Rajesh Saraf vs UT Of J&K & Ors.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, primarily seeking quashing of Government Order No. 33-JK(Edu) of 2023 dated 03.02.2023, whereby the benefit of his promotion/regularization as Lecturer in the discipline of Physics, earlier granted pursuant to the recommendations of the Departmental Promotion Committee, has been withdrawn.

The brief facts necessary for adjudication of the controversy are that the applicant was initially appointed as General Line Teacher on 23.10.1989 and was thereafter promoted as Master on 04.08.2007. While serving as a Teacher, he sought permission from the competent authority to pursue M.Sc. (Physics) through correspondence/distance mode from Madhya Pradesh Bhoj (Open) University, Bhopal. Permission was granted by the Directorate of School Education, Jammu vide order dated 16.01.2006 for the session 2005-2007 and the applicant thereafter completed his postgraduate qualification in Physics.

It is the case of the applicant that his postgraduate qualification was subsequently verified by the Department in terms of Government Order No. 940-Edu of 2017 dated 17.11.2017. In the relevant seniority particulars, his name figured at Serial No. 11 and his qualification was reflected as “VERIFIED”.

On the basis of his qualification and service particulars, the applicant was placed as In-charge Lecturer (Physics) vide Government Order No. 251-Edu of 2019 dated 25.07.2019 and was thereafter adjusted as In-charge Lecturer. His case was subsequently considered by the Departmental Promotion Committee and, pursuant to its recommendations, Government Order No. 2163-JK(Edu) of 2022 dated 28.11.2022 came to be issued regularizing 57 In-charge Lecturers in different disciplines. The applicant was one of the beneficiaries of the said order and his name figured at Serial No. 46 of the annexure thereto. The respondents themselves acknowledge that the applicant was regularized on the basis of the recommendations of the DPC.

The grievance of the applicant arose when the respondents issued Government Order No. 33-JK(Edu) of 2023 dated 03.02.2023, withdrawing the benefit of his promotion/regularization as Lecturer in Physics. The applicant has challenged the said action primarily on the ground that the benefit granted to him after departmental verification and consideration by the DPC could not have been withdrawn unilaterally without issuance of any show-cause notice or without affording him an opportunity of hearing. The record shows that this Tribunal, while issuing notice in the matter on 14.02.2023, noticed the specific plea that the applicant’s regular promotion had been withdrawn without observance of the minimum requirements of natural justice and stayed operation of the impugned order.

The respondents have resisted the O.A. It is their case that, after issuance of Government Order dated 28.11.2022, representations were received from other In-charge Lecturers who had also acquired postgraduate qualifications through distance mode and who sought similar regularization on the analogy of the applicant. On examination, according to the respondents, it was found that the applicant had acquired M.Sc. (Physics) through distance mode from M.P. Bhoj University, Bhopal.

The specific stand of the respondents is that the applicant’s name had inadvertently figured in the consideration zone before the DPC and that his case ought to have been placed in Table-C of the DPC proceedings. According to the respondents, candidates possessing postgraduate degrees through distance mode were to be considered after receipt of verification reports concerning their qualifications in the light of Government Order No. 252-HE of 2012 dated 30.05.2012 and Government Order No. 940-Edu of 2017 dated 17.11.2017.

It is further pleaded that the Department had decided to review the cases of persons possessing postgraduate degrees in the Science stream through distance mode and that the verification reports/recommendations in respect of such incumbents were still awaited. On this premise, the respondents seek to justify the withdrawal of the applicant’s regularization.

We have heard learned counsel for the parties and carefully perused the pleadings and material available on record.

The essential question which arises for determination is not, at this stage, whether the postgraduate qualification possessed by the applicant ultimately satisfies every requirement prescribed by the competent authorities. The more fundamental question is whether a substantive benefit of promotion/regularization, once granted to an employee after consideration by a duly constituted Departmental Promotion Committee and acted upon by the Department, could be withdrawn by the respondents without first putting the employee to notice and affording him a reasonable opportunity to explain his position.

Admittedly, the applicant was not merely holding the post of Lecturer on an ad hoc or casual arrangement at the time the impugned action was taken. His case had travelled through the departmental process, including consideration by the DPC, and culminated in Government Order No. 2163-JK(Edu) of 2022 dated 28.11.2022 whereby regularization/promotion was accorded to him along with other incumbents. The respondents themselves admit that the applicant’s name figured at Serial No. 46 of the annexure to the said order and that he had been regularized pursuant to the recommendations of the DPC.

Once such an order had been issued and acted upon, any subsequent action having the effect of taking away the status and service benefits already conferred upon the applicant was undeniably an action involving serious civil consequences. Such an order could not have been passed behind his back.

The respondents may undoubtedly be competent to correct an error, review an irregular decision or verify whether an employee possessed the qualification prescribed under the applicable rules. However, the existence of such power does not dispense with the requirement of fairness. Even where the authority proposes to rectify what it perceives to be an erroneous promotion or regularization, the affected employee must first be informed of the precise grounds on which such action is contemplated and must be afforded an effective opportunity to respond.

In the present case, the respondents contend that the applicant’s name was inadvertently placed in the consideration zone before the DPC and that, being a holder of a postgraduate degree obtained through distance mode, his case ought to have been considered separately after due verification. Even assuming such contention to be correct for the sake of argument, the respondents were required to confront the applicant with that material before withdrawing the benefit already granted to him.

The record does not indicate that any show-cause notice was served upon the applicant prior to issuance of the impugned Government Order dated 03.02.2023. Nor is there any material to show that he was given an opportunity to explain the circumstances relating to the permission granted to him for pursuing the postgraduate course, the earlier departmental verification of his qualification, his inclusion in the seniority list, or the subsequent consideration of his case by the DPC. On the contrary, the specific case set up by the applicant is that the withdrawal was effected without notice or hearing, and this aspect was noticed by the Tribunal even while granting interim protection.

The contention of the applicant assumes further significance because the Department had itself earlier granted him permission to pursue the course and his postgraduate qualification had subsequently been reflected as verified in the departmental record. Whether such earlier verification is conclusive for all purposes is a matter which the competent authority may examine. However, it certainly constituted relevant material which could not have been ignored while taking an adverse decision affecting the applicant’s substantive service status.

An administrative authority cannot first confer a substantive service benefit after departmental scrutiny and consideration by the DPC and thereafter withdraw the same merely by recording internally that the earlier consideration was inadvertent, without giving the affected employee a chance to meet the allegation. The rule of audi alteram partem is attracted with greater force where the proposed action results in reversion, withdrawal of promotion, reduction in status or deprivation of service benefits already conferred.

We are, therefore, of the considered view that Government Order No. 33-JK(Edu) of 2023 dated 03.02.2023 cannot be sustained, having been passed in violation of the principles of natural justice.

At the same time, this Tribunal does not consider it appropriate to finally pronounce upon the substantive validity or otherwise of the applicant’s M.Sc. (Physics) qualification acquired through distance mode. The respondents have placed a specific stand before us that such qualifications in the Science stream required verification under the relevant Government Orders and that the applicant’s case ought to have been considered in the appropriate category of the DPC proceedings. That issue requires examination by the competent authority on the basis of the relevant rules, recognition/verification material and the applicant’s response.

In view of the foregoing discussion, the Original Application is allowed in the following terms:

It is made clear that this Tribunal has not expressed any final opinion regarding the recognition, validity or eligibility of the applicant’s postgraduate degree for promotion as Lecturer. All such issues are left open to be decided by the competent authority after following the procedure indicated hereinabove.

The O.A. is accordingly allowed and disposed of in the aforesaid terms. The interim protection granted earlier shall merge into this final order.

No order as to costs.