Dismissal, removal, reduction in rank of public servants
*Quashes order withdrawing promotion after over 5 yrs
Mohinder Verma
JAMMU, Apr 19: Government should strictly follow the essential principles of natural justice in matters of dismissal, removal or reduction in the rank of public servants as Article 311 of the Constitution imposes a duty upon the Government to ensure that such decision is preceded by an inquiry coupled with an opportunity of being heard.
This was held by Justice Wasim Sadiq Nargal while quashing an order whereby promotion of an employee of State Forest Corporation was withdrawn retrospectively in blatant violation of the constitutional provision.
The order was passed in a writ petition filed by one Ghulam Qadir Malik, who was promoted pursuant to approval of the State Forest Corporation Promotion Committee in its meeting held on 31.07.2010 as Field Supervisor by virtue of order dated 18.08.2010 vide SFC Order No. 565 of 2010 on the basis of the qualification, length of service and seniority.
However, after more than five and half years, the promotion was withdrawn by virtue of order impugned dated 03.03.2016 from the date of its issuance—18.08.2010 retrospectively without giving an opportunity to the petitioner to defend his case before the concerned authorities.
After hearing Advocate A H Qazi for the petitioner and Deputy Advocate General Dewakar Sharma for the State and perusal of record, Justice Wasim Sadiq Nargal observed, “Article 311 of the Constitution is a manifestation of the essential principles of natural justice in matters of dismissal, removal or reduction in rank of public servants and imposes a duty upon the Government to ensure that any such decision against the public servant is preceded by an inquiry, coupled with an opportunity of being heard and making a representation against such decision”.
“Principles of natural justice are also generally implicit under Article 14, as a denial of the same to the public servant in question would taint the decision with the vice of arbitrariness and deprive the public servant of equal protection of the law”, High Court said, adding, “rules of natural justice and procedural rules cannot be given go-bye in casual manner as has happened in the instant case”.
“The respondents were to follow the rules of natural justice and at least an opportunity of being heard should have been afforded to the petitioner”, Justice Nargal said, adding “I am fortified by the view of the Supreme Court that whether the statute provides for notice or not, it is incumbent upon the authorities concerned to issue a notice to the persons concerned disclosing the circumstances under which proceedings are sought to be initiated against them, failing which the conclusion would be that principles of natural justice are violated”.
About the instant case, Justice Nargal said, “it is empathetically clear that the petitioner was qualified, eligible and was found fit by the Departmental Promotion Committee on the basis of the service record, which was produced by the petitioner and, accordingly, promotion was ordered in his favour”, adding “it is not a case that the petitioner at any stage committed any fraud with respect to the qualification or produced any forged documents which could be the basis for withdrawal of his promotion, rather it is a case where the respondents inadvertently have mentioned his qualification in the order of promotion as 10+2 instead of Matric. Due to the inadvertent mistake on part of the Government, the petitioner can in no way be penalized, when the fact remains that when the petitioner was accorded promotion, he was simply matriculate and not 10+2”.
Observing that petitioner has been demoted at the behest of some complaint/representation and without providing any opportunity of being heard, Justice Nargal said, “the petitioner was neither provided any copy of the complaint nor issued show cause notice as such authorities concerned took the decision in haste”, adding “the order impugned withdrawing the promotion of the petitioner cannot sustain the test of law. The petitioner is not only protected under the constitutional provision, but his promotion for all practical purposes covered under the rules”.
Accordingly, Justice Nargal quashed the impugned order dated 03.03.2016 by virtue of which, the promotion of petitioner stood withdrawn and upheld the promotion of the petitioner as Field Supervisor.
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