Indu Bhushan vs Govt.of J&K & Ors.

This writ petition is directed against the impugned order dated 311283 passed by respondent No. 1 whereby the appeal of respondent No. 3

against the promotion order of the petitioner was accepted and the petitioner's promotion was sat aside. It appears that respondent No. 2 had

promoted the petitioner as Khalafwarzi Inspector in the pay scale of 600925, Against this order of promotion, respondent No. 3 had filed an

appeal on the ground that he was Senior Assistant in the Municipality Jammu and the petitioner was Junior to him and the order passed by

respondent No 2 was in violation of the principles of the natural justice and the rules This appeal was accepted vide the impugned order and the

promotion of the petitioner was set aside. Aggrieved by this order the petitioner has filed this writ petition on the ground that the impugned order

was passed at his back and is against the principles of natural justice It is stated in the writ petition that the impugned order was passed without any

enquiry and no notice was given to the petitioner and an opportunity to be heard was denied to him and it is further stated that no appeal could lay

against the order passed by respondent No, 2 to the Govt. because respondent No 2 is a corporatle body. Many other grounds are also urged in

the petition. Respondent No. 1 has not filed its counter Its right to do so was closed on 471984, Respondent No, 3 was set exparte and

respondent No. 2 has filed his objection supported by an affidavit of the Executive Officer, Jammu, Municipality In the objections of the

Municipality, contention of the petitioner is substantially admitted It is stated that Municipal Council Jammu had invited applications for the posts of

Khalaf Warzi Inspectors vite advertisement notice issued on 2311981 and the petitioners eligibility for the said post is also admitted. As regards

appeal of respondent No. 3 before the government, respondent No 2 was not in a position to state anything. There is no rebuttal on behalf of the

Government to the averments made in the writ petition, Therefore I am left with no choice except to presume the averments of the petitioner in

respect of appeal having been decided at his back without hearing him and without notice to him, as true and correct, I also presume that the

Government had no power to hear the appeal against respondent No. 1 because there is no reply in respect of this averments on behalf of

respondent No. I,

This writ petition deserves to be allowed on a short point. Respondent No, 3 is appeal whether it was competent or not was against the

petitioner's promotion and any decision given by the Govt. was to affect none else except the petitioner, Therefore it was essential for respondent

No, 1 to issue a notice to the petitioner and hear him before any order affecting his rights was passed, Respondent No. 1 was discharging

quasijudicial functions and it was obligatory on him to afford an opportunity of being heard to the petitioner while disposing of the appeal, The

impugned order of the Govt. has visited the petitioner with penal consequences, Therefore, such an order could not have been passed at his back

as that would be flagrant violation of the principles of natural justice Rules of natural justice are required to be observed even in administrative

orders when the administrative orders are likely to affect valuable rights of the citizens, Denial of right of being heard will be violative of Art, 14 of

the constitution of India and would negate the principles of natural justice which requires that decisions must be arrived at after hearing the parties

and nobody should be condemened unheard The rule of natural justice sets minimum standards of fairness in adjudication by bodies which in many

cases bear no resemblance to courts, It would be unfair if right of being heard is denied to a citizen against whom an adverse order is passed by

the administrative tribunals, Each tribunal whether administrative or judicial has to follow the rule of natural justice and decisions proposed to be

given, affecting anybody's rights should be made only after notice is given to the affected person, Without issuing notice to affected person

administrative tribunal cannot decide against a person whose rights are being adjudicated upon by it, Prior notice to an affected person is to be

given necessarily even by administative tribunals, Natural justice generally requires that persons likely to be direcdy affected by propesed

administrative acts, decisions or proceeding be given adequate notice of what is proposed ss that they may be in a position:

i) to make representation on their own behalf ;

ii) to appear at a hearihg or enquiry it one is to be held ; and

iii) effectively to prepare their own case and to answer the case they have to meet,

3, Failure to give prier notice to the petitioner would tantamount to denial of an opportunity to be heard, Rule of audialteram partem is adopted by

our system and since the citizens are governed by constitutional gurantees, therefore, right of hearing cannot be denied to any person who is sought

to be penalized, In the present case, as already observed, the impugned order was passed without giving notice to the petitioner and without

hearing him and the decision was taken at his back by respondent No, 1 As such the impugned order cannot be sustained and is to be \ struck

down, Whether the petitioner's promotion was made in \ accordance with the rules or not is of no consequence in the present writ petition. The

fact remains that be was promoted by a competent authority and by getting promotion some valuable rights had vested in him as regards pay add

grade, That vested right cannot be taken away from the petitioner at his back in violation of principles of natural justice, Therefore, the impugned

order is held to be in flagrant violation of principles of natural justice.

The promotion of the petitioner was ordered by respondent No. 2 which is an autonomous body and which has the competence to promote the

petitioner. It could not be annuled by respondent No. 1 under its executive powers, By passing the impugned order respondent No. 1 has violated

its authority and I have no hesitation in my mind to say that respondent No. 1 has by its executive mischief vilolated the fundamental rights of the

petitioner, The averment as regards lack of jurisdiction of respondent No, 1 in the writ petition is also presumed to be correct because there is no

denial of this plea, Therefore, the impugred order is without jurisdiction and cannot affect the petitioner's rights,

At the time of the admission of the writ petition this court had stayed the operation of the impugned order which would mean that the promotion

of the petitioner was kept in tact,

For the reasons stated above, the writ petition is allowed and the impugned order passed by respondent No, 1, bearing No, 388HUN/LSG of

1983 dated 31121983 setting aside the promotion of the petitioner is hereby struck down and quashed, The petitioner shall continue to be a

Khalaf Wani Inspector in the pay scale of 600925, The impugned order shall be treated as nonexistant. The petitioner shall be entitled to costs of

the writ petitioner which I assess at Rs, 300/ to be paid by respondent No. 1.