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2010 DIGILAW 241 (GAU)

Jiten Kalita v. State of Assam

2010-04-05

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. Petitioner's father, late Sambaru Kalita, was a Grade-IV employee at Guimara State dispensary. While the petitioner's father was still in service, the petitioner came to be appointed, on 30.7.1990, in leave vacancy, as his father had been suffering from various ailments. The petitioner's father died on 18.11.1990. By order, dated 28.11.1990, the petitioner was allowed to work as a grade-IV employee in the vacancy, which had arisen consequent to his father's death. By order, dated 5.6.1991, the petitioner's service was regularized in the post of Grade-IV with effect from 18.11.1990. The petitioner has accordingly been working since then. On 6.7.2006, the petitioner was promoted to the post of Dresser, which is a Grade-III post. Having joined the post of Dresser, the petitioner started functioning as a Dresser since 7.7.2006. 2. By order, dated 7.12.2006, issued by Joint Director of Health Services, Kamrup, the order, dated 6.7.2006, aforementioned, whereby the petitioner had been promoted from the post of Grade-IV to the post of Grade-III, as Dresser, was cancelled. This action of the respondents was put to challenge by the petitioner by filing a writ petition under Article 226, which gave rise to WP(C) No. 633/2007. Having found that the petitioner had been demoted without giving him, in this regard, any notice to show cause or any opportunity of hearing, the High Court, by order, dated 17.12.2009, passed in WP(C) No. 633/2007, set aside the order, dated 7.12.2006, with liberty to the respondents concerned to issue to the petitioner a notice to show cause against the proposed order of cancellation of the petitioner's promotion. 3. Pursuant to the order, dated 17.12.2006, passed by the High Court, the petitioner rejoined the post of Grade-Ill and, thereafter, a notice was issued, on 12.2.2010, directing him to show cause as to why his promotion shall not be cancelled on the ground that in the gradation list of Grade-IV, the petitioner appears at serial No. 144, whereas there are more senior and experienced persons in the post of Grade-IV including one Md. Romjan Ali, whose name appears at Serial No. 73 and who had laid his claim for promotion to the post of dresser prior to the petitioner. Romjan Ali, whose name appears at Serial No. 73 and who had laid his claim for promotion to the post of dresser prior to the petitioner. To the notice to show cause, so issued to him, the petitioner did not dispute the fact that in the gradation list, his name appears at Serial No. 144 and there are several persons senior to, and more experienced than, him in the said gradation list and that one Md. Romjan Ali stands at Serial No. 73 of the gradation list, who had laid his claim for promotion to the post of dresser prior to the request made, in this regard, by the petitioner. What the petitioner simply stated, in his representation made against the said show-cause notice, was that he already stood promoted by order, dated 6.7.2006, aforementioned, he had received his salary for five months and, then, the order of promotion was cancelled and, hence, he shall be allowed to continue to serve in his promotional post. However, by order, dated 11.3.2010, issued by the Joint Director of Health Services, the petitioner's promotion has been cancelled on the ground that since the petitioner is junior to many other Grade-IV employees of the said establishment and there are more experienced persons than the petitioner, his order of promotion is not sustainable. The petitioner has accordingly been reverted, vide the order, dated 11.3.2010, to the post of Grade-IV. It is the order, dated, 11.3.2010, which stands impugned in this writ petition. 4. I have heard Mr. R. Sharma, learned Counsel, for the petitioner, and Mr. R.K. Bora, learned Government advocate, appearing for the State respondents. 5. It has been contended, on behalf of the petitioner, that though a notice had been issued to the petitioner directing him to show cause as to why his promotion to the post of Dresser be not cancelled inasmuch as his name had appeared, in the gradation list, at Serial No. 144, whereas there are several other persons, senior to, and more experienced than, the petitioner, the petitioner had not been given any opportunity of hearing before the order of cancellation of promotion was made reverting the petitioner to the post of Grade-IV. In this regard, it needs to be noted that in the notice to show cause, it had been clearly stated by the respondent concerned that in the gradation list, the petitioner's name appears at Serial No. 144 and that there are several persons senior to, and more experienced than, the petitioner and that one of such persons, namely, Ramjan Ali, had made a request for promotion to the post of Dresser prior to the request for promotion, which the petitioner made. Obviously, promotions are not granted on request, but as and when one becomes not only eligible, but also when he falls within the zone of consideration. The petitioner was, nowhere, within the zone of consideration for promotion to the post of Dresser inasmuch as the petitioner is far junior to others in Grade-IV. 6. To a pointed query made by this Court as to what the petitioner would have stated, had he been given an opportunity of hearing by the respondents/authorities concerned, nothing could be submitted on behalf of the petitioner. When the facts admitted, even by the petitioner, clearly make out that the petitioner's promotion to the post of Dresser had been made by denying the right of other eligible persons, the order of promotion of the petitioner to the post of Dresser deserved to be cancelled. In the fact situation of the present case, the petitioner's reply to the said show-cause notice was good enough to cancel the petitioner's promotion inasmuch as the petitioner had really nothing to submit in order to sustain his promotion and no prejudice can be said to have been caused to the petitioner for not hearing him. In fact, in the face of the admitted facts, no hearing was necessary. 7. When the petitioner's promotion was fundamentally illegal and arbitrary inasmuch as the petitioner had superseded others without any process of selection, the petitioner's promotion could not have been sustained. In fact, in the face of the admitted facts, no hearing was necessary. 7. When the petitioner's promotion was fundamentally illegal and arbitrary inasmuch as the petitioner had superseded others without any process of selection, the petitioner's promotion could not have been sustained. In such circumstances, particularly, when the facts were not in dispute and when the petitioner's promotion, in the face of the admitted facts, needed to be cancelled, cancellation of his promotion is not illegal and no prejudice can be said to have been caused to the petitioner, when his promotion was cancelled after giving him due opportunity to show cause against the proposed action of the respondents to revert him to his original post of Grade-IV and after ascertaining as to what the petitioner had to say as regards the proposed action of cancellation of his promotion by the respondents/authorities concerned. 8. In short, when the admitted facts on record warranted cancellation of the petitioner's promotion, particularly, when the petitioner had been given the opportunity to have his say in the matter and he, indeed, had said what he wanted to say, no prejudice can be said to have been caused to him and no illegality can be said to have been committed by the respondents concerned, when the impugned order was passed. Right of a person to be heard before an adverse order is passed against him rests on the principle of natural justice. The principle being that none shall be condemned unheard. The object of this principle is that the person, who takes an action or passes an order, must know as to what that person has to say against whose interest the order is proposed to be made, or the action is proposed to be taken. When a notice to show cause was given, in a case of present nature, the petitioner responded thereto by saying as to what he wanted to say in support of his contention that his order of promotion shall not be cancelled and, while so responding, the petitioner could not make out any case to show that his promotion shall not be cancelled and, particularly, when the petitioner is unable to say, even when asked by this Court, as to what he would have said, had be been given an opportunity of hearing, it becomes clear that the petitioner has not suffered from any prejudice. Merely, therefore, on the ground that the petitioner has not been given an, opportunity of hearing, the impugned order, canceling the petitioner's promotion to the post of Dresser, cannot be interfered with, for, any interference, in a case of present nature, would be mechanical and without application of mind. Interference would have been possible with the impugned order of cancellation if prejudice could have been shown to have been caused to the petitioner by not hearing him. When no prejudice is shown to have been caused, the fact that the petitioner was not heard becomes immaterial. 9. Situated, thus, this Court is of the firm view that in the facts and attending circumstances of the present case, the petitioner cannot be said to have made out any case, warranting interference by this Court, in exercise of its power under Article 226 of the Constitution of India, with the impugned order. This writ petition, therefore, fails and the same shall accordingly stand dismissed. 10. No order as to costs. Petition dismissed