HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16754/2017 Jagdish Chhangani S/o Shri Pukhraj Chhangani, Resident Of Ravto Ki Gali, Gundhi Ka Mohalla, Jodhpur.
----Petitioner Versus
1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.
2. The Director, Urban And Housing Development, Jaipur.
----Respondents Connected With S.B. Civil Writ Petition No. 3653/2017 Sanjeev Kumar Sharma S/o Late Shri U.m. Sharma, Resident Of 88, Polo Ground, Udaipur
----Petitioner Versus
1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur
2. The Urban Improvement Trust UIT, Udaipur Through Its Secretary
----Respondents S.B. Civil Writ Petition No. 3657/2017 Rakesh Parihar S/o Shri Madan Lal Parihar, Resident Of Behind Mahamandir Railway Station, Jodhpur.
----Petitioner Versus
1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.
2. The Urban Improvement Trust Uit, Bhilwara Through Its Secretary.
3. Ravindra Prakash Mathur s/o Late Shri Bhawani Mal Mathur, aged about 45 years, resident of A-94, Shastri Nagar, Jodhpur, at present resident at B-4/140, Chitrakoot Nagar, Jaipur, presently working as Executive (Downloaded on 01/12/2021 at 09:11:02 PM) (2 of 12) [CW-16754/2017] Engineer, Jaipur Development Authority, Jaipur (Raj.)
4. Bhanwru Khan s/o Shri Navarang Khan, aged about 49 years, R/o Noorsar House, Street No. 18, Rampura, Lalgarh, Bikaner, present working as Executive Engineer, Urban Improvement Trust, Bikaner.
----Respondents S.B. Civil Writ Petition No. 3522/2018
1. Rakesh Parihar S/o Shri Madan Lal Parihar, Resident Of Behind Mahamandir Railway Station, Jodhpur.
2. Sanjeev Kumar Sharma, S/o Late Shri U.m. Shamra, Resident Of 88, Polo Ground, Udaipur.
----Petitioners Versus
1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.
2. The Joint Secretary-I, Urban Development Department, Jaipur.
----Respondents S.B. Civil Writ Petition No. 3640/2018 Chandra Prakash Purohit S/o Shri Jai Kishan Purohit, Jalap Mohalla, Jodhpur.
----Petitioner Versus
1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.
2. The Joint Secretary-I, Urban Development Department Jaipur.
----Respondents S.B. Civil Writ Petition No. 3884/2018 Jagdish Chhangani S/o Shri Pukhraj Chhangani, Resident Of Ravto Ki Gali, Gundhi Ka Mohalla, Jodhpur.
----Petitioner Versus
1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, (Downloaded on 01/12/2021 at 09:11:02 PM) (3 of 12) [CW-16754/2017] Government Of Rajasthan, Jaipur.
2. The Director, Urban And Housing Development, Jaipur.
----Respondents S.B. Civil Writ Petition No. 3918/2018 Arvind Kumar Mathur S/o Shri Amba Lal Mathur, 2-Ja-3, CHB, Jodhpur.
----Petitioner Versus
1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.
2. The Joint Secretary-I, Urban Development Department, Jaipur.
----Respondents
For Petitioner(s) : Mr. Manoj Bhandari.
Mr. Pramendra Bohra.
Mr. Sushil Solanki.
For Respondent(s) : Mr. Rajesh Parihar
Mr. Anirudh Purohit.
Mr. P.R.Mehta.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
1/12/2021
These writ petitions have been filed by the petitioners aggrieved against the order dated 20/2/2017 and order dated 21/2/2018 passed by the respondents. While Civil Writ Nos. 3657/2017, 3653/2017 and 16754/2017 have been filed questioning the validity of order dated 20/2/2017, Civil Writ Petition Nos. 3522/2018, 3884/2018, 3918/2018 and 3640/2018 have been filed to question the validity of order dated 21/2/2018.
The subject matter of the present petitions has a chequered history. The petitioners were initially appointed as Junior (Downloaded on 01/12/2021 at 09:11:02 PM) (4 of 12) [CW-16754/2017] Engineers on temporary basis for a period of six months on 8/1/1997. Whereafter, they came to be appointed pursuant to the orders passed in Civil Writ Petition No. 3659/2000 and 1650/2001 by order dated 28/12/2001 as Junior Engineers on contract basis for a period of one year on a fixed monthly salary of Rs.5,000/-. The said appointments made on contractual basis came to be extended for a period of one more year by order dated 7/1/2003. Whereafter, on 18/7/2003 (Annex.4 in C.W.No. 16754/2017) the petitioners came to be appointed as Junior Engineers from the date of joining in regular pay scale. It was also indicated that the benefit of seniority would be given to them w.e.f. the date they joined the duty pursuant to the orders dated 28/12/2001 and 26/2/2002. Petitioners Rakesh Parihar, Arvind Mathur, Pankaj Agarwal and Sanjeev Kumar Sharma came to be promoted as Assistant Engineers by order dated 10/12/2009.
The petitioners represented to the State seeking regularization of their services from the date of their purported initial appointment dated 8/1/1997.
As few of the petitioners had approached this Court by filing Civil Writ Petition No. 4890/2009, wherein, on 15/5/2009 the petitioners were directed to submit their representations and required the respondents to consider the same. By order dated 18/1/2010, the representations made by Prakash Parihar and Jagdish Chhangani came to be rejected and further prayer made seeking reconsideration of rejection of representation also came to be rejected by order dated 2/2/2011.
The petitioners again represented to the respondents, based on which the State Government required the U.I.T. to pass appropriate orders. By resolution dated 25/6/2012, the J.D.A. (Downloaded on 01/12/2021 at 09:11:02 PM)
(5 of 12) [CW-16754/2017] formed a committee to take a decision and by order dated 5/9/2013, it was decided to grant the benefit to the petitioners Rakesh Parihar, Jagdish Chhangani and Chandra Prakash Purohit w.e.f 8/1/1997. Their salary was fixed by order dated 19/9/2013 and by order dated 4/6/2014 their seniority was also fixed by taking their date of appointment as 8/1/1997.
By order dated 21/8/2015 the State Government cancelled the order dated 18/1/2010 by which the representation filed by the petitioners was rejected seeking benefits from initial date of appointment.
Thereafter, the impugned order dated 20/2/2017 was issued inter alia indicating that as the seniority list of Junior Engineers was issued on 26/3/2008, while the said list was in existence, by order dated 5/6/2008 new seniority list was issued and the earlier seniority list dated 26/3/2008 was not superseded, therefore, the seniority list dated 5/6/2008 and the amendments made therein were withdrawn. The consequence of the said order was that the order by which petitioners were accorded seniority by order dated 4/6/2014 also stood set aside.
Feeling aggrieved, the first set of writ petitions challenging the order dated 20/2/2017 were filed.
By interim order dated 30/3/2017, a coordinate bench of this Court ordered that the petitioners' position may not be altered to their detriment pursuant to the order dated 20/2/2017. During the pendency of said writ petitions questioning the validity of order dated 20/2/2017, the respondents passed order dated 21/2/2018 inter alia noticing that the petitioners had not worked with the Trust for the period 18/7/1997 to 28.2.2001/26.2.2002 and they were accorded appointments by orders dated 28/12/2001 and (Downloaded on 01/12/2021 at 09:11:02 PM) (6 of 12) [CW-16754/2017] 26/2/2002 and by order dated 18/7/2003 they were granted regular pay scale and benefit of seniority from the date they took charge in the respective Trusts, as such their representations seeking seniority and other benefits from 1/8/1997 were rejected and representation made pursuant to the order passed by the Court were rejected on 18/1/2010. The grant of seniority and other benefits to the petitioners w.e.f. 8/1/1997 has been found to be irregular and as such the order dated 18/1/2010 was restored and order dated 21/8/2015 was cancelled.
Feeling aggrieved the other set of writ petitions questioning the validity of the order dated 21/2/2018 have been filed, wherein, also the operation of the order dated 21/2/2018 was stayed by this Court.
Learned counsel for the petitioners made submissions that both the order dated 20/2/2017 and 21/2/2018 have been passed without affording any opportunity of hearing to the petitioners, despite the fact that by both the orders, whereby, the seniority conferred on the petitioners and the regularization of their services w.e.f. 8/1/1997 have been effected and as such the orders could not have been passed without affording opportunity of hearing to the petitioners.
Submissions were also made that the decision taken cannot be applied with retrospective effect as the petitioners were promoted in the meanwhile and that the directions of the Court in the petitions filed earlier were to decide the representation based on the judgment in the case of one Rameshwar Lal Mathur and as the respondents have given effect to the said order of the Court, the subsequent actions are vindictive, malafide and arbitrary and the same, therefore, deserves to be quashed and set aside. (Downloaded on 01/12/2021 at 09:11:02 PM)
(7 of 12) [CW-16754/2017] Reliance was placed on Shrawan Kumar Jha & Ors. vs. State of Bihar : AIR 1991 SC 309 and Sarika Digambar Lokare vs. Chief Executive Officer : 2015 (4) Bom CR 615.
Learned counsel for the State made submissions that a bare look at the facts would reveal that the petitioners were appointed purely on temporary basis by order dated 6/1/1997 for a period of six months and, thereafter, came to be granted contractual appointment on 28.12.2001/26.2.2002 and during the period 8/7/1997 till 28/12/2001 and 7/1/2003 the petitioner had not served the respondents and, therefore, there was no question of petitioners being entitled for seniority and other benefits w.e.f. 8/1/1997 and as such the respondents were justified in passing the orders dated 20/2/2017 and 21/2/2018.
Submissions were made with reference to the report filed as Annex.R/1/4 in CW No. 3522/2018 that the committee appointed to examine the aspect of giving benefit to the petitioners has categorically come to the conclusion that the petitioners were wrongly granted benefit of seniority and other benefits w.e.f. 8/1/1997 and as such the orders impugned do not call for any interference.
During the pendency of the writ petitions, by order dated 1/2/2018 Ravindra Prakash Mathur and Bhanwru Khan were impleaded as respondents no. 3 and 4 in Civil Writ Petition no. 3657/2017.
Learned counsel appearing for the private respondents made vehement submissions that in writ petition 16553/2015 filed by the said petitioners by order dated 7/12/2015, a coordinate bench at Jaipur had specifically stayed the order dated 4/6/2014 by which the petitioners were accorded seniority and as such the (Downloaded on 01/12/2021 at 09:11:02 PM) (8 of 12) [CW-16754/2017] petitioners, though aware of the pendency of the said writ petition and the interim order granted by the Court, chose to suppress the said aspect from the Court and have obtained interim order. The said writ petition is still pending before the bench at Jaipur and on that count alone the petitions deserve to be dismissed.
Further submissions were made that a bare look at the facts would reveal that the petitioners without being in service for about four years were seeking to take advantage of seniority for the said period and having march over the respondents, who are otherwise senior to them, as such they are not entitled to any relief from this Court.
Learned counsel for the petitioners made submissions that the petition at Jaipur Bench has been dismissed for not filing requisites on 28/3/2016 and came to be restored on 7/12/2016 by serving copy on the Government counsel and as such the petitioners being unaware of passing of the order in the writ petition cannot be accused of suppressing the facts.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The facts which emerge from the chequered history as noticed hereinbefore reveals that on18/1/2010, the respondents had rejected the representations made by the petitioners seeking seniority and other benefits w.e.f. 8/1/1997. However, on account of persistent follow up by the petitioners, by order dated 5/9/2013 the petitioners came to be conferred with benefits w.e.f. 8/1/1997,which was followed by their fixation and insertion of their names as per seniority in the existing seniority list by order dated 4/6/2014.
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(9 of 12) [CW-16754/2017] Whereafter, first of all the order dated 18/1/2010, by which the representation made by the petitioners was rejected, came to be recalled by order dated 21/8/2015, which completed entire sequence of events insofar as the claim of petitioners seeking benefit w.e.f. 8/1/1997 was concerned.
Whereafter, on 20/2/2017, first of all the seniority list dated 5/6/2008 in which by amendment dated 4/6/2014 names of the petitioners were inserted came to be withdrawn on account of the fact that when the said list dated 5/6/2008 was issued the same did not supersede the earlier existing seniority list dated 26/3/2008. The necessary consequence of the order dated 20/2/2017, whereby, the seniority list dated 5/6/2008 along with its amendment came to be withdrawn, was that the insertion of petitioners' names in the seniority list also stood deleted. The said action of the respondents by merely indicating that in the seniority list dated 5/6/2008 the fact of superseding the existing seniority list dated 26/3/2008 had not been indicated, which affected the petitioners also, as in the said list dated 5/6/2008 by amendment dated 4/6/2014 their names were entered into, the order could not have been passed without affording an opportunity of hearing to the petitioners.
Submission made by the respondents that as the entire list along with its amendments was withdrawn, the petitioners alone cannot claim to be affected by the same has no substance inasmuch as any person, who feels affected by any action, has a right to question the same irrespective of the fact whether other persons, if affected by it, choose not to question the same.
The attempt made to justify the withdrawal of the seniority list on account of purported wrong according of seniority to the (Downloaded on 01/12/2021 at 09:11:02 PM) (10 of 12) [CW-16754/2017] petitioners also cannot be countenanced, as admittedly the petitioners were not afforded any opportunity of hearing.
The further action of the respondents subsequent to passing of the order dated 20/2/2017, to pass order dated 21/2/2018, which is under challenge in second set of writ petitions, recalling the order dated 21/8/2015, is also bad for violation of principles of natural justice inasmuch as, as noticed hereinbefore, by order dated 18/1/2010 the representation made by the petitioners for seniority and other benefits w.e.f. 8/1/1997 came to be rejected, which order dated 18/1/2010 was recalled by order dated 21/8/2015, prior to which on 5/9/2013, the petitioners were conferred seniority and other benefits w.e.f. 8/1/1997 and the order dated 21/8/2015, was sought to be recalled again by order dated 21/2/2018, which necessarily meant that rejection of petitioners' representation by order dated 18/1/2010 would have sprang up to the detriment of the petitioners, which could not have been passed without affording opportunity of hearing to the petitioners.
Submission made that as the committee had come to the conclusion that petitioners were not entitled for benefit w.e.f. 8/1/1997, the order impugned does not call for any interference also cannot be accepted for the simple reason that the committee had not involved the petitioners and/or had not afforded any opportunity of hearing to the petitioners before coming to the conclusion regarding petitioners being not entitled for the benefits w.e.f. 8/1/1997.
The Hon'ble Supreme Court in the case of Shrawan Kumar Jha (supra), where appointments were cancelled by the Government on the ground that the District Superintendent had (Downloaded on 01/12/2021 at 09:11:02 PM) (11 of 12) [CW-16754/2017] no authority to appoint the petitioners therein, came to the conclusion that the petitioners should have been given an opportunity of hearing before cancellation of their appointments and that no order detrimental to the petitioners could be passed without complying with the rules of natural justice.
In Sarika Digambar Lokare (supra) the Bombay High Court held that even if it is claimed that the order passed is beyond the competence of the authority which has passed the order, the affected persons must be heard before passing of the order.
In view of the above, the orders impugned dated 20/2/2017 and 21/2/2018 having been passed in violation of principles of natural justice cannot be sustained.
So far as the submission made by counsel for the respondent nos. 3 and 4 in C.W. No. 3657/2017 regarding pendency of their writ petition before the Jaipur Bench, wherein, the order dated 4/6/2014 had been stayed, is concerned, suffice it to say that the said petition is independent of the present controversy inasmuch as the petitioners were seeking to question the validity of the orders dated 20/2/2017 and 21/2/2018, which were passed subsequent to the said order dated 4/6/2014, nullifying the same, and as such the petition filed by the respondent nos. 3 and 4 would have to be dealt with by the appropriate court on its own merit.
It may be observed here that in the circumstances of the case, wherein, the orders impugned were passed in violation of principles of natural justice, this Court did not find it appropriate to examine the validity as to whether the petitioners were rightly granted benefit w.e.f. 8/1/1997 or not.
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(12 of 12) [CW-16754/2017] In view of the above discussion, the writ petitions filed by the petitioners are allowed on the limited ground, as noticed hereinbefore. The orders dated 20/2/2017 and 21/2/2018 are quashed and set aside qua the petitioners.
The respondents would be free to pass fresh orders after affording opportunity of hearing to the petitioners in accordance with law. In case the respondents decide to take steps in this regard, the proceedings therein should be decided in a most expeditious manner, as apparently the issue has dragged on for over two decades now.
(ARUN BHANSALI),J baweja/-
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