Chhaju Ram Gupta vs State of J&K and Anr.

The petitioner seeks quashing of Govt, Order No : 227AYD/MD dated 2771978 as a consequence of which his seniority as avoid has been

redetermined to disadvantage, as well as notice No : AYD/Unani/33/73 dated 2561977 preceding the same and a consequential writ of

mandamus directing the State, respondent No. 1, to declare him senior to respondent No : 2

The petitioner and respondent No 2 were appointed as Vaids on 31101961 in the pay scale of 706130 vide GovtOrder No. 431/MD/G of

1961. Whereas the petitioner's name figured at serial No 5 the name of respondent No: 2 figured at serial No. 3 in the aforesaid order. This

appointment was, however, made in anticipation of their G. A, M. S. course result, which was declared by the University of punjab on 25111961

and both of them were declared successful. Whereas the petitioner had obtained 790 marks, respondent No 2 had obtained 824 marks in the said

examination. Vide SRO 160 dated 681962 she grade of Vaids and Hakims was revised to 200400 and in the tentative seniority lists of Vaids and

Hakims for the year 1964 also respondent No : 2 was shown at serial No. 2. The name of the petitioner, however, did not figure in this list as in

the meantime he had been appointed as a Demonstrator in grade of 150250 vide order of the Director of Health Services No. Est30VI/751821

dt. 1321962. This grade was initially revised to 150350 and later on to 200400 vide Govt, Order No: 82MD/G of 1965 dated 331965.

Consequently, a tentative seniority list of Demonstrators in the grade of 200400 for the year 1965 was also circulated in which the petitioner's

name figured at serial No : 4, Whereas that of respondent No : 2 did not figure at ail. His name, however, figured at serial No: 15 in another

seniority list of 1965 pertaining to Vaids and Hakims later on the seniority of Hakims and demonstrators was combined and a final seniority list was

published by the Director of Health Services on 1911966 after considering the representations made by the aggrieved persons in which the

petitioner was shown at serial No ; 19 whereas respondent No : 2 was shown at serial No : 25 in the year 1967' a Board consisting of Director

Health Services, Jammu Province and Assistant Director Indian Medicines interviewed forty persons, including the petitioner and respondent No :

2, for selecting twelve persons for the post of A.D.M.O' s carrying the grade of 250500. Whereas the petitioner was selected for one of such

posts, respondent No : 2 was rejected, This appointment was later on approved by the Public Service Commission as well and another Govt.

Order being No: 209MD/G dated 251974 came to be passed against which an appeal too was taken by respondent No: In the meantime another

seniority list of Vaids and Hakims in the old grade of 200400 on their confirmation with effect from 141967 was published vide Govt, order No.

81MD/G of 1971 dated 2211971 in which the petitioner and respondent No : 2 figured at serial Nos : 18 and 23 respectively, In the year 1972,

however. Vaids and Hakims with G, A. ML S, qualification were also given the benefit of a higher grade of 150250 retrospectively with effect

from 386S but it was once again made clear that: his would not affect their inter seniority already fixed under rules, A notice being

AYD/Unani/33/73 was issued to the petitioner on 2571977 by the Secretary to Government, Health Department to show cause as to why ha may

not be shown at serial No: 19 in the seniority list of 1971 wherein originally figured at Serial No ; 18. The petitioner submitted his reply defending

his 18th position in the seniority list. The Government on accepting the recommendations of the. Review Committee constituted for the purpose

accepted the representations made by respondent No : 2 against the seniority of the petitioner and vide its order dated 27 61978, impugned in the

writ petition, assigned him the place at serial No : 19 in the seniority list of 1966 which had till then been occupied by the petitioner has challenged

the aforesaid order as well as the notice preceding the same on the grounds : that the Government had no power to alter seniority declared by

virtue of the order passed in the year 1966 and 1971 which were never challenged by respondent No. 2, that the Review Committee has

exceeded its jurisdiction in accepting the alleged representation made by respondent No : 2 inasmuch as it had been constituted to decide only

those seniority disputes which had arisen between 161968 and 1261974, that the impugned order was violative of principles of natural justice

inasmuch as neither the Review Committee had heard the petitioner before making its recommendations nor was the report of the Review

Committee on the grounds upon which it had made its recommendations supplied to the petitioner before passing the impugned order, that the

impugned order was at variance with the notice preceding the same inasmuch as the petitioner was called upon to show cause as to why his place

in the seniority list of 1911 be not altered whereas his place in the seniority list of 1966 had in fact been altered ; that the impugned order is not a

speaking one. that the Government had made up its mind to disturb the petitioner's seniority to his detriment even before the impugned order

actually came to be passed and that the impugned order is violative of Articles 14 and 16 of the Constitution,

The respondents have denied either that the petitioner is senior to respondent No . 2 or that the latter did not challenge the seniority lists of 1966

and 1971, Their case is that respondent No. 2 had on every occasion made a timely representation and that all the representations were referred

to the Review Committee which found a case in favour of respondent No: 2 after considering the entire material available. The Government

according to them, could have at any time reviewed the earlier orders of 1966 and 1971 which had been passed erroneously, to rectify the arrears

therein The Review Committee, according to them, was only an advisory body and its recommendations were accepted by the Government after

affording full opportunity to the petitioner to make representation against the same which he did make and which was duly considered by the

Government before passing the impugned order. They have denied that the Government had already made up its mind to refix the petitioner's

seniority. The notice, according to the respondents, was not at variance with the final order succeeding the same. They have denied that the

impugned order is violative of Articles 14 and 16 and have further contended that no writ petition lay against an order fixing or re fixing seniority

simpliciter.

In order to come to the merits of the case, it is necessary to first of all displace of the objection in regard to the maintainability of the writ petition

as it has been pleaded as a bar at the threshold. The contention raised on behalf of the respondents is that no right, constitutional or legal, can be

involved in an order merely fixing or refixing the seniority of a Government servant, hence a writ petition to challenge the same is not maintainable,

Besides a few other reported decisions, reliance in this behalf has been placed upon a Single Bench decision of this Court viz: Shri Raja Ram and

others Vs. State of Jammu & Kashmir and others, AIR 197i J&K 113, wherein the learned Judge observed as follows :

...A reference to Rule 24 of the Rules would show that seniority has reference to the service, class, category or grade with reference to which the

question arises and that such seniority has to be determined by the date of first appointment to such service class, category, or grade of 15010250

vide Government Order No : 519MD/G of 1961 dated August 3, 1961, which was later on revised to 200400 by virtue of SRO 160 dated April

1962 were entitled to be treated as senior to the petitioners Moreover, it is also well established by a catena of authorities that no writ lies in

respect of seniority. (See AIR 1966 SC. 1197, AIR 1962 SC 1704 and AIR 1958 SC 36).

In this case besides challenging their promotions, the petitioners had also claimed to be senior to the respondents. Both these contentions were

negatived by the learned Judge on the grounds that the petitioner was neither possessed of the requisite qualification nor could he claim seniority

over the respondents who had long before been given higher grade as seniority had under Rule 24 of the J & K Civil Services (Classification,

Control and Appeal) Rules, 1956 (hereinafter the 1956 Service Rules) reference to class, category, grade or service. The above quoted

observation made by the learned Judge is. therefore, clearly obitor dictum as it was in the circumstances of the case wholly unnecessary for him to

decide whether or not a writ petition to enforce seniority simpliciter would lie, Furthermore, reliance upon the Supreme Court decisions referred to

by him, if I may so with utmost respect to the learned Judge, was clearly misplaced. These authorities never proceeded to lay down the rule that an

order of seniority simpliciter was not amenable to writ jurisdiction of courts. In the High Court, Calcutta and another Vs. Amal Kumar Roy and

other, AIR 1962 SC 1704. for instance, a Munsiff had in a civil suit challenged the promotion of eight Munsiff's made by the High Court of

Calcutta earlier to his own promotion, One of the contentions raised was that as a consequence of these promotions he had suffered reduction in

rank by eight places which could not have been done without following the procedure Laid down in Article 311 (2) of the Constitution. This

contention was repelled by their Lordships on the ground that losing a place in the same cadre did not amount to reduction in rank within the

meaning of Art. 311(2). Similarly in Shital Sahai Srivastava Vs. General Manager, North Eastern Railway Gorakhpur, AIR 1966 S. C. 1197 name

of the petitioner had been provisionally brought on the penal of employees to be promoted in the Railway Department, It was later on removed on

the ground that it had been brought on the panel in violation of the statutory rules, A contention was raised on behalf of the petitioner that removal

of his name even though erroneously amounted to imposing penalty on him within the meaning of Art, 311 (2). This contention was negatived by

their Lord ships on the ground that the petitioner having no right to be on the penal removal of his name later on could not amount to punishment.

The aforesaid two decisions relied upon by the learned Judge are, therefore, no authority for the proposition that the order merely fixing or refixing

seniority cannot be challenged in writ petition. The other authority viz : Parshotam Lal Dingra Vs. Union of India, AIR 1958 S. C, 36 too does not

lay down a different rule. On the other hand the following observations made by their Lordships are a clear point to the contrary.

The real test for determining whether the reduction in such case is or is not by way of punishment is to find out if the order for the reduction also

visits the servant with any penal consequences. Thus if the order entails and provides for the forfeiture of his pay or allowances or the loss of his

seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that

although in form the Government had supported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the

terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of

penalty"".

6 'Often times, seniority plays an important role in the preferment of a Government Servant to higher rungs in service. Rule 25 of 1956 Service

Rule 5 also provides that promotion shall ordinarily be made on the basis of merit and ability, but where merit and ability are approximately equal,

seniority will have a casting vote. It is true that a Government servant does not have a right to be considered for promotion, which is guaranteed to

him under Article 16 of the Constitution, Taking away a Government servant's seniority against law would naturally amount to taking away his right

to be considered for promotion or at least to creating a threat by such a right. He has, therefore, every right to approach the court in its writ

jurisdiction for the violation of Article 16 In saying so I amonly following the principles Laid down by their lordships of the Supreme Court time and

again. (See D. R, Nim Vs. Union of India, AIR 1967 SC. 1301, Union of India Vs. Basant Jayaram and others, 1970 SLR (Supreme Court) page

813, O. P. Malhotra Vs. State of Punjab and others. AIR 1975 SC 1598. and G. R. Luthra Vs. Lt. Governor of Delhi and ors. AIR 1979 SC

1900), In these cases the only contention raised in the writ petitions was whether or not seniority of the petitioner had been rightly fixed or refixed.

Their lordships on being satisfied that it had not been rightly fixed, quashed the impugned order fixing the seniority. In 1970 SLR 813 (supra), for

instance, it was held:

A public servant placed in the list of seniority in a cadre or grade where selection for promotion to the next higher grade is on the ""basis of

senioritycummerit"" is entitled, on the plea that the list is contrary to the rules governing seniority, to claim relief on the footing that he is denied

equality of opportunity in matters relating to employment.

Similarly in AIR 1979 SC 1900 (Supra) their Lordships observed as under:

Thus on an overall consideration of the various aspects of the matter discussed above, we are satisfied that the petitioner Luthra was senior to

respondent No and was rightly placed above respondent No. 3 in the initial constitution of the Delhi Higher Judicial Service by virtue of the

notification dated 19th May, 1971 and is, therefore, entitled to such right as he may have and shall be deemed to be senior to respondent No. 3

The order of the Lt, Governor (respondent No. 1) based on the recommendation of the High Court treating the petitioner to be junior to

respondent o3 is legally erroneous and is quashed as by making respondent No.3 senior to the petitioner under Art, 16 is clearly violated"".

At this stage it may be only pertinent to point out that in a latter case, viz . Han'z Ullah Vs. Govt, of Jammu and Kashmir and others. 1973(1)

SLR 1168 wherein also the only question involved was as to whether or not the petitioner's seniority had been rightly fixed, the very learned Judge

who decided AIR 1971 J&K 113 (Supra) also took a contrary view as would appear from the following observations contained there in: ""The

impugned order in the present case is not a purely administrative order as contended by Mr. Malik. It affects valuable rights and service career of

some Government servants and is as such in the nature of a quasijudicial order. Accordingly, I cannot concede to the contention of Mr. Malik, The

decisions cited by Mr, Malik relate to reduction in rank as contemplated by Art. 311 (2) of the Constitution of India and are not relevant for the

Decision of the point in question"".

The Principle is, therefore, well settled that an order merely fixing or refixing seniority can be challenged by means of a writ petition.

As has been pointed out earlier, inter se seniority of the petitioner and respondent No : 2 as Vaids was determined twice, i. e, once in the year

1966 and again in the year 1971 and at both the times the petitioner was shown as senior to respondent No, 2 The case of the petitioner is that

respondent No: 2 not having thrown a challenge to the aforesaid two orders within limitation, the Government had no right to review the same after

so many years The case of the respondents on the other hand is that every time an order was passed against his interests, respondent' No : 2 did

move the Government to undo the wrong done to him, Irrespective of the fact whether or not respondent No: 2 had moved the Government in this

behalf, the latter's right to revise an order of subordinate authority on its own motion, or to review its own order suo moto at any time cannot be

disputed. This conclusion can be easily drawn from a combined reading of Rules 53, 55 and 57 of the 1956 Service Rules, A limitation is no doubt

provided for an application of revision as well as review to be made by a party, but no limitation is provided where the Government decides to

revise or review an order on its own motion. Under what circumstances should it exercise such a power it may not be necessary to say herein,

keeping in view the circumstances of the present case. I, therefore, find no force in the contention that the impugned order is vitiated because it was

passed after the expiry of period of limitation prescribed. 11; Even so, the impugned order dated 2761978 cannot survive. There is no denying the

fact that the Review Committee never heard the petitioner prior to making its recommendations What material was placed before it and what out

of it weighed with the Committee was not made known to the petitioner before the impugned order came to be passed. The only material supplied

to him was the notice dated 2571977 calling upon him to show cause as to why he may not be assigned the position at serial No: 19 in the

seniority list of 1971. In these circumstances it is impossible to conclude that he was afforded an adequate and reasonable opportunity of defending

his seniority. This was manifestly opposed to the principles of natural justice In order to make him fully conscious of what was brewing against him,

the least the Govt, could have done was to supply him a copy of the report of the Review Committee which had eventually weighed with it against

the petitioner. Merely asking him to submit his reply against the recommendations of the Review Committee and without making known to him its

contents was an idle formality and the respondents cannot, as such, be heard to say that by calling and considering his explanation, requirements of

justice stood fully met. In fact the Government was bound to supply him all such documents which went against the petitioner, In taking this view I

am only following the law Laid down by their Lordships in State of Orrissa Vs, Dr, (Miss) I:inapani Dei and others, AIR 1967 SC 1269. The

following observations in the judgment are pertinent: ""It is true that some preliminary enquiry was made by Dr. S. Mitra. But the report of that

enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907,

should not be accepted as the date of birth and without recording any evidence the order was passed, We think that such an enquiry and decision

were contrary to the basic concept of justice and cannot have any value, It is true that the order is administrative order which involves civil

consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the

State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence

in support thereof. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the Slate',

A similar view was taken by the High Court of Punjab and Hariyana in Bakttawar Singh Vs, State of Punjab and other AIR 1971 P & H 220 as

would appear from the following observations : ""The facts of both these eases decided by the Supreme Court are distinguishable and, in our

opinion, they do not lay down anything contrary to the well established rule of natural justice that a person cannot be condemned without being

heard. The impugned order has, therefore, to be quashed at the short ground that it offended against the rule of natural justice inasmuch as the

material not made available to the petitioner was used against him and he was not afforded an opportunity to explain two of the allegations. We

don't agree with the learned counsel for the petitioner that the charges were in any way vague and that amounted to denial of reasonable

opportunity for an explanation, ''

Mr. Thakur, however, contended that principles of natural justic may vary with varying constitutions of statutory bodies and that their extent

and application cannot be imprisoned in a strait jacket of a rigid formula. There can be no dispute with this proposition, though the fact still remains

that the impugned order was passed in clear violation o f the principles of natural justice, No specific procedure has been provided for reviving or

revising an order fixing or refixing seniority. Courts would naturally insist on following such procedure as would ensure complete justice in the

circumstances of a given case I have already indicated the reasons why there has been a failure of justice in the instant case,

Mr. Thakur then relied upon United Karnatak Ins. Co. Ltd, Vs. Goverdhana Roa Venkatarao, AIR 1961 Mysore 49 and argued that even

nonobservance of the rules of natural justice would not vitiate an order where it tends to do justice. This is in fact begging the very question. The

whole question is whether or not justice has been done in the present case by nonobservance of the rules of natural justice and I have already

answered the question in the affirmative. The explanation tendered by the petitioner pursuant to the show cause notice dated 2571977 has not

been made a part of the court file by respondent No : 1 though the same is admittedly in its possession, The departmental file has no doubt been

produced but I can not look into any such explanation contained in it for the obvious reason that the petitioner had no opportunity to admit or(

deny its authenticity.

Since the petition is going to succeed on this point alone, it is not necessary for me to deal with other contention raised on behalf of the

petitioner.

For the foregoing reasons, the petition is allowed and the impugned order dated 2761978 is by a writ of certiorari quashed. It will not.

however, debar respondent No . 1 from reviewing afresh the earlier orders fixing the seniority by following the rules of natural justice as indicated

here in fore, provided the same is otherwise permissible under law. No costs.