Shyam Lal Dewangan vs State of Chhattisgarh and Another

Hon''ble Shri Satish K Agnihotri, J.

Writ Petition under Article 226 of the Constitution of India

Challenge in this petition is to the order dated 30.08.2008 (Annexure P-3), whereunder, the promotion of the petitioner to the post of Upper Division Teacher on revised pay scale of Rs. 5000-150-18,000/- was canceled without affording proper opportunity of hearing. Shri Verma, learned counsel appearing for the petitioner submits that the petitioner was promoted on the post of Upper Division Teacher vide order dated 18.08.2008 (Annexure P-1) and thereafter, he was posted in Government Middle School Bendra Navagaon on 22.08.2008, as is evident from the application (Annexure P-2) for joining new place of posting. Promotion of the petitioner was canceled subsequently by order dated 30.08.2008 (Annexure P-3) observing that the petitioner did not come within the zone of seniority and, as such, his promotion order was canceled. It is further submitted that other teachers, who are junior to the petitioner, namely Yashwant Kumar Sahu, Shankar Lal Dewangan, G.C. Gohil and Champa Chandrakar, continuing in the promotional post. The petitioner was appointed on 24.09.1982 and he joined Dhamtari in the year 1995 and the order of appointment of Yashwant Kumar Sahu, Shankar Lal Dewangan and G.C. Gohil was in 1985 and Champa Chandrakar was in 1989. They also joined their posting at Dhamtari after the petitioner had joined.

The only contention of challenge to the impugned order dated 30.08.2008 (Annexure P-3) is that the petitioner was not afforded an opportunity of hearing before canceling the promotion order.

On the other hand, Shri Sao, learned Government Advocate, submits that the petitioner was Assistant Teacher at Middle School Chinauri (Charama), District Kanker, Division Kanker, and he opted for inter-divisional transfer to Primary School Uslapur, District Dhamtari, Division Raipur. Accordingly, he was transferred by order dated 31.07.1995 (Annexure R-1) to Primary School Uslapur, District Dhamtari, Division Raipur. In the transfer order, it was clearly mentioned that the seniority of the employees after transfer on inter-divisional basis will be determined from the date he joins new division. Since the transfer was made on the request of the petitioner, he was not entitled to any allowances etc. and his seniority was also determined from the date, after he was relieved from Pre Middle School Chinauri (Charama), District Kanker, on 22.11.1995 and joined new place on 27.11.1995. The promotion order was passed wrongly, as his seniority was considered from the date of his initial appointment as Assistant Teacher at Pre Middle School Chinauri (Charama), District Kanker, on 24.09.1982.

Shri Sao, further submits that under the terms of the order, which was not challenged and accepted by the petitioner, the seniority of the petitioner ought to have been considered from the date, he joined in a new place at Uslapur, District Dhamtari, Division Raipur, that was inter divisional transfer. Thus, his seniority could not have been granted from the date of initial appointment, but from the date of joining in Dhamtari. The petitioner was much junior and he was not eligible for consideration of promotion to the post of Upper Division Teacher. Accordingly, the transfer order was canceled immediately and error was on the part of the officers, thus, notice was not required to be issued to the petitioner. The relevant entry in respect of the seniority was made in the service record from 01.01.1995. The petitioner was quite aware of his seniority position and as such, he cannot challenge the same today.

The petitioner further submits that the seniority of the petitioner in the seniority list as on 01.04.2008 has been counted from 24.09.1982, as is evident from the seniority list of District Dhamtari (Annexure R-1).

I have heard learned counsel for the parties, perused and pleadings and documents appended thereto.

There is no dispute that the petitioner was transferred from one division to other division by order dated 31.07.1995, wherein, it was clearly stated that the seniority would be determined from the date, the employee joins the transferred place. The relevant entries were also made in the service book, however, while publishing the seniority list, the condition laid down in the transfer order as well as entry in the service book was completely ignored and the petitioner was given seniority w.e.f. 29.04.1982, the day he joined in Pre Middle School Chinauri (Charama), District Kanker, as Assistant Teacher, which was erroneous.

Mere statement of the petitioner that the persons namely; Yashwant Kumar Sahu, Shankar Lal Dewangan, G.C. Gohil and Champa Chandrakar, who were junior to the petitioner have been retained on promotion, is not sustainable, as the petitioner has not produced any document in support of his contention and also the seniority list dated 1.4.2008 (Annexure - R/1) filed by the State, which is incomplete, does not reveal the name of the aforesaid persons. Thus, the contention of the petitioner is rejected.

The only point raised by the petitioner is whether the petitioner was entitled to a notice before cancellation of the promotion order. The petitioner is not questioning the wrong fixation of his seniority or the clause of the appointment order, which provides for fixation of seniority from the date of joining the new transferred place. The entire claim of the petitioner seems to be on the basis of the seniority list of District Dhamtari as on 01.04.2008, which is erroneous apparently.

There is no dispute in respect of the facts as aforestated. Thus, the grievance of the petitioner that he was not afforded an opportunity of hearing before cancellation of the promotion order would be a mere formality, as the facts and circumstances of the case would not change the nature of the impugned order dated 30.8.2008 (Annexure - P/3).

The petitioner has neither pleaded nor established that any prejudice has been caused to him by non issuance of notice before cancellation of the promotion order, as all the facts are admitted.

Reliance of the petitioner upon the decision of this Court in Murlidhar Gautam v. State of M.P. (now C.G.) & Others1, is not relevant, having regard to the facts and circumstances of the instant case, as in case of Murlidhar Gautam (supra), the petitioner therein after having been promoted to the post of Deputy District Extension and Media Officer, on the basis of DPC and the recommendations made by the Public Service Commission, worked till 9.12.1994 and after a period of 5 years, the mistake was discovered and in that event it was necessary to afford an opportunity of hearing to the petitioner therein.

In the case on hand, the petitioner was promoted on 18.8.2008 (Annexure - P/1) and immediately within a period of 12 days the error, in consideration of facts, was discovered and the promotion order was cancelled by order dated 30.8.2008 (Annexure - P/3) holding that the petitioner was not in the zone of seniority for the purpose of consideration for promotion.

The Supreme Court in P.D.Agrawal v. State Bank of India & Others2 held as under :

The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.

Thereafter, in Punjab National Bank & Others v. Manjeet Singh & Another3, the Supreme Court observed as under :

In Viveka Nand Sethi v. Chairman, J&K Bank Ltd. the law is stated in the following terms: (SCC 345, para 22)

The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash.] The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab v. Jagir Singh and Karnataka SRTC v. S.G. Kotturappa.)

(See also P.D. Agrawal v. State Bank of India.)

In view of the aforesaid facts and circumstances of the case, issue of notice, affording opportunity of hearing to the petitioner before passing the impugned order, is not necessary, as all the facts are admitted. For the reasons mentioned hereinabove, there is no merit in the case. Accordingly, as a sequel the petition is dismissed. No order asto costs.