THE HON'BLE SRI JUSTICE J. SREENIVAS RAO
WRIT PETITION No.5238 of 2017
ORDER:
This Writ Petition is filed seeking the following relief;
"to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declare the action of the respondents in reverting the petitioners from the posts of MPHS(F) to MPHA(F) by cancelling the promotions orders, vide impugned Proceedings Rc.No.A2/724/2016-17, dated 10.02.2017 without issuing any notice or opportunity as highly illegal, arbitrary and contrary to law rules and consequentially, this Hon'ble Court may be pleased to declare that the petitioners herein are entitled to continue as MPHS(F) at their respective places by set asiding the impugned order dated 10.2.2017"
2. Heard Sri Shaik Hameed, learned counsel representing Sri M.R.Tagore, learned counsel for the petitioners and learned Assistant Government Pleader for Services-II, appearing for respondent Nos.1 to 3.
3. When the matter was taken up for hearing on 04.09.2023, there was no representation on behalf of the unofficial respondent Nos.4 and 5. To give one opportunity, the matter was posted to 08.09.2023. On 08.09.2023 also there was no representation on their behalf. Therefore, to give one more opportunity, the matter was posted to 15.09.2023. On 15.09.2023, also ::2::
there was no representation and to afford final indulgence, the matter has been posted to 20.09.2023. Today also, there is no representation on their behalf. Inspite of giving several opportunities, there has been no representation on behalf of unofficial respondent Nos.4 and 5.
4. Learned counsel for the petitioners submits that petitioners were appointed as Multipurpose Health Assistants(Female)(for short "M.P.H.A.(F)") on 02.12.1996 by direct recruitment under ST category in the agency area of erstwhile Khammam district. Thereafter, their services were regularized and probation was also declared. Subsequently, the petitioners were promoted on 17.01.2017 to the post of Multi Purpose Health Supervisor(Female)(for short "M.P.H.S.(F)"). The petitioners while discharging their duties in the post of M.P.H.S.(F), respondent No.1 issued impugned proceedings dated 10.02.2017 reverting the petitioners from M.P.H.S(F) to M.P.H.A.(F).
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5. Learned counsel for the petitioners vehemently contended that before issuing reversion vide impugned proceedings, no notice was issued and they were not given any opportunity, which is in clear violation of principles of natural justice.
6. Per contra, learned Assistant Government Pleader for Services-II submits that, the petitioners are junior to respondent Nos.4 and 5, therefore, respondent No.1 had rightly issued the impugned proceedings.
7. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, which clearly reveals that the petitioners were appointed to the post of M.P.H.A.(F) on 02.12.1996 by direct recruitment and their services were regularized. Thereafter, on 17.01.2017, they were promoted to the post of M.P.H.S.(F) and respondent No.1 issued the impugned proceedings on 10.02.2017 reverting the petitioner from the post of M.P.H.S(F) to M.P.H.A.(F) and the said impugned proceedings clearly reveals that in order to accommodate the unofficial respondent Nos.4 to 5, the petitioners were reverted to ::4::
the post of M.P.H.A. It further reveals that prior to issuance of the impugned reversion order dated 10.02.2017, respondent No.1 has not issued any notice and not given any opportunity to the petitioners. Hence, the impugned proceedings passed by respondent No.1, is in clear violation of principles of natural justice.
8. The Hon'ble Apex Court in UditNarain Singh Malpaharia v. Addl. Member Board of Revenue 1, relyingon the judgment in King v. London County Council [(1931) 2 KB 215, 243] held as under;
"Wherever anybody of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority -- a writ of certiorari may issue". It will be seen from the ingredients of judicial act that there must be a duty to act judicially. A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of a party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, 1 AIR 1963 SC 786 ::5::
principles of natural justice demand it. Any such order made without hearing the affected parties would be void.
As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts, ex hypothesis it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it.
9. The Hon'ble Supreme Court in Allwyn Housing Colony Welfare Association Vs. Government of Andhra Pradesh and others 2held as under;
"No adverse orders can be passed without hearing the affected party."
10. For the foregoing reasons, the impugned proceedings dated 10.02.2017 passed by respondent No.1 is liable to be set aside and accordingly set aside, and the respondents are directed to consider the claims of the petitioners for promotion to the post of M.P.H.S.(F) and other service benefits and pass appropriate orders in accordance with law, after giving notice and opportunity to the petitioners as well as respondent Nos.4 and 5 2(2009) 9 SCC 489 ::6::
within a period of two (02) months from the date of receipt of a copy of this order.
11. Accordingly, the writ petition is disposed of. No costs.
Pending miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE J. SREENIVAS RAO Dated: 20.09.2023 Smk