Orissa High Court

Basanta Manjari Baskey vs State Of Odisha And Others on 15 March, 2022

                  IN THE HIGH COURT OF ORISSA AT CUTTACK


                                 W.P.(C) No.561 of 2022



                 Basanta Manjari Baskey                 ....             Petitioner

                                                     Mr. Aditya N. Das, Advocate
                                              -versus-

                 State of Odisha and others             ....      Opposite Parties

                                                         Mr. Y.S.P. Babu, A.G.A.

                                        CORAM:

                            JUSTICE A.K. MOHAPATRA


                                            ORDER

15.03.2022 Order No.

02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. Heard learned counsel for the Petitioner as well as learned counsel for the State. Perused the record as well as other relevant documents on record.

3. The present writ petition has been filed by the petitioner with the following prayer:-

"i) Admit and allow the present writ petition:

ii) Hold/Direct/Order that the impugned order of reversion as mentioned in Para-5 of the office order No.29725/Pers-I dt.16.08.2021 as at Annexure-6 and // 2 //

order of reversion under Annexure-8 was/is bad, illegal and not sustainable in the eye of law and thereby quash the same so far as the petitioner is concerned and thereby direct the Opposite Parties to restore the petitioner in the post of Havildar from the date of reversion and allow to discharge as duty promoted Havildar forthwith with all consequential service and financial benefits;

iii) Direct/Order the Opposite Parties to absorb the petitioner in the present police district i.e. in the Puri District of Police, in terms of the office order No.29725/Pers-I dt.16.8.2021 read with Police Circular Order No.342/2013 and thereby allow the petitioner to continue in his present post and place for all purpose.

iv) Hold/order/direct that the impugned order dt.30.12.2021 was/is bad, illegal and nonest in the eye of law and thereby quashed the same;

v) And pass any other order(s) direction(s) as this Hon'ble Court may deem fit and proper in the interest of justice."

4. The factual backdrop of the case as culled out from pleadings in the writ petition, in brief, is that pursuant to the advertisement published in the year 2001-02, the petitioner submitted his application for the post of Constable. After she was selected by following due procedure, she/he was given appointment as Constable in Bhadrak district and accordingly the petitioner joined in service in // 3 //

the office of the Superintendent of Police, Bhadrak on 25.01.2002. While she was continuing, she/he was sent for training at P.T.C., Anugul and successfully completed her training and she again joined in her/his post.

5. While working as a constable, the petitioner after being duly selected by the Selection Board given promotion to the post of Lance Naik vide order dated 01.03.2011. Thereafter, the petitioner again considered for promotion to the post of Havildar by order dated 07.11.2012. Since then she/he is discharging her duty as a Havildar.

6. It is submitted by learned counsel for the petitioner that while the matter stood thus, the D.G.-cum-I.G. of Police, Odisha, Police Headquarter, Cuttack-Opposite Party No.2 in the year 2021 summoned a meeting of the Police Selection Board which met on 26.10.2021 to look into the irregular promotion of Constable to the rank of APR Havildar/ C.I. Havildar/ Band Havildar beyond their parent cadre and found that the Havildars have got promotion irregularly beyond their cadre and that some persons have been irregularly promoted including the present petitioner. Accordingly, a decision was taken to revert the present petitioner along with many others to the post of Constable with immediate effect by order dated 26.10.2021 issued by the RSI, Jagatsinghpur. He further submits that the petitioner was appointed after she/he was selected by following due procedure and further she was given promotion on being selected by the selection board duly constituted by the authority. However, the authorities have taken action against the petitioner and the petitioner has been reverted without providing any opportunity to show- cause/hearing in the matter. Accordingly, learned counsel for the petitioner submits that the impugned order of reversion is // 4 //

unsustainable in the eye of law since the same has been passed without following natural justice.

7. Mr. Das, learned counsel for the petitioner further submits that reduction in rank/ reversion to a lower post would affect the employee concerned adversely. In other words, the same is punitive in nature and as such provided in the service Rule as punishment. Therefore, the Opp. Parties are under a legal obligation to provide an opportunity to show cause before taking such action against any employee. In the case at hand, although the Opp. Parties reviewed the decision taken to give promotion to the petitioner way back in the year 2012 as Havildars, however, before implementing such a decision an opportunity of hearing or opportunity to show cause should have at least been provided to the petitioner before revering hem to the post of constable. The decision to revert must have been taken on the basis of some allegation followed by an enquiry. Therefore, the Opp. Parties should have followed the principles of natural justice before giving effect to the decision taken by them.

8. Learned counsel for the State, on the other hand, submits that the police board which met on 26.10.2021 reviewed the cases for promotion and found that some Constables have been irregularly promoted to the post of Havildar. Accordingly, the decision was taken by the Board to revert those Havildars to the post of Constable, which includes the present petitioner also. He further submits that the promotion earlier given irregularly by flouting the provision of rules i.e. Odisha Police Service (Method of Recruitment and Condition of Service of Constables) Order, 2006. In such view of the matter, // 5 //

learned counsel for the State submits that the impugned order does not warrant interference by this Court at this stage.

9. Having heard learned counsel for the parties, this Court is of the considered view that no doubt, it is open for the parties to review their decision to find out as to whether the promotion given was regular or not, however, while giving effect to decision taken by the authorities, they should have given an opportunity to show-cause/ hearing to the Petitioner to present his/her case before passing any order, which would adversely affect the petitioner. Therefore, the order dated 26.10.2021 under Annexure-8, which has been passed by the Superintendent of Police, Jagatsinghpur is unsustainable in the eye of law inasmuch as the same has been passed by flouting the provision of law and without providing any opportunity to the petitioner to show-cause. Further the action of the Opposite Parties are bad in view of the fact that the petitioners were appointed by following valid selection procedure. Therefore, the Opposite Parties were duty bound to provide an opportunity before reverting the petitioner to the post of Constable.

10. The Hon'ble Supreme Court of India in the matter of Ram Ujarey v. Union of India, (1999) 1 SCC 685 in paragraph 17 of the judgment has held as follows;

"17. There is yet another infirmity in the impugned order of reversion. The appellant had been allowed the benefit of service rendered by him as Coal Khalasi in the Loco Department from 1964 to 1972 as that period was counted towards his seniority and it was on that basis that he was called for the trade tests which the appellant had passed and was, thereafter, promoted to the posts of Semi-skilled Fitter and Skilled Fitter. If the benefit of service rendered by him from 1964 to 1972 was intended to // 6 //

be withdrawn and promotion orders were to be cancelled as having been passed on account of mistake, the respondents ought to have first given an opportunity of hearing to the appellant. The appellant having earned two promotions after having passed the trade tests, could not have been legally reverted two steps below and brought back to the post of Khalasi without being informed that the period of service rendered by him from 1964 to 1972 could not be counted towards his seniority and, therefore, the promotion orders would be cancelled. In a situation of this nature, it was not open to the respondents to have made up their mind unilaterally on facts which could have been shown by the appellant to be not correct but this chance never came as the appellant, at no stage, was informed of the action which the respondents intended to take against him."

11. In N. K. Durga Devi v. Commr. of Commercial Taxes, Hyderabad reported in (1997) 11 SCC 91, the Hon'ble Supreme Court of India has observed as follows;

"1. The dispute in the present appeal has arisen as a result of Government Order No. 569 issued by the Government of Andhra Pradesh on 22-5-1986 in exercise of its power of relaxation under Rule 47 of the Andhra Pradesh State and Subordinate Services Rules, giving a notional seniority to Veda Prakash, Respondent 3 in the appeal, in the cadre of Superintendents from 18-9-1981 instead of his actual date of promotion which was 17-5-1983. The appellant who was promoted as Superintendent on 2- 5-1983 had been considered as senior to Veda Prakash in the cadre of Superintendents prior to this change of date. She was promoted as Deputy Commercial Tax Officer. But in view of this order she has became junior to Veda Prakash. By a consequential order dated 2-7-1987 the appellant was reverted as Superintendent. The appellant // 7 //

challenged the order of 2-7-1987 by filing a petition which was ultimately heard by the Andhra Pradesh Administrative Tribunal. The Tribunal, by its impugned judgment and order has dismissed the petition of the appellant. The present appeal is from this judgment and order.

...

3. In view of the decisions of this Court in Govt. of A.P. v. D. Janardhana Rao [(1976) 4 SCC 226 : 1976 SCC (L&S) 586 : (1977) 1 SCR 702] , R.R. Verma v. Union of India [(1980) 3 SCC 402 : 1980 SCC (L&S) 423 : (1980) 3 SCR 478] and Amrik Singh v. Union of India [(1980) 3 SCC 393 : 1980 SCC (L&S) 415 : (1980) 3 SCR 485] , it is conceded by the learned counsel for Respondent 3 that the order of relaxation could not have been validly passed without giving notice to all affected parties since that would be in violation of the principles of natural justice. The position in law is quite clear. A relaxation order which affects rights of third parties, if passed in violation of the principles of natural justice and without giving a hearing to the affected parties would be void, or in any event, unenforceable

dated 22-5-1986 is, therefore, set aside."

12. Similarly in the matter of M.S. Usmani v. Union of India, reported in (1995) 2 SCC 377, the Hon'ble Supreme Court of India while considering the validity of a reversion order, eventually came to hold that the reversion order is unjust and vitiated by error of law. In paragraph 8 of the said judgment it has been held;

"8. The reversion order issued by the Railways appears not only to be unjust but vitiated by error of law. It was passed without affording any opportunity of hearing to the appellants. The appellants had been selected through a competitive merit examination. Their selection was not challenged. They had been regularised and had been promoted to even higher grade on basis of suitability test. Reverting such // 8 //

persons after a lapse of six years from the date of their selection, five years from the date of their appointment, and two years from the date of their promotion in the higher scale, was not warranted. The appellants having been regularised as SMs and promoted further as TIs it was not open either for Railways to reopen the selection held earlier or for other employees to agitate that the selection held in 1982 was vitiated as the panel was announced after the cadre had been restructured."

13. Similarly, in Karnail Singh v. State of Punjab reported in 1994 Supp (3) SCC 724, the Hon'ble Apex Court has held as follows;

"2. It is seen from the proceedings Annexure-P at page 32 of the Paper Book that the appellants were not promoted as Inspectors. Though the appellants have completed the upper school course ending with the term August 1984 they have been ignored and not included on the 'E' List due to their chequered service record. Mota Singh and Karnail Singh though have been categorised in that category, in paragraph 4 of the same order they have been promoted on ad hoc basis w.e.f. 4-10-1984. Admittedly Mota Singh, head constable No. 80/119 and Karnail Singh, head constable No. 82/22 are juniors to the appellants in the seniority mentioned in the order. When the appellants have been standing in the same position as Mota Singh and Karnail Singh and seniors to them necessarily they should also get the same treatment. Unfortunately that was not meted out. It is sought to be contended on behalf of the State that due to bad record and adverse confidential report, they have not been given the promotion. Even assuming that they had adverse remarks, admittedly no enquiry was made, no findings were given after conducting an enquiry and after giving an opportunity to the appellants. Therefore, their reversion as head constables is clearly illegal. Though they have been promoted subsequently in 1987-88 respectively, they must be deemed to have been promoted on a par with juniors w.e.f. 8-10- 1984. The appellants are accordingly entitled to the // 9 //

above declaration and the consequential benefits. The appeals are allowed and writ issued. No costs."

14. Reverting back to the facts of the present case, on a scrutiny of record, it is seen that no notice whatsoever has been given to the petitioner before reverting her from the post of Havildar to Constable. Moreover, no opportunity was provided to the petitioner to place her case before the authorities before taking action against the petitioner. It is further seen that although the petitioner was given promotion in the year 2012, she is being reverted after a gap of almost eight years to a junior post that to without observing the principle of natural justice which according to my considered opinion, is unsustainable in law. As a result of the aforesaid conduct, the entire procedure has been vitiated and consequently the order dated 16.08.2021 under Annexure-6, order dated 26.10.2021 under Annexure-8 and order dated 30.12.2021 under Annexure-9 are liable to be quashed and accordingly, the same are hereby quashed.

15. The Opposite Parties are further directed to restore the petitioner in the original place of posting where she was serving prior to passing the impugned order forthwith. It is open to the Opposite Parties, if so advised, to proceed with the enquiry after giving notice of show-cause to the affected persons individually in due adherence of the principle of natural justice, which is integral part of the proceeding and enquiry and accordingly proceed further in the matter and pass necessary orders in accordance with law.