Harendra Kumar Sahu vs State Of Chhattisgarh

Since all the above writ petitions arise out of common orders, they are heard and decided together.

In the instant bunch of writ petitions, the Petitioners have called in question order dated 16.9.2013 by which the State Government directed the Commissioner, Municipal Corporation, Raipur to cancel the promotion given to the Petitioners on the post of Assistant Engineer on the ground that their appointment by promotion is not in accordance with law and the reservation rules have not been followed.

Case of the Petitioners is that they were appointed as Sub-Engineers in the Municipal Corporation, Raipur. Being eligible to be promoted to the post of Assistant Engineer as per the provisions of Chhattisgarh Municipal Corporation (Appointment and Conditions of Service of Officers and Servants) Rules, 2007 read with Chhattisgarh Public Service (Promotion) Rules, 2003, the Departmental Promotion Committee (henceforth ‘the DPC’) in its meeting dated 5.9.2008 recommended names of the Petitioners for promotion to the post of Assistant Engineer and consequently vide order dated 6.9.2008 the Petitioners were promoted to the post of Assistant Engineer from the post of Sub-Engineer and since 6.9.2008 the Petitioners are working as Assistant Engineers. The State/Respondent vide its order dated 16.9.2013 directed the Municipal Corporation/Respondent to cancel the promotion of the Petitioners on the ground that the DPC had made recommendations on the basis of notification dated 16.11.2007 issued by the General Administration Department of the Government of Chhattisgarh, which is not proper and it was also found that the reservation rules were not followed by the DPC. As a consequence of the order dated 16.9.2013 passed by the State/Respondent, the Municipal Corporation/Respondent vide order dated 20.9.2013 cancelled the promotion of the Petitioners.

Shri Rajeev Shrivastava, Learned Senior Counsel with Shri Malay Shrivastava, Learned Counsel appearing for Petitioners Sanjay Sharma and Rajesh Singh Thakur in Writ Petition (S) No.3401 of 2013 submitted that total 31 posts of Assistant Engineer were available for promotion, which, by the State Government, vide order dated 2.9.2008, were classified as 27 posts for civil branch, 1 post for mechanical branch and 3 posts for electrical branch. Out of them, 50% posts were to be filled-in through departmental promotion. The DPC recommended the names of Petitioner Sanjay Sharma for promotion to the post of Assistant Engineer in civil branch and Petitioner Rajesh Singh Thakur for promotion to the post of Assistant Engineer in electrical branch. Both these Petitioners were promoted to the post of Assistant Engineer in general category. Therefore, the order of the State Government with regard to these two Petitioners that the reservation rules have not been followed suffers from perversity. It was further submitted by Learned Senior Counsel that pursuant to the promotion order, the Petitioners joined their duties as Assistant Engineer on 6.9.2008 itself and since then they are discharging their duties as Assistant Engineer. After a lapse of five years, suddenly, their promotion order was cancelled by the Municipal Corporation/Respondent on the basis of the order of the State/Respondent which caused serious prejudice to the Petitioners. Without conducting any departmental inquiry or without giving any opportunity of hearing to the Petitioners the orders have been passed by the State and the Municipal Corporation/Respondents, therefore, there is a violation of principles of natural justice.

Shri Surfaraj Khan, Learned Counsel appearing for the Petitioners of Writ Petitions (S) No.3365 of 2013, 3366 of 2013 and 3402 of 2013 submitted that pursuant to the promotion order dated 6.9.2008 the Petitioners of all the three writ petitions joined their duties as Assistant Engineer and after a lapse of five years, suddenly, without giving any notice or conducting any departmental inquiry their promotion orders have been cancelled by the Municipal Corporation/Respondent consequent to the order dated 16.9.2013 passed by the State/Respondent. This caused a serious prejudice to the Petitioners and it is a case of violation of principles of natural justice. Therefore, only on this ground the impugned order dated 16.9.2013 passed by the State/Respondent is not sustainable.

Ms. Ruchi Nagar, Learned Deputy Government Advocate appearing for the State/Respondents submitted that the Petitioners were promoted to the post of Assistant Engineer on a probation for a period of two years in anticipation of approval by the State Government which is required under Section 58(1)(iii) of the Chhattisgarh Municipal Corporation Act, 1956. From a perusal of said Section 58(1)(iii), it is evident that every appointment or promotion shall be subject to prior confirmation by the State Government and the decision of the State Government shall be final. Without taking prior confirmation, the Municipal Corporation, Raipur issued the promotion order dated 6.9.2008 in anticipation of confirmation from the State Government. When the matter was brought to the notice of the State Government, an inquiry was conducted by the Joint Director, Directorate of Urban Administration and Development, Raipur and in the inquiry it was found that the entire promotion order issued by the Municipal Corporation, Raipur was against the rules. After obtaining the inquiry report, the State Government issued the impugned order dated 16.9.2013. From a perusal of the inquiry report, it appears that at the time of granting promotion, reservation rules were not followed. It was further submitted by Learned Deputy Government Advocate that so far as non-compliance of the principles of natural justice is concerned, the promotions were made in anticipation of confirmation by the State Government and, therefore, the Petitioners were very well aware that their promotions were subject to confirmation by the State Government. Therefore, there is no prejudice caused to the Petitioners and the principles of natural justice cannot be put into a straight-jacket formula in this case.

Shri H.B. Agrawal, Learned Senior Counsel with Shri Pankaj Agrawal, Learned Counsel appearing for the Municipal Corporation/ Respondents submitted that the promotion order dated 6.9.2008 of the Petitioners was issued in anticipation of approval of the State Government. Hence, it was provisional in nature. Vide the impugned order dated 16.9.2013, the State Government, after due consideration, has held that the promotions of the Petitioners are not in conformity with the reservation rules and hence the State Government has not accorded its approval and has further directed the Municipal Corporation/Respondent to cancel the promotions of the Petitioners. In view of the above, the order passed by the State/Respondent, the Municipal Corporation, Raipur passed the impugned order dated 20.9.2013, as the Municipal Corporation is bound by the order of the State Government as per the Municipal Corporation Act.

I have heard the arguments raised on behalf of the parties and perused the entire material available with due care.

It is not in dispute that the Petitioners were working as Sub-Engineer and after the recommendations of the DPC, vide the order dated 6.9.2008 they were promoted to the post of Assistant Engineer. It is also not in dispute that their promotion was cancelled after a lapse of five years vide order dated 16.9.2013 passed by the State/Respondent and order dated 20.9.2013 passed by the Municipal Corporation/Respondent.

From perusal of the impugned order dated 16.9.2013 passed by the State/Respondent, it appears that the promotion of the Petitioners were cancelled only on the ground that recommendations for promotion were made violating the reservation rules. It is also not in dispute that prior to the passing of the impugned order dated 16.9.2013, none of the Petitioners were given any notice nor was any departmental inquiry conducted against them. In Murlidhar Gautam v. State of M.P. (now C.G.), 2008 (3) CGLJ 288, this Court held as under:

“8. It is evident that the promotion under order dated 25.3.1989 (Annexure A/2) was passed on the basis of the recommendations made by the Departmental Promotion Committee. The Departmental Promotion Committee, it appears, had examined all the aspects of the matter before recommending the name of petitioner for promotion, along with 57 other persons. The impugned order was passed without affording an opportunity of hearing to the petitioner. The contention of learned counsel appearing for the State that no show cause notice was required to be issued, is noticed to be rejected on the simple ground that no order which is punitive in nature and visits with civil consequences, causing prejudice to the person concerned can be passed without following the principles of natural justice.

Hon’ble Supreme Court in Bhagwan Shukla v. Union of India & others, AIR 1994 SC 2480 held as under:

“The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard.

Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter.”

This Court in the matter of Laxman Prasad v. Krishi Upaj Mandi Samiti, Bemetara (Writ Petition No.2800 of 1995), which was allowed vide judgment and order dated 17th April, 2006, held that no punitive order can be passed without affording an opportunity of hearing to the person concerned, who is affected prejudicially by the impugned order.”

In Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa (2), (2009) 4 SCC 299, it was observed by the Supreme Court thus:

“35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, this Court held: (SCC p. 660, para 55)

“55. … No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity.”

The purpose of the principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play in action. (See Sawai Singh v. State of Rajasthan, (1986) 3 SCC 454 and Narinder Mohan Arya v. United India Insurance Co. Ltd., (2006) 4 SCC 713)”

In Prakash Ratan Sinha v. State of Bihar, (2009) 14 SCC 690, the Supreme Court held as follows:

“9. The respondent is an instrumentality of the State, and therefore,, all its administrative decisions would be subject to the doctrine of equality and fair play, as incorporated in Articles 14 and 21 of the Constitution of India. If any of its actions or administrative decisions result in civil consequences, the principles of natural justice. This principle of law has been laid down by this Court in a catena of cases. The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such a power and that the rule of natural justice operates in areas not covered by any law validly made.”

As, after a lapse of five years, suddenly, without giving any notice to the Petitioners or without conducting any departmental inquiry against them, the impugned order dated 16.9.2013 was passed by the State Government, according to me, it is certainly a violation of the principles of natural justice in the light of the above observations made by the Supreme Court and this Court.

With regard to non-compliance of the reservations rules, in case of Petitioners Sanjay Sharma and Rajesh Singh Thakur of Writ Petition (S) No.3401 of 2013, from perusal of the proceedings of the DPC dated 5.9.2008, it is apparent that Petitioners Sanjay Sharma and Rajesh Singh Thakur were promoted from general to general category. I do not find any violation of any reservation rules in the matter of these two Petitioners. Therefore also, the impugned order dated 16.9.2013 passed by the State Government regarding these two Petitioners is not in accordance with law. Even if for the sake of argument it is considered that the reservation rules are not followed, in my considered view, the reservation roster is operated by the State authorities or corporations and not by the Petitioners. The Petitioners had no role to play if the reservation roster was not followed. If the promotions were made against the reservation roster, the Respondents were required to simultaneously proceed against the officials who did not perform their duties properly despite being paid salary.

Resultantly, the order dated 16.9.2013 passed by the State/Respondent and the order dated 20.9.2013 passed by the Municipal Corporation/Respondent cancelling the promotion of the Petitioners are held to be not sustainable and are accordingly set aside. However, the right of the Respondents is reserved if they intend to proceed further with the matter. They may do so in accordance with law and after giving an opportunity of hearing to the Petitioners. As a consequence, all the writ petitions are allowed.