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2022 Supreme(J&K) 164
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
Tashi Rabstan, & Wasim Sadiq Nargal, JJ.
Sonam Dolma – Appellant
Versus
Bharat Sanchar Nigam Limited and other – Respondent
SWP No. 449/2018, IA No. 1/2018
Decided on 29-7-2022
Appearing Counsel:
Counsel for the Parties:
For the Petitioner:Mr. P. N. Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate
For the Respondents: Mr. Ravinder Gupta, AAG
Headnote:
Service Law – Promotion – Benefit of promotion and consequential monetary benefits cannot be taken away in an arbitrary and whimsical manner without providing an opportunity of being heard to affected person – No enquiry, whatsoever has been conducted by respondents in this regard – Respondents have failed to take any stand to justify her subsequent promotion as Accounts Officer and release of pension as Accounts Officer – In absence of any specific stand by respondents with regard to her subsequent promotion as Accounts Officer and fixation of pension as such, impugned show caused notice cannot sustain in eyes of law – Since petitioner has already retired under BSNL Voluntary Retirement Scheme, 2019, and is drawing pension as Accounts Officer, against higher post than that Junior Accounts Officer, it would not be equitable at this belated stage to give effect to impugned show cause notice – In absence of any misrepresentation on part of petitioner with regard to factum of seeking her promotion, no recovery, whatsoever, can be made from her retirement benefit or for that matter her promotion can be withdrawn – Writ Petition allowed. (Paras 18 and 20)
JUDGMENT
Wasim Sadiq Nargal-J.
The present petition has been filed against the ‘Show Cause Notice No. 862-129/Gen-Corr/Court Cases/2016/34 dated 05.02.2018’ by which the promotion granted to the petitioner to the post of Junior Accounts Officer is being withdrawn.
A. Maintainability of the Petition
2. The impugned ‘Show Cause Notice’ is an offshoot of the statement made by Ld. Counsel appearing for the Respondents in SWP No. 1639/2015, wherein, the petitioner was not a party and according to the petitioner, the said statement has been recorded behind her back and has been acted upon by Respondents. Solely on the basis of a statement made by the Ld. Advocate, who was appearing on behalf of the respondents, in the aforementioned writ petition bearing SWP No. 1639/2015, the impugned ‘Show Cause Notice’ has been issued to the petitioner. Thus, it is a specific stand of the petitioner that on mere reading of the impugned ‘Show Cause Notice’ it has a trapping of finality because the Respondent Department has almost pledged before this court that the case of the petitioner is identically situated as that of Shri Krishan Lal (Writ Petitioner in SWP No. 1639/2015). The petitioner has taken a specific stand that there is no such parity between the petitioner and the Shri Krishan Lal, supra neither by facts nor law. Since the impugned show cause notice is an off shoot of a statement made at bar by the Ld. Counsel for Respondents in the case of Krishan Lal, supra as such relegating the petitioner to Central Administrative Tribunal (CAT) would not be an efficacious remedy available to the petitioner. Taking into consideration the peculiar facts enunciated herein above, we hold that the present petition is maintainable.
B. Relief Sought
3. The petitioner through the medium of the present writ petition has prayed for the following reliefs:-
I. Certiorari quashing impugned ‘Show Cause Notice dated 05.02.2018’ issued by Respondent No. 3, wherein petitioner has been asked to show cause as to why her promotion to the post of Jr. Accounts Officer made on 16.12.2013 may not be withdrawn, as being arbitrary, illegal and thus unconstitutional.
II. Prohibition, prohibiting Respondents from proceedings against the Petitioner in any manner whatsoever and whenever challenge to her promotion to the post of Jr. Accounts Officer is made.
C. Facts
4. The petitioner was initially appointed as Telecom Office Assistant on 24.12.1983. Petitioner, on merit, has been appointed to the said post after participating in the process of selection. Petitioner has qualification of PUC (Pre University Course) to her credit. That re-structuring of different cadres of what was then known as Department of Telecommunication (DOT) took place. In pursuance of the restructuring, the Petitioner got promoted/designated as Sr. Telecom Office Assistant (G). While Petitioner was serving as Sr. Telecom Office Assistant (G), as per the procedure the post of Jr. Accounts Officer was to be filled up on the basis of competition amongst the in-service candidates. The qualification prescribed for competing for the said post of Jr. Accounts Officer was Matric. Petitioner appeared in the competitive qualifying examination in the year 1996-97 under Roll No. JKT-91. A candidate, who scored more than 60% marks in a subject (paper), but could not qualify all the papers were declared to have passed a particular subject wherein he/she had secured 60% or above marks. Petitioner had been given benefit for having scored 60% marks in the subject (III FRSR). It is the further stand of the petitioner that no further competitive exams were held as the Department of Tele Communications became a corporation known as Bharat Sanchar Nigam Limited. As such, because of this change, number of vacancies of Jr. Account officers and other posts became available and department felt requirement of
