Delhi High Court
Ravinder Kumar vs The Director General Indo Tibetan ... on 6 March, 2018
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7319/2016 & CM No.30110/2016 (Stay)
RAVINDER KUMAR ..... Petitioner
Through: Mr.Vivek Sheel & Mr.Anshul
Mahajan, Advocates
versus
THE DIRCTOR GENERAL INDO TIBETAN
BORDER POLICE AND ANR ..... Respondents
Through: Mrs.Bharathi Raju, CGSC with
Mr.Rohit Saroj, Adv. for R-1 &
R-2
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI
ORDER
% 06.03.2018
1. The petitioner, who is presently working on the post of a
Constable (GD), has filed this petition praying inter alia for quashing
and setting aside an order dated 07.02.2014 (wrongly typed as
"07.12.2014" in Annexure-P1), passed by the respondent No.1/DG,
ITBP, cancelling his promotion to the post of Head Constable (GD).
2. A glance at the relevant facts of the case is necessary. In the
year 2000, the petitioner had joined the respondent/ITBP in the cadre
of Constable (Cook). On 03.04.2004, the petitioner was shifted from
the cadre of Constable (Cook) to the Constable (GD), w.e.f.
04.04.2004. In the year 2012, the respondents permitted the petitioner
to participate in a III-Tier selection process for promotion to the post
of Head Constable (GD). On 05.04.2013, the respondents promoted
the petitioner to the post of Head Constable (GD) on his successfully
qualifying the test and completing the training course.
3. In December, 2014, as a bolt from the blue, the petitioner
received the impugned order dated 07.02.2014, issued by the
respondent No.1/DG, ITBP, cancelling his promotion to the post of
Head Constable (GD) on the ground that he did not have the requisite
length of seniority in the cadre of Constable (GD). On 07.08.2015
(wrongly typed out in the body of the petition as "19.08.2015"), the
name of the petitioner was struck off from the rolls of Head Constable.
This was followed by an order dated 28.03.2016, passed by the
respondent No.2, directing the petitioner to surrender the Head
Constable rank. The petitioner submitted a detailed reply in response
to the Memo dated 28.03.2016 issued by the respondents, on
05.04.2016. On not getting any response, he filed a writ petition in
this Court on 16.05.2016 [W.P.(C) No.4826/2016]. The said petition
was permitted to be withdrawn to make up the deficient pleadings and
the petitioner was granted liberty to file a fresh petition challenging
the impugned orders dated 06.05.2015 and 28.03.2016.
4. The main thrust of the arguments addressed by the learned
counsel for the petitioner to assail the impugned order dated
07.02.2014, is that the respondents did not issue a notice to show
cause to the petitioner or afford him an opportunity to make his
submissions before passing such a drastic order whereby his rank has
been reduced from that of a Head Constable (GD) to Constable (GD).
5. On the last date of hearing, learned counsel for the respondents
was directed to produce the relevant records for our perusal to verify if
before passing the impugned order dated 07.02.2014, striking off the
promotion granted to the petitioner, the respondents had issued him a
notice to show cause and had elicited a response, thereby following
the principles of natural justice.
6. Today, learned counsel for the respondents concedes on
instructions that no show cause notice was given by the respondents to
the petitioner before passing the impugned order dated 07.02.2014. If
that be the position, we need not detain ourselves any further by
examining the correctness of the impugned order. The respondents
were under an obligation to have followed the principles of natural
justice by issuing a notice to show cause to the petitioner before
passing any order, much less an order, cancelling the promotion
granted to him and that too, behind his back.
7. Accordingly, the order dated 07.02.2014, is unsustainable and is
quashed and set aside, with liberty granted to the respondents to issue
a notice to show cause to the petitioner, calling upon him to explain as
to why he should not be reverted from the rank of a Head Constable
(GD) to Constable (GD). In the said show cause notice, the
respondents shall fix a timeline for the petitioner to respond. After the
petitioner submits his written representation in response to the said
show cause notice, the competent authority shall consider the same
and then pass a speaking order, under written intimation to him. If the
petitioner is aggrieved of the order that may be passed by the
competent authority, he shall be entitled to seek his remedy, as per
law.
8. The petition is disposed of, along with pending application.
Litigation cost of Rs.10,000/- shall be paid by the respondents to the
petitioner within four weeks.
HIMA KOHLI, J.
PRATIBHA RANI, J.
MARCH 06, 2018
'pg/hkaur'
