JUDGMENT
Nirmal Singh, J.
1. Petitioner was initially engaged as a daily worker in January 89. Thereafter, he was placed in the regular scale of Rs. 2250-3200/- and given the post of Helper. This was done by the competent authority vide order dt. 30th of April01. Petitioner was also granted In-Situ Promotion vide order No. DC/PD/Adm-II/283 of 2004 dt. 11th of June04. Thereafter vide Order No. DC/PD/Adm-III 376 of 2005 dated 12th of Sept 05, passed by respondent No. 2 the petitioner was promoted to the post of Junior Assistant (State Cadre) in the pay scale of Rs. 3050-4910 against an available vacancy.
2. The grievance of the petitioner is that vide impugned order dated 17th of Feb’ 06, passed by respondent No. 2, the earlier order dt. 12th of Sept’ 05, whereby the petitioner was promoted to the post of Junior Assistant, has been rescinded. It is stated that this has been done without any show cause notice to the petitioner and no opportunity of being heard has been provided to the petitioner before passing the order impugned. It is this order which is subject matter of challenge in the present petition.
3. On notice, objections have been filed by respondents stating therein that the promotion of the petitioner to the post of Junior Assistant was made without the approval of the State Level Departmental Promotional Committee, and due to the said reason the order of promotion of the petitioner has been rescinded.
Heard learned Counsel for the parties.
Admitted. Taken on board for final disposal.
4. A perusal of Annexure D which is the order whereby the petitioner was promoted to the post of Junior Assistant (State Cadre), shows that the said promotion of the petitioner was done on the basis of the decision taken by the State Level Departmental Promotion Committee. The said order, for facility of reference is being reproduced below:
GOVERNMENT OF JAMMU AND KASHMIR
OFFICE OF THE DEVELOPMENT COMMISSIONER
POWER DEVELOPMENT DEPARTMENT
J & K SRINAGAR
ORDER No. DC/PD/Adm-Ill 376 of 2005.
Dated: 12.09.2005
Subject-Promotion of Junior Assistant
Ref:- Chief Engineer Procurement and Material Management wing Jammu’s
(i). Letter No. CE/PMM/920-24 Dated: 06.05.2005.
(ii) Letter No. CE & PMM/14/4062 dated 15′” July 2005.
In pursuance of decisions taken in 25th State Level Departmental Promotion Committee held on 15th Oct. 2004, Shri Rakesfi Kumar Bhat, 10+2 Flelper is promoted as Junior Assistant in the pay scale of Rs. 3050-4910 in procurement Material Management Wing Jammu against an available vacancy of Junior Assistant (State Cadre).
This order shall have effect with effect from 15’th October, 2004.
Sd/-
Development Commissioner Power
Chairman State Level Departmental Promotion
Committee, Srinagar….
5. In view of the above, the stand of the respondents that the promotion of the petitioner to the post of Junior Assistant was done without the approval of State Level Departmental Promotion Committee cannot be accepted.Even otherwise, as indicated above, the order of promotion in favour of the petitioner was passed by the competent authority after taking into consideration the decision taken in this regard by the State Level Departmental Promotion Committee and this was done vide order dt. 12th of Sept’ 05. The said order was given effect from 15th of Oct’04. The order impugned has been passed on 17th of Feb’ 06 i.e. after about one and half year from the date, the promotion order was given effect to and this has been done without any show cause notice or opportunity of being heard. The said act of the respondent authorities is this against the principles of natural justice.
6. In , Canara Bank v. V.K. Awasthy the Apex Court has lield as under-
8. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of Justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
9. The expressions ‘natural justice’ and ‘legal justice’ do not present a water-tight classification. It is the substance of justice which is to be secured by both and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Backmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants’ defence.
10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principles is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passes becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ‘Magna Carta’. The classic exposition of Sir Edward Coke of natural justice requires to ‘vacate interrogate and adjudicate’. In the celebrates case of Cooper v. Wandsworth Board of Works 1963 (143) ER 414, principles was thus stated:
Even God did not pass a sentence upon Adam, before he was called upon to make his defence. “Adam” says God,” Where are thou has thou not eaten of the tree whereof I commanded tree though should not eat.
Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
7. In para 12 of the aforesaid judgment, the Apex Court has further held as under:
What is meant by the term ‘principles of natural justice’ is not easy to determine. ‘Lord Summer (then Hamilton, LJ.) in Ray v. Local Government Board (1914) 1 KB 160 at p. 199 : 83 LJKB 86 described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman 1943 AC 627 : (1948) 2 All ER 337, Lord Wright observed that it was not desirable to attempt ‘to force it into any procrustean bed’ and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give a full and fair opportunity to every party of being heard.
8. In view of the above, the act of respondent authorities in rescinding the order of promotion passed in favour of the petitioner vide order impugned, without affording any opportunity of being heard to the petitioner is an act which is violative of principles of natural justice.
9. For the reasons mentioned above, this petition is allowed. Order impugned dt. 17th of Feb’ 06 is quashed. Respondent authorities, however, are left free to pass a fresh order after affording a proper opportunity of hearing to the petitioner.
