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Jharkhand High Court · body

2009 DIGILAW 771 (JHR)

Hast Bahadur Gurung v. State of Jharkhand

2009-05-15

D.N.PATEL

body2009
JUDGMENT: 1. The present petition has been preferred against an order, passed by respondent no.3, dated November 7, 2008, at Annexure 3 to the memo of present petition, whereby, the petitioner has been declared as “incompetent”, for getting promotion on the post of Inspector of Police from the post of Sub Inspector of Police. No reasons have been assigned in the said order at Annexure 3. Not a word, not a line has been referred in the impugned order for declaring “incompetence” of the present petitioner, for getting promotion. Thus, thoroughly, a non-speaking order has been passed by respondent no.3, at Annexure 3, dated November 7, 2008 and, therefore, the present petition has been preferred. 2. Learned counsel for the petitioner submitted that, in fact, the petitioner is absolutely competent and eligible for getting promotion, but, no such qualification has properly appreciated by the respondents and the juniors to the present petitioner have been promoted on the posts of Inspector of Police and the petitioner has been declared “incompetent” for getting promotion. Petitioner is not knowing what are the reasons of “incompetence”, from Annexure 3, and absolutely, an arbitrary and unilateral decision has been taken by respondent no.3, while passing the order, at Annexure 3, and no opportunity of being heard was given to the petitioner, for assigning the aforesaid remark, and, therefore, the order, at Annexure 3, deserves to be quashed and set aside. 3. Learned counsel for the petitioner has also canvassed several other points, narrating his competence, from the memo of petition, as well as from the counter affidavit. 4. I have heard learned counsel for the respondents, who has submitted that several reasons have been given in the counter affidavit, which reveal that the petitioner is incompetent for getting promotion to the post of Inspect of Police, from the post of Sub Inspector of Police and, thus, the case of the petitioner was rightly not considered by the respondent no.3, for promotion and, therefore, this writ petition deserves to be dismissed. 5. 5. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the impugned order dated November 7, 2008, passed by respondent no.3, at Annexure 3 to the memo of present petition, mainly for the following facts and reasons: ought to have provided an opportunity of being heard to the petitioner, before declaring him “incompetent”. In view of these facts also, I hereby quash and set aside the impugned order, at Annexure 3 to the memo of present petition, passed by respondent no.3 dated November 7, 2008. 6. Asa cumulative effect of the aforesaid facts and reasons, I hereby quash and set aside the order dated November 7, 2008, passed by respondent no.3, at Annexure 3 to the memo of present petition, reserving liberty with the respondents that if they think fit, they may pass afresh, speaking order i.e. order with reasons, in accordance with law, rules, regulations, policies and legally enforceable government orders, applicable to the petitioner, after providing an adequate opportunity of being heard to the petitioner or to his representative. 7. This writ petition is, thus, allowed, to the aforesaid extent. (i) The petitioner is working on the post of Sub Inspector of Police from September 9, 1999. Looking to the order, at Annexure 3, it appears that no reasons have been assigned by respondent no.3, for declaring the present petitioner as “incompetent” for getting promotion on the post of Inspector. (ii) The contention, raised by the learned counsel for the respondents is that several reasons are given in the counter affidavit, but, this contention is not accepted by this Court, mainly for the reason that no reason can be supplied by way of counter affidavit, to a non speaking order. If the order is thoroughly a non speaking order, it remains as bad, as it was, even after filing of the counter affidavit. No dressing can be supplied by the counter affidavit. The reasons must have been reflected in the impugned order itself. Subsequent supply of reasons, by way of counter affidavit, is of no help to a bad order. If the impugned order is without any reasons, it is bound to be quashed, especially looking to the facts of the present case. No dressing can be supplied by the counter affidavit. The reasons must have been reflected in the impugned order itself. Subsequent supply of reasons, by way of counter affidavit, is of no help to a bad order. If the impugned order is without any reasons, it is bound to be quashed, especially looking to the facts of the present case. In view of these facts, on this ground alone, I hereby quash and set aside the impugned order, as it is a non-speaking order. (iii) Assuming, without admitting, that these reasons, stated in the counter affidavit, are correct, then also they are crystallized or decided unilaterally. No notice was given, before concluding these reasons. (iv) It also appears that before declaring the present petitioner “incompetent”, no hearing has been afforded to the petitioner and, thus, there is a violation of the principles of natural justice also. The respondents