RAJENDRA KUMAR Vs. MAHBUB HASAN AND 6 ORS

JUDGEMENT

(1.) This special appeal has arisen from an order of the learned Single Judge dated 17 December 2015. As a result of the impugned order, the learned Single Judge has stayed the operation of an order dated 6 November 2015 by which the reversion of the appellant was stayed. The real contest is between the appellant and the first respondent.

(2.) The admitted position before the Court is that the appellant was not before the learned Single Judge when the impugned order was passed on 17 December 2015 staying the operation of the order dated 6 November 2015 which directly enured to the benefit of the appellant. Notice was issued to the appellant. In the circumstances, the appellant has not had the benefit of stating his case before the learned Single Judge. The issue before this Court in the special appeal is whether it would have been in the interest of justice to hear the appellant before a stay was granted of the order dated 6 November 2015, the effect of which was to stay the reversion of the appellant and to allow him to hold the post of Assistant Accountant.

(3.) The promotion Rules in question, more particularly Rule 7(2) indicates that where two candidates have been appointed together, their respective seniority would be determined on the basis of the order in which they have been appointed to the post. Both the appellant and the first respondent were appointed on the same date i.e. 8 June 2004. The letter of appointment of the appellant bears Sl No 537 of 2004 whereas the letter of appointment of the first respondent bears Sl No 539 of 2004. According to the learned counsel for the first respondent, as set out in paragraph 27 of the writ petition, the first respondent was placed above the appellant in the seniority list on the ground that he was senior in age. The case of the appellant is that this is contrary to the provisions of Rule 7(2). Initially, the appellant was reverted by an order dated 31 August 2015 on the ground that his promotion on the post of Assistant Accountant had been made on the basis of his belonging to a reserved category. The order of promotion was recalled on 31 August 2015. However, subsequently, it was noticed that the appellant would, as a matter of fact, rank senior to the first respondent and hence, the order was recalled on 6 November 2015. The learned Single Judge has not had the benefit of the defence which has been set up by the appellant which is supported by the University as we have noted above. The defence is that the appellant, as a matter of fact, was senior to the first respondent and was entitled to promotion on the ground of his seniority independent of the fact that he belonged to a reserved category.