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Judgment
The petitioner, who is presently working on the post of a Constable (GD), has filed this petition praying inter alia for quashing and setting aside an
order dated 07.02.2014 (wrongly typed as “07.12.2014†in Annexure-P1), passed by the respondent No.1/DG, ITBP, cancelling his promotion to
the post of Head Constable (GD).
A glance at the relevant facts of the case is necessary. In the year 2000, the petitioner had joined the respondent/ITBP in the cadre of Constable
(Cook). On 03.04.2004, the petitioner was shifted from the cadre of Constable (Cook) to the Constable (GD), w.e.f. 04.04.2004. In the year 2012, the
respondents permitted the petitioner to participate in a III-Tier selection process for promotion to the post of Head Constable (GD). On 05.04.2013,
the respondents promoted the petitioner to the post of Head Constable (GD) on his successfully qualifying the test and completing the training course.
In December, 2014, as a bolt from the blue, the petitioner received the impugned order dated 07.02.2014, issued by the respondent No.1/DG, ITBP,
cancelling his promotion to the post of Head Constable (GD) on the ground that he did not have the requisite length of seniority in the cadre of
Constable (GD). On 07.08.2015 (wrongly typed out in the body of the petition as “19.08.2015â€), the name of the petitioner was struck off from
the rolls of Head Constable. This was followed by an order dated 28.03.2016, passed by the respondent No.2, directing the petitioner to surrender the
Head Constable rank. The petitioner submitted a detailed reply in response to the Memo dated 28.03.2016 issued by the respondents, on 05.04.2016.
On not getting any response, he filed a writ petition in this Court on 16.05.2016 [W.P.(C) No.4826/2016]. The said petition was permitted to be
withdrawn to make up the deficient pleadings and the petitioner was granted liberty to file a fresh petition challenging the impugned orders dated
06.05.2015 and 28.03.2016.
The main thrust of the arguments addressed by the learned counsel for the petitioner to assail the impugned order dated 07.02.2014, is that the
respondents did not issue a notice to show cause to the petitioner or afford him an opportunity to make his submissions before passing such a drastic
order whereby his rank has been reduced from that of a Head Constable (GD) to Constable (GD).
On the last date of hearing, learned counsel for the respondents was directed to produce the relevant records for our perusal to verify if before
passing the impugned order dated 07.02.2014, striking off the promotion granted to the petitioner, the respondents had issued him a notice to show
cause and had elicited a response, thereby following the principles of natural justice.
Today, learned counsel for the respondents concedes on instructions that no show cause notice was given by the respondents to the petitioner
before passing the impugned order dated 07.02.2014. If that be the position, we need not detain ourselves any further by examining the correctness of
the impugned order. The respondents were under an obligation to have followed the principles of natural justice by issuing a notice to show cause to
the petitioner before passing any order, much less an order, cancelling the promotion granted to him and that too, behind his back.
Accordingly, the order dated 07.02.2014, is unsustainable and is quashed and set aside, with liberty granted to the respondents to issue a notice to
show cause to the petitioner, calling upon him to explain as to why he should not be reverted from the rank of a Head Constable (GD) to Constable
(GD). In the said show cause notice, the respondents shall fix a timeline for the petitioner to respond. After the petitioner submits his written
representation in response to the said show cause notice, the competent authority shall consider the same and then pass a speaking order, under
written intimation to him. If the petitioner is aggrieved of the order that may be passed by the competent authority, he shall be entitled to seek his
remedy, as per law.
The petition is disposed of, along with pending application. Litigation cost of Rs.10,000/- shall be paid by the respondents to the petitioner within four
weeks.