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Writ Petition (s) No. 3223 / 2005
07/05/2010:
Shri D.C. Jain, learned counsel for the petitioner.
Shri Puneet Shroti, Panel Lawyer for the State.
Challenging the order annexure P-2 dated 22/02/05 by
which promotion of the petitioner ordered earlier vide
annexure P-1 dated 24/09/04 is cancelled, petitioner has filed
this writ petition.
2. It is the case of the petitioner that on the basis of
Departmental Promotion Committees recommendation,
petitioner, who was a Class IVth employee, was promoted as
an Asst. Grade-III on 24/09/04 in the post reserved for
Scheduled Caste Candidates. However, the promotion is
cancelled without notice to the petitioner, without indicating
any reason and without granting any opportunity of hearing.
Accordingly, petitioner has filed this writ petition challenging
the order annexure P-2 dated 22/02/05, cancelling promotion
of the petitioner.
3. Even though notices have been issued and the matter is
pending since 2005, respondents have not filed any reply.
4. As learned counsel for the petitioner objected to grant
any further time and there was no justification on the part of
the respondents in not filing the reply, even though more than
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5 years have passed, matter is being heard and decided on the
basis of material available on record.
5. It is clear from the records that vide order annexure P-1
dated 24/09/04, petitioner who was working as Class-IVth
(Peon), was promoted in the clerical cadre as Asst. Grade-III,
the promotion was on the post reserved for Scheduled Caste
candidate and while so working the order of promotion of the
petitioner is cancelled vide annexure P-2 on 22/02/05,
petitioner has only challenged promotion on the ground that
the order of promotion granted is cancelled without notice to
the petitioner, without hearing him and without disclosing
any reason.
6. Shri Puneet Shroti, learned counsel for the State
Government by taking me through the reasons indicated in
the impugned order annexure P-2 dated 22/02/05 argued that
promotion of the petitioner has been cancelled because when
the proceedings of the DPC was reviewed, it was found that
the seniority of the petitioner was incorrectly reflected and, as
a result, he has been granted promotion, even though he did
not fall within the zone of consideration. It was also found
that as per rules the promotion is to be granted only to such of
the Scheduled Caste Employees, who were working on the
cut off date i.e. 6/9/92, petitioner is working as Peon, from
14/09/92 and, therefore, he did not come within the zone of
consideration. Accordingly, pointing out that the petitioner
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was not entitled for promotion, respondents contend that the
mistake is corrected by the impugned order, this contention
has not been refuted by the petitioner.
7. Having heard learned counsel for the parties and on
consideration of the fact that has come on record, it is true
that in the impugned order annexure P-2, dated 22/02/05,
various reasons are given for cancelling order of promotion,
except for contending that petitioner is not heard, petitioner is
unable to demonstrate before this Court as to how the reasons
indicated in annexure P-2 for cancelling promotion of the
petitioner is unsustainable. Merely because petitioner is not
heard, that by itself is not a ground for interfering in the
matter, when in the impugned order detailed reasons are
given for canceling promotion of the petitioner. That being
so, petitioner has to prima facie demonstrate before this court
that the reason given for cancelling the promotion, as
contained in the impugned order is unsustainable, petitioner
having failed to demonstrate prejudice case, or in challenging
the reasons, merely on the ground that petitioner has not been
heard, it is not a fit case where interference can be made by
this Court, more so when the order cancelling the promotion
has been given effect to more than 5 years back and petitioner
is working on the reverted post for all this period.
8. Accordingly, for the present, finding no case for
interference on the ground raised, liberty is granted to the
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petitioner to challenge the order annexure P-2 dated 22/02/05
by representing or filing an appeal to respondent Nos. 1 & 2
and it is upto respondent Nos.1 & 2 to consider claim of the
petitioner and decide it by a speaking order in accordance to
law at an earlier date.
9. Accordingly, this petition is dismissed with the
aforesaid liberty to the petitioner.
(Rajendra Menon)
Judge
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