IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.04.2010 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.No.39395 of 2005 (O.A.No.8693 of 2000) K.S.Sankaranarayanan ... Petitioner Vs 1.Inspector General of Police, Railways, Chennai-8. 2.Superintendent of Police Railways, Chennai. ... Respondents Prayer: Writ petition came to be numbered by transfer of O.A.No.8693 of 2000 on the file of the Tamil Nadu Administrative Tribunal praying to call for and Quash the proceedings in R.C.No.A1/1102/17462/2000 D.O.1097/2000 dated 10.10.2000 passed by the 2nd respondent in so far as the applicant is concerned. For Petitioner : Mr.P.Rajendran For Respondents : Mrs.S.Litta Srinivasan, G.A. ORDER
This writ petition has been filed to call for the proceedings in R.C.No.A1/1102/17462/2000 D.O.1097/2000 dated 10.10.2000 passed by the 2nd respondent in so far as the applicant is concerned and quash the same.
2.The petitioner who was appointed as Grade II Police Constable on 15.11.1980. On 02.09.1992 an MT panel was published by the Office of the Superintendent of Railway Police publishing the RPC(Driver) who were included in the list of Motor Transport Grade II Police Constables transfers for the purpose of promotion to the next higher rank. The petitioner was placed no.1 in the MT panel on 02.09.1992. As he obtained 159 out of 200 he was placed in the top. Pursuant to this, the petitioner by virtue of an order dated 02.09.1992, taking into consideration the panel as he is no.1 in the list he was transferred and posted to Egmore Railway Police Station on promotion as Head Constable(Driver). The petitioner was transferred pursuant to the list dated 02.09.1992. Thereafter, by proceedings dated 23.09.1994, the petitioner was allowed to complete his period of probation on 19.09.1994 satisfactorily and brought to the ‘A’ list of Head Constables with effect from 20.09.1994. Thereafter by the impugned order dated 10.10.2000 a reversion and promotion order was issued under which the petitioner was reverted to a Grade II Police Constable and then given a promotion as Grade I Police Constable with effect from 22.12.1994 and further giving promotion of the Head Constable(local) with effect from 06.01.2000.
3.The only ground which was attacked by the petitioner in so far as the impugned order is concerned is that prior to passing of this impugned order even though he has been promoted as early as 1992 and completed the probation in 1994, for the first time, the impugned order was passed without even a show cause notice. The order is illegal as it violates the principles of natural justice and he would also further contend that though the reason given was that he was given promotion as Head Constable in a non-sanctioned post, the reversion is wrong as he could sufficiently point out, if a notice is issued that it is a sanctioned post also. Hence he challenges the impugned order.
4.The learned Government Pleader has filed a detailed counter but would only contend that the post was not a sanctioned post and therefore, on a later point of time when they found out that the promotion given was a non-sanctioned post, they have got every legal right to revert and pass the appropriate orders.
5.Heard both the parties. The only point for consideration is whether the impugned order which affects the service condition of an employee could be made by the authorities concerned without even a notice contemplating for reversion.
6.In this case, as pointed out from the dates and events pointed out by the petitioner, he was appointed on 15.11.1980 and seniority list was prepared for the purpose of promotion after completion of necessary test on 02.09.1992, wherein the petitioner was placed as no.1 after successfully completing the test and obtaining higher marks. Pursuant to the MT panel prepared by the authorities for the purpose of promotion on 02.09.1992, the petitioner was granted the promotion to the post of Head Constable and thereafter for the period of two years, he has completed his probation as Head Constable and ultimately, by a proceedings dated 23.09.1994 he has been successfully allowed to complete the probation satisfactorily by the authorities and probation came to conclusion with effect from 19.09.1994. Therefore, on the completion of the probation, he becomes a regular field member of the Head Constable. Thereafter, there is no other communication.
7.The learned Government Pleader was not able to establish that any communication was sent prior to the passing of the impugned order. Straight away the impugned order was passed on the ground that the petitioner who has been promoted as Head Constable and transferred to Egmore Railway Police Station was a non-sanctioned post.
8.The petitioner is able to produce the records, additional typed set of papers which would categorically state that even this post is a sanctioned post. Be that as it may be. The point for consideration is whether the impugned order reverting the petitioner to Grade II Police Constable as Head constable and also given the promotion for the Head Constable post with effect from 06.01.2000 is legal. When it is clearly understood that in the impugned order nor anywhere it was stated that any notice at all was issued calling for or informing the petitioner that his service condition would be changed by virtue of reversion and asking his explanation. Without this notice when the impugned order is passed it definitely affects the principles of natural justice. After all the employee is expected to have a notice prior to the change in his condition of service and especially in the case of reversion and promotion also who was sanctioned after completion of successful probation. It was not open to the authorities to straight away revert him.
9.In this connection the learned counsel relied upon the decision in(2008) 2 Supreme Court Cases 750 in Union of India and Another versus Narendra Singh for the proposition, that in the event of a reversion, even a mistaken decision can always be corrected by following process of law that is show cause. No doubt in paragraph 32, the Supreme Court would contend that
“32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.”
Similarly in paragraph 34 in so far as the reversion is concerned, they would categorically state that
“34.True it is that before such an action is taken and a person is actually reverted, he must be given an opportunity to show cause why the proposed action should not be taken. He may be able to satisfy the authorities that there was no such mistake. But even otherwise, principles of natural justice and fair play require giving of such opportunity to him. But as observed earlier, in the instant case, in accordance with Rule 31-A of the Fundamental Rules, notice was issued to the respondent employee, explanation was sought and thereafter the order was passed. The said order, in our considered view, was just, proper and in consonance with law and it ought not to have been set aside by the Tribunal or by the High Court. To that extent, therefore, the orders impugned in this appeal deserve to be set aside.”
it categorically states that he must be given an opportunity to show cause why the proposed action should not be taken.
10.In this case, it has been proved beyond any reasonable doubt that no notice at all has been issued before reversion. Hence, the basic principle of natural justice has been violated in this case and hence, the impugned order dated 10.10.2000 is set aside. It is also brought to the notice of this Court, that they had obtained stay and he is in service. The authority will issue a fresh notice to the petitioner for show cause and pass necessary orders after his explanation and give an opportunity for the petitioner to put forth his case and pass orders on merits. Hence, the writ petition is allowed. No costs.
01.04.2010
Index:Yes/No
Internet:Yes/No
pri
To
1.Inspector General of Police,
Railways, Chennai-8.
2.Superintendent of Police
Railways, Chennai.
B.RAJENDRAN, J.
pri
W.P.No.39395 of 2005
(O.A.No.8693 of 2000)
01.04.2010