Rajesh Raina vs Unknown
2022 Latest Caselaw 800 j&K

                                                                      Sr. No.6

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU



                                                 LPA No. 130/2019
                                                 CM No. 4476/2019
                                                 in
                                                 SWP No. 830/2004
                                                 IA No. 923/2004



Rajesh Raina                                         .....Appellant(s)/Petitioner(s)



                      Through: Mr. Vikas Magotra, Advocate


                 Vs


                                                               ..... Respondent(s)
State of J&K and others


                      Through: Mr. Amit Gupta, AAG



Coram:     HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
           HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE

                                   ORDER

19.05.2022

OPEN COURT

Per: Thakur-J

Since common questions of fact and law are involved in the LPA No.

130/2019 and SWP No. 830/2004, we propose to dispose of the same by way

of a common judgment.

01. The Letters Patent Appeal bearing No.130/2019 has been preferred

against the judgment and order dated 24.11.2017 passed in SWP

No.1251/2003, whereby the writ petition filed by the petitioner/respondent

No. 3 herein, namely, Madhu Gupta was allowed by holding that the official

a/w SWP No. 830/2004

respondents had erroneously promoted the appellant herein, ignoring the

superior claim of the petitioner/private respondent No. 3. A direction has also

been given by the writ Court to consider the case of the petitioner-Madhu

Gupta for promotion to the post of Assistant Bacteriologist from the date the

appellant (respondent No. 3 in the writ petition) was promoted i.e.

25.04.2003, along with all consequential benefits.

02. The writ petition bearing SWP No. 830/2004 has been preferred by

the petitioner/appellant herein, challenging the order dated 27.04.2004,

whereby his promotion to the post of Assistant Bacteriologist has been

rescinded.

03. Briefly stated, the material facts are as under:-

04. Respondent No. 3 herein came to be appointed as Senior Lab

Assistant in the year 1983 and was accorded promotion as Junior Lab

Technician in the pay-scale of Rs.1400-2600 (5000-8000 Revised) in the year

1997 on the recommendations of the Departmental Promotion Committee,

whereas the appellant was appointed as Senior Lab Assistant in the year 1993.

05. Admittedly, there are no rules framed for governing the promotions

to the post of Assistant Bacteriologist. In that background, the appellant herein

came to be promoted as Assistant Bacteriologist over the head of the private

respondent No. 3 herein vide order dated 25.04.2003. This was challenged by

private respondent No. 3 in a writ petition bearing SWP No.1251/2003 before

the writ Court, which came to be allowed with a direction to the respondents to

consider the case of the petitioner/respondent No. 3 herein for promotion to

the post of Assistant Bacteriologist with effect from 25.04.2003, when the

appellant came to be promoted, along with all consequential benefits.

a/w SWP No. 830/2004

06. The Government after realizing its mistake passed an order dated

27.04.2004, rescinding the order dated 25.04.2003, whereby the appellant

herein has been granted the benefit of promotion. This was challenged by the

appellant in the writ petition bearing SWP No. 830/2004, whereby the writ

Court by virtue of interim order dated 13.05.2004 stayed the operation of the

order impugned in the said writ petition. This petition, however, came to be

dismissed for non-prosecution on 16.02.2016, which was restored on

06.08.2021. In the meantime, the appellant herein states that he has been

granted two in-situ promotions; one in the year 2012 and second in 2021.

07. In the writ petition bearing SWP No.830/2004, the argument which

was propounded by the learned counsel for the petitioner firstly was that the

order by virtue of which the promotion earlier granted was rescinded, was

passed in gross violation of principles of natural justice and secondly that the

promotion granted to the petitioner was justified in view of the fact that the

petitioner was possessed of better qualification in the shape of a Degree in

Bachelors of Science in Medical Technology (Laboratory) from PGI,

Chandigarh, which qualification was not possessed by Madhu Gupta,

respondent No. 3 herein, or for that matter any other similarly situate Senior

Lab Assistants.

08. A perusal of the response filed by the Government in writ petition

bearing SWP No.1251/2003 would show that the Government passed the order

rescinding the promotion granted to the petitioner on the ground that the

better claim of respondent No. 3 was ignored and that the appellant herein

was wrongly promoted and was given a jump of two grades, which was not

permissible.

a/w SWP No. 830/2004

09. Considering the stand of the government in reply to the writ petition

bearing SWP No. 830/2004, in the backdrop of the admitted position that the

respondent No. 3 was admittedly senior to the appellant herein, having been

appointed as a Senior Lab Assistant in the year 1993, as against the appellant

who was appointed in the year 1983 and considering the fact that respondent

No. 3 herein was placed in a higher grade of Junior Lab Technician, to which

the appellant herein never got promoted, it certainly becomes clear that the

Government was justified in rescinding the order, by virtue of which the

benefit, which was not otherwise supposed to have been granted to the

petitioner/appellant herein was withdrawn. The argument that the appellant

herein possessed a degree in Bachelors of Science in Medical Technology

(Laboratory) from PGI, Chandigarh, justified the grant of benefit is an

argument, which does not appear to be legally tenable, inasmuch as, the same

is not supported by any legal precedent, especially when there are no rules

which would have justified such an action by the Government.

10. The argument of learned counsel for the appellant that the order

impugned in the writ petition bearing SWP No. 830/2004 was passed in gross

violation of principles of natural justice, is also an argument, which cannot be

upheld in view of the fact that the case of respondent No. 3 herein was never

considered and even otherwise if at all the appellant was to be considered for

promotion, he could have been considered for promotion only to the grade of

Junior Lab Technician, which was an intermediate grade between that of

Senior Lab Assistant and Assistant Bacteriologist. Even otherwise affording an

opportunity of being heard before passing the order impugned in the writ

petition would be a useless formality.

a/w SWP No. 830/2004

11. The Apex Court in Aligarh Muslim University and ors, Vs.

Mansoor Ali Khan, (2000)7 SCC 529, reiterated the "useless formality"

principle and followed the law as laid down in the case of S.L. Kapoor Vs.

Jagmohan, (1980)4 SCC 379 and in paragraphs 23 and 35 observed as

under:-

"23. Chinnappa Reddy, J. in S.L. Kapoor case laid down two exceptions (at SS p.395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in vio9lation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.

35. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr Mansoor Ali Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L. Kapoor case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr Mansoor Ali Khan under Point 5."

12. In view of the above, we are satisfied that the action of the

Government in passing the order impugned cannot be said to be in any

manner illegal or untenable in law. The writ petition bearing SWP No.

830/2004 is found to be without any merit and is accordingly dismissed

along with connected application.

13. We have also gone through the judgement and order dated

24.11.2017 impugned in the LPA No. 130/2019, whereby the writ Court has

allowed the writ petition and held the benefit granted in favour of the appellant

a/w SWP No. 830/2004

herein as legally erroneous, ignoring the superior claim of the

petitioner/respondent No. 3 herein in the LPA. In view of the fact that we

have also taken a similar view while dismissing the writ petition bearing SWP

No. 830/2004, therefore, we do not find any reason to interfere with the

judgment and order impugned dated 24.11.2017. The appeal bearing LPA No.

130/2019 is also found to be without any merit and is, accordingly,

dismissed along with connected application.

                         (Rahul Bharti)                (Dhiraj Singh Thakur)
                             Judge                             Judge

Jammu
19.05.2022
Muneesh



                     Whether the order is reportable    :       Yes / No

                     Whether the order is speaking      :       Yes / No