Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 293 (MP)

Suneeta Kaushik (Smt. ) v. State of M. P.

2018-03-09

SANJAY YADAV

body2018
ORDER 1. With the consent of learned counsel for the parties, the matter is finally heard. 2. Petitioner is aggrieved by order dated 13.12.2017 whereby her promotion to the post of Varistha Adhyapak which was by order dated 25.11.2017 has been cancelled. 3. Initially appointed as Shiksha Karmi Grade-II in the year 1999 and was regularized on the said post with effect from 23.10.2002 by order dated 24.6.2003. The petitioner, therefore, was designated as Adhyapak and was granted the benefit of first krammonati by order dated 19.9.2012. That by order dated 25.11.2017, the petitioner was promoted as Varistha Adhyapak. It was this order which has been withdrawn vide impugned order. The reason which finds mention therein is that, with the quashment of the Madhya Pradesh Lok Seva (Padonnati) Rules, 2002 by the High Court in W.P. No. 1942/2011 vide its order dated 30.4.2016 and in an SLP (c) No. 13954/2016 preferred thereagainst status quo was ordered by Supreme Court on 12.5.2016; as a result whereof all the promotions in the State were stayed. 4. Heard learned counsel for the parties. 5. The issue which arises for consideration is as to whether the respondents are justified in withdrawing the promotion and secondly whether incumbent it was upon the respondents to have afforded an opportunity of hearing to the petitioner before withdrawing the promotion order. 6. So far as the first aspect is concerned as to whether the employer would be within their authority to correct the mistake. In other words, if error is committed while promoting a person, can such error be corrected by unsettling the promotion order. 7. Trite it is that the promotion, which imbibes advancement in rank, grade or both, is a normal incidence of service Please See : Dr. M.S. O.Z. Hussain v. Union of India and others [ AIR 1990 SC 311 ]. The true effect whereof, however, depends on the nature of right created under the rules, which invariably preserve the employer prerogative of choice; therefore, it is said that an employee has only a right of consideration but not a right of promotion. Please See: T.R. Kapur and others v. State of Haryana and others [ AIR 1987 SC 415 ]. 8. Since promotion is not a right and the same being an administrative function. Please See: T.R. Kapur and others v. State of Haryana and others [ AIR 1987 SC 415 ]. 8. Since promotion is not a right and the same being an administrative function. In this context reference can be had of a decision by Supreme Court wherein their lordships were pleased to hold. [Please see National Institute of Mental Health and Neurosciences v. Dr. K.Kalyan Raman and Ors.( AIR 1992 SC 1806 , Paragraph 7).]. That, there exist the possibility of committing of administrative mistake. If there is a mistake the same has to be corrected (A quash-judicial or judicial error also could be rectified by exercising the power of review.). 9. Question is whether such a mistake would create a vested right in favour of the person/persons who are benefited by such mistake. In considered opinion of this Court if due to mistake some benefit is extended in favour of person/persons not eligible for such benefit there is no accrual of right. In Union of India and another v. Narendra Singh [ (2008) 2 SCC 750 ], it is observed : “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 Indian Council of Agricultural Research and anr. v. T.K. Suryanarayan and ors., (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.” 10. Thus, no right accrues on the basis of a mistaken order and the same can be undone. 11. The next question is whether such an error can be corrected without affor-ding an opportunity of hearing to an employee who is benefited from such an error. In Shridhar son of Ram Dular v. Nagar Palika, Jaunpur and others [ AIR 1990 SC 307 ], it is held by their lordship: “8. …...........It is an elementary principle of natural justice that no person should be condemned without hearing. In Shridhar son of Ram Dular v. Nagar Palika, Jaunpur and others [ AIR 1990 SC 307 ], it is held by their lordship: “8. …...........It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void....................” In Ram Ujarey v. Union of India [ AIR 1999 SC 309 ], it is held : “18 ...........If the benefit of service rendered by him from 1964 to 1972 was intended to be withdrawn and promotion orders were to be cancelled as having been passed on account of mistake, the respondents ought to have first given an opportunity of hearing to the appellant..........” 12. In the case at hand, as borne out from record, the promotion is cancelled on the basis of communication dated 05.10.2016, which is brought on record by the respondent as Annexure R/2 which is reproduced for ready reference : Ø-@f'k-d-@,@75@v/;k-ink@iquk@2016@2332 Hkksiky] fnukad 5-10-2016 izfr] ftyk f'k{kk vf/kdkjh] xquk e-iz-A fo"k; %& MCyw-ih-Ø-4568@2016 }kjk Jh izoh.k j?kqoa'kh] lgk;d v/;kid xquk ,oa vU; fo#) e-iz- 'kklu esa ikfjr fu.kZ; fnukad 5-7-2016 ds ikyu okcr~A lanHkZ%& vkidk i= Ø-@fof/k@2016@4616] fnukad 28-7-2016 vkids lanfHkZr&i= ds vuqØe ys[k gS fd ekuuh; mPp U;k;ky; tcyiqj }kjk e/;izns'k yksd lsok ¼inksUufr½ fu;e] 2002 dks fnukad 30 vizSy 2016 dks ikfjr fu.kZ; ls jn~n dj fn;k x;k gS vkSj bl fu.kZ; ds fo#) e-iz- 'kklu }kjk ekuuh; mPpre U;k;ky; ubZ&fnYyh esa ,l-,y-ih nk;j dh xbZ Fkh] ftlesa ;FkkfLFkfr ds vkns'k fn, x, gSA blds ckotwn vkids }kjk izdj.k esa bl dk;kZy; ls ekxZn'kZu ekxk tk jgk gSA ;g fLFkfr mfpr ugha gSA vkidks lpsr fd;k tkrk gS fd ,sls izdj.k bl dk;kZy; dks Hkfo"; esa ugha Hksts tk,A ¼,-ds-fnf{kr½ lapkyd yksd f'k{k.k e/;izns'k Hkksiky] fnukad 5-10-2016 13. Evidently, the communication is with the DEO Guna by the Director, Public Instruction and does not advert to any policy decision of the State Government. It is not the case of the respondents either that entire Madhya Pradesh Lok Sewa (Padonanti) Rule, 2002 has been quashed in Writ Petition No.1942/2011. Evidently, the communication is with the DEO Guna by the Director, Public Instruction and does not advert to any policy decision of the State Government. It is not the case of the respondents either that entire Madhya Pradesh Lok Sewa (Padonanti) Rule, 2002 has been quashed in Writ Petition No.1942/2011. It were Rules 2(b), (i) and (j), 5, 6(12), 6(13), 6(14), 7(15), 7(16), 8 and 9 of Rules of 2002 which related to backlog and provision for carry forward unfilled vacant posts reserved in favour of SCs/STs to be in promotion which were held to be contrary to the constitution provision contained in clause (4A) (4B) of Article 16 and Article 335 of the Constitution and the law laid down in M. Nagraj v. Union of India [(2006) 8 SCC 2012]. 14. On a challenge in Special Leave to Appeal (c) No. 13954/2016 by order dated 12.5.2016, Hon'ble Supreme Court directed to maintain status quo which as rightly contended on behalf of the petitioner was relating to the consequential effect of the order in Writ Petition No. 1942/2011. We are not commended to any order by the Supreme Court or by State Government as would establish that even consideration for promotion of General candidates against the vacant post earmarked for them has been stayed. It is also not the case of the respondents that the petitioner was not within the zone of consideration. The petitioner being within zone of consideration and being found suitable by the duly constituted committee, and there being no policy decision of the State Government of staying all normal promotion, the impugned order cannot be upheld. 15. Consequently, the impugned order is set aside. The petitioner is restored to her post of Varistha Adhyapak.The petitioner shall be entitled for the arrears of wages and other consequential benefits. 16. Petition is disposed of finally in above terms. 17. However, the parties are left to bear their respective costs.