Substantive DPC promotion cannot be rescinded unilaterally without notice, hearing, and due process under natural justice principles.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.3025/2015 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.2369/2020 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: -

a) “allow the present writ petition;

b) quash Order No. 896-Fishries of 2015 dated 27.10.2015 passed by respondent No. 2, whereby and whereunder the petitioner has been reverted from the post of Jr. Engineer to the post of Work Supervisor without holding an enquiry and without granting an opportunity of being heard, despite the fact that the petitioner was promoted from the post of Work Supervisor to the post of Junior Engineer substantively on the recommendation of the DPC;

c) ANY other writ, order or direction which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case;

3. The facts of the case as pleaded by the petitioner in his pleadings are as follows: -

a) The petitioner, Nirmal Kumar Sharma, is a permanent resident of the erstwhile State of Jammu and Kashmir and is in service of the Fisheries Department. He entered government service as a Laboratory Assistant and, over the years, earned successive promotions on account of his experience and service record, first as Fishery Guard, thereafter as Work Supervisor Grade-II, Work Supervisor Grade-I and finally as Work Supervisor.

b) While the petitioner was discharging his duties as Work Supervisor, the department, on the recommendation of the Senior Aquaculture Engineer (XEN), issued Fisheries Order No. 538 of 2012 dated 28.08.2012, whereby the petitioner was directed to hold the charge of the post of Junior Engineer for a period of six months in addition to his own duties. This arrangement was not merely casual but was preceded by departmental assessment of his suitability and technical competence.

c) Prior thereto, vide Fisheries Order No. 76 of 2012 dated 14.05.2012, the petitioner had been attached with the Senior Aquaculture Engineer (XEN), Srinagar, for a period of three months with a view to assess his performance, work and conduct. Upon satisfactory assessment, the petitioner continued to discharge the duties of Junior Engineer and was subsequently granted charge allowance vide Fisheries Order No. 178 of 2013 dated 30.05.2013, pending clearance by the Departmental Promotion Committee (DPC).

d) Eventually, the DPC considered the case of the petitioner and, on its recommendation, the competent authority issued Fisheries Order No. 501 of 2013 dated 21.08.2013, whereby the petitioner was granted the regular pay scale attached to the post of Junior Engineer. Consequent thereto, Fisheries Order No. 505 of 2013 dated 08.08.2013 was issued assigning the petitioner the duties of Junior Engineer for Jammu Division with headquarters at Jammu. The petitioner thus came to hold the post of Junior Engineer substantively, after due consideration by the DPC, and continued to function on the said post without any demur from the department for more than two years.

e) However, abruptly and without issuance of any show-cause notice or holding of any enquiry, the respondent No. 2 issued Order No. 896-Fisheries of 2015 dated 27.10.2015, rescinding the promotion order dated 21.08.2013 and reverting the petitioner to the post of Work Supervisor. The said order was passed on the basis of alleged doubts regarding the educational qualification of the petitioner, without affording him any opportunity of being heard and without following t