Central Administrative Tribunal - Allahabad
Unknown vs Union Of India Through Its General ... on 11 August, 2011
RESERVED CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 11th OF August 2011) Honble Mr. S.N. Shukla, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Original Application No.1479 of 2010 (U/S 19, Administrative Tribunal Act, 1985) Sheo Narayan Sharma son of late Ram Naresh Sharma aged about 45 years, Resident of Q. No. L/19D Loco Colony, N.E Railway Pilibhit and presently working on the post of Carpenter under Section Engineer, P. Way II, N.E. Railway, Pilibhit. Applicant Versus 1. Union of India through its General Manager, North Eastern Railway, Gorakhpur. 2. The Divisional Railway Manager, North Eastern Railway, Izatnagar, Bareilly. 3. Assistant Divisional Engineer, North Eastern Railway, Pilibhit. 4. The Section Engineer, North Eastern Railway, P. Way II Pilibhit. Respondents Present for Applicant : Shri A.D. Singh Present for Respondents : Shri P.N Rai O R D E R
Delivered by Honble Mr. A.K. Bhardwaj, Member (J) The applicant was initially engaged as Casual Labour, N.E. Railway at Pilibhit Station. He was granted temporary status w.e.f. 25.05.1987 as Helper Grade II in the scale Rs. 2250-3200. Alongwith other Helper Grade II, the applicant was granted financial upgradation in terms of A.C.P. Scheme, thus was accorded pay scale of Rs. 2650-4000. It cannot be a question in dispute that the grant of higher pay scale in terms of A.C.P. Scheme does not amount to grant of promotion. Therefore, on being given higher pay scale in terms of A.C.P. scheme, applicant had not been given any promotion as Helper Grade I. Subsequently, the applicant was allowed to take Trade Test for promotion to the post of Carpenter Grade III in the pay scale of Rs. 3050-4590. Being qualified in said Trade Test, the applicant got promotion as Carpenter Grade III provisionally. He was so promoted vide order dated 15.03.2007. Subsequently, respondents issued a corrigendum dated 16/21.09.2010 cancelling the promotion of the applicant and reverting him back to the post of Helper Grade II with benefit of financial upgradation.
2. Learned counsel appearing for applicant contends that once the applicant had been granted promotion, the benefit of same could not be withdrawn from him without following principles of natural justice i.e. without giving him opportunity to show cause.
3. Respondents have not disputed the fact that the applicant was reverted to the post of Helper Grade II without giving him any show cause notice. The only contention raised by the respondents in their counter reply is that once the mistake and irregularity was brought to the notice of the Administration by the Union in their P.N.M Review item No. 29, same was rectified. No doubt it is correct that applicant was not regularly promoted as Helper Grade I, thus was not eligible to participate in the Trade Test to the post of Carpenter Grade III. It is equally true that in terms of useless formality theory which has received consideration of Honble Supreme Court in M.C. Mehta Vs. Union of India 1999 (6) SCC 237, once the adherence to natural justice is not expected to bring out any different result and admitted factual position is on record, it would be vain exercise to remit the matter back to Administration for the sake of following natural justice. However, as has been said by Ackner, J the useless formality theory is a dangerous one and however, inconvenient, it may be to do so, natural justice must be followed. Useless formality theory and principles of natural justice are reconciled by Honble High Court in M.C. Mehta Vs. Union of India 1999 (4) SCC 237. It was observed as under:-
Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of real substance or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (see Malloch V. Aberdeen Corpn: (1971) 2 All ER 1278, HL) (per Lord Reid and Lord Wilberforce), Glynn V. Keele University; (1971) 2 All ER 89; Cinnamond Vs. British Airports Authority: (1980 2 All ER 368, CA) and other cases where such a view has been held. The latest addition to this view is R v. Ealing Magistrates Court, ex.p Fannaran (1996 (8) Admn. LR 351, 358) (See de Smith, Suppl. P. 89 (1998) where Straughton, LJ held that there must be demonstrable beyond doubt that the result would have been different. Lord Woolf in Lloyd V. Mcmohan (1987 (1) All ER 1118), CA) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy V. Grant (1959 NZLR 1014) however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is real likelihood-not certainty of prejudice. On the other hand, Garner Administrative Law (8th Edn. 1996 pp 271-72) says that the slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge V. Baldwin (1964 AC 40; (1963) 2 All ER 66, HL), Megarry, J in John V. Rees (1969 (2) All ER 274) stating that there are always open and shut cases and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J has said that the useless formality theory is a dangerous one and however, convenient, natural justice must be followed. His Lordship observed that convenience and justice are often not on speaking terms. More recently, Lord Bingham has deprecated the useless formality theory in R. V. Chief Constable of the Thames Valley Police Forces, ex.p. Cotton (1990 IRLR 344) by giving six reasons (see also his article Should Public Law Remedies by Discretionary ? 1991 PL. P. 64). A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice. Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL. pp 27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administraitve Law, 8th Edn. 1996, p. 323), Craig (Administrative Law, 3rd Edn., P. 596) an other say that the court cannot prejudice what is to be decided by the decision-making authority. De Smith (5th Edn. 1994) paras 10,031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade Administrative Law, 5th Edn., 1994, pp. 526-530) says that futile writs may not be issued, a distinction has to be made according to the nature of decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of sustenance or if he can prove a real likelihood of success. We may, however, point out that even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Paliala V. S.K. Sharma (JT 1996 (3) SC 722), Rajendra Singh V. State of M.P. (JT 1996 (7) SC 216) that even in relating to statutory provision requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the later, it cannot be waived.
We do not propose to express any opinion on the correctness or otherwise of the useless formality theory and leave the matter for decision in an appropriate case, inasmuch as the case before use, admitted and indisputable facts show that grant of a writ will be in vain as pointed by Chinnappa Reddy, J.
4. As is noted by Honble Supreme Court, there are always open and close doors in such cases and no absolute rule of proof of prejudice can be laid down. It is difficult to presume whether the applicant had something or not to say in response to show cause notice, if it is served upon him before withdrawing the benefit of promotion granted to him. In the case of Dool Chand Yadav Vs. Chief Medical Officer, Azamgarh 2002 (1) ESC (All.) page 12, Honble Allahabad High Court ruled that the cancellation of promotion without giving show cause notice to concerned incumbent was violation of natural justice. Paras 5 and 6 of said judgment read as under:-
5. From the aforesaid facts, the court finds that the promotion of the petitioner was cancelled in most arbitrary manner. The respondent did not consider to observe without any procedure was followed in making the promotion or total number of posts available in the office under the Chief Medical Officer and the promotion quota. There is no averment in the counter affidavit as to how many posts are available under the reservation quota. The petitioner was not given any opportunity to show cause against the reversion order. It appears that the order was passed merely on the fact that the selection procedure was not followed and that the promotion was in excess of the prescribed quota. In both the cases the show cause notice was required to be given to the petitioner to survive the cause of natural justice. A temporary promotion on substantive post cannot be cancelled without giving opportunity of the employee.
6. In the aforesaid circumstances, the writ petition succeeds and is allowed. The impugned order dated 6th June, 1989 (annexure 5 to the writ petition) passed by the respondent, the Chief Medical Officer, Azamgarh cancelling the promotion of the petitioner as Clerk is quashed. In pursuance of the interim order dated 2510.1989 passed by the Court, it has been stated that the petitioner has been continuing in employment. He shall be treated to have been validly promoted by order dated 12.5.1989 as Clerk, and he will be given all benefits of service having been promoted as Clerk.
Also in the case of Arun Kumar Srivastava Vs. Union of India and Ors (2006) Alld. CJ page 53, it was held as follows:-
9. Learned counsel for the respondents submitted that the post of Coaching Supervisor in the scale of Rs. 1600-2660 was a non-selection post only for the employees who were originally posted as Head Parcel Clerk after going through selection process and the persons who are accommodated on that post from out side the cadre as it had become non-selection post in 1985 and the employees coming from other departments without any selection process were not entitled to get the benefit of the aforesaid notification. This contention of the Department does not appear to be correct in view of the provisions of the aforesaid notification, which does not specifically say so. Moreover, once the petitioner was promoted in the next higher scale of Rs. 2000-3200 after undergoing selection process then there was no reason for the Railway Board to revert him back in the lower scale of Rs. 1400-230 simply observing that his promotion in the scale of Rs. 1600-2660 was made wrongly in the beginning, without affording reasonable opportunity of defence.
10. In our opinion, firstly the petitioner was not required to under go regular selection process before his promotion in the grade of Rs. 1600-2660 as he was a regularly selected employee on his posting in the grade of Rs.455-700 as Assistant Station Master and secondly, when he was promoted in the next higher grade after undergoing selection process, then he could not have been reverted back to his original grade of Assistant Station Master on the ground that he did not go through the selection process which was required for him for getting selection grade of Rs.1600-2660. Thus the orders of the Railway Board dated 21.7.1997 and 28.7/1997 reverting the petitioner in our opinion, are not correct and valid orders and deserved to be quashed.
5. Following the aforementioned decision of Honble Allahabad High Court, we dispose of the present Original Application quashing the impugned corrigendum dated 16/21.9.2010. Respondent are at liberty to pass appropriate order after following principle of natural justice i.e. after giving notice to show cause to applicant and considering his reply thereto. No costs.
Member (J) Member (A)
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