Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 2 Ors on 29 July, 2021
Page No.# 1/5
GAHC010109462021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3406/2021
SMTI GITA KALITA TALUKDAR
W/O. ASHWIN TALUKDAR, R/O HOUSE NO.6, A BLOCK, HENGRABARI
PUBLIC HEALTH COMPLEX, GUWAHATI, DIST. KAMRUP (M), ASSAM, PIN-
781036.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HEALTH AND
FAMILY WELFARE DEPTT., DISPUR, GUWAHATI-781006.
2:THE DIRECTOR
HEALTH SERVICES
GOVT. OF ASSAM
HENGRABARI
GUWAHATI
DIST. KAMRUP (M)
ASSAM
PIN-781036.
3:THE JOINT DIRECTOR
HEALTH SERVICES (LEPROSY)
GOVT. OF ASSAM
PATHAR QUARI
NARENGI
GUWAHATI-781071
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, HEALTH
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 29.07.2021
Heard Mr. K.N. Choudhury, learned Senior Counsel, assisted by Mr. R.M.
Deka, learned counsel for the petitioner and Mr. G. Bogoi, learned standing
counsel for the Health Department.
2. By filing this writ under Article 226 of the Constitution of India, the case
projected by the petitioner is that the petitioner was initially appointed as
Grade-IV peon under the Directorate of Health Service by order dated
27.01.2009 and by order dated 30.06.2021, the petitioner was promoted to the
next higher post of Junior Assistant/ LDA in the scale of pay of Rs.14,000 -
60,500/- in Pay Band- 3 with Grade Pay of Rs.6,200/- per month as per Revision
of Pay Rules, 2017. The petitioner submitted her joining report dated
01.07.2021. Thereafter, the petitioner came to know about the impugned order
dated 14.07.2021, whereby the respondent no.2 had cancelled the earlier
promotion order dated 30.06.2021 and by another impugned order No. HSE/
Promotion/ 433/2013/5302 dated 14.07.2021, the petitioner was promoted to
the post of Leprosy Injector (LI) with the scale of pay of Rs.14,000 -
Rs.60,500/- in Pay Band-2 with Grade Pay of Rs.5,000/- per month as per ROP
Rules, 2017. Accordingly, the learned Senior Counsel for the petitioner has
submitted that subsequent order of promotion amounts to reduction of pay
which could not be done without putting the petitioner to notice and without
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complying with the principles of natural justice.
3. The matter was previously listed in the motion column on 27.07.2021 and
on that day this Court had permitted the learned standing counsel for the Health
Department to obtain instruction.
4. The learned standing counsel for the respondent has fairly submitted that
as per instruction received by him, the petitioner was not put to notice before
cancelling the previous promotion order and before issuing the impugned
promotion order dated 14.07.2021.
5. With regard to the nature of instruction received by the learned standing
counsel for the respondent, the Court is inclined to refer to the observations
made by the Supreme Court of India in the case of State of Orissa Vs. Dr. (Miss)
Binapani Dei and Ors., AIR 1967 SC 1269. Paragraph 12 thereof is quoted
below:
"12. It is true that some preliminary enquiry was made by Dr. S, Mitra. But
the report of that Enquiry Officer was never disclosed to the first respondent.
'The rafter the first respondent was required to show cause why April 16, 1907,
should not be accept das the date of birth and without recording any evidence
the order was passed. We think that such an enquiry and decision were
contrary to the basic concept of justice and cannot have any value. It is true
that the order is administrative in character, but even an administrative order
which involves civil consequences as already stated must be made consistently
with the rules of natural justice after informing the first respondent of the case
of the State, the evidence in support thereof and after giving an opportunity to
the first respondent of being heard and meeting or explaining the evidence. No
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such steps were admittedly taken; the High Court was, in our judgment, right in
setting aside the order of the State.
6. Having seen that the order of promotion No. HSE/ Promotion/
433/2013/4058 dated 30.06.2021 was cancelled/ recalled without hearing the
petitioner and that the order of promotion No. HSE/ Promotion/ 433/2013/5302
dated 14.07.2021 was issued. The said order dated 14.07.2021 ex facie reveals
that the status of the petitioner is lowered by putting her in Pay Band- 2 with
Grade Pay of Rs.5,000/- whereas previously the petitioner was placed in Pay
Band-3 in Grade Pay of Rs.6200/-. Hence, the Court is inclined to set aside the
order of promotion No. HSE/ Promotion/ 433/2013/5302 dated 14.07.2021. The
respondent shall now pass consequential orders to allow the petitioner to
continue to work at her post as per order dated 30.06.2021.
7. However, at the same time, the Court is inclined to grant liberty to the
competent authority including respondent no.2 to comply with the principles of
natural justice by putting the petitioner to notice of any other action that the
said authorities may intend to take.
8. The Court is inclined to observe that the Court has only considered the
matter in light of violation of principles of natural justice. Hence, as none of the
other issues have been touched by this Court, the parties herein shall not be
prejudiced in respect of any action which may be taken in future.
9. With liberty as indicated above, the writ petition stands disposed of at the
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motion stage without issuance of notice on the respondents.
JUDGE
Comparing Assistant
