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1980 Supreme(J&K) 80
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
I.K. Kotwal, J.
Chhajju Ram Gupta (Dr.) - Appellant
Versus
State Of J&K & Ors. - Respondent
Writ Petition No. 142/1978
Decided On : 01 August, 1980
Advocate For Appellant: A.D. Singh
Advocate For Respondent: S.D. Sharma
Advocate For Respondent: T.S.Thakur
The Government has the power to review an order of subordinate authority on its own motion or to review its own order suo moto at any time. However, this power must be exercised in accordance with the rules of natural justice.
Headnote:
SENIORITIY - FIXATION - REVIEW - NATURAL JUSTICE - WRIT JURISDICTION - [RULE 24, 25, 53, 55, 57 J&K CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1956] - A writ petition is maintainable to challenge an order fixing or refixing seniority. The Government has the power to review an order of subordinate authority on its own motion or to review its own order suo moto at any time. However, the Government must follow the rules of natural justice and provide the affected party with an opportunity to be heard before passing an order that adversely affects their seniority.
Fact of the Case:
The petitioner and respondent No. 2 were appointed as Vaids in 1961. Their seniority was determined twice, in 1966 and 1971, and the petitioner was shown as senior to respondent No. 2 on both occasions. In 1977, the Government issued a notice to the petitioner to show cause why he should not be assigned the position at serial No. 19 in the seniority list of 1971. The petitioner submitted his reply, but the Government accepted the recommendations of a Review Committee and passed an order in 1978 assigning the petitioner the position at serial No. 19 in the seniority list of 1966.
Finding of the Court:
The court held that the impugned order was passed in violation of the principles of natural justice as the petitioner was not afforded an adequate and reasonable opportunity of defending his seniority. The court also held that the Government had the power to review the earlier orders fixing the seniority, but it had to follow the rules of natural justice.
Issues: 1. Whether a writ petition is maintainable to challenge an order fixing or refixing seniority? 2. Whether the Government has the power to review an order of subordinate authority on its own motion or to review its own order suo moto? 3. Whether the Government is required to follow the rules of natural justice before passing an order that adversely affects the seniority of a Government servant?
Ratio Decidendi: 1. A writ petition is maintainable to challenge an order fixing or refixing seniority because it affects valuable rights and service career of some Government servants and is as such in the nature of a quasi-judicial order. 2. The Government has the power to review an order of subordinate authority on its own motion or to review its own order suo moto at any time. However, this power must be exercised in accordance with the rules of natural justice. 3. The Government is required to follow the rules of natural justice before passing an order that adversely affects the seniority of a Government servant. This includes providing the affected party with an opportunity to be heard and to make representations.
Final Decision: The court allowed the petition and quashed the impugned order. It also directed the Government to review afresh the earlier orders fixing the seniority by following the rules of natural justice.
2. The petitioner and respondent No. 2 were appointed as Vaids on 31-10-1961 in the pay scale of 70-6-130 vide Govt. Order No. 431/MD/G of 1961. Whereas the petitioner™s name figured at serial No. 5 the name of respondent No. 2 figured at serial No. 3 in the aforesaid order. This appointment was, however, made in anticipation of their G. A. M. S. course result which was declared by the University of Punjab on 25-11-1961 and both of them were declared successful. Whereas the petitioner had obtained 790 marks, respondent No. 2 had obtained 8-24 marks in the said examination. Vide SRO 160 dated 6-8-1962 the grade of Vaids and Hakims was revised to 200-400 and in the tentative seniority list of Vaids and Hakims for the year 1964 also respondent No. 2 was shown at serial No. 2. The name of the potitioner, however, did not figure in this list as in the meantime he had been appointed as a Demonstrator in grade of 150-250 vide order of the Director of Health Services No. Est-30-V-1/ 7518-21 dt. 13-2-1962. This grade was initially revised to ISO-350 and later on to 200-400 vide Govt. Order No. 82-MD/G of 1965 dated 3-3-196.). Consequently, a tentative seniority list of Demonstrators in the grade of 200-400 for the year 1965 was also circulated in which the petitioners name figured at serial No 4, whereas that of respondent No. 2 did not figure at all. His name, however, figured at serial No. 15 in another seniority list of 1965 pertaining to Vaids and Hakims. Later on the seniority of Hakims and Demonstrators was combined and a final seniority list was published by the Director of Health Services on 19-1-1966 after considering the representations made by the aggrieved persons in which the petitioner was shown at serial No. 19, whereas respondent No: 2 was shown at serial No: 25. In the year 1967, a Board consisting of Director Health Services, Deputy Director Health Services, Jammu Province and Assistant Director Indian Medicines interviewed forty persons, including the petitioner and respondent No; 2, for selecting twelve persons for the posts of A.D.M.Os. carrying the grade of 250-500. Whereas the petitioner was selected for one of such posts, respondent No. 2 was rejected. This appointment was later on approved by the Public Service Commission as well and another Govt. Order being No: 209-MD/G dated 2-5-1974 came to be passed against which an appeal too was taken by respondent No. 2. In the meantime another seniority list of Vaids and Hakims in the old grade of 200-400 on their confirmation with effect from 1-4-1967 was published vide Govt. Order No. 81-MD/G of 1971 dated 22-1-1971 in which the petitioner and respondent No: 2 figured at serial Nos. 18 and 23 respectively. In the year 1972 however, Vaids and Hakims with G. A. M. S. qualification were also given the benefit of a higher grade of 150-250 retrospectively with effect from 3-8-1961 but it was once again made clear that this would not affect their inter seniority already fixed under rules. A notice being AYD/Unani/33/73 was issued to the petitioner on 25-7-1977 by the Secretary to Government, Health Department to show cause as to why he may not be shown at serial No; 19 in the seniority list of 1971 wherein he originally figured at serial No: 18. The petitioner submitted his reply defending his 18th position in the seniority list. The Government on accepting the recommendations of the Review Committee constituted for the purpose accepted the representation made by respondent No. 2 against the seniority of the petitioner and vide its order dated 27-6-1978, impugned in the writ petition, assigned him the place at se
