Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Secretary on 27 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH (CIRCUIT BENCH AT JAMMU). O.A.No.1331-JK-2011 Decided on: 27.08.2012 CORAM : HONBLE MRS. SHYAMA DOGRA, MEMBER (J) & HONBLE MR. RANBIR SINGH, MEMBER (A) Shahnawaj Rashid, age 26 years S/o Late Abdul Rashid Lone R/o Kulgam Kashmir A/P Office of District Telecom Manager, Udhampur, Jammu & Kashmir. . Applicant By: Mr. B.R. Manhas, Advocate. Versus 1. Union of India through Secretary, Ministry of Communication, New Delhi. 2. Bharat Sanchar Nigam Limited through Chief Managing Director, Sanchar Bhawan, H.C. Lane Janpath, New Delhi-110001. 3. Chief General Manager BSNL, 4th Floor, North Block, Bahu Plaza, Jammu. 4. General Manager BSNL, 4th Floor, North Block, Bahu Plaza, Jammu. 5. Telecom District Manager (TDM), Main Telephone Exchange, Dhar Road, Udhampur. 6. Divisional Engineer (CM) Office of the Telecom District Manager Main Telephone Exchange, Dhar Road, Udhampur. By : Mr. Ravinder Gupta, Advocate. Respondents O R D E R (oral)
MRS. SHYAMA DOGRA, MEMBER (J) The applicant was appointed as a regular Mazdoor on 11.3.2010, on compassionate grounds. The respondents issued an advertisement on 7.10.2010 for filling up 7 posts of Telecom Mechanic (TM) by way of Limited Departmental Competitive Examination. The last date for submission of application was 20.11.2010 and examination was to be held on 23.1.2011. The applicant submitted his application against the same and on being successful was appointed, after completion of Induction Training, as Phone Mechanic on 30.8.2011 (Annexure K). However, vide order dated 9.9.2011 (Annexure L), the promotion order of the applicant was kept in abeyance. Ultimately vide order dated 22.9.2011 (Annexure P), the promotion order dated 30.8.2011 of the applicant was cancelled. The applicant has thus filed this O.A. for quashing the order dated 22.9.2011 (A-P), and for restoration of the promotion order dated 30.8.2011 with all the consequential benefits.
2. It is pleaded by the applicant that he has a right to continue on the promoted post which is as per rules and law and in any case there is violation of principles of natural justice and thus promotion order stands vitiated.
3. The respondents have filed a reply. They submit that it is due to an administrative error that applicant was allowed to appear in the examination and was promoted and the moment the error came to their notice, it has been corrected which is permissible. As per Recruitment Rules of Telecom Mechanics (TMs) of 2002, the date for reckoning eligibility is 1st of July. In this case, the vacancies which were proposed to be filled in related to the recruitment year 2008. The recruitment year for which the LDCE was conducted in which the applicant appeared, was for the year 2008 which is apparent from the subject of the letter dated 7.10.2010 (Annexure A-D). The applicant having been appointed on 11.3.2010, and not born in the cadre in 2008, could not be a candidate for a vacancy relating to the recruitment year 2008. This mistake was, therefore, corrected by the respondents.
4. We have heard learned counsel for the parties and perused the material on the file.
5. Undoubtedly, the applicant had worked on promotional post of Phone Mechanic for one month but that would not give him any right to continue on the post if his promotion is void ab initio. The vacancies arose for the year 2008, when the applicant was not even born in the cadre. Therefore, he should not have been allowed to appear in the examination. The respondents detected their fault and corrected it. We find no illegality in the impugned order of reverting the applicant after detection of such error.
6. In so far as plea of applicant regarding violation of principles of natural justice is concerned, it is a settled legal proposition that, where even after following principle of natural justice, the final outcome or result would remain the same as it existed before following such principle, there is no need to follow the principle of audi alterem partem in such cases. To hold this view, we are supported by the decision rendered by the Honble Apex Court in the case of Union of India Vs. Bikash Kuanar, 2006 AIR SCW 5436. Para 12 thereof reads as follows :-
12. The matter relating to appointment or recruitment of EDA is not governed by any statute but by departmental instructions. It is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance of the principles of natural justice. It is only in a case where the mistake is apparent on the face of the records, a rectification thereof is permissible without giving any hearing to the aggrieved party."
7. The second aspect of the matter is about power of the respondents to correct the error occurred in promotion of the applicant. It is by now settled legal proposition that a factual error can be rectified by the departmental authorities, as held in the case of Jagdish Prajapat Vs. The State of Rajasthan and Others, 1998 (2) ATJ, P-286. Not only, this, it has also been held in the case of Anand Prakash Vs. State of Punjab, 2005 (4) RSJ, 749 and Raj Kumar Batra Vs. State of Haryana , 1992 (1) SCT, 129, that as and when a mistake is detected, the employer is well within its right and power to rectify a mistake. Similarly, in the case of Chandigarh Administration Vs. Narang Singh, JT 1997 (3) SC, P-536, it has been held by their Lordships of Apex Court that a mistake can be corrected at any point of time In a similar circumstance, the Honble Apex Court in the case of G. Srinivas Vs. Government of A.P. & Ors. reported in (2005) 13 SCC 712 has held that any order passed by mistake or ignorance of relevant fact can be reviewed by the authority concerned, in the following words :
"20. An order passed by mistake and ignorance of the relevant facts indisputably can be reviewed, if inter alia, it is found that a fraud was practised or there was wilful suppression on the part of the appellant."
A mistaken decision can always be corrected by the administrative authorities and such power to correct the mistake is inherent, inbuilt in the administrative law. The apex court in case of Union of India Vs. Narendar Singh reported in (2008) 2 SCC 750 held : "32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules."
8. Similar view has also been taken in the case of M. C. Mehta v. Union of India and others : AIR 1999 SC WP 1824, in which the Honble Apex Court has observed as under ::-
21. It is true that in Ridge v. Baldwin, 1964 AC 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this court in several cases, but we might point out that this court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J., in S. L. Kapoor v. Jagmohan 1980 (4) SCC 379. After stating that 'principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed' and that 'non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary', Chinnappa Reddy, J., also laid down an important qualification as follows : "As we said earlier, where on the admitted or indisputable facts, only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because courts do not issue futile writs."
9. The case law cited by learned counsel for the applicant in the case of Chandrapur Zilla Sahakari Krushi and Gramin Bahuudeshiya Development Bank Ltd. Etc. etc. vs., State of Maharashtra & Others, 2003 AIR (Bom) 502, is distinguishable in the given facts and circumstances of the present case as detailed in preceding paras.
10. Thus, after careful analysis of the matter, as discussed above we find no merits in the case and the present O.A. is hereby dismissed and disposed of accordingly.
(RANBIR SINGH) (MRS.SHYAMA DOGRA
MEMBER (A) MEMBER (J)
Place: JAMMU.
Dated: 27.08.2012
HC*
O.A.NO.1331-JK-2011