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2012 DIGILAW 20 (JK)

Raj Kumar Chadha v. State of J&K & Ors.

2012-02-01

MUZAFFAR HUSSAIN ATTAR

body2012
1. Petitioner, who was substantively holding the post of Senior Assistant in the respondent-department, vide order No PFC/108 of 2006 dt. 4th of Dec'06, was posted as Incharge Provident Fund Inspector, Sub Office Rajouri, without any remuneration. Petitioner joined in the said office in pursuance to the aforesaid order. In terms of Office order No. DPFC/J/25 of 2009, dated 20th of Jan'09, petitioner was directed to perform the duties of Provident Fund Inspector, National Highway (NH-IA) from Bikram Chowk up to the limits of Satwari, including Narwal, Channi Himmat, and in addition, he was also to hold the additional charge of Districts Rajouri and Poonch, till further adjustments were made. 2. In pursuance to the recommendation of Departmental Promotional Committee, petitioner was promoted as Provident Fund Inspector on substantive basis in the grade of Rs.5000- 150-8000/-, vide order No. PFC/42 of 2009 dt. 30th of July 09, against a newly sanctioned post in district Sub-office, Rajouri. Petitioner was already holding the charge of the said post in terms of order of 2006, referred to above. Petitioner, vide order dt. 1st of Sept'09, was transferred and adjusted in district Doda, as Provident Fund Inspector. This order was stayed by the Civil court in a suit instituted by the petitioner. In terms of Order No. PFC/93 of 2010, dated 5th of Feb'10, petitioner was reverted to the post of Senior Assistant. It is this order, which is called in question in this petition. Respondent Nos. 5 and 6 have filed objections and respondents 1 to 4 have adopted the said objections. 3. Mr. Abhinav Sharma, learned counsel for the petitioner submitted that the petitioner who was promoted as Provident Fund Inspector on the recommendation of the Departmental Promotional Committee and was working in that capacity, could not be reverted to the post of Senior Assistant without following the due procedure of law. Learned counsel submitted that for malafide reasons, in order to accommodate respondent No.6, the impugned order has been passed. Learned counsel submitted that in terms of the Jammu and Kashmir Employees' Provident Fund Organization Services Recruitment Rules, 1999, petitioner was fully eligible for being promoted on the post of Provident Fund Inspector and after considering him eligible, he was promoted on the said post on substantive basis in the year 2009, on the recommendation of the Departmental Promotional Committee. Learned counsel submitted that in terms of the Jammu and Kashmir Employees' Provident Fund Organization Services Recruitment Rules, 1999, petitioner was fully eligible for being promoted on the post of Provident Fund Inspector and after considering him eligible, he was promoted on the said post on substantive basis in the year 2009, on the recommendation of the Departmental Promotional Committee. Learned counsel submitted that respondent No.6, was wrongly adjusted as Provident Fund Inspector, against a post meant for direct recruitment quota and in order to accommodate him, the impugned order has been passed. The learned counsel, in order to substantiate his claim, invited the attention of the Court to endorsement No.1 of the impugned order. 4. Learned counsel for the petitioner further submitted that without complying with the minimum requirement of principles of natural justice, impugned order has been passed. 5. Learned counsel appearing for respondents, in their fairness, admitted that before passing the impugned order, no notice has been served upon the petitioner to show cause as to why he be not reverted to the post of Senior Assistant. Learned counsel appearing for respondent No.6 submitted that the status of said respondent may be protected. 6. What emerges from the writ record is that petitioner was substantively promoted on the post of Provident Fund Inspector on the recommendation of the Departmental Promotional Committee way back in the year 2009. This promotion was against a newly created post in district Sub Office, Rajouri. Petitioner was already working in the said district and was heading the Organization. In terms of the promotion order passed in favour of the petitioner in the year 2009, he became a permanent member of Class V of the Service. 7. Reversion is defined as a major punishment under Rule 30 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956, (for short Rules of 1956). The said punishment can be inflicted only after following the mandate of law. Admittedly, no procedure has been followed in this case while ordering reversion of the petitioner. 7. Reversion is defined as a major punishment under Rule 30 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956, (for short Rules of 1956). The said punishment can be inflicted only after following the mandate of law. Admittedly, no procedure has been followed in this case while ordering reversion of the petitioner. Petitioner had not only the statutory protection available to him but in view of the constitutional safeguards as contained in Section 126 of the Constitution of Jammu & Kashmir and Article 311 of the Constitution of India, before ordering for reversion, the competent authority was required to follow the mandate as contained in Rule 33 of the Rules of 1956. Reversion of the petitioner, in view of the aforesaid discussion, is held to be illegal. 8. Even if it is assumed, as stated in the impugned order, that promotion of the petitioner on the post of Provident Fund Inspector was on erroneous basis, in order to rectify the so called error, the competent authority was duty bound to issue show cause notice to the petitioner. Admittedly, no such notice has been served upon the petitioner. The minimum requirement of the principles of natural justice has not been, thus, complied with. The impugned order stands vitiated in the eyes of law. 9. The claim of the petitioner that he should be allowed to look after the duties of left and right side of NH-IA from Bikram Chowk upto the limits of Satwari including Narwal and Channi Himmat, as was done vide order dt. 20th of Jan 09, cannot be accepted by the Court. It is for the employer to adjust and post an employee at a place where it deems fit and it is for the employer to see how the services of an employee can be best utilized. 10. Learned counsel for respondent No.5, submitted that the order of adjustment of the petitioner dt. 20th of Jan'09, has been passed by an incompetent authority. As the issue of reversion of petitioner is in question in this petition, the adjustment of the petitioner by the competent authority/incompetent authority at a particular place, looses significance. The said issue can well be adverted to by the competent authority. 11. For the afore-stated reasons, this petition is disposed of with the following directions:- (1) By issuance of Writ of Certiorari, order No. PFC/93 of 2010 dt. The said issue can well be adverted to by the competent authority. 11. For the afore-stated reasons, this petition is disposed of with the following directions:- (1) By issuance of Writ of Certiorari, order No. PFC/93 of 2010 dt. 5th of Feb 10, issued by respondent No. 5, to the extent of reversion of the petitioner is quashed; (2) The respondent/competent authority would be at liberty to deal with the matter strictly in accordance with the law; (3) Until such time, the matter is considered and appropriate orders are passed, the competent authority to pass orders about the adjustment and posting of petitioner as Provident Fund Inspector. (4) The status of respondent No.6, as Provident Fund Inspector, shall remain undisturbed until such time, appropriate orders are passed by the competent authority.