Dr Vikrant Gupta vs HEALTH AND MEDICAL EDUCATION DEPARTMENT on 31 December 2024

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: - a) “Application with the prayer seeking quashment of Government Order No. 676-JK(HME) of 2021 dated 25th October, 2021 being arbitrary, illegal and nonest in the eyes of law besides being violative of Principles of natural justice whereby the respondents have placed the private Respondent no.3 Dr. Anchal Gupta over and above the applicant in the seniority list of lecturer despite the fact that the private Respondent no.3 was appointed later in point of time than the applicant. b) Restraining the Respondents from altering modifying the seniority list of Lecturers Assistant Professor inter se applicant and Respondent No. 3 in the Department of Radio diagnosis on the basis of impugned order dated 25/10/2021.

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c) Restraining the respondents from granting any relaxation in the mandatory period of 02 years as actual teaching experience in terms of SRO 88 dated 14/03/2016 and in adherence to Rule 24 (1) of Civil Classification Control and Appeal Rules, 1956 while according promotion to the private Respondent on the Post of Assistant Professor. d) Directing the respondents to promote the applicant on substantive basis to the post of Assistant Professor in view of having completed his two years tenure on 28.01.2021 in terms of recommendations as conveyed vide communication No. ME- Gztd/84/2021 e-office dated 06.08.2021. e) Such other appropriate relief which this Hon’ble Court may deem fit and proper in the given facts and circumstances of the case be filed in favour of the applicant as against the respondents”

2. The facts of the case as averred by the applicant in his pleadings, are as follows: - a) The applicant is aggrieved of the order impugned bearing No. 676-JK (HME) of 2021 dated 25th October, 2021 and has challenged the same on variety of grounds by the medium of instant OA before the Hon'ble Tribunal.

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b) Applicant came to be appointed as Lecturer in the discipline of Radio Diagnosis in Government Medical College, Jammu on 28/01/2019 vide order No. 97-HME of 2019 dated 28/01/2019 in RBA category. Consequent upon his appointment he joined as Lecturer on 28/01/2019. c) The applicant has been designated as senior from time to time over and above the Respondent No. 3 and at present is working as I/C Assistant Professor in the Department of Radio Diagnosis GMC, Jammu in his own pay and grade w.e.f 08/02/2021. d) The applicant joined as Lecturer in the said Department of Radio Diagnosis at GMC Jammu on 28/01/2019, and at present is working as I/C Assistant Professor. e) It is pertinent to state herein that Dr. Anchal Gupta at later stage was selected as Permanent Lecturer in Department of Radio Diagnosis and Imaging, GMC, Jammu vide Notification No. 27-PSC (DR-S) of 2019 dated 28/02/2019 in open merit

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category and joined the duties as Lecturer on 11/03/2019 vide order No. 305-HME of 2019 dated 09/03/2019

f) The Respondent No. 3 filed one representation and to the best of applicant’s knowledge the representation of the Respondent No. 3 was rejected but the applicant has no record at present. The Learned Tribunal is requested to summon the record of the same from the Department. The Respondent No. 3, however, made another representation whereupon the impugned order dated 25.10.2021 came to be passed. g) The order impugned is bad as the private Respondent was not even borne in service from the date, she has been granted the effect and has been directed to be placed above the applicant in the seniority for the post of Lecturer. The applicant has been made In charge Assistant Professor w.e.f 08.02.2021 and by that time the private Respondent had not completed her mandatory two years period into actual service as is warranted under SRO 88. Even in terms of norms of Department of Personnel and Training which is the coordinating agency of the

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Central Government clearly says that the seniority of the candidatures will be determined as per date of publication/ announcement of result. The candidate of the result announced earlier shall be senior to the candidate of the result announced later. h) Respondent no. 3 having chosen not to file any objections to the same after a lapse of more than six months. The seniority is deemed to be settled and cannot be altered at this stage that too in violation of Rules as per Circular No. 410-JK(GAD) of 2021 dated 06th October, 2021. The respondents have passed the impugned order without considering the representation as well as Legal Notice served upon them by the applicant. Thus, the order impugned suffers from the violation of principles of natural justice. No opportunity of being heard was granted to the applicant and the representation as well as legal notice served through counsel was also not taken into consideration while passing the impugned order.

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3. The respondents no. 1 and 2 have filed their written statement wherein they have averred as follows: - a) The Notification No. 02-PSC (DR-P) of 2017 dated 1st May, 2017 came to be challenged before Hon’ble High of J&K at Jammu prior to completion of the selection process in a Writ Petition and after the dismissal of writ petition, LPA No. 65/2018 titled "Dr. Arti Khurana V/s State of J&K& Ors" was filed and in IA No. 2/2018 arising out of the said Letters Patent Appeal, the following order came to be passed, "Meanwhile subject to objections from other side and till next date before the bench, the respondents shall not fill up the post of Lecturer, Radio-Diagnosis, GMC Jammu which is lying vacant due to resignation of one Dr. Nitin Vermani."

b) Though the interim order for not filling up the post of Lecturer, Radio-Diagnosis and Imaging in GMC Jammu was passed by Hon'ble High Court at the back of the answering respondent who was never made as party respondent in the Letters Patent Appeal but the J&K Public Service Commission on the basis of

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overall merit and performance of all eligible candidates in view of the selected candidates, issued the Notification No.09- PSC(DR-S) of 2019 dated 8th January, 2019, recommending the name of applicant for his selection against the post of Lecturer in Radio Diagnosis and Imaging under RBA category on temporary basis, with clear stipulation that the selection of the applicant is purely provisional and subject to outcome of writ petitions pending before any competent Court of law. Thereafter, upon the recommendations made by the J&K Public Service Commission as per the Select list, the applicant was appointed under RBA category vide order No. 97- HME of 2019 dated 28th January 2019. It is not out of place to mention here that in view of statement made by the appellant in the Letters Patent Appeal, the Division Bench of Hon'ble High Court of J&K at Jammu vide its order dated 25th February, 2019 in IA No. 1/2018 arising out of LPA titled "Dr. Arti Khurana V/s State of J&K & Ors" passed the following order: "It is submitted by Mr. Sunil Sethi, Learned Sr. Counsel that in view of above information giving the fact that post of

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lecturer, Radio-Diagnosis, GMC Jammu is subject matter of the claim of the appellant in appeal, he is withdrawing the prayer made by the appellant by way of IA No. 02/2018. Leave is sought to withdraw this application."

c) After the vacation of the interim order passed in IA No. 2/2018 arising out of LPA No. 65/2018, the J&K Public Service Commission in view of overall performance of the candidates as per the select list, in continuation to the Notification 09- PSC(DR- 5) of 2019 dated 8th January 2019 also recommended the case of the answering respondent on account of having number one position in the Select List with 68.21 points for appointment of the answering respondent as Lecturer as per the Select List. Thereafter, consequent upon the recommendation made by the Public Service Commission, the answering respondent was appointed as Lecturer in the Department of Radio-Diagnosis and Imaging vide order dated 9th March, 2019. It is germane to mention here that selection as well as appointment of the answering respondent as well as applicant herein for the post of Lecturer in the Department of Radio-

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Diagnosis and Imaging under Open Merit (OM) and Rural Backward Area (RBA) category respectively was out of the same Notification on the basis of which two posts of Lecturers were referred, same selection process and the select list was drawn as per the merit and overall performance of the candidates as mentioned in the selection list. The admission of select list drawn by the Public Service Commission and overall higher merit of the respondent over and above the applicant that too without its challenge cannot give any cause to file the present application. The applicant has suppressed all these facts from this Hon'ble Court and has infact, twisted the facts so as to invoke the jurisdiction of this Hon'ble Tribunal on false and flimsy grounds.

4. The respondent no. 3 has filed their written statement wherein they have averred as follows: - a) Before the selection process could be initiated in pursuance to the advertisement notification dated 01.05.2017, J & K Public Service Commission issued another advertisement notification

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no. 05-PSC (DRP) of 2018 dated 13.03.2018 whereby the applications were invited for appointment against the post of Consultant Radiology in the Health and Family Welfare Department. Since the answering respondent was eligible in terms of said notification also, as such, she applied for the post of Consultant Radiology also. Before proceeding further into the matter, it is relevant to state here that when the J & K Public Service Commission had recommended the applicant for appointment in the RBA category against the post in question vide Communication No: PSC-DR-Consultant Medicine/2018 dated 19.01.2019, it had categorically mentioned that selection in the Open Merit category has been kept withheld due to the reason that a writ petition was filed in the Hon'ble High Court against the Advertisement Notification No:02-PSC(DR-P) of 2017 dated 01.05.2017 and copy of the interim order passed by the Hon'ble Division Bench was also reproduced. When recommendations in favour of the answering respondent were made vide communication dated 06.03.2019, they were made in

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continuation to the recommendations already made by the J&K Public Service Commission vide letter dated 19.01.2019, meaning thereby that answering respondent is also part of the same select list, in which, the applicant herein was selected. b) Both applicant and answering respondent have been selected in the same select list and have been appointed in pursuance to the same selection process against the same post in two different categories, as such, for the purpose of their seniority, there inter- se merit in the selection process is required to be taken into consideration for the fixation of their seniority. The aforesaid position is clear even from the Reservation Rules as Rule-31 read with Rule 24 of the Classification, Control and Appeal Rules, provide the process of fixation of seniority. The contention of the applicant that he was appointed prior in point of time, as such, he is senior to the answering respondent, is absolutely misconceived and contrary to the rule position. c) That delay in issuance of appointment order in favour of the answering respondent was on account of the interim order

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passed by the Hon'ble Division Bench, which was subsequently vacated and detailed submissions with respect to which, have already been made in the fore going paras, as such, it is settled principle of law that act of court will not prejudice any party. Once the recommendations were made in favour of the answering respondent in continuation to the earlier recommendations then, both are required to be treated as selected in the same selection process and thus irrespective of their joining the duties on different dates, their seniority is required to be fixed on the basis of their inter-se merit in the selection process. d) After having considered the entire controversy in its correct perspective after having obtained a report from the J&K Public Service Commission and after having obtained opinion from the Law Department as well as the General Administration Department, the Government decided to appoint the answering respondent also notionally w.e.f. the date, the applicant herein had been appointed i.e. 28.01.2019. As a matter of fact,

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Government in the Law Department had itself given the opinion that the answering respondent be given notional appointment w.e.f. 28.01.2019 i.e. the date applicant herein had been appointed as Lecturer in the Department of Radio Diagnosis, Government Medical College, Jammu.

5. Heard learned counsel for the parties and perused the pleadings made by them.

6. In the present case, the applicant is aggrieved of the order impugned bearing No. 676-JK (HME) of 2021 dated 25th October, 2021 by virtue of which Respondent No. 3 (Dr. Anchal Gupta) has been placed over and above the applicant in the seniority list of lecturer despite the fact that the private respondent no. 3 was appointed later in point of time than the applicant.

7. The contention of learned counsel for the applicant is that even if the case of the respondent no. 3 is considered being senior if Lecturer, still the respondent no. 3 cannot be placed over and above the applicant for the post of Assistant Professor. The actual two years

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teaching experience is required for the promotion of Assistant Professor. Even no opportunity of hearing was granted while altering the settled seniority after a period of almost 03 years since January, 2019 onwards and after issuance of 03 final seniority list during this period i.e., 15.10.2019, 04.2021, 24.05.2021.

8. Per contra, learned counsel for the respondents argued that the contention of the applicant that he has not been given an opportunity of being heard is otherwise also baseless, inasmuch as, he was all along aware of the facts on the basis of which, seniority of the answering respondent was being restored. As a matter of fact, he had submitted a representation also, and the said representation was also forwarded by the Principal to the Government. After having considered the entire controversy in its correct perspective after having obtained a report from the J&K Public Service Commission and after having obtained opinion from the Law Department as well as the General Administration Department, the Government decided to appoint the answering respondent also notionally w.e.f. the date, the applicant herein had been appointed i.e. 28.01.2019. As a matter of

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fact, Government in the Law Department had itself given the opinion that the answering respondent be given notional appointment w.e.f. 28.01.2019 i.e. the date applicant herein had been appointed as Lecturer in the Department of Radio Diagnosis, Government Medical College, Jammu.

9. It is very well settled law, as per Violation of Audi Alteram Partem (Right to be Heard) that no person should be condemned without being given an opportunity to be heard. In the present case, the applicant was not provided with any opportunity to present their case before the alteration of the settled seniority, despite the fact that three final seniority lists had already been issued during the period from January 2019 to May 2021. The applicant’s request for a hearing, made through a representation on 27.08.2021 and a legal notice dated 06.09.2021, was disregarded.

10. The applicant was entitled to a show cause notice before any adverse order was passed. The impugned order, dated 25.10.2021, which altered the settled seniority, was passed without issuing a show cause notice to the applicant. This failure to notify the applicant in advance

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about the proposed action undermines the procedural fairness required under the principles of natural justice. The applicant was directly affected by the alteration of seniority that was made after a considerable period of almost three years. This long delay in altering seniority, coupled with the absence of an opportunity to contest the decision, has resulted in undue prejudice to the applicant. The alteration was done without following the procedural safeguards, which could have prevented such prejudice. The applicant's legal notice clearly requested an opportunity to be heard before passing any adverse order, but this request was not acknowledged. This reflects a lack of transparency in the decision-making process and a breach of the applicant’s right to participate in the process that directly impacts their rights and interests.

11. The principle of natural justice, particularly the right to a fair hearing, is enshrined in judicial precedents. Numerous rulings have reinforced the idea that administrative actions affecting a person's rights should not be taken in violation of natural justice. The lack of a hearing in this case goes against established legal standards, which require all

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affected parties to have a fair opportunity to contest any changes to their legal standing, such as seniority. Various judgments have been rendered by the various Hon’ble Courts regarding principle of natural justice. Some of them are quoted below for the ready reference: Maneka Gandhi v. Union of India (1978) 1 SCC 248 This landmark case laid down the principles of natural justice and emphasized the importance of providing an individual an opportunity to be heard before any adverse action is taken. It establishes the necessity of procedural fairness in administrative actions, especially where a person’s rights or interests are affected. Relevant excerpt: “Natural justice must be read into the procedure laid down by a statute unless excluded by express words or necessary implication.”

K.K. Verma v. Union of India, (1954) 2 SCR 851 The case discusses the duty of the state and public authorities to act fairly and provide an opportunity to be heard before taking action that could adversely affect an individual.

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Relevant excerpt: “It is elementary that no person shall be deprived of his rights or adversely affected by any administrative order without being given an opportunity to show cause against the action proposed to be taken.” Union of India v. Tulsiram Patel (1985) 3 SCC 398 This case specifically deals with the requirement of a show cause notice and an opportunity of hearing before any action adversely affecting a person’s seniority or rights can be taken. Relevant excerpt: “The principles of natural justice are inviolable and even an administrative decision which adversely affects an individual must conform to them.”

State of Uttar Pradesh v. Ram Naresh Tripathi (1977) 1 SCC 288 The court held that the principles of natural justice should be adhered to even in the absence of statutory requirements, particularly when altering settled rights such as seniority. Relevant excerpt: “The principles of natural justice are aimed at ensuring fairness, and an opportunity to be heard is an indispensable component of justice, particularly when an individual’s rights are at stake.”

S.L. Kapoor v. Jagmohan

SCC

This case underlines the obligation to give an opportunity to be

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heard in situations where an adverse order is being passed without notice, particularly when such orders affect a person’s established legal position or seniority. Relevant excerpt: “No order affecting the rights of a party can be passed without affording him a reasonable opportunity of being heard.”

The National Institute of Mental Health and Neuro Sciences v. C. Parameshwara

SCC

This case reiterates that altering an individual’s established rights, such as seniority or promotion, requires a proper procedure, including notice and a chance to be heard. Relevant excerpt: “In the case of alteration of a person's seniority, an opportunity of hearing must be afforded in the interest of fairness and justice.”

Chandrika v. Union of India

SCC

The Court in this case emphasized the right to be heard and that administrative orders affecting seniority or service conditions

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should not be passed without the individual’s participation in the process. Relevant excerpt: “Where seniority is altered or adversely impacted, it is mandatory to provide an opportunity for the affected party to be heard, ensuring compliance with the principles of natural justice.”

12. The official respondents have totally ignored the representation of the applicant as well as the legal notice and have passed the impugned order without application of mind and fully ignoring the Rule Position. Rule 24 of Civil Classification Control and Appeal Rules, 1956 is reproduced as under: - “24 Seniority (1) The Seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case may be…”.

13. The absence of an opportunity to be heard and the failure to issue a show cause notice before the impugned order was passed, renders the decision-making process flawed and non-compliant with the principles of natural justice. Therefore, the impugned order is liable to

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be set aside for not adhering to the established legal requirements of fairness and transparency.

14. In light of the above observations, it is clear that the applicant's right to a fair hearing, which is a cornerstone of the principles of natural justice, has been violated in this case. The alteration of the settled seniority without granting the applicant any opportunity to be heard, despite their requests for a hearing and representation, amounts to a clear procedural impropriety. The impugned Government order No. 676-JK (HME) of 2021 passed on 25.10.2021, without issuing a show cause notice or providing an opportunity to the applicant to present their case, is in contravention of the established legal principles.

15. Therefore, in the interest of justice, and to uphold the fundamental principles of fairness and due process, the impugned Government order No. 676-JK (HME) of 2021 dated 25.10.2021 is hereby quashed and set aside. The respondent authorities are directed to reconsider the matter afresh, ensuring that the applicant is afforded a fair hearing in accordance with the principles of natural justice, and that no adverse

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action is taken without providing the applicant a reasonable opportunity to be heard.

16. Keeping the above facts in view, the OA has merit and deserves to be allowed.

17. Accordingly, the OA is allowed to the extent, indicated above.

18. However, there shall be no orders so as to costs.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit /