Harmesh Chander vs State of Punjab and Shri Mohan Singh

M.M. Kumar, J.—This petition filed under Article 226 of the Constitution of India challenges order dated 1.7.1985/27.6.1985 Annexure P-1 passed by respondent No.2 reverting the petitioner from the post of Kanungo to that of Patwari.

Brief facts of the case which have led to the challenge of order dated 1.7.1985 by the petitioner are that the petitioner was holder of a substantive post of Patwari. He was promoted against the leave vacancy on the post of Kanungo in the month of March, 1983 and he continued working there till 22.6.1983. In April, 1984 a vacancy in the cadre of Kanungo fell vacant and the petitioner was promoted by respondent No.2 on a long time permanent basis as Kanungo. Accordingly, he joined as such on 1.5.1984. According to the averments made by the petitioner there are 43 posts of Kanungo and 3 posts were lying vacant as two persons were placed under suspension. and one Dalip Singh. Kanungo was further promoted as Naib Tehsildar. It is claimed that out of 40 posts of Kanungo. 9 posts have been filled up out of the members belonging to Scheduled Castes/Tribes. There is reservation of the extent of 20% for the members of Scheduled Castes and 2% for the members of Scheduled Tribes. Accordingly, it is asserted that 9 posts out of 40 posts manned by the members of Scheduled Castes/Tribes category adequately represents the percentage reserved for them. However, on the representation made by respondent No. 3 Mohan Singh against the promotion of the petitioner claiming that the post on which the petitioner was promoted belonged to reserved category. The petitioner was reverted vide order dated 1.7.1985 and respondent No. 3 Mohan Singh was promoted.

The stand taken by the respondents in the written statement is that 9 posts were reserved for the members of Scheduled Castes, one post is meant for the members of Backward Classes. It has further been submitted that promotion of the petitioner was ordered on the basis of misleading note submitted by the Sadar Kanungo but factually this post belonged to reserved category of Scheduled Caste. It has also been stated that suitable action has been taken against the defaulters. It was in these circumstances that the representation made by respondent No. 3 Mohan Singh was accepted and reversion of the petitioner was effected by the impugned order.

In order to find out the position of the roster and the vacancies belonging to the Scheduled Castes/Tribes. I had directed on 8.1.2003 for the production of record so that it may be found whether the vacancy on which the petitioner was promoted was reserved for Scheduled Castes/Tribes and the promotion of respondent No. 3 Mohan Singh was in accordance with law? However, the record was not produced resulting into passing of order dated 15.1.2003 which reads as under:-

"The learned State counsel states that after repeated messages, the office of the Deputy Commissioner, Ludhiana, is not responding the producing the record concerning this case. He has placed on record a T.P.M. message flashed yesterday i.e. January 14, 2003, yet nobody has come from the office of the Deputy Commissioner, Ludhiana.

In view of the above, the Deputy Commissioner, Ludhiana, is directed to send an officer not below the rank of S.D.M. (Civil) alongwith the record of the case, so that the hearing of this case may be finalised. The afore-mentioned officer shall appear before this Court on January 22, 2003 alongwith the relevant record, failing which, the Deputy Commissioner shall have to be present.

A copy of this order be given dasti under the signatures of the Court Secretary."

When the case came up for hearing on 22.1.2003, again the record was not produced. Only service-book belonging to the petitioner was shown which led to the passing of following order:-

"According to the order dated January 15, 2003, the Sub Divisional Magistrate (Civil) alongwith the record was expected to have appeared. Mr. Ajay Sharma, Sub Divisional Magistrate (Civil) is present in Court but he has not brought the relevant record except the service book of the petitioner. It is stated by the learned State Counsel that the relevant record is not available. The averments made in the written statement filed on September 9, 1985 shows that the same are based on the record. It has not been shown that the record is destroyed in accordance with the introductions of the Government. Therefore, a direction is issued to the Deputy Commissioner as per the order dated January 15, 2003 to appear on the next date of hearing alongwith the record. Failure to appear with the record shall be viewed seriously.

Adjourned to January 29, 2003. Copy of the order the given dasti."

On 29.1.2003, the Deputy Commissioner, Ludhiana appeared in person and stated that the petitioner has died and the record was not available. Thereafter, he filed an affidavit dated 2.2.2003 stating on oath that despite best efforts to search the whole record and the roster register of that time, it could not be located. Therefore, it cold not be factually determined as to whether the vacancy of Kanungo on which the petitioner was promoted belonged to Scheduled Caste/Tribe or it belonged to general category.

In paragraph 6 of the writ petition, a categorical averment has been made that Dalip Singh kanungo was promoted to the post of Naib Tahsildar apart from other two posts which were lying vacant on account of suspension of two Kanungos. In reply to this paragraph, there is no specific averment made as to whether those posts belonged to Scheduled Caste/Tribe category or Backward Class. Even if it is presumed that respondent No. 3 Mohan Singh was promoted on a post meant for reserved category, then the vacancy caused on promotion of Dalip Singh, Kanungo must have become available on which the petitioner should have been promoted. This inference has been drawn because there is no rebuttal of the stand taken by the petitioner. Moreover, the representation of respondent No. 3 has been accepted at the back of the petitioner which would be flagrant violation of the principles of natural justice. It is trite to state that a promotion once given cannot be snatched without granting any opportunity of hearing because any reversion would result into reduction in salary status and other civil consequences. Therefore, the impugned order is liable to be set aside.

In view of the above, this petition is allowed and the impugned order dated 1.7.1985/27.6.1985, Annexure P-1 reverting the petitioner to the post of Patwari is quashed. As a consequence the petitioner would be deemed to be Kanungo from the date of his joining on the post of Kanungo i.e. 1.5.1984. The respondents are directed to release all the consequential benefits to the legal representatives of the petitioner by treating the petitioner as Kanungo from 1.5.1984 till the date of his death in the shape of arrears of salary, revision of pay scales and fixation of his pensionary/family pension benefits.