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2015 DIGILAW 355 (MP)

Goverdhan Ahirwar v. State of M. P.

2015-03-26

K.K.TRIVEDI

body2015
JUDGMENT : K.K. Trivedi, J. 1. The petitioner is aggrieved by the order dated 31.07.1995 by which the promotion orders of the petitioner as ad hoc Draftsman as also his posting as Revenue Inspector and the regularization of the petitioner as Draftsman have been cancelled. The grievance of the petitioner is that before issuing the said orders opportunity of hearing was not extended to him so that he could explain the reason as to why such orders were issued giving him ad hoc posting and promotion. 2. The petitioner was initially appointed in the year 1978 on the post of Tracer. He was working as such when certain posts of Draftsmen became available. In terms of the instructions issued by the Commissioner, Land Records and Settlement, M.P. Gwalior, on 04.02.1977, since there was a vacancy of the post of Draftsman the petitioner was posted as such vide order dated 27.12.1988. Later on, since there were posts of Revenue Inspector available in the Settlement branch it appears that the Settlement Officer, Sagar asked for the consent of the persons like petitioner for their posting as Revenue Inspector. The petitioner gave his consent and accordingly order was issued on 01.07.1990 posting the petitioner and one other Draftsman as Revenue Inspector. A specific condition was mentioned in the said order that the petitioner was required to pass the Revenue Inspector examination within two years or else he was to be reverted back to his substantive rank. It is the case of the petitioner that he has passed the said examination as was notified on 05.02.1994. Subsequent to this posting an order was issued on 13.06.1991 by the Settlement Officer, confirming the petitioner on the post of Draftsman by regularizing his promotion which was earlier made on ad hoc basis. The pay fixation was also done accordingly by the order of the competent authority on 12.08.1991. 3. The gradation seniority list was circulated showing the position of the petitioner as Revenue Inspector. In the pay slip also the designation of the post of the petitioner was shown as the Revenue Inspector. However, all of a sudden the order was issued on 31.07.1995 canceling all previous orders of promotion and posting of the petitioner as Draftsman as also Revenue Inspector with a direction to revert back the petitioner on the post of Tracer and posting him in the office of Settlement Officer, Bhopal. However, all of a sudden the order was issued on 31.07.1995 canceling all previous orders of promotion and posting of the petitioner as Draftsman as also Revenue Inspector with a direction to revert back the petitioner on the post of Tracer and posting him in the office of Settlement Officer, Bhopal. This order was called in question in Original Application filed before the M.P. Administrative Tribunal Bench at Jabalpur, being O.A. No. 2289/1995. There was an interim stay granted in the matter by the Tribunal on the strength of which the petitioner remained working on the post of Revenue Inspector. However, on 16.07.1998, the Original Application was disposed of quashing the order of transfer of the petitioner only and granting liberty to the petitioner to file afresh application, if he remained aggrieved by the order of his reversion. It appears that the petitioner has not challenged the order of his reversion within time and ultimately availing of the liberty extended by the Tribunal has filed this writ petition before this Court. 4. Upon issuance of notice of the writ petition, the respondents have filed the return contending inter alia that the Tracer was not to be promoted on ad hoc basis in the manner the petitioner was promoted and as such the initial posting of the petitioner as a Draftsman, in the garb of his ad hoc promotion was not proper. The authority, who has issued the order was not competent to do so. Even otherwise, without following the procedure of promotion, ad hoc promotion order was not required to be issued. When all these facts came to the notice of the authorities of the State, after scrutiny of the records and the orders issued by the incompetent authority, the Commissioner Land Records and Settlement exercised his power and set aside the order of illegal promotion of the petitioner as Draftsman. A Draftsman cannot be posted as Revenue Inspector as both the posts are in different stream and are not interchangeable. That being so, if the illegality committed by the subordinate authorities, were rectified by the competent higher authority, opportunity of hearing was not required to be given to the petitioner. A Draftsman cannot be posted as Revenue Inspector as both the posts are in different stream and are not interchangeable. That being so, if the illegality committed by the subordinate authorities, were rectified by the competent higher authority, opportunity of hearing was not required to be given to the petitioner. If something which was not available under the law was granted to the petitioner by an authority, and if such a wrong was remedied by the respondents-authorities subsequently it cannot be said that the rules of natural justice are violated, inasmuch as opportunity of hearing is not required to be granted, in such a case. 5. In view of the aforesaid, it is contended that the action taken by the respondents is just and proper. Further, the petitioner has already been reverted on the post of Tracer and, therefore, now there is no question of quashing the said order restoring back the illegal promotion of the petitioner. It is thus contended that the writ petition is devoid of any substance and is liable to be dismissed. 6. After hearing learned counsel appearing for the parties at length and after going through the records one thing is clear that there were instructions issued by the competent authority to post the Tracer on the post of Draftsman, if the vacancies were available. However, whether any statutory rules were made governing the recruitment on the post of Draftsman or Revenue Inspector is not clear. Circular dated 09.02.1977 has been placed on record by the writ petitioner. This circular has not been dealt with by the respondents in their return. Even they have not said that no instructions were ever issued by the Commissioner of Land Records and Settlement in this respect. 7. If the said circular is examined, the same was endorsed to the State Government in reference to the letter of Secretary of the Government of M.P. in Settlement Department dated 10.01.1977. What was the contingency pointed out by the said circular and in terms of that circular whether any arrangement for posting of Draftsman was made or not has not been explained in the entire return. From the circular, it is clear that the petitioner was given posting as Draftsman in higher pay scale by the order of the Settlement Officer, Sagar. From the circular, it is clear that the petitioner was given posting as Draftsman in higher pay scale by the order of the Settlement Officer, Sagar. If such posting made on 27.12.1988 was not justified, the respondent No. 2, who was informed about such posting, could have initiated the proceeding for cancellation of the said posting order. On the other hand, the petitioner was not only allowed to continue, but was asked whether he was willing to give his consent for working on the post of Revenue Inspector. As the petitioner gave his consent the order of posting was issued in his respect on 01.09.1990, directing him to perform the duty as Revenue Inspector. Again the said order was referred to the respondent No. 2, the Commissioner, Land Records and Settlement in reference to his memo dated 11.10.1984. Again nothing was done by the said respondent for cancellation of the order, if the same was not in consonance to the instructions issued by the respondent No. 2. 8. This situation has remained continued and when an order was issued regularizing the promotion of the petitioner as Draftsman, the order was again endorsed to the Commissioner of Land Records and Settlement. From this, it is clear that the respondents were well aware of the fact that certain orders were issued in respect of the petitioner giving him higher placement and posting even on the different channel and posts but they have not taken any steps in that respect immediately. The petitioner took part in the written examination held for the appointment of Revenue Inspector with the permission of the respondents which he had passed. Now keeping in view all these facts, and the fact that the name of the petitioner was not only included in the seniority list of the Revenue Inspector but designation of his post was also treated as Revenue Inspector throughout, before issuing the order impugned at least an opportunity of hearing was to be granted to the petitioner so that he could have explained the facts which could be enquired into by the respondents and appropriate decision could have been taken. The order dated 31.07.1995 and the return itself nowhere indicates that the opportunity of hearing was granted to the petitioner in these circumstances. 9. In view of the aforesaid, the action initiated by the respondents cannot be accepted nor can be countenance by this Court. The order dated 31.07.1995 and the return itself nowhere indicates that the opportunity of hearing was granted to the petitioner in these circumstances. 9. In view of the aforesaid, the action initiated by the respondents cannot be accepted nor can be countenance by this Court. The order impugned is thus bad in law and is liable to be quashed. Accordingly, the writ petition is allowed. The order dated 31.07.1995 is hereby quashed. The petitioner be treated as Revenue Inspector throughout and in case any action is required to be taken for his reversion, that may be taken only after granting him opportunity of hearing and keeping in view the finding recorded hereinabove. 10. As far as the monetary claim on account of quashment of the order impugned is concerned, since after 1998 for a considerable long time the petitioner has not approached the Court of law and has not challenged the order despite grant of liberty by the Tribunal, the petitioner will not be entitled to the back wages of the post of the Revenue Inspector till the date of filing of the writ petition before this Court. From the date of filing of the writ petition the benefit of arrears of salary on the post of Revenue Inspector be granted to him. Of course, the notional fixation as was done on earlier occasion is to be revived but the arrears, if any, would be payable only from 27.09.2006 onwards, i.e. from the date of filing of the writ petition before this Court. The writ petition is allowed and disposed of to the extent indicated herein above. There shall be no order as to costs.