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2014 DIGILAW 790 (HP)

Rakesh Chander Puri v. H. P. State Environment Protection & Pollution Control Board

2014-06-25

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge. The appellant is aggrieved by the judgment passed by the learned Single Judge on 11.03.2011 in CWP (T) No.8463 of 2008 whereby the claim of the appellant for the post of Accounts Officer as approved in the third meeting of the Committee on service matters was rejected. 2. The facts, in brief, may be noticed. The appellant was appointed as Accountant with the respondent-Board in the year 1982. On 10.12.1982, the respondents-Board prepared the Recruitment and Promotion Rules for the post of Accounts Officer and placed the same before the Sub Committee on service matters which in turn approved the same. The matter was then required to be presented in the Board meeting for its approval and the same was infact approved in the 41st Board meeting held in October, 1997. The case of the appellant was that he was eligible and qualified for the aforesaid post of Accounts Officer as per the Recruitment and Promotion Rules and had infact rendered more than six years of service in this capacity i.e. Accounts Officer and thus was required to be confirmed on this post. The appellant has further alleged that the respondent No.2 with the malafide intention gave a wrong picture to the respondents-Board and got changed the rules for the post of Accounts Officer in the 46th meeting just to harass and harm the appellant. On 16.02.2002, the appellant was reverted to his substantive post of Senior Assistant (Accounts) with immediate effect which was challenged on various grounds before the learned Single Judge. It was contended that the rules had been amended without prior consultation with the employees Union and the persons, who would be affected. It was further claimed that the respondent No.2 with the malafide intention and deliberately put up the agenda before the Board meeting for change of rules because only appellant was affected by the said change. It was lastly submitted that the appellant has put in more than six years of service as an Accounts Officer and, therefore, his promotion was required to be confirmed or else the same would be in violation of Articles 14 and 16 of the Constitution of India. 3. The respondents-Board filed its reply wherein it was stated that actual date of appointment of the appellant was infact 10.02.1983 and not 10.12.1982 as alleged. 3. The respondents-Board filed its reply wherein it was stated that actual date of appointment of the appellant was infact 10.02.1983 and not 10.12.1982 as alleged. Insofar as the claim of the appellant to the post of Accounts Officer on 12.06.1995 is concerned, it was stated that in the record available in the Office of the respondents, no post of Accounts Officer had ever been created in the Board, although a recommendation to this effect had been made in the year 1991 Thereafter, no steps were taken by the Board for creation of this post either on temporary basis or on permanent basis. It is further contended that no finalization and approval of Recruitment and Promotion Rules was given by the Board which infact is the competent authority for such finalization and approval. These were only finalized in the 46th meeting of the Board held on 20.11.2001. It was specifically stated that appellant was never allowed pay in the proposed pay-scale of Accounts Officer nor was his pay ever fixed in this scale. Infact, this could not be done in the absence of creation of post or the Recruitment and Promotion Rules for the same. Except for designating him (appellant) as an Accounts Officer, he was not given any monetary benefit on account of so-called promotion. The learned Single Judge dismissed the petition preferred by the appellant mainly on the ground that the appellant having been appointed on adhoc promotion could be reverted at any time and the issuance of show-cause notice, in such circumstances, was not necessary. 4. In this background, the moot question which requires to be considered is whether the appellant was ever promoted because it is only then that the question of reversion would come in. Further, it is only when the appellant can establish that infact he had been ‘promoted’ and had a right to hold the post that he can complain of violation of Articles 14 and 16 of the Constitution of India or complain of violation of principles of natural justice before his so-called reversion. 5. From what has already been stated above, it is clear that the Recruitment and Promotion Rules for the post of Accounts Officer were approved only on 20 11 2001 Meaning thereby there was no post of Accounts Officer existing in the Board prior to the said date. 5. From what has already been stated above, it is clear that the Recruitment and Promotion Rules for the post of Accounts Officer were approved only on 20 11 2001 Meaning thereby there was no post of Accounts Officer existing in the Board prior to the said date. Admittedly, the appellant is not a Commerce Graduate and, therefore, did not fulfill the eligibility as prescribed in the Recruitment and Promotion Rules approved on 20.11.2001 which resulted in the order dated 16.02.2002 reverting the appellant to the post of a Senior Assistant (Accounts) from the post of Accounts Officer. This being the admitted position, we are of the opinion that no right whatsoever had accrued in favour of the appellant on the basis of such adhoc promotion and, therefore, it was not necessary for the Board to have issued a show-cause notice to the appellant prior to reverting him to his substantive post of Senior Assistant (Accounts) from the post of Accounts Officer. 6. Admittedly, so-called reversion of the appellant to his substantive post did not entail forfeiture of his pay and allowances or loss of seniority in his substantive rank or stoppage or postponement of his future chances of promotion. Therefore, in such circumstances, whether the principles of natural justice were required to be followed or as contended by the appellant a show-cause notice was necessary, to our minds, the answer is definitive no and for taking this view we are fortified by the following observations of the Hon’ble Supreme Court in Punjab State Electricity Board and another versus Baldev Singh (1998) 5 SCC 450 which reads thus:- “4. Having heard the learned counsel for the parties and examining the materials on record we have no hesitation to hold that in the facts and circumstances of the case the question of giving an opportunity of hearing to the plaintiff before passing the order dated 8-1-1981 does not arise. Since the plaintiff’s appointment/promotion to the post of Assistant Lineman was purely on ad hoc basis and the higher authorities directed to discontinue such ad hoc order posting the plaintiff against his substantive post of Charge I Mate. The plaintiff had not acquired any right to the post of Assistant Lineman and further, the impugned order dated 8-1-1981 cannot be held to be penal in nature.” 7. The plaintiff had not acquired any right to the post of Assistant Lineman and further, the impugned order dated 8-1-1981 cannot be held to be penal in nature.” 7. Accordingly, we find no force in the appeal and the same is dismissed leaving the parties to bear their own costs.