State of Uttarakhand & Others vs Shyam Singh

Manoj K. Tiwari, J.

Heard on Delay Condonation Application No.14225 of 2018.

Learned counsel appearing on behalf of the respondent submits that he has no objection if the delay condonation application is allowed. There is 173

days delay in filing the special appeal. Cause shown in the delay condonation application is sufficient, therefore, delay is condoned. Delay condonation

application is allowed.

Respondent was appointed as Constable w.e.f. 01.04.1992 in Provincial Armed Constabulary (hereinafter referred to as ‘PAC’). He

participated in a selection for promotion to the post of Head Constable (Special Category), result whereof was declared on 15.10.2013 and respondent

was declared successful.

Respondent thereafter successfully completed Head Constable Training Course of four months duration. However, vide order dated 07.08.2014

passed by Inspector General of Police Headquarter, his selection for promotion to the post of Head Constable was cancelled on the ground that he

was not eligible to be considered for promotion. Thus, feeling aggrieved, he challenged the cancellation order by filing Writ Petition (S/S) No.2240 of

2014 mainly on the ground that he was not heard, therefore, principles of natural justice have been violated while canceling his selection.

A counter affidavit was filed by Inspector General of Police Headquarter, in which justification was offered for passing the cancellation order,

however, the averment made in paragraph No.32 and 37 of the writ petition that no hearing was given to the respondent while issuing the cancellation

order were not denied.

Learned Single Judge of this Court allowed the writ petition only on the short ground that there is violation of principles of natural justice. Relevant

extract of the judgment rendered by learned Single Judge is quoted below:-

“There is violation of principle of natural justice. The petitioner has acquired vested right of his promotion and the same could be taken away only

after affording the reasonable opportunity of hearing.

Accordingly, the writ petition is allowed. The impugned order dated 07.08.2014 (annexure No.1) is quashed and set aside. It shall be open for the

respondents to pass fresh order after taking into consideration the judgment rendered by this Court in WPSS No.53 of 2015 and analogous matters, on

24.04.2017.â€​

Heard learned counsel for the parties and perused the record.

Admittedly, the respondent was permitted by the authorities to participate in the selection for promotion to the post of Head Constable and there is

no allegation that respondent furnished incorrect information or played fraud for participating in the selection. There is no dispute that respondent was

declared successful in the selection, therefore, he was sent for necessary training course and he successfully completed the said course also.

In such view of the matter, his right to be considered for promotion was crystallized. Before divesting him of the said right, it was incumbent upon

the authorities to give him an opportunity of hearing, so that he may have his say in the matter.

Mr. Pradeep Joshi, learned Standing Counsel for the State/appellants very fairly submits that opportunity of hearing was not given to the

respondent while passing the cancellation order. Hon’ble Supreme Court in the case of Basudeo Tiwary vs Sido Kanhu University And Others

reported in (1998) 8 SCC 194 has held that in the sphere of public employment, any action taken by the employer against an employee must be fair,

just and reasonable, which are the components of fair treatment. It has further been held that audi alteram partem facet of natural justice is also a

requirement of article 14, for natural justice is the antithesis of arbitrariness.

Similarly in the case of Gajanan L. Pernekar Vs. State of Goa and Another reported in 1999 (8) SCC 378, Hon’ble Supreme Court has held

that employer is under a duty to give an opportunity by giving showcause to adversely affected person before recalling an administrative order passed

in his favour and the recall order, which was passed in violation of principle of natural justice was declared to be illegal. Paragraph No.8 of the said

judgment is extracted below:-

“8. The manner in which the order dated 21.09.1999/22.01.1999 came to be made was, to say the least, not proper. The appellant was denuded of

the benefits of the order dated 16.2.1994 unheard. There has been a breach of the principle of natural justice and a violation of fair play in action. The

earlier order made in favour of the appellant as early as on 16.2.1994 was rescinded without giving any opportunity to the appellant to show cause

against it. Absorption of the appellant as Headmaster of Government High School by the order dated 16.2.1994 had not been put in issue through any

proceedings by any party at any point of time. That benefit could not have been taken away from the appellant without affording him any opportunity

of hearing, even where the absorption as Head Master of High School had been put in issue. The principles of natural justice have been respected in

their breach. The order dated 21.09.1999/22.01.1999 was made by the respondents influenced by the observations contained in para-2 of the order of

the High Court (supra), which observations, we have already found, were not at all called for. In the facts and circumstances of the case, the order

dated 21.09.1999/22.01.1999 cannot be sustained and we accordingly set it aside. Consequently, we allow this appeal and set aside the observations of

the High Court contained in para-2 of its judgment dated 14.07.1998 (supra) as well as the follow-up order made by the State on

21.09.1999/22.01.1999. As a result the order dated 16.2.1994 would stand revived. We grant liberty to the appellant to make a representation to the

State Government for grant of consequential benefits flowing from the order of 16.2.1994, as was directed by the High Court itself. In case a

representation is filed by the appellant before the department concerned within six weeks from the date of this order, the same shall be decided by the

department within a period of twelve weeks from the date of the receipt of the copy of the representation. The representation shall be decided by the

department uninfluenced by the order made on 21.09.1999/22.01.1999 as well as the observations made in para-2 of the High Court order (supra),

which, we have set aside.â€​

In such view of the matter, we find no infirmity in the view taken by learned Single Judge. Learned Single Judge has left it open to the authorities

to pass fresh order. We modify the impugned judgment by providing that fresh order, if any, shall be passed in accordance with law without being

influenced by the judgment rendered by learned Single Judge in WPSS No.53 of 2015 and other analogous matters.

With above observations, the appeal stands disposed of.