I.L. Dhakolia vs The Administrator, Govt. Of ...
2002 Latest Caselaw 1386 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner at all material times was and still is working in Delhi State Civil Supplies Corporation Ltd. (hereinafter for sake of brevity referred to as 'the Corporation'). He was initially appointed as an Assistant Manager (Grade I) in the scale of pay of Rs. 2000/- - 3500/- w.e.f. 11.08.1989; the next higher post whereto is Deputy Manager and recruitment therefore is to be governed by the recruitment rules. The said post is a selection post and required to be filled up by direct recruitment to the extent of 25% by promotion to the extent of 50%; and by deputation to the extent of remaining .25% failing which by direct recruitment.

2. A meeting of Departmental Promotion Committee (in short, 'DPC') was held for grant of promotion to a Scheduled Caste candidate. By the said DPC, the case of the petitioner was considered, apart from the case of one Shri R.K. Raghav, who admittedly was senior to the petitioner.

Although both the petitioner and Shri R.K. Raghav had not completed five years' regular service in the Feeder post, by grant of relaxation purported to be in terms of Rule 21 of Delhi State Civil Supplies Corporation Ltd. (Recruitment and Promotion) Rules, 1985 (hereinafter for sake of brevity referred to as 'the said Rules'), the petitioner was promoted.

The contention of the petitioner is that in Annual Confidential Report, only 'Good' remarks were issued in respect of the said Shri R.K. Raghav, the petitioner was adjudged as 'Very Good'.

3. Pursuant to an order of promotion made in his favor, the petitioner joined the post of Deputy Manager on 20.01.1993. He by an order dated 7/8.12.1993 was sought to be reverted, which is in the following terms:-

"DELHI STATE CIVIL SUPPLIES CORPORATION LIMITED AAPURTI BHAWAN, 7-9 ARAM BAGH, NEW DELHI-55.

No. Admn. 1 (53)/ 89/ DSCSC/12203

Dated: 7th December, 93.

ORDER

The Chairman, DSCSC Ltd. is pleased to order that Shri I.L. Dhakolia who was promoted to the post of Dy. Manager vide Order No. Admn. 1 (53)/89 - DSCSC /15098 dated 20.01.1993 stands reverted to the post of Asst. Manager Gr.-I with immediate effect as he does not fulfilll the eligibility criteria as per the recruitment rules.

This office order No. Admn. 1 (53)/89- DSCSC/ 15098 dated 20.01.1993 stands cancelled with immediate effect.

Sd/-      

(R.M. PILLAI)

Sr. GENERAL MANAGER.

No. Admn. 1 (53)/89 -DSCSC/12203

dated: 07.12.1993"

4. The contention of the petitioner, before us, is that as prior passing the said reversion order he had not been given an opportunity of being heard to show as to whether he would fulfil the eligibility criteria or not, the said order must be held to be vitiated in law.

5. It is urged that the question as to whether the petitioner fulfilled the eligibility criteria or not could have been determined only after giving an opportunity of hearing to him as the petitioner was promoted against a Scheduled Caste quota upon relaxation of qualification, wherefor there exists a statutory provision, the impugned order is bad in law.

6. Mr. G.G. Gupta, the leaned senior counsel appearing on behalf of the petitioner, would further contend that it is true that the petitioner did not complete five years' of service, but as relaxation to the said qualification had been granted, the impugned order is unsustainable. In any event, contends the learned counsel, the petitioner is now eligible to hold the said post.

7. The contention of the respondents appears to be that the then Chairman of the Corporation had relaxed the eligibility criteria immediately prior to his leaving the services of the Corporation, which was improper. The respondents would contend that in the instant case having regard to the factual situation obtaining therein particularly when neither of the Scheduled Caste candidate had the requisite qualification, the same ought to have been filled up by direct recruitment.

In any event, the respondents would contend that as no reason had been recorded by the then Chairman Shri Gorakh Ram, the relaxation granted to the petitioner must be held to be bad in law.

8. The fact that there exists a provision for relaxation is not in dispute. Rule 21 of the said Rules reads thus:-

"21. POWER TO RELAX

The Chairman/Managing Director may give such relaxation to the provisions to these rules in the interest of the working of the Corporation as may be deemed necessary after recording the reasons therefore in each such case."

9. It is now a well-settled principle of law that in absence of any mala fide and having regard to maintain administrative discipline, an administrative order passed by a competent authority should not be reviewed by his successor. No reason has been assigned as to why the respondents thought it to be fit to review the order of relaxation passed by the then Chairman. Only now some reasons are sought to be assigned.

10. The very fact that having regard to the provisions contained in Articles 15 and 16 of the Constitution of India, two of the Scheduled Caste candidates were required to be considered for promotion to a higher grade and further having regard to the fact that such a promotion had been granted to one of them, who had a good service record may itself by sufficient to uphold such promotion. We do not see that there was any act of mala fide in granting such relaxation as the same had been granted to both the eligible candidates.

It was not for the successor Chairman of the Corporation to consider as to whether such relaxation is proper or not and, thus, the same would not be a ground for review of the said decision. Even if a proceeding for review of the said decision was to be initiated, the petitioner was required to be given an opportunity of hearing. An order of appointment/ promotion cannot be cancelled in violation of the principles of natural justice only because there had been certain alleged procedural lapse, even if from the records no justification can be found out therefore.

11. When a person is deprived of his right to receive a remuneration, which he had been getting by reason of an order like the present one, the principles of natural justice are required to be complied with.

12. In Bhagwan Shukla v. Union of India and Ors., the law has been laid down in the following terms:-

"2..... The appellant who had joined the Railways as a Trains Clerk w.e.f. 18-12-1955 was promoted as Guard, Grade - C w.e.f. 18- 12-1970 by an order dated 27-10-1970. The basic pay of the appellant was fixed at Rs. 190/- p.m. w.e.f. 18-12-1970 in a running pay-scale. By an order dated 25th July, 1991 the pay-scale of the appellant, was sought to be refixed and during the refixation his basic pay was reduced to rs. 181/- p.m. from Rs. 190/- p.m. w.e.f. 18-12-1970. The appellant questioned the order reducing his basic pay with retrospective effect from 18-12-1970 before the Central Administrative Tribunal, Patna Bench. The justification furnished by the respondents for reducing the basic pay was that the same had been 'wrongly' fixed initially and that the position had continued due to "administrative lapses" for about twenty years, when it was decided to rectify the mistake. The petition filed by the appellant was dismissed by the Tribunal on 17-9-1993.

3. We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs. 190/- p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181/-p.m. from Rs. 190/- p.m. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted to opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the other came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order, which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. ..."

13. For the reasons aforementioned, the impugned order cannot be sustained, which is set aside accordingly. This writ petition is, therefore, allowed. In the facts and circumstances of the case, the respondents shall bear the costs incurred by the petitioner, which is quantified at Rs. 5,000/-.