Kaushal Kumar v. Union Of India

By Justice P. Shanmugam, Chairman Applicant has prayed for the following reliefs: (i) Call for the records of this case.

(ii) Quash and set aside the impugned orders dated 10/01/2006 at Annexure A-I & Annexure A-2 respectively.

(iii) Quash and set aside the show cause notice dated 28/12/2005 as being laconic and bereft of material particulars.

(iv) Direct the respondents to give all consequential benefits including arrears of pay and allowances to the applicant as if the impugned orders were never passed.

(v) Direct the respondents to pay the cost of litigation to the applicant.

(vi) Pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.

2. Brief facts of the case are as follows: The applicant was initially appointed as Laboratory Assistant in the office of 2nd Respondent with effect from 11.8.1975. He was promoted as Scientific Assistant (for short `SA) in the year 1978 and as Senior Scientific Assistant (for short `SSA) on 24.12.1997. According to the applicant, the 4th Respondent made a representation against his promotion, which was rejected on 18.2.1998 and the order had become final. While so, the impugned show cause notice was issued calling upon the applicant as to why he should not be reverted to the post of Scientific Assistant. The OA is filed against the order dated 10.1.2006 whereby the applicant has been reverted from the rank of SSA to that of SA.

3. The sum and substance of the submission of the learned counsel for the applicant are as follows: the show cause notice for reversion is issued after eight years of promotion and, therefore, it is highly belated; the representation against the promotion of the applicant was rejected and the said order of rejection has become final; there is no reason whatsoever given for the show cause notice; the direction of this Tribunal in OA 1750/2004 to consider the representation of the applicant therein (Respondent No.4 herein) was with reference to 2002 vacancy and, therefore, on the face of it, the show cause memo is illegal; and the applicant was promoted in the post based vacancy reserved for SC and the same cannot be unsettled on any ground whatsoever.

4. The official respondents pleaded that the impugned order was passed only in pursuance of the directions of this Tribunal and it does not call for any interference.

5. Learned counsel appearing on behalf of contesting Respondent No.4 submitted that he will be satisfied if his clients case is considered for the vacancy that has arisen in the year 2002.

6. We have heard the learned counsel appearing for the parties and gone through the reply filed by the official as well as private respondents. The post we are concerned is SSA (Biology) in the Central Forensic Science Laboratory (for short `CFSL) in the scale of pay of Rs.5500-9000. The impugned show cause memo proceeds on the premise that the promotion which was effected in the year 1997 was inadvertently made and, therefore, it should be cancelled. The applicant has obtained specific information and material on the DPC held in the year 1997 under Right to Information Act and has filed those documents along with his rejoinder. Annexure A-9 series relating to the DPC meeting held on 18.12.97 reveals the following.

7. The post of SSA is a Selection Group `B non-gazetted post. The vacancy comes under promotion quota and is reserved for Scheduled Caste. On clarification, the Director In-charge verified the fact that the post comes under reservation for S.C. according to the post based roster dated 2.7.97. The minutes of the DPC meeting held on 18.12.97 clearly found that as per new system of post based roster dated 2.7.97, a new roster for the post of SSA available has been prepared and the resultant vacancy which is at 20th point, is reserved for S.C. as per the guidelines issued. The applicant was one among the three found eligible and the post being reserved for S.C., the S.C. candidate has been selected. It is also seen that the representation of the 4th respondent was examined and she was directed to be informed accordingly. The 4th respondent also made a representation for re-examining the matter in the year 1998 and she was replied stating that though she was senior in the Biology Division, she could not be promoted since the vacancy fell under the category of reservation.

8. The 4th respondent filed O.A.1750/2004 before this Tribunal. It was her specific case that she was denied promotion to the higher grade of SSA, the post which was vacant since 30.4.2002 and that she had made a representation on 22.9.2003 which was not responded. The Tribunal by order dated 22.7.2004 (Annexure A8), without issuing notice to the respondents, directed them to dispose of the applicants representation by passing a detailed and speaking order.

9. From the above, it is clear that the 4th respondent was seeking a direction to consider her case for the vacancy that arose on 30.4.2002, in pursuance of her representation dated 22.9.2003. While so, it is surprising to note as to how the respondents took the order of the Tribunal so as to hold the promotion made in the year 1997 as one made inadvertently. The 4th respondent actually was seeking promotion against the post that fell vacant in the year 2002 and not against the vacancy of the year 1997.

10. The Honble Supreme Court in A.P.S.R.T.C. and Others v. G Srinivas Reddy and Others, (2006) 3 SCC 674 went into the scope of the direction to an authority to `consider and held in the following manner: Where an order or action of the State or an authority is found to be illegal, or in contravention of the prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to consider and decide the matter again. When a court directs an authority to consider, it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. The power of judicial review under Article 226 concentrates and lays emphasis on the decision-making process, rather than the decision itself. (Paras 14 and 15) The High Courts also direct the authorities to consider, in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of the power of judicial review, directs the authority to consider and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs consideration without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to consider afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, the High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so. (Para 16). Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to `consider the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely direct the authority to consider the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court. (Para 17). Sometimes the High Courts dispose of the matter merely with a direction to the authority to consider the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the court to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to consider the matter afresh. Be that as it may. (Para 18). There are also several instances where unscrupulous petitioners with the connivance of pliable authorities have misused the direction to consider issued by court. This may be illustrated by an example. A claim which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to consider and dispose of the representation. When the court disposes of the petition with a direction to `consider, the authority grants the relief, taking shelter under the order of the Court directing him to `consider the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order to consider as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, the action of the authorities granting undeserving relief, in pursuance of orders to `consider, may be on account of ignorance or on account of bona-fide belief that they should grant relief in view of the Courts direction to consider the claim, or on account of collusion/connivance between the person making the representation and the authority deciding it. Representations of daily-wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders to consider. (Para19). (emphasis added)

11. Applying the above ratio, it is seen in this case that the representation dated 22.9.2003, filed by the applicant in OA No.1750/2004, remained unanswered and in the said order, the contention of the applicant was to the effect that the vacancy that had arisen since 30.4.2002, had not been filled up. However, taking advantage of the direction to `consider the claim of the applicant, passed in the order dated 22.7.2004, after extracting the direction portion, respondents have chosen to reopen the promotion given to the applicant in the year 1997 and cancelled the said promotion. The respondents could not have granted such a relief to the 4th Respondent at this distant point of time.

12. In the above circumstances, we are of the clear view that the impugned notice is illegal on the face of the record and is liable to be quashed as arbitrary. Accordingly, the O.A. is allowed and the impugned order is set aside. However, it is without prejudice to the rights of the 4th respondent to consider her case for the vacancy of the year 2002. (N.D. DAYAL) (P. SHANMUGAM) Member (A) Chairman /dkm/

4. The official respondents pleaded that the impugned order was passed only in pursuance of the directions of this Tribunal and it does not call for any interference.

10. The word expression `consider was a subject matter before the Honble Supreme Court in the case of EMPLOYEES STATE INSURANCE CORPORATION v. ALL INDIA I.T.D.C. EMPLOYEES UNION AND OTHERS, (2006) 4 SCC 257. Following the earlier Judgement of the Honble Supreme Court in the case of U.P. State Sugar Corpn. v. Mahalchand M. Kothari, (2005) 1 SCC 348, their Lordships held that the word `consider should not mean that a positive direction was given. Their Lordships further observed as under: On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to `consider and dispose of the representation. Their Lordships further observed that  while disposing of the writ petitions with a direction to `consider, there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The Honble Supreme Court in A.P.S.R.T.C. and Others v. G Srinivas Reddy and Others, (2006) 3 SCC 674 went into the scope of the direction to an authority to `consider and held in the following manner: Page 676 to 677 marked portion BOOK Applying the above ratio, it is seen in this case that the representation dated 22.9.2003, filed by the applicant in OA No.1750/2004, remained unanswered and in the said order, the contention of the applicant was to the effect that the vacancy that had arisen since 30.4.2002, had not been filled up. However, taking advantage of the direction to `consider the claim of the applicant, passed in the order dated 22.7.2004, after extracting the direction portion, respondents have chosen to reopen the promotion given to the applicant in the year 1997 and cancelled the said promotion. The respondents could not have granted such a relief to the 4th Respondent at this distant point of time.