JUDGMENT AND ORDER : Heard Mr. H.S. Paonam, learned senior counsel assisted by Mr. N. Bipin, Advocate for the petitioner and Mr. S. Rupachandra, learned ASG for the respondents. 2. The present petition has been filed by the petitioner, who was promoted to the rank of Commandant by order dated 30.4.2012, challenging the cancellation of his promotion to the rank of Commandant vide impugned order dated 25th August, 2014 primarily on the ground that the said cancellation order was issued in complete violation of the principle of natural justice as the petitioner was not afforded any opportunity of being heard before the cancellation order was issued. 3. Certain facts in brief as may be relevant may be stated for a just determination in this case. 4. It is the case of the petitioner that the petitioner who was earlier serving in the rank of Second-in-Command (2IC) was promoted to the rank of Commandant vide order dated 30.04.2012 as per recommendation of a DPC held on 30.3.2012. The DPC considered as many as 10(ten) 2ICs including the present petitioner and finding the petitioner medically fit, recommended the petitioner for promotion to the rank of Commandant. Thereafter, on being promoted, the petitioner had been posted as the Commandant in the Transit Camp, Minothong, Imphal till date. The petitioner claims that after his promotion, there was certain anonymous complaint against the petitioner stating that he had obtained promotion by suppressing his true medical conditions. On the basis of the said complaint, a Court of Inquiry was conducted against him which was convened as per order dated 28.12.2012 of the Director General of Assam Rifles to inquire into the circumstances under which the petitioner was promoted and assumed the rank of Commandant without Annual Medical Examination (AME) for the year 2011, the role of the promoting authority, which was supposed to verify the medical status of the petitioner, the role of the concerned Medical Officer who was supposed to conduct AME for the petitioner, the role of the concerned officials of the Headquarter when he was considered for promotion and subsequent declaration of the result of his promotion and any other ancillary matter regarding promotion of the petitioner. 5. 5. According to the petitioner, though the said Court of Inquiry was conducted, he was not informed of the finding of the same though he had denied the allegations made in the Court of Inquiry that he was responsible for not disclosing his correct medical status and claimed that no fault could be attributed to the petitioner for delay in holding of the Annual Medical Examination of 2011. It has been stated that subsequently, without any further notice, the petitioner was served with the impugned cancellation order dated 25th August, 2014 by which the promotion of the petitioner to the rank was cancelled and he was demoted to the lower rank of 2IC. 6. Certain reasons have been assigned in the said cancellation order dated 25th August, 2014. It had been stated in the said cancellation order that the petitioner deliberately avoided the Annual Medical Examination for the year 2011 as he was aware of his unfit medical condition as promotion to the rank of Commandant mandatorily requires the medical condition of SHAPE-1 category. It also stated that he was subsequently found to have been diagnosed with Primary Hypertension and obesity with Dyslipidemia and placed in S1H1A1P3(T-24)E1 category with effect from 10th September, 2012. The said cancellation order also stated that in view of the above, a Court of Inquiry was convened to investigate the circumstances under which the petitioner was promoted to the rank of Commandant, in which the petitioner was given adequate opportunity to defend himself but the Court of Inquiry found the petitioner blameworthy and responsible for avoiding and delaying the Annual Medical Examination for the year 2011 with malafide the intention of getting promoted to the rank of Commandant w.e.f. 02.5.2012. The cancellation order further mentioned that the Commanders in chain recommended accordingly that the petitioner’s promotion be cancelled. The competent authority accepted the said recommendation. Accordingly, the impugned order dated 25.08.2014 was issued cancelling his promotion order dated 30.4.2012 with the direction to the petitioner to continue in the rank of 2IC with immediate effect with a further direction that all excess payment made to the petitioner w.e.f. 2.5.2012 will be recovered as per existing rules in vogue. 7. Mr. Accordingly, the impugned order dated 25.08.2014 was issued cancelling his promotion order dated 30.4.2012 with the direction to the petitioner to continue in the rank of 2IC with immediate effect with a further direction that all excess payment made to the petitioner w.e.f. 2.5.2012 will be recovered as per existing rules in vogue. 7. Mr. H.S. Paonam, learned senior counsel for the petitioner has assailed the said cancellation order primarily on the ground that the said cancellation order was issued without giving any prior notice and as such, the same is in clear violation of the principle of natural justice and, hence, is liable to be set aside. 8. It has been also submitted by Mr. H.S. Paonam, learned senior counsel that the petitioner was not at all responsible for the delay in the medical examination of the petitioner for the purpose of Annual Medical Examination report in the year 2011 and he was very much in the SHAPE-1 when he was examined in 2010 and the fact that he has been diagnosed to have been suffering from Hypertension and obesity is only indicative of the temporary and minor medical conditions which he had developed subsequently after he was given promotion and as a matter of policy, once a person is given promotion to the higher rank of Commandant, there has been no case of demotion in the Assam Rifles on the ground that the promotee has ceased to remain in SHAPE-1 medical category. Accordingly, he has submitted that in case it is found that the petitioner is in SHAPE-1 as on today, there is no reason why he should be subject to demotion on the ground that SHAPE-1 is a requirement for promotion to the post of Commandant, as it was not shown that he was not in SHAPE-1 medical category at the time of promotion. 9. In response, Mr. S. Rupachandra, learned ASG has denied that there has been violation of principles of natural justice and has submitted that it is not correct that the petitioner was not given any notice or opportunity to defend himself before the impugned cancellation order dated 25th August, 2014 was issued. 9. In response, Mr. S. Rupachandra, learned ASG has denied that there has been violation of principles of natural justice and has submitted that it is not correct that the petitioner was not given any notice or opportunity to defend himself before the impugned cancellation order dated 25th August, 2014 was issued. It has been contended that before the cancellation order was issued, the petitioner was made aware of the charges against him of concealing his correct medical condition in not having the SHAPE-1 condition and also being responsible for not obtaining necessary Annual Medical Examination report for the year 2011 before the DPC was held, in course of the proceeding in the Court of Inquiry. Learned counsel submits that the petitioner was fully aware that relevant service rules require that for being promoted to the higher rank of Commandant, the officers in the feeder grade i.e. 2ICs have to have the medical condition of SHAPE -1 without which a person is not eligible for being considered for promotion to the higher rank of Commandant. It is contended that though the petitioner was fully aware of such a requirement under the rules, yet, he failed to get himself medically examined in time to show that he was in SHAPE-1 condition before the holding of the DPC. He states that rules require that every personnel of the Assam Rifles must have his Annual Medical Examination done by the end of December, and particularly in respect of persons who are due for promotion, such Annual Medical Examination should be done by the 15th of November. Thus, as the petitioner was aware that he was due for promotion in the year 2012, he should have done his Annual Medical Examination by 15th November, 2011 which was not done. It has been contended that there are sufficient materials as disclosed in the Court of Inquiry to indicate that he was responsible for the delay in holding the medical examination with an intention to avoid down-gradation of his medical condition to earn an undeserved promotion to the higher rank of Commandant. Mr. Rupachandra, learned ASG states that he was given full opportunity to defend himself against all these allegations in the Court of Inquiry. Hence, there was no violation of the principles of natural justice. 10. Mr. Rupachandra, learned ASG states that he was given full opportunity to defend himself against all these allegations in the Court of Inquiry. Hence, there was no violation of the principles of natural justice. 10. It has been further contended that the promotion order itself was a conditional one with the stipulation that the promotion will be subject to his maintaining medical category of SHAPE-1 and not involved in any disciplinary or vigilance case. Therefore, his promotion could be cancelled at any point of time once it was found that he was not in medical category SHAPE-1 as per rules at the time of promotion to the rank of Commandant. Mr. Rupachandra submits that in the present case, it has been clearly established that the petitioner was not in medical category SHAPE-1 at the time of promotion and as such, cancellation order was issued as a consequential effect of the non-fulfilment of the mandatory requirement of the recruitment rules, and hence, there was no necessity of giving notice to the petitioner before the cancellation order was issued. It cannot be, therefore, said that there was violation of principle of natural justice. 11. Mr. S. Rupachandra, learned ASG also has submitted that there is nothing on record to show that the petitioner was in SHAPE-1 medical category at the time of consideration by the DPC for promotion to the higher rank of Commandant which is a mandatory requirement and the medical report of SHAPE-1 of the petitioner which was issued in 2010 was valid only for one year and it was the responsibility of the petitioner to have obtained the necessary latest and valid medical certificate to show that he continued to remain in medical category of SHAPE-1 after the expiry of medical report issued in 2010. Thus, the petitioner, having not fulfilled the mandatory requirement of being in SHAPE-1 at the time of holding the DPC, was not entitled to be recommended for promotion to the post of Commandant. In other words, since the petitioner lacks the requisite and mandatory qualification for promotion to the post of Commandant, his promotion is void ab initio and as such, the plea of violation of principle of natural justice will not be applicable when the petitioner did not possess the requisite qualification from the very outset. 12. In other words, since the petitioner lacks the requisite and mandatory qualification for promotion to the post of Commandant, his promotion is void ab initio and as such, the plea of violation of principle of natural justice will not be applicable when the petitioner did not possess the requisite qualification from the very outset. 12. It has been contended that otherwise also, though no specific notice was given to the petitioner before cancellation order was issued, he was afforded sufficient and adequate opportunity to defend his case to retain his promotion before the Court of Inquiry but as he failed to prove his case during the inquiry, the Court of Inquiry recommended for taking appropriate actions as regards his promotion. The authority thereafter, on the basis of the findings and recommendation of the Court of Inquiry, after having obtained the approval of the competent authority, issued the cancellation order by giving reasons in the cancellation order. Therefore, it has been submitted that there was no need to issue any separate notice or another opportunity of being heard after holding of the Court of Inquiry, before issuing the cancellation order. It has been contended that holding of the Court of Inquiry was akin to giving him an opportunity of being heard before issuing the cancellation order. Hence, it has been submitted that there was no violation of the principles of natural justice. 13. Mr. S. Rupachandra, learned ASG further submits that the petitioner has been now posted in the Transit Camp, which is to be manned by a 2IC and not by an officer of the rank of Commandant, which, however, has been clarified by Mr. H.S. Paonam, learned senior counsel for the petitioner that the petitioner was already posted in the said place of posting, even when he was holding the post of 2IC and he has been allowed to continue in the same place of posting after promotion, which does not indicate that he has been posted in a place of posting meant for 2IC only. 14. 14. On a query made by this Court to the learned counsel for both the parties as to whether there are specific provisions under the Assam Rifles Act, 2006 as well as under the Rules framed thereunder, about the procedures to be followed in the event of issuing any order cancelling a promotion order, the learned counsel for both the parties have submitted that the Act and Rules are silent on this issue. However, Mr. Rupachandra has stated that the impugned cancellation order has been issued by invoking the provisions of Rules 185, 186 & 187 of the Assam Rifles Rules, 2010 which do not provide for any prior notice before such cancellation order is issued. 15. Mr. H.S. Paonam, Ld. Senior Counsel, however, has submitted that if the statutory Act and Rules are silent on the issue of giving notice before any adverse order is issued, the principle of natural justice would be attracted as has been held by the Hon'ble Supreme Court in Prakash Ratan Sinha vs. State of Bihar & Ors. reported in (2009) 14 SCC 690 , and therefore, in the present case, when it has been also admitted by the counsel for the Assam Rifles respondents that there is no specific provision for giving prior notice before cancelling the promotion order, by virtue of the law laid down in Prakash Ratan Sinha (supra), the principle of natural justice will apply with full force which mandates giving of notice before any adverse order is issued, and since no such prior notice was given before the cancellation order was issued, the cancellation order dated 25th August, 2014 is vitiated on the ground of non-compliance of the principle of natural justice and hence illegal. However, it has been clarified by Mr. Rupachandra, learned ASG that even if it is assumed that the principle of natural justice will be applicable in the present case, i.e. giving of any prior notice before the impugned cancellation order was issued, the same has been complied with when the Court of Inquiry was held where the petitioner was given full and adequate opportunity to defend his case, thus, he was given full opportunity of being heard before passing the impugned cancellation order which is in conformity with the principles of natural justice. Mr. Mr. H.S. Paonam, learned senior counsel, however, has submitted that though the Court of Inquiry was held giving an opportunity to the petitioner to explain his case, it was in respect of the terms of reference and he was also not informed of the finding of the Court of Inquiry and the recommendation therein, which were given to him only after passing of the impugned cancellation order and that too only after he applied. Therefore, he denied that he was given full and effective opportunity to defend himself before the impugned cancellation order dated 25th August, 2014 was issued, and even if it is assumed that the holding of Court of Inquiry amounts to giving of notice, it was not an effective opportunity. 16. Thus, as is clearly evident from above, the core issue which calls for decision in this case is whether principles of natural justice will be applicable in the present case and if so, was there violation of principles of natural justice, and what would be the effect? 17. As discussed above, it is not in dispute that before the order dated 25.08.2014 was issued by the respondent authorities cancelling the promotion of the petitioner to the rank of Commandant and reverting him to the rank of 2IC, no formal prior notice issued to the petitioner as to why his promotion to the rank of Commandant should not be cancelled and he be reverted to the lower rank of 2IC. Because of this, the petitioner has vigorously argued that it amounts to denial of audi alteram partem rule of the principles of natural justice. The case of the respondent, authorities on the other hand, is that since the promotion of the petitioner was void-ab-initio, the promotion order could be cancelled without issuing any notice and even if it is held to be required, it can be said to be given as the holding of Court of Inquiry itself tantamounts to giving a prior notice by way of enabling him to offer his explanation and to defend the illegal promotion. It has been, thus, contended by the respondent authorities that since the petitioner was given full opportunity to defend his case before the Court of Inquiry and justify the promotion to the rank of Commandant, it amounts to giving a prior notice before issuing the adverse order of cancellation of his promotion, which is in conformity with the principles of natural justice. 18. Mr. Rupachandra, submits that in the present case it is the statutory requirement that for being promoted to the higher post of Commandant, the person in the feeder post holding the rank of 2IC must be in the medical category of SHAPE-1 so as ensure that only the fit officers are promoted to the rank of Commandant as this post of Commandant comes under the combatised category where physical fitness is of paramount importance. It has been also contended that it was the responsibility of the person concerned to get his medical fitness certified every year by taking part in the Annual Medical Examination (AME) and particularly, in respect of all those persons who are under the zone of consideration for promotion to the higher post, such persons have to get their AME report by the 15th of November of the year preceding the holding of the Departmental Promotion Committee. It has been contended that the petitioner being a responsible officer was fully aware of these statutory requirements yet he deliberately failed to get the AME report for the relevant year, i.e. 2011 and the Court of Inquiry also found the petitioner to have deliberately delayed his AME for the year 2011 to avoid his medical category from being downgraded. Mr. Rupachandra has stated that the prime reason for issuing order cancelling his promotion was that he obtained the promotion on the basis of AME for the year 2010 without completing the AME for the year 2011 and the petitioner had deliberately delayed and avoided the medical examination for the year 2011. Therefore, since the petitioner was given full and adequate opportunity to explain his position as regards his shortcomings before the Court of Inquiry, it will be a futile exercise to give another opportunity of being heard as it would be merely repetitive, and the end result would be the same, as the facts are not in dispute. Therefore, it has been contended by Mr. Therefore, it has been contended by Mr. Rupachandra that since he was afforded full opportunity to defend his case for promotion in the Court of Inquiry, holding of Court of Inquiry is sufficient compliance of the requirement of prior notice as contemplated under the principles of natural justice. It is therefore, the plea of the respondent authorities that since the promotion of the petitioner to the rank of Commandant was illegal and void ab initio as he lacked the mandatory requirement of possession of Medical Condition of SHAPE-1, there is no need for giving any opportunity of being heard before the promotion is cancelled. Further, even if it is assumed that the principles of natural justice would be applicable, the same has been complied with by holding the Court of Inquiry wherein he was afforded ample opportunity to put his case. 19. The expression “Natural Justice”, derived from the Latin words “Jus Naturale” has defied unanimity in its definition, which difficulty was expressed by the Hon’ble Supreme Court in Swadeshi Cotton Mills Vs. Union of India, AIR 1981 SC 818 in the words of R.S. Sarkaria, J., as follows: “The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straigt-jacket, Sic.(straight-jacket). of a cast-iron formulae. Historically, “natural justice” has been used in a way “which implies the existence of moral principles of self-evident and unarguable truth”, “Natural Justice” by Paul Jackson, 2nd Edn., page 1. In course of time, judges nurtured in the traditions of British Jurisprudence, often invoked it in conjunction with a reference to “equity and good conscience”. Legal experts of earlier generations did not draw any distinction between “natural justice” and “natural law”. “Natural Justice” was considered as “that part of natural law which relates to the administration of justice”. Yet, inspite of lack of unanimity in defining it, in due course it has evolved with certain distinct aspects. These aspects though essentially remain parts of procedural law, have become so fundamental in the administration of justice that they have virtually become part of substantive law, violation of which may render the administrative or judicial decisions null and void. Rules of natural justice have become so integral part of administrative law that unless specifically excluded by the statue, have to be implied whenever action is taken affecting rights of parties. Thus, in A.K. Kraipak Vs. Rules of natural justice have become so integral part of administrative law that unless specifically excluded by the statue, have to be implied whenever action is taken affecting rights of parties. Thus, in A.K. Kraipak Vs. Union of India, (1969) 2 SCC 262 : AIR 1970 SC 150 , the Supreme Court observed that, “20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990/68, decided on 15-7-1968 the rules of natural justice are not embodied rules. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990/68, decided on 15-7-1968 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.” The fundamental rules of natural justice as have become firmly embedded in modern jurisprudence, may be broadly categorised under the heads of: (1) Nemo debet esse judex in propria causa, i.e. no one shall be a judge in his own case, or “Doctrine of Bias”. (2) Audi alteram partem i.e. Right of hearing. (3) Reasoned decision/Speaking order. In the present case, we are concerned primarily with the second principle, viz., audi alteram partem. 20. “Audi alteram partem” is one of the most important aspects of the principles of natural justice which literally means “to hear the other side”. This means the necessity to provide a fair hearing i.e. affording opportunity to the person concerned to explain his position before such person is subjected to any adverse action so that he may be able to explain the facts and circumstances and convince the authorities concerned that such a contemplated or proposed adverse action is not called for. This principle of audi alteram partem requires that notice must be given to the person before any adverse action is taken and such notice cannot be vague and ambiguous to the proposed action to be taken so as to apprise the authorities determinatively the cases he has to meet. In other words, the person concerned must be informed of the charges and allegations clearly against him so that he may be able to fully meet these allegations and defend himself. In other words, the person concerned must be informed of the charges and allegations clearly against him so that he may be able to fully meet these allegations and defend himself. In service jurisprudence, specific provisions are normally provided under the relevant service rules for giving prior notice before any adverse action or penal action is taken against the person and if such provision is not specifically provided in the service rules, it has to be impliedly applied, unless the rules specifically excludes such prior notice. Thus, unless statutes specifically excludes prior notice or right of hearing before taking any adverse action, notice must be given and such notice must not be vague or ambiguous. Right to be heard can be excluded only in certain situations when it is statutorily excluded as in the case of Article 311(2) second proviso of the Constitution or in the case of action taken under Rule 56(j) of the Fundamental Rules for compulsory retirement, etc. or in the case of legislative action while imposing tax, fixing price etc. when it is not necessary to issue notice and afford hearing, and where the “doctrine of necessity” is applicable, and it may be also excluded in the case of admitted or undisputed facts which provides that if the facts are admitted or undisputed or proved it may not be necessary to issue notice or afford opportunity of being heard as such issue of notice would be a mere exercise in futility. This principle is otherwise also known as “useless formality theory” which was also considered by the Hon’ble Supreme Court in M.C. Mehta vs. Union of India, (1999) 6 SCC 237 but the Hon’ble Court did not express any opinion on the correctness or otherwise of the theory, though it was later applied in Ashok Kumar Sankar Vs. Union of India, (2007) 4 SCC 54 holding that a Court of law does not insist on compliance with useless formality. It is now well established that Courts in India have taken the consistent view that wherever there is violation of principles of natural justice the order is null and void. 21. Keeping these principles in mind, we may proceed to examine the issues at hand. First we will deal with the contention raised by the respondent authorities relying on the decision of the Hon’ble Supreme Court in Union of India and Anr. Vs. 21. Keeping these principles in mind, we may proceed to examine the issues at hand. First we will deal with the contention raised by the respondent authorities relying on the decision of the Hon’ble Supreme Court in Union of India and Anr. Vs. Narendra Singh, (2008) 2 SCC 750 that mistaken decision can always be corrected. In para 32 of the said judgment it was held by the Supreme Court as follows : “32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan, (1997) 6 SCC 766 , it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.” There cannot be no dispute about the aforesaid proposition of law that if the promotion of the petitioner had been given wrongly as he was not eligible and qualified, as contended by the respondents, the said mistake can be corrected. However, further reading of the aforesaid decision in Narendra Singh (supra) would show that the Hon’ble Supreme Court also had observed that though the authorities may be within their power to correct the mistake, but if it amounts to reversion, he must be given an opportunity to show cause why the proposed action should not taken as stated in para 34 thereof, which is reproduced hereinbelow: “34. True it is that before such an action is taken and a person is actually reverted, he must be given an opportunity to show cause why the proposed action should not be taken. He may be able to satisfy the authorities that there was no such mistake. But even otherwise, principles of natural justice and fair play require giving of such opportunity to him. But as observed earlier, in the instant case, in accordance with Rule 31-A of the Fundamental Rules, notice was issued to the respondent employee, explanation was sought and thereafter the order was passed. But even otherwise, principles of natural justice and fair play require giving of such opportunity to him. But as observed earlier, in the instant case, in accordance with Rule 31-A of the Fundamental Rules, notice was issued to the respondent employee, explanation was sought and thereafter the order was passed. The said order, in our considered view, was just, proper and in consonance with law and it ought not to have been set aside by the Tribunal or by the High Court. To that extent, therefore, the orders impugned in this appeal deserve to be set aside.” Therefore, this Court is of the view that in the present case, even if it is held that it was wrong in promoting the petitioner on the ground that he was not eligible and qualified and the authority was within its power to rectify the said mistake, if in the process of rectification it involves reversion, he must be given an opportunity to show cause why the reversion order should not be issued, as held by the Supreme Court in the said case. Therefore, we will deal the next issue as to whether any such notice was given before the petitioner was reverted to the post of 2IC from the higher rank of Commandant by the impugned cancellation order. 22. It is the contention of the respondent authorities that assuming that right to hearing is to be afforded to the petitioner, in the present case, the same had been afforded to the petitioner as holding of the Court of Inquiry tantamounts to giving a prior notice before the cancellation order was issued. Therefore, it may be necessary to examine the scope of the aforesaid Court of Inquiry as to examine whether holding of Court of Inquiry amounts to affording of an opportunity to be heard. As mentioned above, the Court of Inquiry was convened to ascertain the following : “(a) The circumstances under which AR-206 2IC A.K. Rana was promoted and he assumed the rank of Comdt on 02 May 2012 without AME for the year 2011 vide HQ DGAR (MS Branch) sig No.A 1736 dt. 30 Apr 2012. (b) The role of the promoting authority, which was supposed to verify the medical status/condition of AR-206 2IC (now Comdt) A.K. Rana. (c) The role of concerned Medical Officer, who was supposed to conduct AME of AR-206 2IC (now Comdt) A.K. Rana. 30 Apr 2012. (b) The role of the promoting authority, which was supposed to verify the medical status/condition of AR-206 2IC (now Comdt) A.K. Rana. (c) The role of concerned Medical Officer, who was supposed to conduct AME of AR-206 2IC (now Comdt) A.K. Rana. (d) The role of the concerned officials of MS Branch this HQ at the relevant time when AR-206 2IC (now Comdt) A.K. Rana was being considered for promotion and subsequent declaration of the result of his promotion. (e) Any other ancillary matter regarding promotion of AR-206 2IC (now Comdt) A.K. Rana.” 23. A close examination of the aforesaid terms of reference would clearly reveal that these are restricted to ascertain the circumstances under which the petitioner was promoted and assumed the rank of Commandant, the role of the promoting authority and concerned medical officers and also the concerned officials of the headquarter relating to the medical status of the petitioner. Another term of reference relates to any other ancillary matter, without any specifics as to whether the Court of Inquiry also proposed to deal with the issue of cancellation of the promotion order of the petitioner and demotion to the post of 2IC. Thus, the terms of reference of the Court of Inquiry do not indicate that this Court of Inquiry was held to determine the grounds for cancellation of the promotion or that it was for the purpose of cancellation of the petitioner’s promotion to the rank of Commandant and his demotion to the post of 2IC. It is only confined to the circumstances under which the petitioner was promoted to the rank of Commandant and the role of the petitioner as well as officers involved in the promotion so that the authorities could take appropriate preventive measures, as also suggested later by the Court of Inquiry. The terms of reference do not indicate that the Court of Inquiry was held to examine the validity or otherwise of the promotion of the petitioner to the rank of Commandant. Further, the findings as well as the opinion of the Court of Inquiry do not have any reference to the proposed action for cancellation of the promotion order or the grounds for the said proposed action. Further, the findings as well as the opinion of the Court of Inquiry do not have any reference to the proposed action for cancellation of the promotion order or the grounds for the said proposed action. In fact, the opinion of the Court merely records the shortcomings on the part of the petitioner as regards his medical condition and suggested certain remedial measures and gave the recommendation to examine the legality of promotion and assumption of the rank of Commandant based on the AME status of the year 2010 in respect of the petitioner. The Court of Inquiry has also refrained from making any specific recommendation for cancelling the promotion of the petitioner. It was only at the stage when the matter was put up before the Director General of the Assam Rifles that it was proposed that the petitioner be reverted to the rank of 2IC w.e.f. 02.05.2012 which was approved by the highest authority. It is also on record that when the Director General Police of the Assam Rifles proposed reversion of the petitioner to the rank of 2IC, and also before and after the said recommendation was approved at the highest level in the Ministry of Home Affairs, no prior notice was given to the petitioner for the proposed action of reversion to the rank of 2IC. 24. Principles of natural justice require that before any person is visited with any adverse order or action, the concerned person must be notified of the proposed adverse action so as to able to state his position and convince the authorities that such adverse action is not required to be taken. It is now well established that audi alteram partem would mean that person concerned must be notified in unambiguous terms and with clarity as to the charges and the proposed action to be taken against him. Thus, the opportunity of being heard is given to the person concerned so as to persuade the authority to desist from taking any such adverse action or to convince the authorities that no such materials or grounds exist for taking such adverse action. Thus, the opportunity of being heard is given to the person concerned so as to persuade the authority to desist from taking any such adverse action or to convince the authorities that no such materials or grounds exist for taking such adverse action. In the present case, the Court of Inquiry was confined only to ascertain the circumstances in which the petitioner was promoted to the rank of Commandant without informing him or indicating the proposed action to be taken against him on the basis of the finding of the Court of Inquiry and also about the existence/non existence of those conditions which would render the promotion of the petitioner illegal. There was no specific reference to these conditions/situations. Therefore, it cannot be truly said that the holding of Court of Inquiry virtually amounts to giving of notice before cancellation of the promotion and reversion to the rank of 2IC of the petitioner, as contemplated under the rule of audi alteram partem. 25. It may be contended by the respondents that the fact remains that the petitioner did not have the AME for the year 2011 indicating that he was not in medical category SHAPE-1 at the time of promotion which was a mandatory requirement for promotion to the higher rank of Commandant and once that fact is undisputedly established, it can be stated that he lacked the mandatory requirement for promotion and as such he could not have been promoted. Thus, the authorities would contend that it would be a futile exercise to give another opportunity of being heard, and such hearing cannot make good the fundamental shortcoming in the requirement for promotion to the higher post of Commandant. This contention can be accepted if it is shown that the lack of requirement of medical condition of SHAPE-1 would inevitably and invariably, without any exception, lead to the only conclusion that the promotion order is illegal. Therefore, we will examine the relevant service rules for promotion to the post of Commandant (combatised), relevant portions of which are extracted and reproduced hereinbelow : 9 10 11 12 Not applicable Not applicable (a) By promotion of Second-in-Command in case of 11 posts tenable by the Assam Rifles Cadre Officer. Such posts not filled by the cadre officers due to ineligibility will be filled by the Army officers of the rank of Colonel from Infantry on deputation. Such posts not filled by the cadre officers due to ineligibility will be filled by the Army officers of the rank of Colonel from Infantry on deputation. (b) On deputation in case of 39 posts tenable by Army Officers of the rank of Colonel from Infantry. (a) By promotion amongst the Second-in-Comd of Assam Rifles who have minimum eligible service of 4 years as Second-in-Command and a total of 15 years Group A service provided they are following acceptable medical category SHAPE-I or relaxation given by the government to certain categories from time to time. (b) By deputation of Commissioned Officer in case of 39 posts holding or approved to hold the rank of Colonel from the Infantry Army of Indian Army. Period of deputation of Army Officers will not ordinarily exceed 3 years. Note : The Army officers will carry their Army grade pay plus Rank Pay while on deputation. 26. As regard the requirement of medical category SHAPE-1 it has been further explained and clarified in para 4.13 of the Executive Order/Instructions under U.O. No. I.45024/3/2004-PERS(II)- dated 31.07.2007 issued by the Ministry of Home Affairs, as annexed and relied on by the respondents. The said para 4.13 is reproduced hereinbelow : “4.13 Mandatory for the purpose of promotion Medical Category SHAPE-I will be an essential condition for promotion of all combatised personnel to all groups/ranks/cadres in the CPMFs. In case of those, whose illness is of permanent nature and who are not SHAPE-I, they will be considered for promotion by DPC but will be declared unfit for promotion, even if, they are otherwise fit for promotion. In case of those personnel, whose illness is of temporary nature, after considering their cases for promotion alongwith others, if they are otherwise fit, the DPC will grade them as ‘fit for promotion’ subject to attaining SHAPE-I medical category. As and when they regain the SHAPE-I medical category, they will be promoted as per recommendations of DPC. But they will not be entitled to back wages. However, they will retain their seniority.” Para 4.14 provides for relaxation in SHAPE-1, Medical category in respect of officials /personnel wounded/ injured during war or while fighting against the enemy/militants/ intruders/ armed hostiles and those caused to explosion of mines or other explosives or accidents while on active Government duty as mentioned in the said paragraph. 27. However, they will retain their seniority.” Para 4.14 provides for relaxation in SHAPE-1, Medical category in respect of officials /personnel wounded/ injured during war or while fighting against the enemy/militants/ intruders/ armed hostiles and those caused to explosion of mines or other explosives or accidents while on active Government duty as mentioned in the said paragraph. 27. On examination of the aforesaid recruitment rules for the post of Commandant it certainly appears that a person to be eligible for promotion to the post of Commandant should be in the medical category SHAPE-1 as also clarified in the executive instructions issued by the Ministry of Home Affairs on 31.07.2007. In other words, if a person does not have a medical category SHAPE-1 he will be declared as “unfit” for promotion even if he is otherwise fit for promotion. However, this is not an absolute rule that unless one is in the medical category SHAPE-1, he cannot be promoted at all. The executive instructions provide that even in case where the officers may not be in SHAPE-1 category due to certain illness but if the illness is of temporary nature, after considering their cases for promotion along with others if they are otherwise fit, the DPC will grade them as ‘fit for promotion’ subject to attaining SHAPE-1 medical category, and as and when they regain the SHAPE-1 medical category, they will be promoted as per recommendations of the DPC. However, though they will not be entitled to back wages, they will retain their seniority. Thus, it will be clear from the above explanation given in para 4.13 of the executive instructions that rules provide for promotion even if a person may not be in the SHAPE-1 medical category at the time of consideration for promotion, provided he is suffering from an illness which is of temporary nature and he will be given promotion once he regains the SHAPE-1 medical condition. In other words, a person who is suffering from an illness of temporary nature and not of permanent nature will be promoted if recommended by the DPC subject to attaining medical category SHAPE1 subsequently. Therefore, it is not an inflexible rule that unless one has medically category SHAPE-1 at the time of consideration by the DPC he cannot be promoted at all. 28. Therefore, it is not an inflexible rule that unless one has medically category SHAPE-1 at the time of consideration by the DPC he cannot be promoted at all. 28. That requirement of medical condition of SHAPE-1 for promotion to the rank of Commandant is not rigid, but may be relaxed is also provided as contained in para 4.14 of the executive orders dated 31.07.2007, though this relaxation is applicable in case of injuries caused as mentioned therein. Therefore, the provision under the rules that even personnel who may not have the medical condition of SHAPE1 may also be promoted to the rank of Commandant would indicate that the requirement of medical condition of SHAPE-1 though is an essential requirement, absence of which may not in all cases automatically, ipso facto and inevitably render the promotion illegal. There could be certain situations where it may be permissible to promote to the rank of Commandant without having the medical condition of SHAPE-1 as also provided in the rules. 29. Therefore, if the rules permit promotion of those persons who may not have medical category SHAPE-1 because of certain illness which is of temporary nature, in the present case, if the petitioner is also found to be suffering from an illness which is of temporary nature, he cannot be denied promotion if he is otherwise fit, subject to attaining the medical category SHAPE-1 subsequently. 30. It is seen from the facts of the case as disclosed in the records that though it may be correct as contended by the respondents that the petitioner could not show that he was in SHAPE-1 medical category at the time of promotion and he was declared fit on the basis of a report of a previous year of 2010 whose validity had already expired, it cannot be said conclusively that the petitioner was not in SHAPE-1 medical category at the time of holding the DPC. The absence of the latest AME of 2011 will not ipso facto lead to the conclusion that he was not medically fit. It is not a case that at the relevant time he was medically unfit but he manipulated his records to show that he was medically fit. The only allegation which can be said to have been proved in course of Court of Inquiry was that he deliberately avoided the medical examination in order to conceal his true medical status. It is not a case that at the relevant time he was medically unfit but he manipulated his records to show that he was medically fit. The only allegation which can be said to have been proved in course of Court of Inquiry was that he deliberately avoided the medical examination in order to conceal his true medical status. Thus, the delay or deliberate avoidance of the medical examination, which the petitioner claims he was not responsible, does not prove that he did not have the medical condition of SHAPE-1 at the time of promotion. The case of the respondents that the petitioner was not in SHAPE-1 at the time of holding the DPC was based on inference rather than by way of positive finding of fact. It is on record that he was found to be suffering from hypertension and obesity when he was medically examined in September, 2012 after the DPC was held. However, there is no finding to the effect that the said illness was of a permanent nature and not of a temporary nature. Thus, if it could be ascertained that the illness which the petitioner was found to be suffering when he was medically examined in September, 2010 was of temporary nature and not of permanent nature, as explained in para 4.13 of the executive instructions, it would entitle him to be promoted, if he is otherwise fit in all other respects, subject to his attaining SHAPE-1 medical category subsequently. Therefore, this Court would hold that there is no absolute embargo under the rules for promotion if the candidate is found not to have medical category SHAPE-1. A person can still be promoted to the rank of Commandant provided he is found to be suffering from an illness which is of temporary nature and not of permanent nature and he subsequently attains the SHAPE-1 medical category. However, the proceedings of the Court of Inquiry do not indicate that these issues were considered by the Court of Inquiry. It is also not disputed that even after the Court of Inquiry was held there was no action on the part of the authorities to consider this aspect as to whether the illness which the petitioner was found to be suffering from in September, 2012 was of temporary or of permanent nature. It is also not disputed that even after the Court of Inquiry was held there was no action on the part of the authorities to consider this aspect as to whether the illness which the petitioner was found to be suffering from in September, 2012 was of temporary or of permanent nature. The opinion of the authorities that the petitioner did not have SHAPE-1 medical category at the time of promotion is based by way of interference and not by way of positive finding that he did not have medical category SHAPE-1. Therefore, this Court is reluctant to accept the plea of the respondent authorities that the holding of the Court of Inquiry, where the petitioner was afforded opportunity to explain his case, tantamounts to giving an opportunity of being heard as regards the grounds leading to cancellation of his promotion. The consideration and the findings were confined only to the terms of reference. If holding of the aforesaid Court of Inquiry does not amount to giving sufficient opportunity to the petitioner to explain his position, as regards the grounds and proposed action of the authorities to cancel his promotion, which this court also finds to be so, the irresistible conclusion would be that the petitioner has been deprived of a meaningful and effective opportunity of being heard which is an infraction of the rule of audi alteram partem. 31. In the light of the recruitment of rules for the post of Commandant read with para 4.13 of the executive instructions it is clear that if the promotion of a person in the rank of Commandant is proposed to be cancelled on the ground that the same is not in conformity with the provisions of the statutory rules, it must be shown that (i) the person did not have SHAPE-1 medical category at the time of promotion and also (ii) that the lack of medical category SHAPE-1 is due to an illness which is of permanent nature and not of temporary nature. Similarly, a promotion made to the rank of Commandant cannot be considered to be illegal and cannot be reverted to the lower post merely on the ground that the person did not have SHAPE-1 medical status if it is found that he was suffering from an illness which is of a temporary nature. Similarly, a promotion made to the rank of Commandant cannot be considered to be illegal and cannot be reverted to the lower post merely on the ground that the person did not have SHAPE-1 medical status if it is found that he was suffering from an illness which is of a temporary nature. Therefore, unless the aforesaid conditions are fully satisfied it cannot be said per se that the promotion of a person to the rank of Commandant, merely because he did not have SHAPE-1 medical category would be illegal. In other words, if the promotion of a person to the rank of Commandant is to be cancelled, the same can be done if the aforesaid conditions are proved and established. Therefore, in the present case, it was incumbent on the part of the authorities to show that the aforesaid conditions, viz., the petitioner was not in the SHAPE-1 medical category and that additionally the illness he was suffering from was of a permanent nature, before declaring the promotion to be illegal. If the promotion of the petitioner were to be cancelled, the petitioner ought to have been notified of the non fulfilment of all the aforesaid conditions, as only on non fulfilment of all these conditions, it can lead to cancellation of the promotion and demotion in rank. 32. It is, therefore, clarified that in the event it is established that the illness with which the petitioner was/is suffering from is not of a permanent nature but of a temporary nature, the petitioner cannot be denied promotion to the rank of Commandant provided he regains the SHAPE-1 medical category as clarified under para 4.13 of the U.O. No. I.45024/3/2004-PERS-(II) dated 31.07.2007 issued by the Ministry of Home Affairs, and in that event, the petitioner will be entitled to his seniority to the rank of Commandant but he will not be entitled to backwages, except for the period he actually rendered his service as Commandant after he was promoted vide order dated 30.04.2012. 33. In the present case the findings and recommendations of the Court of Inquiry were treated to be Gospel truth by the authorities and the authorities acted upon them which formed the basis for passing impugned cancellation order. 33. In the present case the findings and recommendations of the Court of Inquiry were treated to be Gospel truth by the authorities and the authorities acted upon them which formed the basis for passing impugned cancellation order. However, there was no opportunity given to the petitioner to contest the correctness of the findings and recommendation of the Court of Inquiry which were adverse to the petitioner, before the impugned cancellation order was issued reverting him to the lower rank of 2IC. Further, the findings and recommendations of the Court of Inquiry were restricted to the terms of reference of the Court of Inquiry which did not encompass all the aspects for declaring the promotion illegal. Therefore, on this score alone, this Court do not consider the holding of the Court of Inquiry to be adequate alternative to the requirement of prior hearing as contemplated under the rule of audi alteram partem. 34. It may also be stated that Mr. Rupachandra, learned counsel for the respondents had submitted before this Court that the impugned order was issued by invoking the provisions of Rules 185, 186 and 187 of the Assam Rifles Rules, 2010 which do not provide for giving any prior notice before such cancellation order was issued. This, however, would not substantiate the case of the respondents as regards the allegation of violation of the principles of natural justice, as the rules also do not specifically exclude giving of prior notice before issuing such adverse order. As already discussed above, where the rules are silent and where prior notice or hearing is not specifically excluded, the requirement of notice and opportunity of being heard has to be read into such provisions, which has not been done in the present case as discussed above. 35. In conclusion, this Court holds that since by the impugned cancellation order dated 25.08.2014 the promotion of the petitioner to the rank of Commandant was cancelled, and the petitioner was reverted to the lower rank of 2IC, and as this cancellation order was issued after about 2 years of the issue of the promotion order on 30.04.2012, this clearly would have civil consequences by adversely affecting the right of the petitioner. Accordingly, before such prejudicial order was issued, it was incumbent upon the respondent authorities to have given an opportunity to be heard to the petitioner in conformity with the principles of natural justice. Accordingly, before such prejudicial order was issued, it was incumbent upon the respondent authorities to have given an opportunity to be heard to the petitioner in conformity with the principles of natural justice. Though the rules governing the service conditions of the petitioner are silent on giving prior notice before such a prejudicial order is issued, the requirement of giving prior notice has to be read into the service rules and as such this Court holds that the petitioner was entitled to be heard before the impugned cancellation order dated 25.08.2014 was issued. 36. This Court holds for the reasons discussed above that no notice as contemplated under the rule of audi alteram partem was given to the petitioner before issuing the impugned cancellation order. This Court also takes the view that the holding of Court of Inquiry before the cancellation order in the facts and circumstances of the case, as discussed above, does not amount to giving adequate opportunity of being heard as contended by the respondent authorities, as it falls short of giving an effective and adequate opportunity to the petitioner to explain his case. It cannot be also said that the petitioner was given a clear and unambiguous notice of what the authorities were considering and were proposing to do, in the said Court of Inquiry. This Court, therefore, for the reasons discussed above, rejects the contention of the State authorities that holding of the Court of Inquiry where the petitioner was given opportunity to explain his case, amounts to giving an opportunity of being heard which is required before passing the impugned cancellation orders. 37. In the result, this Court unhesitatingly holds that the rule of audi alteram partem of the principles of natural justice was violated in the present case and accordingly, this Court declares the impugned cancellation order dated 23.08.2014 (Annexure - A/4) as well as order dt. 25.08.2014 (Annexure - A/5) to be null and void and resultantly, the same are set aside. However, declaring the impugned cancellation orders dated 23.08.2014 and 25.08.2014, null and void would not debar the authorities from taking such appropriate actions in accordance with law, as discussed above. 38. Accordingly, with the above observations, the writ petition is allowed.