Case Note & Summary
The petitioner, Mrs. Kunda Santosh Kerkar, was appointed as Junior Assistant on 28.08.2000 against a vacancy reserved for Scheduled Caste. She was confirmed as Junior Assistant on 22.08.2003 and promoted as Assistant on adhoc basis in September 2007 against a Scheduled Caste vacancy. She was confirmed as Assistant on 12.05.2008. Respondent no. 3, Shri Ramchandra Palekar, was appointed as Junior Assistant on 15.04.2002. On 19.07.2011, the Goa Legislative Secretariat passed an order demoting the petitioner from the post of Assistant and promoting respondent no. 3 to that post, on the ground that the DPC meeting on 12.09.2007 had not considered respondent no. 3 for promotion against a Scheduled Tribe vacancy. The petitioner challenged this order by way of a writ petition. The court found that the impugned order was passed without affording any opportunity of hearing to the petitioner, which violated the principles of natural justice. The court also noted that the petitioner had been confirmed to the post of Assistant, which gave her a substantive right. The court quashed the impugned order and directed the respondents to restore the petitioner to the post of Assistant with all consequential benefits. The court also directed that the respondents may consider the case of respondent no. 3 for promotion in accordance with law, after giving an opportunity of hearing to all concerned.
Headnote
A) Service Law - Promotion - Reservation - Scheduled Caste - Scheduled Tribe - The petitioner, a Scheduled Caste candidate, was promoted as Assistant against a reserved vacancy and later confirmed. The respondent no. 3, a Scheduled Tribe candidate, was promoted later. The impugned order demoted the petitioner and promoted respondent no. 3 on the ground that the DPC had not considered respondent no. 3 for promotion against a Scheduled Tribe vacancy. The court held that the order was passed without affording any opportunity of hearing to the petitioner, violating principles of natural justice. The court also noted that the petitioner had been confirmed to the post of Assistant, which gave her a substantive right to the post. (Paras 2-10) B) Service Law - Natural Justice - Opportunity of Hearing - The impugned order was passed without any notice or hearing to the petitioner, who was directly affected by the demotion. The court held that such an order cannot be sustained as it violates the principles of natural justice. The court relied on the principle that no order adverse to a person should be passed without giving that person an opportunity of being heard. (Paras 8-10) C) Service Law - Confirmation - Substantive Right - The petitioner was confirmed to the post of Assistant by order dated 12.05.2008, which gave her a substantive right to the post. The impugned order demoting her without any hearing was held to be illegal and unsustainable. (Paras 5-7)
Issue of Consideration
Whether the impugned order dated 19.07.2011 demoting the petitioner and promoting respondent no. 3 is sustainable in law, particularly when the petitioner was confirmed to the post of Assistant and the order was passed without affording any opportunity of hearing to the petitioner.
Final Decision
The court allowed the writ petition, quashed the impugned order dated 19.07.2011, and directed the respondents to restore the petitioner to the post of Assistant with all consequential benefits. The court further directed that the respondents may consider the case of respondent no. 3 for promotion in accordance with law, after giving an opportunity of hearing to all concerned.
Law Points
- Natural justice
- Promotion
- Reservation
- Scheduled Caste
- Scheduled Tribe
- Departmental Promotion Committee
- Confirmation
- Adhoc promotion
- Regular promotion
- Quashing of order
