Srinagar: The Central Administrative Tribunal (CAT) has held that “a person whose rights are to be affected by any decision adjudicative or administrative should receive the fair hearing before the decision is made”.
A Division Bench here comprising M S Latif, Member (J), and Prashant Kumar, Member (A), said this while putting on hold J&K Public Service Commission (JKPSC)’s communication dated August 19, 2023, withdrawing the recommendation for appointment of a dental surgeon Dr A A Mughal after 18 years.
Following the JKPSC’s communication, the government by an order dated July 20, 2023, terminated the services of Dr Mughal as ‘dental surgeon’ and the order has been put in abeyance by the CAT after the aggrieved approached it.
Citing the Supreme Court judgment reported as AIR 1987 SC, the tribunal said that in the pronouncement, the apex court has held that the “right of fair hearing is a fundamental right of the individual under Article 21 of the constitution of India”.
“In the instant case, prima facie the order impugned has been passed at the back of the petitioner without at least affording an opportunity of being heard to the petitioner, not to speak of ample opportunity which the law prescribes,” the bench said. “It is admitted that the petitioner has been in active continuous service for the past 18 years, and in an advanced stage of her life and her family must have settled on the earnings of the petitioner, depriving her of livelihood at this stage will be unconstitutional, unfair, and against the canons of the rule of law.”
The bench noted that admittedly, the communication by the J&K PSC was passed in violation of the principle of natural Justice, one of the fundamental principles of law.
It held that the principle of natural justice ensures that justice is done impartially and fairly to every individual and every individual has a right to fair hearing.
“It further requires that every person should be given a hearing before any decision is taken, not to speak of a decision detrimental to the interests of the individual,” the bench stated.
Seeking objections to the application which Dr Mughal has filed through his counsel, Mir Suhail, the bench said: “Subject to the objections of the other side and till the next date of hearing, the order ad communication impugned bearing No PSC-leg/16/2021 dated August 19, 2023, is stayed, as it relates to the petitioner.”
Mughal being eligible applied for the post and after completing the selection process, the J&K PSC issued a select list on September 29, 2005, wherein she also figured.
Subsequently, she joined the post in 2005 and has been working as a Dental Surgeon with the department for the last 18 years.
In the meantime, Dr Gupta questioned her non-selection as she was entitled to six more points, three each for experience and sports.
Finally, the authorities passed an order on November 25, 2020, whereby the claim of Dr Gupta was rejected.
She challenged the order before the CAT Bench Jammu and her plea was allowed with a direction to the authorities to appoint her to the post of Dental Surgeon.
In an appeal, the authorities challenged the order before the High Court, which was dismissed by the Division Bench on December 15, 2021.
After the dismissal of the appeal, the candidate was appointed to the post of Dental Surgeon and the appointment of Mughal was cancelled on July 20 this year following the communication of July 19 by J&K PSC withdrawing its recommendation for the appointment.