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2019 DIGILAW 1657 (JHR)

Rajesh Kumar v. State of Jharkhand

2019-09-18

S.N.PATHAK

body2019
JUDGMENT : 1. The petitioner has approached this Court with a prayer for quashing the office order contained in Memo No. 89 dated 01.02.2018 (Annexure-7) by which the promotion granted to the petitioner in the year, 2015 has been cancelled. Further, prayer has been made for a direction upon the respondents to provide all the consequential benefits to the petitioner. 2. The case of the petitioner lies in a narrow compass. The petitioner was appointed to Class –IV post on compassionate ground vide Memo No. 845 dated12.09.2003. After his joining, the petitioner worked to the satisfaction of all concerned respondent and services of the petitioner has been confirmed vide letter dated 25.03.2013. It is specific case of the petitioner that he has successfully completed departmental examination on 04.01.2017 conducted by the Department of Personnel, Administrative Reforms and Rajbhasha. The juniors to the petitioner in class IV post were considered for promotion to Class III post and vide order dated 06.05.2010, most of them have been granted promotion to Class III post of Clerk by the Deputy Commissioner, Giridih. In the year, 2015, the case of the petitioner was also considered for promotion and vide order contained in Memo No. 294 dated 15.04.2015, the petitioner has also been promoted to Class-III post, subject to the condition that the petitioner must obtain knowledge for typing in Computer in Hindi and English within three months from the date of promotion. It is further the case of the petitioner that he discharged his duties to the satisfaction of all concerned respondent and is continuously working to the said post for almost three years and salary of the petitioner has also been fixed in the appropriate scale. Subsequently, after taking work for almost three years, the respondent-authorities, Deputy Commissioner, Giridih cancelled the order of promotion of the petitioner vide Memo No. 89 dated 01.02.2018 and demoted from Class-III post to Class-IV pursuant to Rule 2010 and by subsequent Notification issued vide Memo No.294 dated15.04.2015 and it was further, directed to recover the excess amount paid to the petitioner. Aggrieved by the same, the petitioner represented before the respondents but no heed was paid. Hence, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. 3. Mr. Rajendra Krishna, learned counsel assisted by Mr. Aggrieved by the same, the petitioner represented before the respondents but no heed was paid. Hence, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. 3. Mr. Rajendra Krishna, learned counsel assisted by Mr. Amit Sinha appears on behalf of the petitioner and submits that impugned order is passed in mechanical way as same has been passed in complete violation of principle of natural justice. Learned counsel further argues that in view of the settled principle of law that Authority, who has passed the order, is not permitted in the eyes of law rather precluded from reviewing its own order, but in the instant case same authority, who has passed the order, reviewed its own order, which is not tenable in the eyes of law. He further states that various persons have been given promotion from Class-IV post to Class-III post and they are continuing on the said post without any order of demotion and no limited examination was ever held and as such, Rule, 2010 is not attracted in the case of the petitioner also. Learned counsel further argues that order invoking with civil consequences cannot be passed without affording any opportunity of hearing, but in this case even the show cause was not issued to the petitioner and it can be comfortably said that Rules of Audi Alteram Partem was never followed and as such, order of cancellation is also not tenable in the eyes of law and as such, fit to be quashed and set aside. 4. Per contra, counter-affidavit has been filed. Mr. Shahil, learned counsel for the respondents very fairly submits that on query of this Court, he sought instruction from the respondent and specific averment has been made in para 6 to the supplementary counter-affidavit that no notice was ever issued to the petitioner before passing the impugned order. However, learned counsel for the respondents submits that in view of Rule, 2010 for getting promotion to Class-III post, employee has to face the limited departmental examination and as the petitioner never appeared in the limited departmental examination, any promotion granted to him is erroneous and not tenable in the eyes of law and as such, rightly the respondents have cancelled the promotion order of the petitioner and demoted him. 5. 5. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. From perusal of documents on records, it appears that impugned order has been passed in compete violation of principles of natural justice. Earlier, the promotion order was passed by the Deputy Commissioner, Giridih in the year, 2015 and the petitioner continued to work, nothing has been brought on records to show that his services were not satisfactory and in the year, 2018, the Deputy Commissioner, Giridih has reviewed its own order without affording any opportunity of hearing or show cause, which is not tenable in the eyes of law. 6. The Hon’ble Apex Court in case of R.T. Rangachari Vs. Secretary of State for India in Council 1937 0 AIR (PC) 27 has held that the order passed by the Authority cannot be reviewed by the same authority. In the instant case, after promotion, petitioner continued to work for more than two years and six months, thereafter, the impugned order has been passed. I do not find any illegality or infirmity in the promotion order. It is fairly admitted by the learned counsel for the respondents that petitioner was not provided any opportunity of hearing, on that ground also, the impugned order is not tenable in the eyes of law. It appears from the averment made in writ petition that as no limited examination was held earlier and as such, there was no occasion for the petitioner to appear in the limited examination. The persons, who are granted promotion earlier, were still working and enjoying the fruits of promotion. The petitioner has been denied the same benefits in view of Rule, 2010, this amounts to hostile discrimination. On earlier occasion, after hearing the learned counsel for the parties, order of recovery was stayed vide order dated 01.05.2018. 7. As a sequence of the aforesaid rules, guidelines, judicial pronouncement and observations, the impugned order dated 01.02.2018 is not tenable in the eyes of law and is hereby quashed and set aside. As a result of quashment of the impugned order, the respondents are directed to reinstate the petitioner on Class-III post with all consequential benefits, within a period of ten weeks’ from the date of receipt /production of a copy of this order. 8. As a result of quashment of the impugned order, the respondents are directed to reinstate the petitioner on Class-III post with all consequential benefits, within a period of ten weeks’ from the date of receipt /production of a copy of this order. 8. With the aforesaid observations & directions, this writ petition stands allowed.