53?; ^ ft ?) Cp- l sro /. IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 2xs&^ of 2007 In the matter ofArticle 14 ofthe Constitution oflndia And In the matter oflndira Gandhi Krishi Vishwavidyalaya Adhiniyam 1987 And In the matter of PETITIONER SHRI. PRASHANT DUBEY C-10 RAVINAGAR, PART C, BEHIND E.A.C. COLONY RAIPUR. (C.G.) RESPONDENTS A0 Versus ^ . DSHDIRA GANDHI KRISHI VISHWAVIDAYALAYA THROUGH THE REGISTRAR, RAIPUR, (C.G.) ^. STATE OF CRATTISGARH THROUGH SECRETARY DEPT. of AGRICULTURE, MANTRALAYA BHAWAN, RAIPUR, (C.G.) 3. INDIAN COUNCIL OF AGRICULTURAL RESEARCH KRISHI BHAVAN, Dr. IIAJENDRA PRASAD ROAD, NEWDELm-110001 Before: Hon'ble The Chief Justice and his companion Judses of the Hon'ble Hish Court ofjudicature Chhattisgarh at Bilaspur. ^ ^. ^^ ./^€ ^/.^ ^/^/l; IW ^' MW Petition under Articles 226/227 ofthe Constitution oflndia for issuins suitable directions, orders or writs includins writs ia the nature of mandamus, certiorari etc. HIGH COURT OF CHHATTISGARH AT BILASPUR • wf\fa*' W.P.ISUiO. 2056/2p07 PETITIONBR RESPONDBNTS Versus Shri Prashant Dubey Indira Gandhi Krisbi Vishwavidyalaya & Ofhers. WMTJPBT!TION UNDER ARTICLB 226 OP THE COSSTITUTIQN OFINDIA Appearaace: Shri Neelabh Dubey, Advocate for the petitioner. Shri B.D.Guru, Advocate for the respondent No. 1. Shri Y.S.Thakur, Depuiy Advocate General for the State/respondent No. 2. Shri Brajesh Siagh, Advocate on behalf of Shri A.S.Gaharwar, Advocate for the respondent No. 3. ORAL OKDER {26.08.20091 ChaUenge in fhis petltion is to fhe order dated 12.01.2007 (Aimexure P/5) passed by the respondent No. l, by which tiie designation of fhe petitioner ie. Associate Professor in the pay scale of Rs. 12,000 - 18,300 under the Career Advancemeat Scheme, has been caacelled. Contention of Shri Dubey, counsel for the petitioner 1s fhat whUe fhe petitioner was worldng as Assistarit. Professor, Selection Grade, vide order dated 26.02.2004 (Anuexure P/4) he was desj^aated as Associate Professor wifh effect from 27.7.1998. He subinits that fhis designation was given to the petitioner after coinpletion of afl fhe forinalities reqiured iinder the Career Advan.ceinent Schem.e. He farther submits fhat wbile designating the petitioner as Associate Professor, not only the Career Advaacement Schenie was considered, but clarificatiou dated 19.04.2001 (Annexure P/2), issued by the Indian Coiuicil of Agricultural Research/respondent No. 3 was also duly considered aad fheii only fhe petitioner was extended ^••^'"^ '% 1 -t-' fhe benefit ofAssociate Rrofessor. Shri Dubey ftu-ther argues fhat fhe petitioner has worked as Associate Professor tor about fhree years. AQ of a sudden, fhe impugned order dated 12.01.2007 (Armexure P/5) has beea issued by fhe Uniyersift- withdrawing fhe earUer oa-der dated 26.02.2004 (Annexure P/4). It has been further contended by Shri Dubey tliat before issuing the im.pugued oider dated 12.01.2007; no opportunity whatsoever, has been given to the petitioner aud ftie same is unpermissible because on 26.6.2004, when fhe petitioner was designa.ted as Associate Professor, he has atoeady worked on fhe said post for about tfaree years. Thus, a right has accrued ia favour of fhe petitioner wbicb caniiot be withdrawn wifhout followiug tfae principles of uatural justice. He farther subinits fhat once the petitioner has been des^nated as Associate Professor, his cadre has also chaaged aad, therefore, fhe unpugned order cannot be issued wifhout affordiag any opporturuly to the peutioner. In support of the aforesaid contention, Shri Dubey strougly placed reUaace on the judgineiit reported iu fb.e niatter of Raru Ujarey v. Union oflndia1: There is yet another infirmity in fhe ioipugned oider of reversiori. The appeBaat had been ailowed the bene&t of service rendered by him as Coal Khalasi in. fhe Loco Department froin 1964 to 1972 as fhat period was counted towards his seniori.ty aad it was on fhat basis that he was caUed for the trade tests which fhe appellaiit had passed and was, thereafter, pnsinoted to the posts of Semi-skiUed Fitter aad SkiUed Fitter. If fhe benefit of service rendered by him fi-om. 1964 to 1972 was intended to be withdrawn aiid piumotion orders were to be canceUed as haviag been passed on account of inistake, the respondents ought to have first given aa opportunity of hearing to fhe appeBaat. The appeBaat having earued two proinotions after haviag passed fhe tiade tests, could not have been legaUy reverted two steps below and brought back to fhe post of Khalasi without beiag inforaied that fh.e period of service 1991(1)SCC 685 -s' rendered bv him froin 1964 to 1972 could not be coimted towaids his seniorily, aud, therefore, the promotion orders woidd be caaceUed. In a situatioa of this aature, it was not open to fhe respondeiits to have inade up fheir inind lUulateraUy on facts which could have been shown by 'ilie appeliaiit to be not correct but fhis chance never came as the appellant, at no st^e, was iafonned of fhe action which fhe respondents nitended to take agaiust him. ! He furfher placed reliaace on the recent judgiaent of fhe Apex Court in the inatter of Prakash Ratan Sinlia v. State of Bihar & Ors2, whicb reads as under: °10. The Division Bench of the Court does not dispute fhe fact of passiag of fhe impugned order wifliout tiearing the appeUant, but condones the procedural in-egularity by bringiag it under fhe "doctriae offutile exercise." According to the Court, even if an. opportunity of showiug cause was afforded to the appeliant, it would uot have inade any difference. We fail to understaud the logic adopted by the Division Bench. The reason being, fhat, it is the case of fhe appeBaat that on a recoiumendation inade bv Circle Proiaotion Coinnuttee, he was regularly pronioted to fhe post of Accounts Clerk, siace he had necessary quatification aad experience and it is his furtlier case fhat fhough he was appoiated as daily wager, r^ht &oin his iuduction, he was directed to dischai^e the work ofAccounts Clerk. It is also his case tihiat on the reconunendation inade by Circle ProiBotion Coiamittee, the iu chai^e Chief Electrical Engiaeer has passed au order approvia^ the recoaunendatioa aad granting piomotion to fhe appeUaat to the post ofAccouats Clerk. However, it is the case of the respondents that the Circle Proiaotion Coinnuttee had only reconuaended fhe chaage of noinenclature from fhat of dafly wager to that of Accounts Clerk aad that it is not a case of regular prouiotion. It is their furfher case, even assuming it is a case of promotion, fhe saiae tias been done without foUowuig the prescribed procedure and also by ^noring the claun. of several ofher einployees aad therefore, respondents were justified in. canceliag the order passed by the in char^e Chief Electncal Engineer. In our view, these are ail disputed facts and fhe respondents wifhout affordiag aa opportuaity ofhearing, couM not have taken any adinuustrative decision unilatei'aily. Therefore, the Division Bench of the High Court is aot justified in concluding "uniess Civil AppealNos. 4348-4349 of2009 ff f.^' theorv" need not have been foUowed bv the respondents." Sbri Dubev subnuts that the case On haad is almost identical to the case decided by the Hon.'ble Apex Court (supra). It has bcen further argued by Shri Dubey that if the petitioner would have been given any opportuaily, he would have satisfied fhe autliorities to the effect fhat he has rightlv been given the designation ofAssociate Professor because ftie clarification dated 19.04.2001 (Annexure P/2), briags the case of the petitioner wifhin the exception zone. He subinits that while passing fbe order iiapugned, fb.e respondent No. l has coinpletely overiooked this itaportaat docuiuent. On the ofh.er haud, learaed counsel for respondents submit fhat fhe order dated 26.2.2004 was issued iaadvertently because the petitioner has not done Ph.D aad as per fbe scheme, it is only those persons who caa be designated as Associate Professor who have done fheir Ph.D. Counsel ftirtlier subinits fhat tbe Board of Managenient of ttie Uiuversity had not approved the designation ofthe petitiouer as Associate Professor. Shri Guru, representing respondent No. 1, however, fairly submits fhat no opportunity, whatsoever bas been given to fhe petitioaer before passing the impugned order dated 12.01.2007. I have heard counsel appeariag for ftie parties aad perused the laaterial available on record. Adinittedly, whfle issuiag the im.pugaed order dated 12.01.2007 (Annexure P/5), the petitioner has not been given any opportunity of tiearing. It is further adnutted that the petitioner has worked as Associate Professor for aiore fhan tiiree years, his cadre was also changed, keeping tu view the law as laid down by the Apex Court aiid fb.e factual position of fhe present case, the order impugned which bas been. issued without affordins aa opportajnity, is bad in fhe eye of law. For tfae reasons laentioned hereuiabove, wifhout expressiug any opiaion on the nients of the case as to whether the petitioner is entitled to be designated as Associate Professor, fhe inipugned order dated 12.01.2007 (Aimexure P/5) passed by the respondent No. 1/Universily is set aside ortly on fhe ground that the petitioner was not afforded any opportunily. However, fhe respondent No. 1/Universily would be at liberty to adopt appropriate ineasures ia accordance with law, a&er aflbrding due opportuaity to fhe petitioner, if so required. Accordiagly, ttus petition staads disposed of. ^.f SAi'<.^.^at ^v^' y^^