Calcutta High Court
Mitali Ghose vs The Board Of Trustees For The Port Of ... on 14 May, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present :- Hon'ble Justice Amrita Sinha
W.P No. 480 of 2017
Mitali Ghose
Vs.
The Board of Trustees for the Port of Kolkata & Ors.
For the writ petitioner :- Mr. Soumya Majumder, Adv.
Mr. Victor Chatterjee, Adv.
For the KoPT :- Mr. Arunava Ghosh, Adv.
Mr. Somnath Bose, Adv.
For the respondent no. 4 :- Mr. Madhusadan Datta, Adv.
Heard on :- 26.03.2019, 01.04.2019 & 08.04.2019 Judgment on :- 14.05.2019 Amrita Sinha, J.:-
A communication dated 9th August, 2017 by the Senior Personnel Officer/ Labour Advisor and Industrial Relations Officer, Kolkata Port Trust (KoPT for short) informing the petitioner that she is reverted from her post of Personnel Officer/Deputy Labour Advisor and Industrial Relations Officer to the post of Deputy Personnel Officer/Senior Labour Officer (IR) is under challenge in the present writ petition. By the said communication the petitioner was further informed that the private respondent no. 4 herein serving as Deputy Personnel Officer/Industrial Relations Officer is promoted to the post of Personnel Officer/ Deputy Labour Advisor and Industrial Relations Officer. The said promotion was in terms of the approved recommendation of the Review Departmental Promotion Committee (R-DPC for short) constituted pursuant to the recommendation of the Special Investigation Team (SIT for short) set up by the National Commission for Scheduled Castes (Commission for short) on a complaint of one Shri A.K. Sarkar, Deputy Personnel Officer/Industrial Relations Officer.
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The post of Deputy Labour Advisor and Industrial Relations Officer/ Personnel Officer (Dy. LA & IRO/PO for short) is eyed by three contenders. Vacancy in the said post arose on 26th. June 2013. The vacancy is only one, unreserved, to be filled up on promotion by selection. The date of selection was fixed by the Departmental Promotion Committee (DPC for short) on 17th December, 2013 but the same got held up temporarily awaiting outcome of a writ petition which was filed by an employee of KoPT, though in respect of a different post, as to whether the new Regulation of 2013 or the previous Regulation of 1985 be applicable for filling up of vacancy which arose prior to the coming into effect of the new Regulation. In the said writ petition a direction was sought upon KoPT to follow the Regulation which was available on the date the vacancy arose.
The writ petition being W.P No. 59 of 2014 (Subhasish Bagchi -vs- Union of India & Ors.) was disposed of by this Court on 20th February, 2014 wherein the Court held that the Rules as applicable to the post on the date of vacancy would govern the filling up thereof and any subsequent amendment to the Rules would not be applicable thereto.
Five candidates who were holding the post of Industrial Relations Officers/Senior Labour Officer (IR) were eligible for consideration for selection in the post in question. The DPC held meeting on 27th June, 2014 for selection to the post of Dy. LA & IRO/PO according to the Kolkata Port Trust Employees' (Recruitment, Seniority & Promotion) Regulations, 1985 (Regulations 1985 for short). The DPC after assessing all relevant records concerning all the candidates including their ability, energy, initiative, temperament, quality of work, sense of responsibility etc. over and above the available Annual Performance Appraisal Reports (APARs for short) recommended the name of the petitioner for promotion to the post in question. On 17th July, 2014 the recommendation of the DPC was approved by the Chairman, KoPT.
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By an order dated 18th July, 2014 the petitioner was promoted to the post of Dy. LA & IRO/PO with effect from 18th July, 2014.
Out of the five candidates who were eligible for selection to the post in question one was a Scheduled Caste candidate (SC candidate for short). The said SC candidate made a complaint before the Commission that he was likely to be superseded in violation of the Rules. The Commission constituted a SIT on 4th December, 2014 to investigate the decision making process taken by KoPT for selection in the said post. KoPT forwarded their explanation to the Commission justifying the promotion of the petitioner. The Commission vide a communication dated 18th December, 2015 forwarded a copy of the report prepared by SIT headed by the Commissioner, Backward Classes Welfare Department, Government of West Bengal regarding deprivation of promotion of the SC candidates and recommended that the promotion exercise should be carried out de novo.
On receipt of the above recommendation of the Commission the Chairman, KoPT referred the matter to R-DPC. The R-DPC held a meeting on 20th April, 2017 and recommended that the private respondent no. 4 be promoted to the post in question.
There were seven members in the R-DPC. Out of the seven members two members were common to the earlier DPC and the R-DPC. Out of the two members who were common in both the DPCs one of them dissented to the recommendation in favour of the private respondent. The proceedings of the R-DPC was approved by the Chairman, KoPT on 8th August, 2017 and on the same date the order of reversion of the petitioner to the post of Senior Labour Officer (IR/Deputy Personnel Officer) was issued. The petitioner by her communication dated 9th August, 2017 protested against the issuance of the order of reversion followed by a reminder on 11th August, 2017. A seniority list was published by KoPT on 11th August, 2017 whereby the petitioner was placed at serial no. 4 according to her earlier designation.
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The primary contention of the petitioner is that the order of reversion was made behind her back. No notice whatsoever was given to the petitioner prior to passing the order of reversion. The petitioner served the post in question from July, 2014 till August, 2017. The R-DPC erroneously applied the amended Regulations 2013 for arriving at the order impugned when admittedly the promotion was governed by the Regulations 1985. The R-DPC wrongly applied the guidelines issued by the Department of Personnel and Training which are applicable to the employees of the Central Government and not to the employees of KoPT. KoPT is governed by its own statutory Regulations and the guidelines of the Department of Personnel and Training (DoPT for short) are not applicable upon them. The dissenting note of the member of the R-DPC was not considered. The petitioner was treated as a unique and stand- alone case in the history of promotional exercise of KoPT. The recommendation of SIT was not final. There was not scope on the part of the petitioner to challenge the recommendation of SIT as the same was never communicated to her. The petitioner was never made aware of any proceeding before the Commission. The complaint lodged by the SC candidate alleging supersession was also not made available to the petitioner. KoPT has declared a vacancy to the promotional post of Senior Personnel Officer on 2nd April, 2019. She has already put in three years of regular service as the Personnel Officer and is eligible to be considered for the promotional post if the impugned reversion order is set aside and if her promotion to the post of Personnel Officer is restored.
The petitioner prays for setting aside the impugned order of reversion and to recast the seniority list by placing the petitioner in the post of Dy. LA & IRO/PO.
The petitioner relies upon the following judgment in support of her case:
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(1) Mohd. Yunus Khan -vs- State of Uttar Pradesh & Ors. reported in (2010)10 SCC 539 on the issue of violation of the principles of natural justice.
The Ld. Counsel appearing for KoPT submits that in their affidavit in opposition they annexed the letter dated August 14, 2014 written by the Secretary of the Internal Committee of KoPT justifying the promotion of the petitioner in the post in question. It was specifically mentioned that there was not further scope to review the case of promotion at that stage. It was also mentioned that the action taken by the DPC was in line with the Government orders. The said letter was issued with the approval of the Chairman. KoPT was forwarded with a copy of the SIT report of the Commissioner, Backward Classes Welfare Department, Government of West Bengal by a letter dated 18th December, 2015 wherein the Commission recommended to carry out the exercise of promotion de novo. Pursuant to the recommendation made by the Commission the R-DPC held meeting on 20th April, 2017 and recommended the name of the private respondent no. 4 for promotion to the post in question. The note of the dissenting member of R-DPC is on record.
It has been submitted that the petitioner has not challenged the recommendation of the Commission pursuant to which the impugned order of reversion has been passed. The decision making process has not been challenged. As long as the recommendation to revisit the issue of promotion is staring at the face, the order of reversion cannot be faulted. Direct challenge to the order of reversion is not permissible in the absence of any challenge to the recommendation of the Commission.
The earlier DPC committed a mistake while reaching at the conclusion of recommending the name of the petitioner for promotion to the post in question. The earlier DPC had conducted the proceeding relying upon the APAR based on the grades given by the Reviewing Officer whereas the Rule to consider the individual traits was given a go-by. The 6 R-DPC merely rectified the mistake and accordingly there was no requirement of giving any notice to the petitioner prior to passing the order of reversion. The mistake which was committed by the earlier DPC was rectified by the R-DPC after the same was detected by SIT set up by the Commission. KoPT pray for dismissal of the writ petition.
The said respondents rely upon the decision delivered by the Hon'ble Supreme Court in the case of R. Thiruvirkolam -vs- Presiding Officer & Anr. reported in (1997)1 SCC 9 (paras 8, 9 and 10) on the principle that an order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. It enjoys a presumption of validity and will have to be obeyed unless a court invalidates it.
The learned counsel appearing on behalf of the private respondent no. 4 submits that the petitioner did not challenge the order dated 8th August, 2017 whereby the private respondent no. 4 was promoted in the post in question with immediate effect. The private respondent on the basis of such promotion order took charge and is continuing in the said post till date. The petitioner did no challenge the order of the Commission, the recommendation of SIT and findings of R-DPC. The Court cannot sit in appeal over the said recommendation and the findings of the R-DPC.
The petitioner has not made the members of R-DPC as party respondents. The petitioner has made several allegations against the members of the R-DPC without making them party respondents. The R- DPC considered the aspects relating to promotion of the private respondent in its proper perspective and this Court ought not to interfere with the same. The Court ought not to interfere in administrative decision unless the same is patently illegal or irrational or shocks the conscience of the Court in the sense that it is in defiance of logic or moral standard. The Hon'ble High Court in exercise of judicial review is not sitting in appeal 7 over the findings of fact arrived by the experts of R-DPC. The private respondent prays for dismissal of the writ petition.
The learned counsel relies on the judgment delivered by this Court in the case of Ranju Gopal Mukherjee -vs- State of West Bengal reported in 2018(5) CHN 122 (para 29) on the point that when allegations are made against persons in a legal proceeding they must be made parties to the said proceeding to enable them to refute the allegations brought against them. He further refers to the decision in the case of IBP Co. Ltd. Thika Shramik Union -vs- Indian Oil Corporation reported in 2019(II) LLJ (para
25) wherein the Court held that on the face of an expert body's report, which does not suffer from either grave dereliction of duty or flagrant violation of fundamental principles of law, regard and deference due to the administrative expert's views must be accorded.
He further relies upon the decision delivered by this court in the matter of Utpal Bakshi -vs- Registrar General, High Court, Calcutta & Ors. reported in 2015 LAB I.C. 3306 on the point that no employee can claim promotion as a matter of right.
From the submissions made on behalf of the parties and upon perusal of the materials on record it appears that on the date on which the vacancy to the post of Dy. LA & IRO/PO arose (26th June, 2013) the Regulations 1985 were in vogue. Prior to filling up of the said post the amended Regulation 2013 came into force with effect from 15th October, 2013. This Court in an order dated 20th February, 2014 passed in WP no. 59 of 2014 specifically held that the Rules of promotion as on the date of occurrence of vacancy will be applicable. In obedience to the order passed by this Court KoPT applied the parameters laid down in Regulations 1985 for selection on promotion to the post in question. KoPT vide officer order dated 11th June, 2014 informed all the head of the departments that the vacancies which arose prior to 15th October, 2013 are to be filled up following the Rules available on the date of occurrence of the vacancy and 8 accordingly in those cases the prevailing RSP Regulations 1985 are to be followed. The vacancies occurring on or after 15th October, 2013 are to be filled up as per the RSP Regulations 2013. The parties are ad idem that the RSP Regulations 1985 were followed and applied in the instant case.
According to the Regulations 1985 in case of promotion to a selection post the DPC shall assess the merit of the employee for the higher post on considering all relevant records concerning the employee, including his Annual Credential Reports (ACRs for short) and grade the employee concerned as "outstanding", "very good" and "good" and arrange the name in a select list in order of seniority, in such a way that, all those graded "outstanding" shall be senior on the select list to those graded as "very good" and those graded "very good" shall be senior to those graded "good" and so on. No employee shall be recommended for promotion to a higher post unless the DPC satisfy themselves that the candidate possesses the necessary aptitude for the higher post such as personality, educational qualification, experience, initiative of character, integrity and readiness to assume individual responsibility. In assessing the comparative merits of employees the ability, energy, initiative, temperament, quality of work, sense of responsibility, integrity etc. of the employee concerned shall be taken into consideration for a period of time (normally for a period not less than three years), for which, over and above the ACRs of the concerned employee reports of three different superior officers on the items mentioned above may also be taken into account, if necessary.
In the instant case the DPC in its meeting held on 27th June, 2014 took into consideration the merit of all five candidates who were eligible for selection on promotion to the post in question. DPC took into consideration the grade mentioned in the ACRs and also assessed the relevant records of the eligible candidates including their ability, energy, initiative, temperament, quality of work, sense of responsibility etc. over 9 and above the available APARs and recommended the name of the petitioner for promotion to the post in question.
In the said meeting the Deputy Chief Law Officer who was one of the members of the DPC representing the SC/ST community raised the issue that the selected candidate was a general category candidate and one Shri A.K. Sarkar who was senior to the selected candidate was a SC candidate and she questioned as to whether the same would lead to supersession of the SC candidate. The issue was deliberated by the DPC and relying on the DoPT O.Ms. dated 6th October, 1976, 28th January, 1982, 28th October, 1992 and 29th January, 2004 in the matter wherein it was clarified that "...........where there is no reservation but the SC/ST officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has to be drawn are to be included in that list, provided they are not considered unfit for promotion. Cases where eligible SC/ST candidates though available in the seniority list, within the number of vacancies for which the select list is drawn are not selected, should be submitted to the Minister/Minister of State/Deputy Minister concerned as the case may be." The DPC observed that in the instant case the number of vacancy was only one and the seniority position of the SC officer stood at serial no. 3 and therefore he was not within the number of vacancy and hence the question of supersession did not arise. The DPC also took note of the fact that the petitioner was clear from the vigilance angle. The decision of the DPC was unanimous and the same was approved by the Chairman, KoPT. The petitioner was promoted to the post in question on 18th July, 2014.
The Commission acted on the basis of a complaint lodged by the SC candidate who was not selected and was aggrieved by the selection of the petitioner in the post in question. The primary contention of the SC candidate before the Commission was that the selected candidate was junior to him by nine years. Selection has been made on the basis of ACRs 10 of 2009-10, 2010-11 and 2011-12 leaving out the ACR 2012-13 and 2013-
14. He has been superseded on the basis of a single "outstanding" grade in favour of the selected candidate in the year 2009-10 leaving out the other criteria for promotion like length of service, experience etc. The selection procedure has been made under the old Regulations 1985 which have been replaced by the new Regulations 2013. There has been an illegal and unjustified move by KoPT to deprive a SC candidate inflicting severe humiliation.
KoPT countered the points raised by the SC candidate and intimated the Commission that on the date of selection the ACRs for 2009-10, 2010- 11 and 2011-12 were available and as per the Regulations 1985 the ACRs for the last three years are required to be considered. In the instant case vacancy arose in the year 2013. Accordingly the ACRs for the three preceding years were taken into consideration. According to the Government Order if for any reason one or more ACRs have not been written during the relevant period the DPC should consider the ACRs of the years preceding the period in question. The DPC considered the ACRs of three preceding years before coming to the conclusion to recommend the name of the petitioner for promotion. It was also pointed out that the grading system which was prevalent in the Regulations 1985 was made applicable in respect of the candidates and the marks obtained by the petitioner was more than that of the SC candidate. It was also mentioned that no illegal or unjustified move was taken by KoPT to deprive any SC candidate and there was no question of supersession of any SC candidate according to the Government Office Memorandum.
The primary difference between the old RSP Regulations 1985 and the amended RSP Regulations 2013 is that the criterion for promotion was changed from "merit cum seniority" to "seniority cum merit". As the private respondent was senior to the petitioner he argued that the Regulations 2013 ought to be taken into consideration by KoPT for 11 selection in the post. The order of the Court was to apply the Regulation available on the date the vacancy arose.
The R-DPC which was constituted for revisiting the issue of promotion as per the recommendation of the Commission appears to have applied a principle never followed by KoPT for arriving at the conclusion that the private respondent is eligible for being recommended for promotion to the post in question. The R-DPC allegedly took into consideration the guideline indicated in the DoPT Office memos dated 10th April, 1989, 27th March, 1997, 8th February, 2002 and 18th February, 2008 as well as the RSP Regulations 1985 which were similar to each other whereby "the DPC shall assess the merit of the employee for higher post on consideration all relevant records concerning the employee including his ACRs."
KoPT was informed by DoPT regarding assessment of ACRs that "the DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries of the CRs, because it has been noticed that sometimes the overall grading in CR may be inconsistent with the grading under various parameters or attributes."
It is settled law that promotion is not a vested right of an employee. Promotion is a normal incident of service and not a fundamental right. An employee certainly has a right to be considered for promotion.
The SC candidate was comparatively senior to the petitioner and he may have harboured an expectation of being considered favourably. The Rules applicable for promotion in the instant case mentions 'merit cum seniority' as the criterion for promotion. When promotion is to be made on the assessment of merit, an employee cannot as a matter of right claim promotion on the ground of seniority alone. In such case merit has to be given precedence. If merit wise there is a tie in between the eligible 12 candidates then only seniority becomes the deciding factor for granting promotion.
The DPC after assessing all the relevant records concerning the candidates unanimously recommended the name of the petitioner for promotion. The traits that were taken into consideration to arrive at a conclusion to recommend the petitioner included ability, energy, initiative, temperament, quality of work, sense of responsibility, ACRs as well as the APARs of all the candidates. In accordance with the point system the petitioner obtained 13 points whereas the SC candidate obtained 11 points and as such the name of the petitioner was recommended being the most eligible candidate for promotion.
The SC candidate felt he was superseded and made a complaint before the Commission. To protect the interest of a SC candidate the Commission recommended a de novo consideration. In terms of the recommendation of the Commission KoPT considered the matter de novo. But while considering the case afresh KoPT applied a wrong test and arrived at an erroneous conclusion. By applying a wrong test the private respondent no. 4 was recommended for promotion.
KoPT while considering the case for promotion took into consideration the fact that all the five eligible candidates were clear from vigilance angle and found all of them fit for promotion. The comparative assessment of the eligible candidates was also taken into consideration. All the traits which were allegedly taken into consideration by the R-DPC were already taken into account by the DPC on the earlier occasion. The deciding factor for selecting the private respondent no. 4 for promotion was the "length of experience" of the candidate, i.e., seniority was given more weightage than merit. This is where KoPT went wrong. KoPT applied the test of seniority cum merit according to the Regulations 2013, in place and instead of merit cum seniority as per the Regulations 1985 which is applicable in the case at hand.
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By applying a wrong test the petitioner was degraded but at the same time the SC candidate on whose complaint the entire exercise of reconsideration of the promotion process was carried out could not be saved.
The dissenting note of one of the members of the R-DPC is extremely relevant. The said dissenting member was a member of the earlier DPC. In the dissenting note it was specifically mentioned that all selections prior to November, 2013 were made in accordance with the KoPT Regulations 1985 and the DoPT O.Ms were not followed. He gave specific instance of an officer in the Civil Engineer Department who superseded ten officers in accordance with the KoPT Regulations 1985. In spite of availability of the DoPT O.M, KoPT held that there was not supersession in the selection process. The petitioner has annexed a list to canvass that there had been several instances of supersession by applying the principle of merit cum seniority and hers was not the first or only case. Supersession is normal at the time of promotion as in such case merit plays the most important role.
The dissent note further mentioned that the selection in the instant case was made under the KoPT Regulations 1985 and applying the DoPT O.Ms would be a change in the methodology of selection and would be gross injustice to the candidate selected in the original DPC. The letter written by KoPT to the Director of the Commission on 7th July, 2014 upholding the promotion of the petitioner categorically mentioned that the selection procedure was made under the Regulations 1985 and no illegal/unjustified move was taken by KoPT to deprive any SC candidate. In fact in the DPC meeting the issue of supersession of SC candidate was raised and after thorough deliberation and valid reasoning the DPC recommended the name of the petitioner.
In the letter dated 14th August, 2014 written to the Director of the Commission KoPT reiterated their stand that there was no irregularity in the selection process and there was no further scope to review the case. It 14 was categorically mentioned that the action taken by DPC was in line with the Government order as mentioned in the DoPT Office memo. It was also mentioned that ACR as well as the APARs of all the candidates were taken into consideration. Detailed analysis of the ACRs and APARs of all the candidates were made and numeric points were calculated. The "attributes" of the eligible candidates were also considered. It was mentioned that the ACRs and APARs were considered in subjective manner as per the long standing practice of KoPT. This was not the only case and huge number of promotional vacancies have been filled up in various departments where the same procedure for considering the subjective APARs have been adopted by KoPT in respect of all candidates irrespective of their caste. KoPT all along rightly defended their recommendation to promote the petitioner.
It is an admitted fact that the petitioner was junior to the private respondent as well as to the SC candidate who lodged complaint before the Commission. All the five candidates were eligible for promotion. There was only one vacancy to be filled up on selection as per the relevant Regulations. An unsuccessful candidate feeling aggrieved ventilated his grievance before the higher authority which remanded the matter back to the department to consider the case of promotion de novo. At the time of de novo consideration the department concerned ought to have referred the proper rules and regulations. De novo consideration does not imply that a fresh set of rules have to be applied to achieve the object of granting promotion in favour of a particular candidate. De novo consideration implies that the department ought to check up and verify whether the proper rules were followed or not for arriving at the decision complained against. The decision making process was to be reviewed in accordance with the relevant rules.
It is well within the jurisdiction and discretion of an employer to follow a standard practice in accordance with the relevant rules for 15 assessing the merit, suitability of a candidate for dealing with cases of promotion and the like. It can never be that the department will apply a given set of rules in case of appointment/promotion of candidate A and a separate set of rules in respect of candidate B. The department ought to apply rules in uniformity in respect of each and every employee and not pick and choose rules and regulations for advantage of a particular candidate.
KoPT being a model employer ought not to rely upon any rule which is in not usually followed and apply the same to suit a particular candidate thereby causing prejudice and disadvantage to another candidate.
The petitioner in question was recommended for promotion way back in the year 2014 on the basis of an unanimous decision taken by the DPC in its meeting held on 27th June, 2014. The Rules that were applied in case of the petitioner was followed uniformly in the department concerned in respect of each and every case of promotion which took place prior to coming into effect of RSP Regulations 2013. The members of the DPC as well as the contending employees were all along aware of the rules that were in vogue. Relying upon an office memo which was not followed in any case and applying the same in the instant case, to the disadvantage of the petitioner in the year 2017 when the petitioner had completed more than three years in her promotional post and attained the eligibility for promotion to the next higher post is grossly arbitrary. The said action does not meet the test of Articles 12 and 14 of the Constitution of India. The said action is highly discriminatory, unfair and cannot be supported under any circumstances. The said action is hit by the principles of natural justice, equity and fair play. The dissenting note of the member of the R- DPC also mentioned the fact of prejudice of the petitioner.
The petitioner has made a specific allegation of bias and victimisation against the members of the R-DPC. It has been alleged that 16 on promotion the petitioner superseded three officers. One is the private respondent herein, the other is one Shri, G. Mukhopadhyay and the third is the SC candidate. The said Shri, G. Mukhopadhyay was a member of SIT to assist the complainant i.e. the SC candidate. The petitioner was the dealing officer of the vigilance case relating to Shri, G. Mukhyopadhyay where penalty was imposed upon him. The apprehension of victimisation cannot be ruled out.
The argument advanced by KoPT that it acted upon the recommendation of the Commission and until and unless the said recommendation is challenged the final order of reversion cannot be questioned does not hold good in the facts and circumstances of the instant case. On perusal of the complaint made by the SC candidate, the Commission recommended for de novo consideration of the selection process. The same did not necessarily mean that KoPT will apply a wrong test for the benefit of a particular candidate, which ultimately did not materialise. The recommendation cannot be faulted, but the reasoning applied to arrive at the impugned order of promotion resulting in reversion is grossly and patently illegal and arbitrary.
The seniority list prepared subsequent to the recommendation of the R-DPC is also required to be re-casted. The submission of the learned counsel appearing for the private respondent that the employees whose position in the seniority list will be altered are required to be made parties is simply unfounded. If a person has received certain benefits which he is not legally entitled, then no right accrues in favour of the said employee. The seniority list was prepared on erroneous and irrelevant consideration, and accordingly the employees are not required to be heard for rectifying the said mistake, as, an error cannot be defended. None of the parties in the said seniority list were given opportunity of hearing prior to preparation of the same. Neither the SC candidate nor any other employee apart from the petitioner raised any grievance regarding the seniority list. 17
The petitioner claims that she was entitled to a notice prior to passing the order of promotion of the private respondent no. 4 resulting in her reversion to the earlier post. She alleges that the principles of natural justice have been violated. She prays that the instant writ petition be allowed on the ground of violation of the principles of natural justice.
It is not in dispute that this is a case of reversion simpliciter. The reversion was not by way of penalty, nor any aspersion been cast against the petitioner. The order of promotion in the year 2014 was passed without giving any notice to the petitioner. On review of the said order was the petitioner entitled to prior notice in case of her reversion? She was not required to be put on prior notice in view of the reasons mentioned herein below.
The rule is, a party to whose prejudice an order is passed involving civil consequences is entitled to an opportunity of hearing. This opportunity is afforded to allow the party to put forward his explanation as to why the proposed order/action should or should not be taken /passed. In other words, the party concerned is given a chance to defend his stand. In a given situation, if an order is passed in favour of a person on erroneous consideration without giving him an opportunity of hearing and the said order is subsequently revoked upon detection of the error, then the party concerned need not be required to be put on prior notice. An error is required to be rectified immediately upon its detection and ought not to be perpetrated for an indefinite period. No person is entitled to take advantage of any order that has been passed inadvertently. If the initial order of promotion was passed on erroneous consideration then the department was entitled to revoke the same without giving any prior notice to the promotee.
In the instant case, the initial order of promotion was passed in accordance with the relevant rules and regulations, but the subsequent order, allegedly passed on review of the initial order, suffers from gross 18 irregularities which cannot be substantiated and accordingly the same is set aside.
In view of the discussions made hereinabove the order impugned is set aside. The seniority list prepared in furtherance to the impugned order is also set aside. The order of promotion of the petitioner in the post of Deputy Labour Advisor and Industrial Relations Officer/Personal Officer of KoPT stands affirmed.
W.P No. 480 of 2017 is disposed of.
No order as to costs.
Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.
(Amrita Sinha, J.)