Smt. Hemlata Mohaniya vs The State Of Madhya Pradesh
2021 Latest Caselaw 8522 MP

                                                                    1                              WP-22088-2019
                                          The High Court Of Madhya Pradesh
                                                   WP No. 22088 of 2019
                                         (SMT. HEMLATA MOHANIYA Vs THE STATE OF MADHYA PRADESH AND OTHERS)


                                  Jabalpur, Dated : 09-12-2021
                                        Shri Shankar Dayal Sharma, learned counsel for the petitioner.

                                        Shri Manoj Kushwaha, learned Panel Lawyer for the respondents/State.

Heard finally with the consent of both the parties. In this petition under Article 226 of the Constitution of India, the petitioner has assailed the legality, validity and propriety of the Order dated

17.09.2019 (Annexure P/12) so also the Order dated 01.10.2019 (Annexure P/13) whereby the promotion granted to the petitioner has been recalled.

Brief facts leading to file this case are that the petitioner was initially appointed on the Post of Assistant Inspector Handloom vide order dated 27.09.1995. Thereafter, the petitioner's services were regularized vide order dated 16.06.1998. The petitioner was promoted to the post of Inspector Handloom vide order dated 13.03.2010. Some anonymous complaint was filed alleging therein that the petitioner was appointed on the basis of false caste certificate. DPC for the promotion was conduced wherein the name of

the petitioner was also placed before the committee for its consideration for promotion from the post of Sahayak Gramodyog Vistar Adhikari (Inspector) to the post of Gramodyog Vistar Adhikari but due to aforesaid anonymous complaint, her name was kept in sealed cover. Subsequently, the complaint against the petitioner was dropped. The petitioner made representation on 18.07.2017 to open sealed cover and proceed accordingly. The sealed cover was opened and it was found that the petitioner was eligible for promotion from 06.05.2015. Accordingly, the promotion order dated 15.03.2018 (Annexure P/11) promoting the petitioner w.e.f. 06.05.2015 was passed. However, to the utter surprise of the petitioner, respondent No.1 without any show-cause notice or providing any opportunity of hearing directed the respondent No.2 to modify the order vide order dated 17.09.2019 (Annexure P/12). The respondent No.2 vide order dated 01.10.2019 modified the Signature Not Verified SAN

Digitally signed by VINAY KUMAR BURMAN Date: 2021.12.11 17:04:51 IST 2 WP-22088-2019 promotion order by cancelling the same on the basis of principle of "no work no pay".

Learned counsel for the petitioner has submitted that impugned orders are absolutely illegal, arbitrary and against the principles of natural justice, therefore, the same are liable to be set aside. The petitioner was rightly

promoted from the due date i.e. 06.05.2015, therefore, there was no justification to cancel the promotion order. The learned counsel for the petitioner relied on the judgement passed by the Coordinate Bench of this Court in the case of Nanuram s/o Virbhan Dhangar vs. State of M.P. and others 2018 (1) MPLJ 63, in which in Para 12 it is held that:

"12. Even otherwise in the impugned order dated 8-8-2016 charges of negligence and dereliction of duties have been levelled against the petitioner. It is settled law in service jurisprudence that if the order is stigmatic, then the same cannot be passed without affording opportunity of hearing to the petitioner. If any material is being used against the employee, then the employer is required to supply copies thereof and all these are subject to the cross-examination. The apex Court in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465 has considered the scope of providing reasonable opportunity. The Apex Court has held that opportunity of cross-examination is an integral part and parcel of the principles of natural justice. Para 28, 29 and 30 is reproduced below:-

"28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government, is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that, the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross-examination.

29. In Rajiv Arora v. Union of India, (2008) 15 SCC 306 this Court held : (SCC p. 310, paras 13-14)

"13......Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation.......

1 4 . The High Court in its impugned judgment Signature Not Verified SAN proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant Digitally signed by VINAY KUMAR BURMAN Date: 2021.12.11 17:04:51 IST 3 WP-22088-2019 by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review."Â​

30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice."

On the other hand, learned counsel appearing for the State opposed the contentions raised by the petitioner and submitted that the promotion was granted to the petitioner in the light of the letter issued on 17.09.2019 wherein it is very categorically stated that since the issue of promotion (Reservation in

Promotion) is subjudice before Hon'ble the Supreme Court in SLP No.1395/2016 and in the light of interim order passed on 12.05.2016, the promotion order of the petitioner ought to have been passed after 09.04.2019 instead order to promote the petitioner was passed on 15.03.2018.

In view of aforesaid, the order of cancelling promotion of the petitioner cannot be termed as illegal and arbitrary. The petition being bereft of merit and substance is liable to be dismissed.

Heard learned counsel for the parties.

It is not in dispute that inquiry was conducted on the basis of an anonymous complaint. The petitioner was considered for promotion by the DPC at the relevant time and the reconsideration was kept in the sealed cover. Subsequently, the inquiry was dropped and the petitioner was promoted from 06.05.2015 when he became eligible for the same. Admittedly, cancellation of promotion order affects the right of the petitioner. Admittedly, the SLP was filed at a subsequent point of time, therefore, direction issued cannot be made applicable to the facts and circumstances of the present case, inasmuch as the petitioner became eligible w.e.f. 06.05.2015.

Accordingly, impugned orders dated 17.09.2019 (Annexure P/12) and dated 01.10.2019 (Annexure P/13) are hereby set aside. The petitioner is Signature Not Verified SAN

entitled to be promoted on the post of Gramodyog Vistar Adhikari from the Digitally signed by VINAY KUMAR BURMAN Date: 2021.12.11 17:04:51 IST 4 WP-22088-2019 date of eligibility i.e. 06.05.2015. Respondents are directed to treat the petitioner promoted from 06.05.2015 and grant all consequential benefits including the difference in salary, if any, as expeditiously as possible preferably within a period of four months from the date of receipt of certified copy of this order.

With the aforesaid, the writ petition stands allowed and disposed of. No order as to costs.

C.c. as per rules.

(S. A. DHARMADHIKARI) JUDGE

vinay*

Signature Not Verified SAN

Digitally signed by VINAY KUMAR BURMAN Date: 2021.12.11 17:04:51 IST