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2014 DIGILAW 434 (ORI)

Suresh Chandra Singh v. State of Orissa

2014-07-22

B.R.SARANGI

body2014
JUDGMENT : DR. B.R. SARANGI, J.- The Petitioner has filed this writ application challenging the Order Dated 09.05.2000 keeping in abeyance the order of his promotion dated 18.03.2000 & cancellation thereof by Order Dated 20.11.2000 under Annexure 11 pursuant to a letter dated 3.11.2000 of the Government of Orissa Housing & Urban Development Department. 2. The brief fact of the case, in hand, is that the Petitioner was appointed as Warrant Sarkar under the Balasore Municipality on 22.07.1983' vide Annexure-1 pursuant to which he joined on 26.07.1983 vide Annexure-2. Subsequently, the said post of Warrant Sarkar was re-designated as Assistant Tax Collector. While the Petitioner was continuing as such, on 11.01.1995 he was directed to collect Holding Tax in Circle-1 of Balasore Municipality in place of Ananta Prasad Mohanty (on leave) till he joined his duty vide Annexure-3. Thereafter the Petitioner was directed to collect Holding Tax in Circule-I until further orders & also to take charge of the copy demand & receipt book ete from Tax baroga on dated 20.09.1995 vid3 Annexure-4. On 01.12.1997, the Petitioner made a representation vide Annexure-7 to the Chairperson, Balasore Municipality with a prayer" to give him promotion to the post of Holding Tax Collector. By following a due procedure of selection & pursuant to the resolution of the Selection Committee dated 03.01.2000, the Petitioner was promoted to the post of Holding Tax Collector against a permanent vacancy as per the order of the Opp. Party NO.3 dated 18.03.2000 under Annexure-8. Accordingly, the Petitioner joined on the very same date vide Annexure-9. Without assigning any reason, the promotion accorded to the Petitioner was kept in abeyance as per the order of the Opp. Party NO.3 dated 09.05.2000 under Annexure10 & subsequently, the promotion accorded to the Petitioner was cancelled as per the order of the Opp. Party No.3 dated 20.11.20.00 under Annexure-11. Finding no other way out, the Petitioner made representation on 27.11.200 under Annexure-12 praying to revoke the cancellation order of promotion & to allow him to continue in the post of Holding Tax Collector. When that representation was pending, the Petitioner filed the writ application seeking to quash Annexures-10 & 11. 3. While entertaining the writ application, this Court issued notice to the Opp. Parties & passed interim order on 14.03.2001 in Misc. When that representation was pending, the Petitioner filed the writ application seeking to quash Annexures-10 & 11. 3. While entertaining the writ application, this Court issued notice to the Opp. Parties & passed interim order on 14.03.2001 in Misc. Case No. 2100 of 2001 directing maintenance of status quo with regard to the post of Holding Tax Collector of the Balasore Municipality. Violating the said interim Order Dated 14.03.2001, the Petitioner, who was collecting the Holding Tax from Circle No.1 was withdrawn from the said Circle & was posted as Octroi Tax Peon (O.T.P.) on 13.09.2007. Therefore, CONTC No.1386 of 2007 was filed by the Petitioner for violation of the interim Order Dated 14.03.2001. . 4. Mr. H.M. Dhal, Learned Counsel for the Petitioner strenuously urged that the Petitioner was given promotion vide Annexure-8 to the post of Holding Tax Collector in the scale of pay was Rs.800-1150 by following due procedure of selection pursuant to the selection committee resolution dated 03.01.2000. In compliance with the same, the Petitioner joined on the very same date. While he was continuing in the said promotional post, without following due procedure of selection, the order of promotion dated 18.03.2000 under Annexure-9 was kept in abeyance vide Annexure-10. Thereafter, without affording opportunity of hearing to the Petitioner, the order of promotion was cancelled vide Order Dated 20.11.2000 under Annexure-11, thereby, violating the principles of natural justice. Due to arbitrary & unreasonable exercise of power by the authorities, the impugned orders have been passed depriving the Petitioner of continuing in the promotional post. 5. To substantiate his contention he has relied upon the Judgment of the Apex Court in Sekhar Ghosh v. Union of India & Anr, (2007) 1 SCC (L&S) 247. 6. Mr. A.K. Mishra, Learned Addl. Government Advocate for the State referring to the counter affidavit filed by Opp. Party NO.1 urged that the Petitioner was appointed as a Warrant Sarkar & he had been given promotion to the post of Holding Tax Collector. It is stated that the post of Warrant Sarkar under the Municipality comes under Group-D category post & promotion had been given to the Petitioner in the post of Holding Tax Collector, which is Group-C category post without observing due formalities there being no valid gradation list. It is stated that the post of Warrant Sarkar under the Municipality comes under Group-D category post & promotion had been given to the Petitioner in the post of Holding Tax Collector, which is Group-C category post without observing due formalities there being no valid gradation list. Therefore, the order of keeping promotion order in abeyance, & the subsequent the Government Order under Annexures-10 & 11 are just & legal as the provisions contained under Rule 426(3) of Odisha Municipal Rules, 1953 contemplates that promotion to non-selection posts shall be made on the basis of seniority only. Therefore, in order to judge the seniority, a valid gradation list of the employees was essential. Since the selection committee of the Balasore Municipality had not adopted the aforesaid procedure while promoting the Petitioner, action was taken for keeping the promotion of the Petitioner in abeyance & thereafter, cancellation was been made, which was in conformity with the provisions of law. 7. Mr. S.B. Jena, Learned Counsel for Opp. Party Nos. 2 & 3, submitted that admitting the fact that the Petitioner was promoted pursuant to the report of the selection committee to the post of Holding Tax Collector & he had joined the new post & discharged his duty as Holding Tax Collector, the said order was subsequently cancelled in view of the instruction received from the Government in Housing & Urban Development Department vide Annexure-11. The said action was taken basing on the representation submitted by the Octroi Employees Union for promotion of Octroi Tax Peons to the post of Holding Tax Collector. The Collector, Balasore directed the Additional District Magistrate, Balasore to make an enquiry regarding the promotion of the Assistance Tax Collector to the post of Holding Tax Collector & for that the promotion of the Petitioner was kept in abeyance vide Annexure-10. Subsequently his promotion was cancelled by Government under Annexure-11. 8. The admitted fact is that the Petitioner was appointed initially as a Warrant Sarkar, which was re-designated as Assistant Tax Collector. He was given promotion to a vacant post of Holding Tax Collector pursuant to Order Dated 18.03.2000 vide Annexure8 & he joined the said post on the very same day. 8. The admitted fact is that the Petitioner was appointed initially as a Warrant Sarkar, which was re-designated as Assistant Tax Collector. He was given promotion to a vacant post of Holding Tax Collector pursuant to Order Dated 18.03.2000 vide Annexure8 & he joined the said post on the very same day. Having got promotion, the Petitioner while discharging his duty w.e.f. 18.03.2000, all of a sudden, without assigning any reason the order of promotion dated 18.03.2000 under Annexure-8 was kept in abeyance on 09.05.2000 as per Annexure-10. By the time the order keeping in abeyance the order of promotion dated 18.03.2000 was passed, the same had acted upon, the Petitioner being allowed to join the promotional post & he discharged his duty against the said post. Therefore, the direction given to keep the Order Dated 18.03.2000 in abeyance was absolutely a misconceived attempt made by the authority. Then subsequently, the promotion given to the Petitioner vide Order Dated 18.03.2000 under Annexure-8 was cancelled on 20.11.2000 vide Annexure-11. No reasons were assigned why the order of promotion of the Petitioner was cancelled save & except mentioning that pursuant to letter dated 03.11.2000 of Government of Orissa Housing & Urban Development Department, such promotion had been cancelled. 9. As it appears from the counter affidavit filed by the Opp. Party Nos. 2 & 3, on the basis of a representation filed by the Octroi Employees Union, the Collector, Balasore directed to Addl. District Magistrate. Balasore to conduct an inquiry & the Additional District Magistrate having conducted such inquiry with regard to promotion of the Assistant Tax Collectors to the post of Holding Tax Collector furnished a report & on that basis the Government of Orissa vide Housing & Urban Development Department vide letter dated 03.11.2000 directed Opp. Party No.3 to cancel the promotion of the Petitioner as the promotion was given without valid gradation list. The Petitioner has stated that the reasons assigned in the counter affidavit have not been indicated in the impugned order. 10. The Apex Court in Commissioner of Police Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 has held as follows: "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect & are intended to affect the acting & conduct of those to whom they are addressed & must be construed objectively with reference to the language used in the order itself." Referring to said Judgment, the Apex Court in Mohinder Singh Gill & anr v. The Chief Election Commissioner, New Delhi & ors, AIR 1978 SC 851 in para 8 has held as follows: "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its 'validity must be judged by the reasons so mentioned & cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, yet validated by additional grounds later brought out." 11. Keeping in view the above mentioned principle of law, it is made clear that no reasons were assigned in the impugned orders under Annexures-10 & 11 & rather Opp. Party Nos.2 & 3 by filing an affidavit have assigned reasons by supplanting a fresh reason thereby by making an additional ground by way of bringing the same in the affidavit, which is not permissible under law. 12. As regards the averment made in the counter affidavit filed by the Opp. Party Nos. 2 & 3 that an inquiry was conducted by the Additional District Magistrate, Balasore pursuant to the direction given by the Collector, Balasore on the basis of a representation made by the Octroi Employees Union is concerned, but no copy of such representation was ever communicated to the Petitioner nor had he been called upon to participate in the process of hearing being affording opportunity nor was any documents supplied to him before taking any action revoking his order of promotion on the plea that no gradation list had been prepared earlier. 13. This Court while disposing of W.P.(C) NO.22319 of 20011 on 4.7.2014 in Jayanta Kumar Goswami v. Governing Body of Akhandalamani College (+2), Betaligaon & others has dealt with the question of "natural justice", wherein it has been held that a proceeding can be vitiated due to non-supply of materials basing upon which charge has been framed as the rudiment of principles of natural justice has not been followed. Applying the same analogy to the present context, it appears that neither any opportunity had been given to the Petitioner nor had any document been supplied to him or he had been called upon to show cause before cancellation of such order or promotion pursuant to the letter of the Government in Housing & Urban Development Department. May it be that promotion had been given to the Petitioner without preparing any gradation list & the same might be an irregularity in the eye of law, but that ipso facto cannot entitle the Opp. Parties to cancel the promotion of the Petitioner without following observing the principles of natural justice. Referring to the law laid down in Sekhar Ghosh case (supra), it is held that before taking any action, all the necessary ingredients of the principles of natural justice are required to be complied with. 14. For the foregoing reasons, this Court is of the view that since the impugned orders have been passed without complying with the principles of natural justice, the same cannot stand 'the judicial scrutiny & are hereby quashed. The Petitioner is entitled to get all the consequential promotional benefits as due & admissible to him in accordance with law. 15. The writ application is allowed. No cost. 16. With the disposal of the writ application, the contempt petition is dropped.