A.Srinivasan v. The Director, Irrigation Management and Training Institute

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 30.01.2012C O R A MTHE HONOURABLE MR.JUSTICE K.RAVICHANDRA BAABUW.P.(MD)No.14345 of 2011 and MP(MD)No.1&2 of 2011A.Srinivasan ... PetitionerVs.1.The Director, Irrigation Management and Training Institute, Cauvery Valagam, Thuvakudi, Trichy District.2.The Chief Engineer, Public Works Department, Irrigation Management and Training Institute, Cauvery Valagam, Thuvakudi, Trichy District.3.R.Vijayakumar, Assistant (outsource), Irrigation Management Training Institute, Cauvery Valagam, Thuvakudi, Trichy District. ... RespondentsPrayer: Writ Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus calling for the recordsrelating to the impugned order issued by the second respondent on behalfof the first respondent in his proceedings A-93/IMTI/2011 dated30.11.2011 and quash the same and consequently direct the firstrespondent to allow the petitioner to continue his service as Assistantin the first respondent office and to pass such further or other ordersas this Court may deem fit and proper under the circumstances of thecase.For Petitioner : Mr. P.Arun Jayatram For R1 to R2 : Mr. B.Pugalendhi Special Government PleaderFor R3 : No appearanceO R D E RThe prayer in the Writ Petition is challenging the order passed bythe second respondent on behalf of the first respondent in hisproceedings dated 30.11.2011 and consequently, for a direction to thefirs respondent to allow the petitioner to continue his service asAssistant in the first respondent office.2. It is the case of the petitioner that he was appointed as RecordClerk-cum- Roneo Operator on 13.03.1985 at the office of the firstrespondent. Thereafter, he was given Selection Grade Record Clerk on19.03.1996. Further, the petitioner was promoted as Junior Assistant on18.4.1996 and on completion of 10 years, he was given Special Grade https://hcservices.ecourts.gov.in/hcservices/ 2Junior Assistant on 21.06.2006. Subsequently, he was promoted asAssistant on 30.06.2011 and while he was working as Assistant from thedate of his promotion, the impugned order came to be passed by the firstrespondent on 30.11.2011 reverting the petitioner from the post ofAssistant to the post of Junior Assistant. 3. The main ground raised by the petitioner in this Writ Petition isthat the impugned order was passed in total violation of principles ofnatural justice as he was not given any opportunity of hearing beforepassing the said order.Therefore, the present Writ Petition is filedbefore this Court.4. Notice of motion was ordered by this Court on 15.12.2011. Thelearned Special Government Pleader entered appearance on behalf of allthe respondents. While ordering notice of motion, this Court has alsogranted interim stay of the impugned order for a period of four weeks.The respondents 1 and 2 have filed the counter affidavit with M.P.No.1 of2012 to vacate the order of interim stay which came to be passed on15.12.2011. In the counter affidavit, it is contended that the petitionerhas joined the office of the first respondent as Record Clerk on13.03.1985 and he was promoted as Junior Assistant (Library) since hecompleted the Certificate Course on Library Science. It is stated by therespondents 1 and 2 that the posts of Junior Assistant and the JuniorAssistant(Library) are different. Therefore, the next promotional avenuefor the writ petitioner is only Assistant (Library). Therefore, he cannotbe promoted for the Assistant post in Administrative side. According tothe respondents, promotion given to the petitioner is temporaryarrangement.5. It is further stated by the respondents that for the post ofAssistant, one must require completion of Departmental Test in DOM(District Office Manual) and also Account Test Part-I and the selectionwould be made only by conducting an interview by permanent selectioncommittee. 6. It is stated by the respondents 1 and 2 in their counteraffidavit that promotion given to the petitioner by the then Director waswithout following the Rules and Regulations and in violation of theguidelines stipulated for the post of Assistant. It is further stated bythe respondents 1 and 2 that the petitioner had not completed theDepartmental Test required for the post of Assistant and on the otherhand, he had misrepresented the Department as if he had undergone theDepartmental Test for five times and could not complete the same. Infact, he had never appeared in the Departmental Test. Therefore,according to the respondents, promotion given to him was based on themisrepresentation and fraud played by the petitioner. Therefore, it iscontended by the respondents that there is no necessity for giving him anopportunity of hearing and for conducting an enquiry, once an order wasobtained by fraud or misrepresentation.7. Heard the learned counsel for the petitioner and the learnedSpecial Government Pleader appearing for the respondents 1 and 2. Thereis no representation for the third respondent. https://hcservices.ecourts.gov.in/hcservices/

38. A bare perusal of the impugned order passed by the respondentsonly shows that the same came to be passed based on the proceedings ofthe first respondent Director dated 16.06.2011. The said order impugnedin this Writ Petition does not give any reason as to why the petitioner'spost is reverted from Assistant to Junior Assistant. Admittedly, thepetitioner was promoted to the post of Assistant by the then Director on30.06.2011 and if it is the case of the respondents that the petitionerhad committed fraud or misrepresented the facts before the Department,there is no reason as to why the impugned order is totally silent aboutthe same. It is also a fact that the petitioner was not put on notice byplacing the above said allegations to submit his explanation. In thiscase, admittedly, the respondents without doing so straight away passedthe impugned order based on the proceedings of the Director dated16.6.2011. It is stated by the petitioner that he has not been furnishedwith a copy of proceedings of the first respondent Director dated16.06.2011. It is contended by the respondents that promotion given tothe petitioner is not in accordance with the Rules and he is not entitledto such promotion as Assistant. However, the fact remains that he waspromoted by the very same Department on 30.6.2011 and if the respondentsfeel that the very promotion was bad and the petitioner has to bereverted from the post of Assistant to Junior Assistant, the same cannotbe done without following the principles of natural justice. Thepetitioner, after having been promoted as Assistant, has got every rightto be heard before an adverse order is passed by the respondentsreverting him to the post of Junior Assistant especially when it affectshis right, as the same cannot be passed behind his back. 9. At this juncture, it is useful to refer to the decision of theHon'ble Supreme Court reported in 2008(2) SCC 750 in the case of Union ofIndia and another Vs. Narendra Singh. Paragraph No.34 of this Judgementis extracted hereunder:34.True it is that before such an action is taken and a personis actually reverted, he must be given an opportunity to showcause why the proposed action should not be taken. He may beable to satisfy the authorities that there was not suchmistake. But even otherwise, principles of natural justice andfair play require giving of such opportunity to him. But asobserved earlier, in the instant case, in accordance with Rule31-A of the Fundamental Rules, notice was issued to therespondent employee, explanation was sought and thereafter theorder was passed. The said order, in our considered view, wasjust, proper and in consonance with law and it ought not tohave been set aside by the Tribunal or by the High Court. Tothat extent, therefore, the orders impugned in this appealdeserve to be set aside.In an another decision reported in 2007 WLR 1012, in the case of V.UshaVs. the Director of Town Panchayat, Kuralagam, Madras 108 and threeothers, the learned Judge has held that order of reversion without noticeis unsustainable.10. Therefore, without going into the merits of the matter, thisCourt is inclined to interfere with the impugned order only on the groundof violation of principles of natural justice and consequently, set aside https://hcservices.ecourts.gov.in/hcservices/ 4the same and remit the matter back to the first respondent with adirection to afford an opportunity of hearing to the petitioner andthereafter pass an order on merits and in accordance with law. 11. Accordingly, the Writ Petition is allowed and the matter isremitted back to the first respondent, who in turn will afford anopportunity of hearing to the petitioner, by issuing a notice within aperiod of three weeks from the date of receipt of copy of this order andthe petitioner is directed to submit his objections/explanations to thefirst respondent within a period of two weeks from the date of receipt ofsuch notice from the first respondent. Thereafter, the first respondentshall pass orders on merits and in accordance with law within a period offour weeks thereon. The petitioner is also directed to co-operate withthe proceedings pending with the first respondent. No costs.Consequently, connected M.Ps are also closed.Sd/- Assistant Registrar(A.S) /True Copy/ Sub Assistant RegistrarTo1.The Director, Irrigation Management and Training Institute, Cauvery Valagam, Thuvakudi,Trichy District.2.The Chief Engineer, Public Works Department, Irrigation Management and Training Institute, Cauvery Valagam, Thuvakudi,Trichy District.+1 CC to M/s.P.Arun Jayatram, Advocate Sr.2655.+1 CC to Special Government Pleader Sr.2624.sesck/16.02.2012 : 4p/5cW.P.(MD)No. 14345 of 201130.01.2012