Staff Reporter
GUWAHATI: The bench of Justice Suman Shyam of the Gauhati High Court has set aside an order relating to the demotion of a UDA to LDA on the ground that 'if the order of demotion is passed without giving an opportunity of being heard to the petitioner, the same would undoubtedly militate against the principles of natural justice and administrative fair play and hence, would be unsustainable in the eyes of law on such count alone.'
In this writ petition (WP-C 4849/2022), the petitioner has assailed the order issued on June 10, 2022, by the Sivasagar Municipal Board for his (the petitioner's) promotion to the post of Upper Division Assistant (UDA) and thereafter, his appointment as Head Assistant (HA) of the Sivasagar Municipal Board (SMB) and reverting him back to the original post of Lower Division Assistant (LDA) on the ground that the entire process was vitiated by serious irregularities. The primary ground of challenge made to the impugned order issued on June 10, 2022, is that the order has been issued in utter violation of the principles of natural justice.
The facts of the case, in a nutshell, are that the writ petitioner was appointed as LDA in the SMB way back in the year 1995. While serving as an LDA, the petitioner was promoted to the post of UDA vide order dated February 13, 2020, issued in deference to the resolution No. 4(A) adopted in the meeting of the Board held on August 28, 2019, in the conference hall of SMB. Thereafter, the writ petitioner was entrusted with the charge of Head Assistant of the Board with immediate effect, vide order dated February 15, 2020.
Subsequently, the SMB had issued the impugned order dated June 10, 2022, cancelling the assignment of charge to the petitioner in the post of Head Assistant and also his promotion to the post of UDA vide order dated February 13, 2020, and reverted him back to the original post of LDA. That apart, in the impugned order, a direction was also issued to recover the excess salary that the petitioner had drawn in the post of Head Assistant.
The bench observed that 'the promotion given to the petitioner from the post of LDA to UDA was apparently interfered with on the ground that the same was issued without obtaining administrative approval from the relevant committee and was also in violation of the government guidelines. It appears that the respondents have relied upon the order dated December 17, 2016, issued by the Secretary to the Government of Assam, Urban Development Department, which had made it mandatory for the Municipal Board and Town Committees to obtain prior approval before making fresh recruitment/engagement of personnel in Municipal Boards and Town Committees'.
"I have considered the submissions made at the bar and have gone through the materials available on record. The basic facts, as noted hereinabove, are not in dispute. What is apparent from the materials on record is that the petitioner was promoted from the post of LDA to the post of UDA on February 13, 2022, in terms of the resolution No. 4(A) of the SMB. However, there is nothing to show that the petitioner was ever promoted to the post of Head Assistant. Rather, it appears that he was only asked to hold the charge of Head Assistant, which was apparently a temporary arrangement. In that view of the matter, no substantive right of the petitioner in the post of Head Assistant can be recognised by this Court in the facts and circumstances of the case. However, the same cannot be said with regard to the promotion of the petitioner from the post of LDA to
UDA, which appears to be a regular promotion, given on the basis of the resolution adopted in the meeting of the Board."
The court, however, gave liberty to the respondents to initiate fresh process in the matter, if so advised, by serving prior show-cause notice upon the petitioner and by giving him proper opportunity of being heard in the matter." It is made clear that the right of the petitioner to be heard in terms of the order of this Court would be confined only in respect of his demotion from the post of UDA to the post of LDA, recovery of any excess drawn amount, and denial of consequential benefits, if any, attached thereto and not in respect of any other claim.
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