Single Judge erred in reverting a promoted Constable without issuing a show cause notice stating reasons different from the original notice. The Division Bench quashed the reversion order on natural justice grounds alone, without examining merits.
Appeal allowed; impugned reversion order of 1.2.2011 set aside and quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
LPA No.1022 of 2012
-1-
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
LPA No.1022 of 2012 Date of Decision: 10.12.2012
HC Ashok Kumar
...Appellant
Versus
State of Haryana and others
..Respondents
CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. S.N.Yadav, Advocate for the appellant. Mr. B.S.Rana, Addl.AG Haryana.
A.K.SIKRI, J.(Oral)
The appellant herein was enrolled as a Constable for the Haryana Police on 15.4.1992 and further next promotion is to the post of Head Constable for which the Constables are required to pass Lower School Course. The appellant was deputed to undergo the said Course known as B-1 Course which commenced on 1.1.2005 and was completed on 30.6.2005.
After successful completion of the said Course, the appellant was granted list C-1 w.e.f. 1.12.2005. This list was
LPA No.1022 of 2012
-2-
prepared of those officials who became eligible for promotion to the post of Head Constable. After the name of the appellant was brought to the list, on that basis he was promoted as Head Constable on 20.10.2007.
Almost two years thereafter i.e. on 7.7.2009, a show cause notice was issued to the appellant as to why he should not be reverted back to the post of Constable. The basis of this show cause notice was that when he was brought to list C-1 after passing the aforesaid Course, he was below the age of 35 years whereas the candidates who were above the age of 35 years and below the age of 40 years, could be brought to C-1 list and promoted. The appellant replied to this show cause notice, inter alia, contending that there was no provision anywhere which stipulated that the candidate has to be more than 35 years of age. It was his contention that there was no such provision in the rule and executive instructions dated 13.10.2005, containing such condition, had already been quashed by a Division Bench of this Court in Constable Dharamvir Vs. State of Haryana 2009(1) RSJ 310. It appears that no further orders are passed on the basis of said show cause notice. However, a Division bench of this Court had decided another Civil Writ Petition No.19965 of 2006 titled as Balraj Singh and others Vs. State of Haryana and others, on 22.10.2008. In this writ petition, it was directed that the judgment dated 5.11.2004 delivered earlier by this Court in Naresh Kumar Vs. State of Haryana and others (CWP No.7952 of 2004)
LPA No.1022 of 2012
-3-
which had attained finality as SLP there against was also dismissed, should have been implemented by State of Haryana across the board irrespective of whether similarly situated persons, those who named in Naresh Kumar's case (supra) , approached this Court or not. Following directions were given in this judgment :-
“Accordingly, the present writ petitions are disposed of with a direction to the respondents to consider the claim of the petitioners and all similarly placed persons, who have been deputed to the Lower School Course subsequent to the deputing of their juniors and have passed the said Course after their juniors for deciding their claim of seniority over and above them and also to consider the claim of the petitioners and all similarly placed persons, for including their names in List B of selected Constables for admission to the Lower School Course, in accordance with the judgment passed by this Court in Naresh Kumar's case within a period of two months from the date of receipt of copy of this order. The respondents are further directed to depute all similarly placed persons, including the petitioners, to the Lower School course in accordance with the seniority in their prescribed quota of 35% seats provided they fulfill the requirements of the Rules as interpreted by this Court in Naresh Kumar's case (supra). These persons shall be
LPA No.1022 of 2012
-4-
deemed to have qualified the Lower School Course from the date the other Constables junior to them have qualified the same. It is, however, made clear that if by getting retrospective date of passing the Lower School Course the persons, including the petitioners, become eligible for promotion, they will get only deemed benefits without getting any actual financial benefits, in view of the principle of `no work no pay' as laid down by the Hon'ble Supreme Court in Union of India and another v. Tarsem Lal and others, 2006(4) SCT 355: 2006(10) SCC 145.”
Based on that judgment, the respondent passed orders dated 1.12.2011 reverting the appellant from the post of Head Constable to Constable by giving following justification:
“HC Ashok Kumar No.1142/HSR (Petitioner)
That the date of enlistment of the petitioner Ashok Kumar is 15.04.1992. The candidate whose date of enlistment is 1.10.1989 has been approved on list B-1 against 35% seats for the year 2010 by IGP/Hisar Range, Hisar vide his office letter No.12669/A-2 dated 17.04.2010. During reviewal the selections upto 2010, only one candidate who enlisted on 1.10.89 has been approved/selected. The petitioner is lower in seniority list, hence his name could not be approved.”
It is clear from the above that the appellant is not reverted
LPA No.1022 of 2012
-5-
on the ground that he was less than 35 years of age which was a ground taken in the show cause notice served upon the appellant. On the contrary, the reason for the reversion of the appellant is that the candidate who enlisted on or before 1.10.1989 is approved to list B-1 against 35% seats for the year 2010 and as the appellant is lower in seniority list, his name could not be approved. Admittedly, this was not the reason given in the show cause notice. Insofar as the appellant is concerned he had already been promoted to the post of Head Constable way back in the year in October 2007. In case the promotion of the appellant was not in accordance with the rules i.e. against 35% seats, it was incumbent upon the respondent to issue show cause notice stating this to be a ground therein to enable the appellant to meet this situation. The impugned order, ex facie, has been passed without compliance with the principles of natural justice. Even when the respondent-Department wanted to take action on the basis of observations made in Balraj Singh's case (supra), insofar as the appellant is concerned, since valuable civil right had accrued in his favour on his promotion, it could not have been taken away without compliance with the principles of natural justice which mandated issuance of show cause notice. It is stated at the cost of the repetition that as far as show cause notice dated 7.7.2009 issued to the appellant is concerned that was altogether on different ground. The impugned order of reversion dated 1.2.2011 needs to be set aside on this ground alone. For this reason we are not going into the
LPA No.1022 of 2012
-6-
merits of the decision taken by the respondent. We would like to place on record that though the respondent claims that decision is taken to implement the judgment in Balraj Singh's case (supra ), the case of the appellant that the said judgment is not applicable to the facts of his case is the issue which will have to be thrashed out. In case the respondent still wants to take action against the appellant which it would be entitled to only after issuance of the show cause and notice, eliciting reply of the appellant thereto and passing a speaking order thereupon. As a result, this appeal is allowed and order of the learned Single Judge dated 1.2.2011 is set aside. Consequently, the writ petition filed by the appellant is allowed and reversion order dated 1.2.2011 is quashed. There shall be no order as to costs.
( A.K.SIKRI ) CHIEF JUSTICE
10.12.2012 Meenu
( RAKESH KUMAR JAIN ) JUDGE
2 issues framed by the court
Whether the order of reversion violating principles of natural justice by not addressing the ground raised in the show cause notice.
Whether the impugned order is valid on merits if the respondent could show compliance with natural justice.
Colour shows how this judgement treated each authority
Constable Dharamvir Vs. State of Haryana 2009(1) RSJ 310Referred¶18
Balraj Singh and others Vs. State of Haryana and others, CWP No.19965 of 2006Explained¶18
Naresh Kumar Vs. State of Haryana and others (CWP No.7952 of 2004)Applied¶19
Union of India and another v. Tarsem Lal and others, 2006(4) SCT 355: 2006(10) SCC 145Referred¶25
Ashok Kumar
State of Haryana
A.K. Sikri
Rakesh Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
