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2014 DIGILAW 484 (MP)

Surya Prakash Pathak v. State of MP

2014-04-29

SUJOY PAUL

body2014
Judgment: This petition filed under Article 226 of the Constitution challenges the order dated 29.4.2013 passed by the Collector in Case No.38/2012-13/Appeal. By this order, the promotion order of the petitioner was set aside and matter was remitted back to the Municipal Council to reconsider the matter in accordance with rules. 2. Assailing this order, Shri Shrivastava, learned counsel for the petitioner submits that the petitioner and respondent No.4 herein were admittedly appointed by the same order and on the same day. They joined services as Shiksha Karmi Grade-II on the same day. Thereafter they were absorbed as Adhyapak. A seniority list (Annexure P/5) showing position as on 1.4.2011 was prepared, wherein the petitioner is shown at No.3 and respondent No.4 is at No.5. It is urged that this seniority list was not challenged by anybody at any point of time and, therefore, it has attained finality. The petitioner's case was considered for promotion on the post of Senior Teacher and he was promoted by order dated 4.1.2013. It is submitted that the petitioner's subject is English whereas respondent No.4 belongs to the subject of Sanskrit and, therefore, she has no right on a post which is occupied by petitioner in the stream of English. In addition, it is contended that as per the appeal, preferred by respondent No.4 (Annexure P/7) the singular ground canvassed was that she is senior by age and, therefore, she should secure a march in the matter of seniority over and above the petitioner. By drawing attention on the Circular dated 16.8.2009 (Page 43), it is contended that the seniority in teacher's cadre is to be counted as per the appointment order and merit position/selection position mentioned in the appointment order. 3. Reverting back to the order dated 7.9.1992, it is contended that the petitioner's name is at No.5 and name of respondent No.4 is at No.8 and, therefore, the petitioner was rightly held senior. It is contended that the DPC which was constituted in the case of the petitioner was strictly in consonance with Schedule IV of the Gazette Notification dated 17.9.2008 (Annexure R-4/4). It is submitted that the Collector without assigning any reason has disturbed the promotion order, which is bad in law. 4. The prayer is opposed by Shri Mahesh Goyal and Shri B.S.Dhakad. It is submitted that the Collector without assigning any reason has disturbed the promotion order, which is bad in law. 4. The prayer is opposed by Shri Mahesh Goyal and Shri B.S.Dhakad. It is common ground taken by the respondents that the Collector has merely remanded the matter back before the authority and the authority will proceed in accordance with law. 5. I have heard learned counsel for the parties and perused the record. 6. A bare perusal of the impugned order shows that the respondent has disturbed the order by applying “Madhya Pradesh Shiksha Sanhita 2011”. Apart from this, a conclusion is drawn that the DPC was not conducted as per “Madhya Pradesh Nagriya Nikay Adhyapak Samverg (Niyojan Avam Sewa Ki Sharten) Niyam, 2008” and it was conducted as per the notification dated 17.9.2008. I find force in the argument of Shri Shrivastava that no reasons are assigned for arriving to this conclusion. There is no discussion as to how Madhya Pradesh Shiksha Sanhita can be made applicable on an employee of a 'local body'. 7. In the opinion of this Court, the reasons are heartbeat of conclusion. In absence of reasons conclusion cannot be permitted to stand. The Supreme Court in Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, emphasized the need for assigning reasons in judicial, quasi-judicial and administrative decision. Relevant para of the judgment reads as under:- “(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. It was the minimum expectation from the respondent No.2 to assign reasons, on the basis of which he reached to the conclusion that WP 3207/13 4 the relevant rules are not followed. There is no iota of reasoning in the order in support of said conclusion. It was the minimum expectation from the respondent No.2 to assign reasons, on the basis of which he reached to the conclusion that WP 3207/13 4 the relevant rules are not followed. There is no iota of reasoning in the order in support of said conclusion. As a result thereof, this order shows non-application of mind. The decision making process is not as per “due process”. 8. Resultantly, the order 29.4.2013 is set aside. Matter is remitted back to the Collector to rehear the parties afresh and pass the order in accordance with law. 9. Petition is allowed without expressing any opinion on merits.