Khyati Mishra vs U.P. Jal Nigam Thru. Its Managing ...
2019 Latest Caselaw 2613 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 23433 of 2018
 

 
Petitioner :- Khyati Mishra
 
Respondent :- U.P. Jal Nigam Thru. Its Managing Director And Others
 
Counsel for Petitioner :- Upendra Nath Misra
 
Counsel for Respondent :- Rishabh Kapoor,Brajesh Kumar Chaudhary
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard learned counsel for the parties.

This Court vide order dated 16.08.2018 was pleased to grant three weeks' time to the learned counsel for the opposite parties to file the counter affidavit and one week's time thereafter was granted for filing rejoinder affidavit. No counter affidavit has been filed in the writ petition. Thereafter, the matter has been listed couple of times but no counter affidavit has been filed.

Lastly, this matter was listed on 07.03.2019 and on the said date learned counsel for the petitioner has informed the Court that despite the couple of opportunities being provided to the learned counsel for the opposite parties, no counter affidavit has been filed. Therefore, this Court granted three weeks' further time and no more for filing counter affidavit and one week's time thereafter for filing rejoinder affidavit listing this case on 08.04.2019 within top ten cases.

Again, no counter affidavit has been filed by the opposite parties despite the stop order being passed by this Court.

Today, Sri Upendra Nath Mishra, learned counsel for the petitioner has pressed his application for further direction submitting that since the opposite parties are not filing any counter affidavit despite the couple of opportunities being given to them and the fact that this Court has passed the stop order on 07.03.2019 indicating therein that if no counter affidavit is filed, the application for interim relief shall be considered on the next date, his application for further direction may be considered.

Sri Rishabh Kapoor, learned counsel for the opposite party Nos.1, 2 & 3 has opposed such prayer of learned counsel for the petitioner saying that since the interim relief application of the petitioner has already been rejected by this Court, therefore, no second application or any application for such nature can be filed, as it is barred under Chapter XXII, Rule 7 of the High Court Rules.

In the present case, there were total 75 persons against whom the termination order was issued in the same terms. Out of which, 73 termination orders have been passed on 14.05.2015 and 02 termination orders have been passed on 18.07.2018. It has also been informed at the bar that all the termination orders, which have been passed in the year 2015, the termination orders with respect to 73 persons have been stayed by this Court and 02 termination orders have been passed on 18.07.2018, in which, one was stayed by this Court at Allahabad in Writ-A No.16264 of 2018 on 03.08.2018. The second termination order, which has not been stayed by this Court till date, is the termination order of the present petitioner dated 18.07.2018.

Therefore, learned counsel for the petitioner has submitted with vehemence that undisputedly out of 75 termination orders, 74 termination orders have already been stayed, therefore, the termination order passed against the petitioner dated 18.07.2018 may also be stayed in the ends of justice, more particularly, considering the fact that despite the stop order being passed, no counter affidavit has been filed by the opposite parties.

This is a sorry state of affairs that despite the stop order being passed by this Court no counter affidavit has been filed till date and when the Court is considering to pass an order protecting the interest of the petitioner, the learned counsel for the opposite parties is taking shelter of the provisions of High Court Rules. The opposite parties may not be permitted to take aid of the Rules of the Court to pass any order protecting the interest of the petitioner particularly in given circumstances when despite the couple of opportunities being extended to the opposite parties but no counter affidavit has been filed.

This Court is unable to comprehend as to why the petitioner be discriminated from other identically placed persons in favour of whom the interim order has admittedly been granted by this Court.

The fact would have been different had the petitioner filed second interim relief application immediately after 16.08.2018 when his application for interim relief was entertained and the time granted to the opposite parties for filing the counter affidavit has not been lapsed, but in the instant case, the time of three weeks have lapsed in the month of September, 2018, thereafter, couple of opportunities being extended to the learned counsel for the opposite parties to file the counter affidavit and vide order dated 07.03.2019 the last opportunity was given to the learned counsel for the opposite parties to file the counter affidavit and in the said order it was made clear that if the counter affidavit is not filed by the opposite parties, the interim relief application of the petitioner shall be considered on the next date.

Since the identical writ petitions are pending before this Court and all those writ petitions would be decided finally when the pleadings would be completed in those matters, but the fact remains that other 74 persons are discharging their duties under the interim order being passed by this Court, but the petitioner is still out of employment as no interim order has been granted in this case.

There are catena of cases of Hon'ble Apex Court that the similar matter should receive the similar treatment as the Hon'ble Apex Court in re: Vishnu Traders vs. State of Haryana and other reported in 1995 Suppl (1) SCC 461 and the same has been followed in the later judgment of Hon'ble Apex Court in the cases of Kanoria Chemicals and Industries Ltd. and others vs. U.P. State Electricity Board and others reported in (1997) 5 SCC 772 and State of Uttar Pradesh and others vs. Hirendra Pal Singh and others reported in (2011) 5 SCC 305 has held that the need for consistency of approach and uniformity in the exercise of judicial discretion in similar/ identical matters require that parity of treatment should be maintained at the interim stage, so as to avoid discrimination and unreasonable classification at interim stage.

I find no good reason not to grant same interim order to the petitioner which has been granted in favour of 74 identically place employees. Further, when the opposite parties have not filed counter affidavit till today despite the stop order being passed and the petitioner has filed application for further direction seeking interim protection, therefore, equity demands that the interim protection should be given to the present petitioner. In the peculiar facts and circumstances of the case, if the petitioner is not given equal treatment it would be violative of Article 14 of the Constitution of India and Rules of the Court may not supersede the fundamental rights of the citizen.

Considering the aforesaid facts and circumstances of the issue in question and also considering that in the identical matters, this Court has been pleased to stay the identical termination order dated 18.07.2018 passed against one Vinay Kumar Singh, I am of the considered view that the petitioner is also entitled for the same relief. For convenience, the order dated 03.08.2018 passed in Writ-A No.16264 of 2018; Vinay Kumar Singh vs. State of U.P. & others, is being reproduced here-in-below:-

"This writ petition has been filed challenging the order dated 18.07.2018 passed by the Chief Engineer-Adhishthan 2-2, U.P. Jal Nigam, Lucknow by which the services of the petitioner have been terminated on the ground that his appointment had been made on 07.10.2013 against the provision of Section 3(6) of the U.P. Act No. 4 of 1994. He was issued a show-cause notice on 15.05.2018, the petitioner submitted his reply on 29.05.2018. It has been mentioned in the impugned order that an incorrect select list was formulated ignoring the provision of U.P. Act No. 4 of 1994 and, therefore, certain general category candidates who were lower down in merit like the petitioner, came to be selected.

Learned Senior Counsel, Shri Ashok Khare, assisted by Shri Shantanu Khare, has submitted that when the select list was revised earlier in the year 2014 and certain candidates' services were terminated, they approached this Court in Writ Petition No. 7312 (SS) of 2014 (Rakesh Pratap Singh & Others Vs. State of U.P. & Others) and this Court had set aside the termination in pursuance of such revision of select list by its order dated 18.12.2014.

Similarly, another batch of selected candidates' services were terminated on 14.05.2015. They approached this Court in Writ Petition No. 31673 of 2015 (Salimunddin Siddiqui & Others Vs. State of U.P. & Others), Writ Petition No. 32331 of 2015 (Rahul & Others Vs. State of U.P. & Others) and Writ Petition No. 32375 of 2015 (Ranjan Kumar Chaurasia Vs. State of U.P. & Others). This Court had been pleased to grant interim orders dated 26.05.2015 and 27.05.2015, staying the operation of the impugned termination orders. Such writ petitions are still pending disposal before this Court.

Learned Senior Counsel also submitted that all these facts were mentioned by the petitioner in the reply submitted on 29.05.2018 to the show-cause notice issued to him, but none of the facts has been considered in the impugned termination order.

Shri Vimlesh Kumar Rai, learned counsel for the U.P. Jal Nigam, has pointed out the terms of the initial appointment order of the petitioner dated 07.10.2013 wherein it has been clearly stated that the appointment of the petitioner shall be temporary and shall be terminable at one month's notice or one month's pay in lieu thereof.

This condition has also been mentioned in the order impugned. The petitioner's services were temporary in nature and could be terminated in pursuance of this power reserved with the appointing authority in terms of the conditional appointment order.

Having heard learned counsel for the parties, this Court finds that in earlier two revised select lists issued in the year 2014 and 2015, the petitioner's name did not find place and his services were not terminated earlier and, therefore, he had no reason to approach this Court but the other candidates whose services were terminated approached this Court. In one case of 2014, the writ petition was allowed in another case. This Court has passed interim orders staying the effect and operation of the impugned termination orders.

The grounds taken by the petitioner being similar in nature as the controversy which is pending before this Court in Writ Petition Nos. 31673 of 2015, 32331 of2015 and 32375 of 2015, the petitioner is entitled to the same interim protection as given to the candidates who had come earlier before this Court.

List this writ petition along with Writ Petition No. 31673 of 2015 (Salimunddin Siddiqui & Others Vs. State of U.P. & Others) along with connected matters before the appropriate Court after six weeks.

Till the next date of listing the effect and operation of the order impugned dated 18.07.2018 shall remain stayed.

In the meantime the pleadings shall be exchanged between the parties.

Whenever the case is listed next, name of Shri Vimlesh Kumar Rai shall be shown as counsel for the respondents."

Since the impugned order in the present case is same impugned order as has been passed in the case of Vinay Kumar Singh's (supra) i.e. 18.07.2018, therefore, I hereby stay the operation and implementation of impugned order dated 18.07.2018, which is contained as Annexure No.1 to the writ petition, till the next date of listing. It is needless to say that since the order dated 18.07.2018 has been stayed, the petitioner shall be permitted to discharge her duties and shall be paid her regular salary.

Since learned counsel for the opposite parties has submitted that he has received complete instructions in the matter and it would be expedient in the interest of justice for the opposite parties also to file the counter affidavit, therefore, considering the request of learned counsel for the opposite parties, I hereby provide three weeks' further time, and no more, to file the counter affidavit and rejoinder affidavit, if any, may be filed within a period of one week thereafter.

List this petition in the week commencing 13.05.2019 within top ten cases.

Order Date :- 8.4.2019

Suresh/

[Rajesh Singh Chauhan,J.]