AB RASHID QADIRI Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner who is a graduate from the Punjab University was appointed Sub -Inspector of Police against an existing vacancy on 16 -3 -48. The petitioner was initially appointed without there being any order that his appointment would be on probation. At that time there used to be two grades of Sub -Inspectors: junior and senior, but the appointment of the petitioner was made without specifying whether he was appointed to the junior or the senior grade. Subsequent to his appointment, however, the petitioner was shown in the junior scale. Three years later the petitioner made a representation to the Govern ­ment which was accepted by Order No. 162 of 1951 dated 8 -8 -1951 and the Government ordered the petitioner to be promoted as Sub -Inspector senior scale against one of the existing vacancies. The date of seniority was to be reckoned from 16 -3 -48, the date of first appointment of the petitioner. On 14 -4 -61 the petitioner was appointed as offg. Inspector of Police with effect from 1 -4 -61. A tentative seniority list of the Ins ­pectors was drawn up on 1 -4 -63 wherein the petitioner was shown at Serial No. 40. The petitioner made another representation to the Go ­vernment claiming seniority over three Inspectors, namely, N. N. Koul J. N. Zutshi and S. A. Shah and this representation was also accepted by the Government by order No. PB -644/64 dated 13 -11 -64. In pursuance of this order the Home Secretary directed the IGP to fix the seniority of the petitioner in accordance with the principles laid down in the case of J. N. Zutshi and S. A. Shah. We might state here that the principle applied in the case of these two officers was that those officers who were appointed directly without their being put on probation were to be treated as senior to those who were appointed on probation, even though appointed earlier. It would appear that the petitioner was appointed on 16 -3 -48 without there being any order that he was on probation. On 1 -2 -65 the IGP declared the petitioner to be senior to Mohd. Khalil who had been confirmed as Sub -Inspector w.e.f. 1 -7 -52. This order was a logical corollary of the Government Order (Supra) and is annexure 4 to the writ petition. On 27 -10 -65 another representation was made by the petitioner to the Government at the time he was promoted as DSP. By virtue of this representation the petitioner prayed that he should be shown at serial No. 22 over D. N. Tiku The Government accepted this represen ­tation and directed the IGP to implement the same, pursuant to it the IGP passed order No. 201 of 1969 dated 25 -6 -69 giving effect to the orders passed by the Government accepting the representation of the petitioner. This order is annexure 3. The IGP further ordered that the petitioner should be deemed to be promoted as Inspector w.e.f. 1 -1 -58, the date when Tiku was promoted. On 14 -10 -69 the petitioner was promoted as temporary SP by order of the Government (annexure 5). Then we come to the impugned order which was passed on 5 -12 -70 by which the IGP set aside his two previous orders, one dated 25 -6 -69 and the other dated 1 -2 -65 on the ground that the principle adopted in the case of Zutshi and S. A. Shah could not be applicable to the petitioner under rules. The IGP reported the matter to the Government and the Government having agreed with the IG directed him to recall his previous order. The IGP then ordered that the petitioner would take his place below Mohd. Khalil.

(2.) THESE facts have not been disputed before us by the counsel for the parties. There is also one more fact which is admitted and that is before passing the order dated 5 -12 -70 (annexure 2 to the writ petition) no notice was given to the petitioner nor was he given an opportunity either by the I.G.P. or by the Government to show cause why the pre ­vious orders made in his favour on his representation be not recalled. The learned single judge realized that there was some force in the con ­tention of the appellant, but lie refused to interfere on the ground that since an alternative remedy was open to the petitioner, no writ could be entertained in this case. It is not necessary for us to refer to a large number of authorities on this point, but it is well settled by a long catena of deci ­sions of the Supreme Court and of High Courts that the rule that the existence of an alternative remedy is a bar to the maintainability of a writ petition, applies subject to the following exceptions.

(3.) IN the instant case there was a very serious and gross violation of the principles of natural justice because the order of the Government through the I.G.P. was passed not suo motu but on the representation of the petitioner and which was sought to be revoked to his serious detri ­ment without hearing him at all. In A. K. Kraipak Vs. Union of India AIR 1970 SC 150 the Supreme Court has clearly held that the principles of natural justice apply to administrative proceedings also. Further -more it was not merely an administrative proceeding in this case but an order which seriously affected the petitioner and was passed on the report of the I.G.P. by the Government which was the highest authority, without hearing the petitioner at all. in such a case therefore in our opinion it was incumbent on the Government and the I.G.P. to have heard the petitioner before setting aside their own orders which were passed on the basis of the representation made by the petitioner and in total acceptance of the claim put forward by him.