w'-' K^nc! '..9 i; ii '^i IN THE HIGH COURT OF JUDICATURE BILASPUR V-- -•?' B» W.P. No. ^SQ /2006 PETITIONER RESPONDENTS (« Rohit Ki-unar Mahobey, S/o Shiv Prasad Mahobey, Aged about 37 years, R/o Rajnandgaon, Motipur, Ward No. 6 (C.G.) VERSUS : 1. High Coiu-t of Chhattisgarh, through/^ Registrar General, Bilaspur (C.G.). J'p^... ^-^.^- y^$>^' 2. ..•^' 3. ^,esw Dista-ict 85 Sessions Judge,^ Rajnandgaon (C.G.) Shri Sanjeev Kuraar Shrivastava, S/o Shri Mahendra Kzunar Shrivastava, aged about 36 Years, R/o New Police Lines, Rajnandgaon (C.G.) WRIT PETITION UNDER ARTICLE 226/227_QF THE CON_STITU_TION QF INDIA PQR ISSUANCE OF WRIT IN THE NATURE OF MANDAMUS .<'!"3*.'£";k'a ^ ^-. ^ . "?^''<-J-*'^^ ^-"^'^t % .-^£iMiai\ ^ i.^i-<"aay^~Vi g % HIGHCOURTOF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 6381 of 2006 PETITIONER RESPONDENTS VERSUS Rohit Kumar Mahobey High Court of Chhattisgarh and others Post for pronouncement of order on ^ .10.2010 Sd/- PritinkerDiwaker Judge ik-p^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 6381 of 2006 PETITIONER RESPONDENTS VERSUS Rohit Kumar Mahobey High Court of Chhattisgarh and others Shri P. S. Koshy, counsel for the petitioner. Shri Goutam Bhaduri, counsel for the respondent Nos. 1 & 2. Shri Malay Bhaduri counsel for the respondent No.3 WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA ORDER ( 5~'.10.2010) Challenge in the present writ petition is to the order dated 03.10.2006 (Annexure P-4) passed by respondent No.1 whereby considering the representation made by respondent No.3 (Sanjeev Kumar Shrivastava) the order dated 10.12.2001 (Annexure P-2) promoting the petitioner from the post of Clerk - Steno to that of Stenographer has been cancelled and respondent No.3 has been promoted to the post of Stenographer from thatof Clerk-Steno. 2. Case of the petitioner is that vide order dated 7.1.1995 (Annexure P-1) he was appointed as Clerk-Steno on the pay scale of 950-25-1000-30-1210-40-1530 plus special pay of Rs. 75 per month and in pursuance ofthe same hejoined on the said post on 10.1.1995. Further case of the petitioner is that though respondent No.3 was also appointed on the same post along with the petitioner, he had joined his duties on 11.1.1995 i.e. a day after joining of the petitioner and that being so, the petitioner is senior to respondent No.3 for all practical purposes. According to the case of the petitioner, one vacancy of Stenographer arose in the office of respondent No.2 (District and ^.j [-.f] .& ^ -2-- Sessipns Judge, Rajnandgaon) in the year 2001 and vide order dated 10.12.2001 (Annexure P-2) the petitioner was promoted to the said post and assumed the charge thereof on that very day. However, all of a sudden, vide order dated 03.10.2006 (Annexure P-4) passed by respondent No.1 his promotion on the post of Stenographer has been cancelled andrespondent No.3 herein stepped in his shoes. 3. Heard counsel for the parties and perused the documents placed on record. 4. Counsel for the petitioner argues that as the order impugned has been passed without affording any opportunity of hearing to the petitioner, the same is bad in the eye of law. He further submits that the petitioner was not even apprised of any representation having been made by respondent No.3 on the basis of which his promotion to the post of Stenographer has been cancelled and respondent No.3 has been given promOtion thereon. He submits that if respondent Nos. 1 & 2 were so interested in giving promotion to respondent No.3, they could have done so against some additional vacant post without making the petitioner to feel humiliated by this sudden jolt of reversion particularly when he had already put in more than six years of service on the promotional post. He submits that while passing the order impugned the respondents 1 and 2 had given an assurance to the petitioner that in case any vacancy of Stenographer arisesin future, he would be adjusted against the same but though the post of Stenographer is already lying vacant with them, the petitioner has not been considered for the same so far. 4. On the other hand supporting the order under challenge in this writ petition, it has been argued by counsel for respondent Nos. 1 &2 that against the promotion order issued in favour of the petitioner, a representation was made by respondent No.3 on 15.12.2001 to District and Sessions Judge, Rajnandgaon and after its rejection on 4.1.2002, he made a representation to the Registrar General, Chhattisgarh High Court on23.01.2002which led to passing ofthe order impugned dated 3.10.2006. He further submits that undisputedly the petitioner and respondent No.3 were appointed on the post of Clerk-Steno vide order iFi -^ 8 ^ ^ ^te^lJ y^y '^ ST'S.- -3- dated 7.1.95 and respondent No.3 was placed above the petitioner in the order of merit. According to him, it is also not disputed that seniority of the petitioner and the respondent is maintained on the basis of their placement in the order of merit and not from the date ofjoining. During the course of argument counsel for the respondents also referred to Rule 12 of Civil Services (General Conditions of Service) Rules 1961 according to which seniority has to be counted on the basis of merit. It is argued on behalf of the respondents that as the petitioner was wrongly granted promotion to the post of Stenographer, the respondent Nos. 1 & 2 have every right to rectify the mistake and that being so there was no necessity on the part of respondents 1 and 2 of giving an opportunity of hearing to the petitioner before cancelling his promotion to the post of Stenographer. According to the counsel for the respondents, in the case in hand even if the opportunity of hearing was granted to the petitioner before cancellation of his promotion, it would have been a futile exercise as the petitioner had nothing to say except what has been stated by him in this petition. 5. Adopting the arguments advanced by counsel for respondents 1 and 2, counsel for respondent No.3 also supports the order impugned. 6. What emerges from the record is that the petitioner and the respondent No.3 were initially appointed as Clerk Steno vide order dated 7.1.1995 (Annexure P-1) and the respondent No.3 was placed above the petitioner in the order of merit. Subsequently, thepetitioner was promoted to the post of Stenographer on 10.12.2001 ignoring the respondent No.3 though he was senior to him according to the order of merit. Representation there-against dated 15.12.2001 was made by respondent No.3 to District and Sessions Judge, Rajnandgaon and after its rejection on 4.1.2002, he made a representation to the Registrar General, Chhattisgarh High Court on 23.01.2002 which was allowed vide order dated 3.10.2006 and consequently the petitioner has been reverted to his original post of Clerk Steno. From the original record produced by the respondents before this Court it is apparent that while promoting the petitioner to the post of Stenographer on ^- v -(/.- 10.12.2001 the respondent No. 2 has not even bothered to consider the case of respondent No. 3 who admittedly was above the petitioner on the post of Clerk Steno and equally qualified for the next promotional post, without considering his name the permission was sought from the High Court though not necessary, for giving promotion to the petitioner alone on the said post. This being the fact situation, the mistake committed by respondent No. 2 in giving promotion to the petitioner bypassing the respondent No. 3 who not only was equally eligible to be considered for promotion to the post of Stenographer but was placed above the petitioner in the order of merit on his substantive post, has rightly been rectified by way of cancellation of promotion of petitioner and giving promotion to respondent No. 3. Moreover, from the letter No. 1036/two-1-219 (2-A)/72 dated 9.11.2001 it appears that before writing it to the High Court respondent No.2/District Judge, Rajnandgaon had already taken a decision to promote the petitioner alone and that is why the case of respondent No.3 was not at all considered. Further, letter ofthe registry ofthe High Court bearing No. 5296/three-l 8-27/2000 Rajnandgaon dated 29.11.2001 reflects that the Registry had never granted permission to the concerned District Judge for promoting the petitioner but it was with regard to fill-up the post of Clerk-Steno fallen vacant as a result of giving promotion to the petitioner on the post of Stenographer. Thus the petitioner cannot say that he was promoted to the post of Stenographer after the permission ^. being granted by the High Court. As already held, such permission was not at all required and what was expected of the respondent No.2/District Judge, Rajnandgaon was to consider the names of all eligible candidates for promotion. 7. The only plea which has been taken by the petitioner is that after putting in about five years of service on the promotional post, his sudden reversion to his original post is in contravention of the doctrine of audf' alterm partem as the entire exercise has been undertaken behind his back without giving any opportunity of hearing. / t-i[ ii V; '% k1 i ^ ~y / 'Yt'o^^' ^'&es"-- 8. Law in respect of compliance of principle of natural justice is that looking to the facts and features of each case it has to be decided by the Court whether observance of that rule was necessary for a just decision of the case and if ultimately it is found that by giving opportunity of hearing to the affected employee, possibility of some different finding to be recorded was there or that non affording of such opportunity of hearing is likely to cause some prejudice to the affected person, such compliance is very muchwarranted. But unfortunately in the case in hand there appears to have been nothing withthe petitioner to be said even after such an opportunity of hearing being given because whatever say he was having has already been taken in this petition and in these circumstances when the Ultimate result was bound to be the same, such opportunity of hearing would have fetched nothing advantageous to the petitioner and would have been a futile exercise. To be more precise, the legal position with respect to compliance of principle of natural justice is that the Court of law should not insist on the same if ultimately it is going to be a useless formality. Taking support of its earlier decision in the matter of Aligarh Muslim University v. Mansoor Ali Khan (2000) 7 SCC 529, it has been held by the Apex Court in the matter of Ashok Kumar Sonkar v. Union of India and others reported in (2007) 4 SCC 54, as under: 29. In Aligarh Muslim University v. Mansoor Ali Khan ». (2000) 7 SCC 529 the law is stated in the following terms: "25. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of 'admitted or indisputable facts leading only to one conclusion' referred to above, there has been considerable debate - on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De Smith, Wade, D.H. Clarketc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudgingthe issue. Some others have said that there ^ -6 is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper in these issues. In the ultimate analysis, it may depend upon the facts of a particular case." 30. In Karnataka SRTC v. S.G. Kotturappa (2005) 3 SCC 409 this Court held "The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straightjacket forumula. The principles of natural justice are furthermore required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved thejr stand even if a further opportunity was given." 31. In Punjab National Bank v. Manjeet Singh (2006) 8 SCC 647 this court opined "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The Court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising there-under is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice." 32. In P.D. Agrawal v. State Bank of India this court observed : "30. The principles of natural justice cannot be put in a straightjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent times also undergonea sea change." It was further observed: ^ii M. j^S" ^'^ 7- "39. Decisions of this Court in S.L. Kapoor v. Jagmohan whereupon Mr. Rao placed strong reliance to contend that non-observance of the principles of natural justice itself causes prejudice or the same should not be read 'as it is causes difficulty of prejudice', cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decision of this Court in State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364 and Rajendra singh v. State of M.P. (1996) 5 SCC 460 the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of aud/ alterm partem, a clear distinction has been laid down between the cases where there was no hearing at all and thecases where there was more technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket forumula. (See Viveka Nand Sethi v Chairman, J&K Bank Ltd. (2005) 5 SCC 337, and State of UP v. Neeraj Awasthy (2006) 1 SCC 667. See also Mohd. Sartaj v. State of UP (2006) 2 SCC 315. The principles of equity in a case of this nature, in our opinion will have no role to play. Sympathy as is well known should not be misplaced." Thus in the case in hand where the petitioner has not been able to substantiateas to what new material he would brought in support of his stand had he been provided an opportunity of hearing by the respondents and no prejudice is shown to have been caused to the petitioner due to non compliance of the principle of natural justice and that too only one conclusion was possible even after such compliance, writ for setting aside the order impugned cannot be issued because the principle of natural justice is not meant to be applied in vacuum. 9. As regards the argument of the petitioner that while passing the order impugned an assurance was given to the petitioner by respondents No. 1 & 2 that if any vacancy of Stenographer.arises in future, he would be adjusted against the same but despite there being a vacant post of Stenographer, he has not been considered for the 1^6 same, the petitioner would be at liberty to approach the respondents No. 1 & 2 with the said request. It is expected that if such a request is made by the petitioner, the respondents No. 1 & 2 shall consider the same in accordance with law keeping in view the order impugned passed against him. 10. Thus the order impugned by which the petitioner has been reverted to his original post of Clerk Steno does not suffer from any illegality. Petition being devoid of substance is liable to be dismissed. It is dismissed as such. | i Sd/- ,i Pritinker Diwaker i Judge 3-. j/