Arjun Singh Negi v. Union Of India And Others

Surinder Singh, J.:— The sequence in the oft-treaded path is facts understanding … judgment. Let us face the facts, The petitioner, Arjun Singh Negi, says in this petition filed under Art. 226 of the Constitution of India, that he was recruited as a lower division clerk in the office of the Director, Census Operations, Haryana, Chandigarh, on 14 April, 1969. He was promoted as an upper division clerk, first on ad hoc basis on 3 September, 1970, and thereafter on regular basis on 31 October, 1972. The post next higher in rank is that of accountant. A regular upper division clerk haying three years of service to his credit, is eligible for promotion to the post of accountant. I.C Sethia (respondent 3) was recruited directly in the same office as an upper division clerk in the year 1970. Having joined as such earlier to the petitioner, respondent 3 was admittedly senior to him. On 25 July, 1972, an order was passed by which respondent 3 who was working as an assistant accountant, was posted as a cashier, while the petitioner who was at that time working as a cashier, was asked to work as an assistant accountant. It is not disputed that both the posts of the assistant accountant and cashier are within the same cadre of upper division clerks. The order of transfer (copy annexure P 2) appears to have been necessitated because respondent 3 had declined to undergo training in accounts work and had given in writing that he was not interested in being promoted to the post of accountant. The order, therefore, recited that respondent 3 had forfeited his rights for promotion to the post of accountant. On 24 July, 1973, an order was passed by the Director of Census Operations (copy annexure P 3) by which the petitioner was promoted as an accountant on “temporary and strictly ad hoc basis.” In October 1975, the occasion arose for the appointment of a regular incumbent on the post of accountant. An order was, therefore, passed on 26 December, 1975 (copy annexure P 4), promoting respondent 3 as an accountant, though in temporary capacity, as he was placed on probation for two years. By means of the same order, the petitioner who had been working as an accountant on ad hoc basis, was reverted to the post of upper division clerk. This order has ambulated the petitioner to this Court.

2. The official respondents have resisted the action. In the return filed by Sri Ardaman Singh, Deputy Director, Census Operations, Haryana, it is averred that respondent 3 had shown disinclination for being promoted to the post of accountant, as at the relevant time, according to the draft recruitment rules, he was also eligible for promotion to other posts which were higher than that of accountant. The situation, however, changed after the final recruitment rules were notified in February 1973. As per these rules, an upper division clerk, was eligible for promotion only to the post of accountant and that too if he had put in at least three years of service as an upper division clerk. All other avenues for the promotion of respondent 3 having been blocked in view of these rules, he represented that he may be considered for being promoted to the post of accountant, which he had earlier declined. The representation of respondent 3 was considered by the departmental promotion committee at the time of the filling the post of the accountant on regular basis, along with the cases of all other officials including the petitioner. After due consideration, respondent 3 was placed at No. 1 in the panel which was drawn for selection to the post of accountant and he was promoted as such. In regard to the petitioner, it was stated that he had been appointed to the post of accountant merely on ad hoc basis and this appointment had not been regularized by obtaining the approval of the departmental promotion committee, which was the only competent authority to select a person for the post of accountant on merit-cum-seniority basis.

3. Sri J.L Gupta, learned counsel voiced the grievance of the petitioner and while doing so, confined his attack against the impugned order (copy annexure P 4) on the sole ground that the principles of natural justice had been violated, in that the petitioner was never afforded an opportunity of hearing before being reverted to the post of upper division clerk. The buoyancy of the contention will have to be tested.

4. The learned counsel has spoken of natural justice. What exactly is natural justice? The principles of natural justice are easy to proclaim but their precise extent is far less easy to define. Evershed M.R in Abbott v. Sullivan [(1952) 1 K.B 189 at page 195]. It may, however, be stated without reserve that in the light of dicta available from the legal treasuries, if I may use the term, the main principles of natural justice may be summarized in two essential elements:

(a) no man shall be a judge in his own cause; and

(b) audi alteram partem, i.e, both sides shall be heard.

Obviously, it is element (b) which is sought to be invoked in support of the argument advanced by the learned counsel. However, the application of the principle would be attracted only to a case where there are two opposing parties to a controversy. The question to be seen is whether there were really two contesting parties before the competent authority, which was seized of the matter regarding promotion to the post of accountant on regular basis. The answer is obviously in the negative. A departmental promotion committee which is to consider the matter of promotion for the purpose of filling a certain post, is called upon to review not only the seniority but also the qualifications, experience, work and conduct of all the eligible candidates for the purpose of a comparative assessment. The committee is not to confine itself to a dispute between the petitioner and respondent 3, or for the matter of that between the petitioner and some other candidates. In fact, in the present case there was no such dispute before the committee, for the decision of which it was necessary to lend ear to the contesting parties. A situation may, of course, be visualised where a complaint or a representation directed against the petitioner, is required to be considered. In such a case it would be the bounden duty of the committee to afford hearing to the petitioner before condemning him. There was no such thing in the present case. As stated in the return, the committee had given due consideration to the merits of all the eligible candidates including the petitioner. The principle of audi alterm pattem is neither applicable, nor available in such a situation.

5. The learned counsel has indeed sought asylum by reference to a Division Bench decision of this Court in Prithvi Raj Mehra v. State of Punjab [1968 S.L.R 887], where the learned Judges while dealing with the matter regarding the functions of the departmental screening committee of the Public Works Department (B & R), Public Health, constituted under the rules pertaining to the said department, were of the view that the officers whose cases are to be screened by the committee are entitled to an opportunity of hearing. They were further of the view that if this opportunity is not afforded to the officers, the rules of natural justice and fair play are infringed. The argument in support of this conclusion is that the committee is invested with the power to supersede an eligible candidate and that an elaborate procedure for screening of candidates had to be carried out. As such, before making a recommendation to the Public Service Commission the committee should hear the officers concerned in accordance with the rules of natural justice. The learned Judges also placed reliance upon certain observations made in Jagdish Pandey v. Chancellor, University of Bihar [A.I.R 1968 S.C 353]. The facts of that case were, however, very much distinguishable both from those in the present case as also in the case before the Division Bench. In Jagdish Pandey case (vide supra), the Bihar Legislature had passed the Bihar State Universities (Amendment) Act, 13 of 1962, Section 4 of the said Act provided that notwithstanding the earlier legislation, every appointment, dismissal, removal, etc., of a teacher made on or before the specified date, shall be subject to such orders as a Chancellor of a University may on the recommendation of the University Service Commission, pass with respect thereto. The appellant, Jagdish Pandey in that case, had been appointed as a principal of a college. A challenge against this appointment, made by means of a writ petition in the Patna High Court, had failed. After the coming into force of the Bihar Act, 13 of 1962, the Chancellor of the University conveyed his approval to the appointment of Jagdish Pandey as principal only till November 1962 or till the candidate recommended by the Commission joined, whichever was earlier. Subsequently, realizing that the order passed by the Chancellor, in respect of the appellant, might be challenged, the Commission issued a show-cause notice to the appellant with a view to modify the earlier order. On the recommendation of the Commission, the Chancellor passed another order on 18 August, 1962, in so far as it related to the appellant, which modified the terms of his service to the extent that he was required to obtain a second class master's degree within a specified time, failing which his services were to be terminated. It was in this set up that an observation was made by the Supreme Court that it was implicit in S. 4 of the Bihar Act that the Commission before making its recommendation, should hear the teacher concerned according to the principles of natural justice. In fact, these observations were made with a view to come to a conclusion that even in the absence of a specific proposition for grant of hearing, S. 4 of the Act could not be struck down under Art. 14 of the Constitution as discriminatory. These observations could not have been construed to lay down a general rule that hearing by the departmental committee to all the candidates is mandatory under the rules of natural justice, even for the purpose of departmental promotions. With utmost respect to the learned Judges deciding Prithvi Raj Mehra case (vide supra), it is not possible for us to subscribe to the view expressed on this subject and it must be held that to that extent the decision does not lay down correct law.

6. Some other authorities cited at the Bar had no relevance to the point in issue and, as such these have not been noticed.

7. Shorn of the natural burden, the scales of justice do not at all tilt in favour of the petitioner. The writ petition is dismissed, but with no order as to costs.

8. O. Chinnappa Reddy, J.:— I agree.

9. B.S Dhillon, J.:— I also agree.