CWP No.

25161 of 2012
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CWP No.25161 of 2012

Date of Decision: 17.09.2013

Balraj Jakhar
..... Petitioner

Versus

State of Haryana and others

... Respondents

CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA

Present: Mr. D.S. Patwalia, Advocate,

for the petitioner.

Ms. Kirti Singh, DAG, Haryana.

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest?

RAJIV NARAIN RAINA, J.(Oral)

The petitioner served in the Revenue Department as Naib

Tehsildar from 1984 till 2004 when he was selected by way of direct

recruitment to the Haryana Civil Service (Executive Branch). In 2006 a

show cause notice was issued to him as to why his services be not dispensed

with in HCS (EB) and he be not reverted to the post of Naib Tehsildar for

the reason of non-passing of departmental examination prescribed as

condition precedent for confirmation to HCS (EB) under the Punjab Civil

Service (Executive Branch) Rules, 1930. The petitioner filed his reply to

that show cause notice explaining the position and making out a case for

retention in the higher post to which he was directly recruited. The matter

rested there till a fresh show cause notice was issued to the petitioner in

2008 to which also he replied taking similar stand as before. After about

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four years of inactivity the petitioner services have been terminated without

offering an opportunity of hearing to the petitioner. The order was passed on

11.12.2012 exercising authority under Rule 21 of Punjab Civil Service

(Executive Branch) Rules, 1930 as applicable to Haryana. By the same

order, he was reverted as a Naib Tehsildar in his parent department i.e.

Revenue and Disaster Management Department. The reason given is of non-

passing of part of the departmental examination by higher standards. It may

be noted that petitioner had spent 20 years of service in the Revenue

Department of Haryana before he was selected and appointed to the HCS

(EB) by direct recruitment. Rule 21 of the rules reads as follows:-

"21: Members of the Service to pass the Departmental Examination within

two years of appointment-. (1) – Every member of service shall within two
years from the date of his appointment to the service pass by the higher
standard the departmental examination from time to time prescribed for
Extra Assistant Commissioners & if any member fail so to pass the
departmental examination his services shall be terminated; provided that the
Governor of Haryana may exempt any member of the service from so passing
the whole or any portion of the departmental examination or may extend the
period within which the member of the service shall so pass the
examination."

Mr. Patwalia submits that the impugned orders dated 11.12.2012

(P-7) and 13.12.2012 (P-8) the termination and relieving orders deserve to

be quashed on the short ground that they have not been preceded either by

an enquiry or before offering him an opportunity of hearing which may

have enabled the petitioner to explain his case before terminating his

services.

Ms. Kirti Singh, learned DAG, Haryana relies on Rule 21 of the

1930 rules and rule 1 of the Departmental Examination rules dated

16.05.1986 notified under proviso to Article 309 of the Constitution to

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submit that a combined reading of both the provisions make it mandatory

for a member of the service to pass a departmental examination by the

higher standards within two years from the date of appointment. She points

out from the written statement that numerous chances were given to the

petitioner to clear the examination, some of which he took and some for

reason stated in the written statement he did not. The Government was thus

empowered to end his services by operation of rules and therefore hearing

was not required before doing so since action was taken under statute which

left no scope for attracting principles of natural justice. A show cause notice

was sufficient and substantial compliance of the provisions of the law

especially when the petitioner had not earned the status of a member of the

service for non-fulfillment of a condition precedent. She submits that if this

Court comes to the conclusion that hearing was required the post decisional

hearing can be resorted to without setting aside the impugned orders.

Mr. Patwalia, on the other hand, points out to a chart reproduced

in para. 4 of the writ petition which tables passing of certain papers

associated with the in service departmental examinations by the petitioner

as Naib Tehsildar and then in the HCS (EB). He submits that it is well

settled that the necessity of complying with the principles of natural justice

and of right of fair hearing are inherent and have to be read into the rules

wherever found especially when adverse civil consequences are visited

upon a person. He submits that post decisional hearing is not the same thing

or lawful substitute for pre decisional hearing in the facts of this case as

there was sufficient time at hand to have followed that course before

passing the harshest order available at almost the fag end of the career. Had

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the petitioner been heard he may have impressed upon the Chief Secretary

of the State to consider alternatives including invocation of powers to relax

higher standards, if such were available or capable of being exercised in his

favour tempered with track record of two decades of prior service under the

State in the revenue department. However, all this is not in the domain of

the Court and is left to the wisdom of the Chief Secretary, Haryana as he is

the best judge of the demands of service in the premier service of the State.

Therefore, in view of the nature of the order proposed to be

passed, it may not be necessary to go into the merits of the case or to

express any opinion on the facts and the rule position at this stage. Suffice it

to say that on account of breach of principles of natural justice which have

to be read into rules, this Court is of opinion that the impugned orders

cannot be left to survive since no opportunity of hearing was afforded to the

petitioner before they were passed. It is not enough for the respondents to

issue a show cause notice, to receive a reply thereto, consider it ex parte in

the penultimate administrative action and to proceed to pass an order of

termination without satisfying the test of reasonableness and fair hearing. It

is settled that fairness-in-action is part of the rule of law and, therefore, part

of the basic structure of the Constitution, in that no man should be

condemned unheard.

Resultantly, this writ petition is allowed partly. The impugned

orders dated 11.12.2012 (P-7) and 13.12.2012 (P-8) stand set aside for

breach of the rule of audi alteram partem. As a result of the quashing of

orders, the petitioner would stand reinstated to service with all

consequential benefits. The Chief Secretary, Haryana would remain at

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liberty to pass a fresh order in accordance with law after hearing the

petitioner.

(RAJIV NARAIN RAINA)

17.09.2013 JUDGE
manju

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