Bal Krishna Sen vs State of Madhya Pradesh and others

Hon. Shri Justice Sujoy Paul

The petitioner was promoted by order dated 19.05.2003 on the post of Lower Division Clerk (LDC). The said promotion order was cancelled after more than one year on 23.10.2004. It is not in dispute between the parties that before cancelling/amending the order of promotion by impugned order dated 23.10.2004, no opportunity of any nature of promotion is provided to the petitioner. The only justification shown for filing Annexure R-1 by the State is that certain reserve category persons were having a right of consideration against the post on which petitioner was promoted and their matter was reconsidered and petitioner was rightly reverted. Shri S.K. Sharma, learned counsel for the petitioner, criticized the said order and submits that this is factually incorrect and this could not have been done without following the principles of natural justice.

Per Contra, Smt. Nidhi Patankar, learned Government counsel for the State, supported the order and submits that a general category candidate doesn''t have right to occupy the reserve category post.

I have heard the learned counsel for the parties and perused the record.

This cannot be doubted that the impugned order dated 23.10.2004 is an adverse order and entails civil consequences. Thus, principles of natural justice ought to have been followed. The Apex Court in Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, has held that any order which entails civil consequences should be passed only after following the principles of natural justice. The following quotes will establish the importance of following the principles of natural justice:-

Principles of natural justice are to some minds burdensome but this price - a small price indeed-has to be paid if we desire a society governed by the rule of law.

.... even God himself did not pass [a] sentence upon Adam before he was called upon to make his defence. Adam (says God), where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?...

In Lloyd v. McMahon 17 (AC pp. 702 H-703 B), it was held as under:-

My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.

The Apex Court in Sri Radhy Shyam (Dead) through L.Rs. and Others Vs. State of U.P. and Others, , held as under:-

The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three-Judges Bench in Sayeedur Rehman Vs. The State of Bihar and Others, in the following words:

11... This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties.

In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, Krishna Iyer, J. speaking for himself, Beg, C.J. And Bhagwati, J. highlighted the importance of the rule of hearing in the following words:

Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy Government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adamand of Kautilyas Arthashastrathe rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.

The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.

This Court while admitting the petition, way back on 17.11.2004, stayed the operation of the impugned order dated 23.10.2004. Thus, on the strength of interim order, petitioner is continuing.

Considering the aforesaid and on account of sole reason that no opportunity has been provided to the petitioner, I am unable to approve the modification order dated 23.10.2004, whereby petitioner was reverted. Consequently, the said order is set aside. If at all respondents intend to take any action after Annexure P-2, they must follow the principles of natural justice, give effective opportunity to the petitioner and other persons and then only can proceed further. With the aforesaid liberty reserved to the respondents, petition is allowed. The impugned order dated 23.10.2004 is set aside. No costs.