8000/-, in favour of the petitioners against which they came to be selected in terms of advertisement notice issued by the respondents referred to above. " 8. For the reasons mentioned above, this writ petition is allowed. The respondents are directed to release the grade of Rs. 1400-2600/- (un-revised), which subsequently came to be revised to Rs. 5000-8000/-, in favour of the petitioners against which they came to be selected in terms of advertisement notice issued by the respondents referred to above. Let this exercise be done within a period of three months from the date a copy of this order is served upon the respondents. The petitioners would also be entitled to arrears of salary in the said grade which would be released in their favour within a further period of two months. Disposed of accordingly.