D.N. Patel, J. - (1.) THE present petition has been preferred mainly challenging the order, passed by respondent No. 4, dated 23 November, 2007 (Annexure 5 to the memo of petition), whereby, the benefits given to the petitioners under Assured Career Progression, have been withdrawn.
(2.) LEARNED Counsel for the petitioners submitted that looking to the order at Annexure 5, it appears that for no justifiable reasons, the benefits given to the petitioners under the Assured Career Progression Scheme, with effect from 29th October, 2003, has been withdrawn, vide order dated 23 November, 2007, without giving any notice and without giving any opportunity of being heard to the petitioners. Even otherwise also, no reasons for withdrawing the benefits under the Assured Career Progression Scheme have been given in the impugned orders and the reasons are to be presumed by the petitioners or by the respondents and looking to the counter affidavit, it appears that some reasons have been given that the petitioners have not cleared Accountancy Examination. It is also submitted by the learned Counsel for the petitioners that this is not an eligibility criteria, at all. No such circular, rule or regulation has ever been pointed out by the respondents in their counter affidavit. It is also submitted by the learned Counsel for the petitioner that had an opportunity of being heard been given to the petitioner, they would have pointed out to the concerned authority that petitioner Nos. 2 and 3 have already been exempted from Accountancy Examination. The same has been reflected at Annexures 4 and 4/A. to the memo of petition. Nonetheless, it is vehemently submitted by the learned Counsel for the petitioners that this is not a requirement, at all, for grant of the benefits under Assured Career Progression Scheme, under any circular or my rule or any regulation. It is also submitted by the learned Counsel for the petitioners that the impugned order is a non -speaking order end subsequently, in a counter affidavit, no reasons can be supplied to a non -speaking order, otherwise, all non -speaking and void orders will be converted into speaking and valid orders, by filing counter affidavit and, therefore, the impugned order deserves to be quashed and set aside. It is further submitted by the learned Counsel for the petitioners that the petitioners are working since last more than two decades, sincerely, honestly, diligently and to the satisfaction of the respondents. Never any show cause notice has been given to any of the petitioners for any misconduct, whatsoever, and because of their sincere services and as certain period of service are over, the benefits under the Assured Career Progression Scheme had been given to the petitioner with effect from 29th October, 2003, which cannot be withdrawn abruptly, without any notice and without giving any opportunity of being heard, vide order dated 23 November, 2007 and, therefore also, the impugned order deserves to be quashed and set aside. I have heard learned Counsel for the respondents, who has vehemently submitted that wrongly given benefits cannot be continued to be availed by the petitioners. The petitioners have not cleared Accountancy Examination, which is the required eligibility criteria for grant of the benefits under Assured Career Progression Scheme and no sooner did this fact bring to the to the notice of the higher officer, a wrongly given benefit has been withdrawn vide order dated 23 November, 2007 and, therefore, this writ petition deserves to be dismissed.
(3.) HAVING heard learned Counsel for both the sides and looking to the facts and circumstances of the case, it appears that: (i) The petitioners were appointed somewhere in the year 1973 to 1974. Thus, they are working since last approximately more than two decades, sincerely, honestly, diligently and to the satisfaction of the respondents. (ii) Considering the services, rendered by the petitioners for several years and considering the fact that no promotion was given during the said period and looking to the benefits under Assured Career Profession Scheme, the petitioners were given such benefits with effect from 29th October, 2003. (iii) Having been extended the said benefits, the petitioners have worked sincerely for several years and abruptly, on 23 November, 2007, respondent No. 4 has withdrawn this benefit vide order at Annexure 5 to the memo of petitioner. Never any notice nor any opportunity of being heard has been given to the petitioner. Thus, the impugned order at Annexure 5 has been passed, in a gross violation of the principles of natural justice. (iv) The only reason given in the impugned order is that the petitioners are not having requisite eligibility criteria for getting the benefits under the Assured Career Progression Scheme, but, nothing is mention in the impugned order as to which is such requisite eligibility of criteria for every petition to get such benefits, which has not been fulfilled by them. It is also not mention in the impugned order that under which circulation or order of the Government, the requisite eligibility of criteria has been fixed. Every thing has been kept vague in the impugned order. Nobody knows what is lacking with the petitioners. It has to be presumed by somebody what is not written in the impugned order has been explained in the counter affidavit, which is no permissible under the administrative law. The impugned order is silent and non -speaking. The reasons subsequently supplied in the counter affidavit will not make the non -speaking order a valid one, otherwise all the non -speaking orders and void orders will be convened into valid orders or will be converted into speaking orders. (v) Even looking to the counter affidavit also, it appears that some Accountancy Examination was not cleared by the petitioners. When this Court raised a query to the learned Counsel for the respondents that how and under which circulation this is an eligibility criteria, he is unable to point out any rule, regulation, policy decision, circular or order of the respondent -State that for getting the benefits under Assured Career Progression Scheme, Accountancy Examination must have been elected by the petitioners. No such circular or direction has been annexed with the counter affidavit. Thus, the impugned order is totally silent. Equally, the counter affidavit is also silent about the eligibility criteria and the requirement. (vi) It is vehemently submitted by the learned Counsel for the petitioners that had ah opportunity of being heard been given to the petitioners, it would have been pointed out to the concerned high -ranking officer of the respondent -State that this is not an eligibility criteria, at all, for getting the benefits under Assured Progression Scheme. Moreover, looking to the Annexures 4 and 4/A, it appears that some of the petitioners have already been exempted from appearing at the Accountancy Examination. This aspect of the matter has also not been appreciated properly by the respondents, while passing the impugned ex -parte order. This reflects either arbitrariness or sheer non -application of mind by the respondents. Therefore also, prior to withdrawal of the benefits under the Assured Career Progression Scheme, which has already been granted to the petitioners, in October, 2003, at least, a notice ought to have been given to the petitioners, so that they could have filed their reply and certain other details. Thus, there is a gross violation of the principles of natural justice, while passing the the impugned ex -parte order.;