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2022 Supreme(J&K) 306
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Tashi Rabstan, Wasim Sadiq Nargal, JJ.
Sonam Dolma – Petitioner
Versus
Bharat Sanchar Nigam Limited & Ors. – Respondents
SWP No. 449 of 2018 & IA No. 01 of 2018
Decided On : 29-07-2022
Advocate Appeared:
For the Petitioner: P.N. Raina, J.A. Hamal
For the Respondent: Ravinder Gupta
Headnote:
Show Cause Notice - Maintainability of the Petition - The present petition is maintainable. - [ACT SECTION LIST] - The court held that the impugned show cause notice was issued without application of mind and is liable to be quashed. The respondents failed to justify their stand with regard to the subsequent promotion of the petitioner as Accounts Officer and her drawing of pension as Accounts Officer. The court also emphasized that the 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 the affected person. The court referred to various legal principles and judgments to support its decision.
Fact of the Case:
The petitioner was appointed as Telecom Office Assistant and subsequently promoted to Sr. Telecom Office Assistant (G). The post of Jr. Accounts Officer was to be filled up on the basis of competition amongst the in-service candidates. The petitioner appeared in the competitive qualifying examination in the year 1996-97 and was given benefit for having scored 60% marks in a subject. The Respondent Department issued orders for screening tests and clarification with regard to equivalence of PUC with 10+2. The petitioner was allowed to appear in the test as one time dispensation and was subsequently promoted as JAO. The impugned show cause notice was issued to withdraw her promotion as Junior Accounts Officer.
Finding of the Court:
The court found that the impugned show cause notice was issued without application of mind and is liable to be quashed. The respondents failed to justify their stand with regard to the subsequent promotion of the petitioner as Accounts Officer and her drawing of pension as Accounts Officer. The court emphasized that the 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 the affected person.
Issues: The main issue was the validity of the impugned show cause notice and the subsequent promotion of the petitioner as Accounts Officer. The court also considered the maintainability of the petition and the legal principles related to the withdrawal of promotion and consequential benefits.
Ratio Decidendi: The court's decision was based on the principles of estoppel by conduct, acquiescence, and waiver. The court also referred to various legal principles and judgments to support its decision. The court emphasized the importance of providing an opportunity of being heard before withdrawing promotion and consequential benefits.
Final Decision: The present writ petition is allowed and the impugned Show Cause Notice is set aside/quashed.
JUDGMENT :
Wasim Sadiq Nargal, J.
1. The present petition has been filed against the 'Show Cause Notice No. 862-129/Gen-Corr/CourtCases/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 what so ever 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 ofthe 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 fulfilling these va
