Nagendra Singh vs The State Of U.P.Through Secy. ...
2019 Latest Caselaw 1722 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                                                             AFR
 

 
Court No. - 17
 

 
(1) Case :- SERVICE SINGLE No. - 4502 of 2002; 
 
Petitioner :- Nagendra Singh
 
Respondent :- The State Of U.P.Through Secy. Resham Vikas Vibhag Lucknow
 
Counsel for Petitioner :- Y.K.Misra
 
Counsel for Respondent :- C.S.C.
 
(2) Case :- SERVICE SINGLE No. - 4532 of 2002; AND 
 
Petitioner :- Hanuman
 
Respondent :- State Of U.P. Through Secy. Govt. Of U.P. Resham Vikas
 
Counsel for Petitioner :- Y.K.Mishra
 
Counsel for Respondent :- C.S.C.
 
(3) Case :- SERVICE SINGLE No. - 2961 of 2014
 
Petitioner :- Mithilesh Singh
 
Respondent :- State Of U.P.Thru Secy. Resham Development Deptt. & Others
 
Counsel for Petitioner :- Yogendra Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 
                                                ------
 
Hon'ble Manish Mathur,J.

Heard Sri Y. K. Mishra, learned counsel for the petitioners and the learned Standing Counsel appearing on behalf of the opposite parties.

The present petition has been filed against the order dated 29.07.2002 whereby transfer of the petitioners to Resham Development Directorate from the Handloom Corporation was cancelled.   A further prayer for payment of arrears of salary with effect from 30.08.2001 has also been made.

As per the averments made in the writ petition, the petitioners were appointed on the post of Supervisor in the U.P. State Handloom Corporation in the years 1983 and 1984 under the Inter State Tasar Development Project.  It has been stated that a number of persons were employed along with the petitioners in the aforesaid Tasar Development Project but due to its closure, 234 persons working along with the petitioners in the said project of the Handloom Corporation were transferred to the Resham Development Directorate by means of the order dated 25.11.1988.  Subsequently, by means of the order dated 22.03.1990, all the aforesaid 234 persons were absorbed with the status of Government servant. However, it was only the petitioners who were, inadvertently, left out from being transferred along with the aforesaid 234 persons and continued in the Handloom Corporation.  Later on, by means of the order dated 29.08.2001, the case of petitioners was also considered for transfer to Resham Development Directorate in parity with the aforesaid 234 persons in terms of the Government Order dated 25.11.1988, but by means of the impugned order dated 29.07.2002, their transfer to the Resham Development Directorate has been cancelled which has resulted in filing of the present petition.

At the time of filing of the Writ Petition, by  means of the interim order dated 05.09.2002, the impugned order dated 29.07.2002 was stayed  and it was directed that the petitioners shall be allowed to work in the Resham Development Directorate and be paid their salary as well.  Subsequently, by means of the interim order dated 13.08.2003, the earlier interim order was clarified with a specific direction that the petitioners should be allowed to resume their duties in the Resahm Development Department.  It is admitted that in pursuance of the aforesaid directions of this Court the petitioners are continuing in the Resham Development Department, as such, till date. However, petitioner no.1 Nagendra Singh has, subsequently, attained superannuation while petitioner no.5, Om Prakash Sharma has passed away.

Learned counsel for the petitioners has submitted that the impugned order dated 29.07.2002 does not stand to reason on account of the fact that it has completely ignored the parity of petitioners with 234 other similarly situated employees of the Handloom Corporation engaged in the Tasar Development Project who were transferred to the Resham Development Directorate on account of closure of the said project. He has submitted that the petitioners are similarly situated as the aforesaid 234 persons who also subsequently attained the status of Government Servant by means of the  order dated 22.03.1990. It has been submitted that the impugned order has been passed merely on the ground that neither eligibility of the petitioners  to hold the post nor the number of vacant sanctioned posts in the Resham Development Department was seen prior to passing of the transfer order dated 29.08.2001 while  totally ignoring the fact that the said factors were also not seen with regard to the aforesaid 234 persons who were transferred by means of the order dated 25.11.1988.  Although it has not been pleaded in the Writ Petition but the learned counsel for the petitioners has raised the submission that the order of transfer of the petitioners to the Resham Development Department was by means of a Government Order dated 29.08.2001 but the cancellation order dated 29.07.2002 is merely an administrative order and would therefore, not come within the meaning of law under Article 13 of the Constitution of India and, thus cannot supersede the Government Order dated 29.08.2001.  In support of the aforesaid submission, learned counsel for the petitioners has relied upon the judgment of Hon'ble the Supreme Court in the case of State of Bihar and another v. Sunny Prakash and others reported in 2013 (3) SCC 559 in which the conditions have been indicated under which an order can be said to be a Government Order in terms  of Article 166(3) of the Constitution of India.

Countering the submissions made by learned counsel for the petitioners, the learned Standing Counsel on the basis of the averments made in the counter affidavit has submitted that the case of petitioners cannot be treated in parity with the other 234 persons in as much as, after the closure of Tasar Development Project in the years 1983 and 1984, the petitioners were freshly appointed in the U.P. State Handloom Corporation and, therefore, ceased their work in the aforesaid project while the other 234 persons continued functioning as such.  It has also been submitted that the impugned order has been rightly passed on account of the fact that, prior to transfer of the petitioners, their eligibility, qualification and the number of vacant sanctioned posts in the Resham Development Department was necessarily required to be seen as per the Rules and in the absence thereof, the order dated 29.08.2001 was rightly cancelled.

I have heard learned counsel for the parties and perused the record.

A perusal of the impugned order dated 29.07.2002 indicates that the aforesaid order has been passed only on account of the fact that the eligibility, qualifications etc. of the petitioners and the availability of sanctioned posts in the Resham Development Department were not seen prior to passing of the transfer order dated 29.08.2001 and has, therefore, cancelled  the aforesaid Government Order.  It is a relevant fact that the other 234 persons transferred from the Tasar Development Project to the Resham Development Department was in terms of the Government Order dated 25.11.1988 which also does not indicate the qualifications or eligibility criteria of those 234 persons for their transfer to Resham Development Department nor does the said Order indicate the availability of vacant substantive posts in the said Department.  It is a relevant factor that in pursuance of the aforesaid transfer of 234 persons not only did the aforesaid persons joined the Resham Development Department but were subsequently accorded the status of a Government Servant by means of the order dated 22.03.1990.  It is not in dispute that the petitioners were working in the Tasar Development Project of the Handloom Corporation along with the aforesaid 234 persons.  The only dispute as indicated in the counter affidavit is that after closure of the Tasar Development Project, the petitioners were given fresh appointment in the State Handloom Corporation and were, therefore, not similarly situated to the said 234 persons.  The aforesaid fact has been specifically stated in para 18 of the counter affidavit along with certain orders said to be the fresh appointment orders of the petitioners. 

The averments made in the said paragraph of the counter affidavit do not stand to reason owing to the fact that if the said Tasar Project closed down in the year 1986 as has been stated in the counter affidavit, then the status of the other 234 persons has not been indicated nor explained in the counter affidavit.  Even if it is assumed that the said Project came to an end in the year 1986, then the transfer of the other 234 persons was effected only in the year 1988  and, therefore, it can be said that the petitioners were similarly situated to those other 234 persons for the next two years also in the same manner.  The documents annexed as Annexures 6 to 10 to the counter affidavit purporting to be the fresh appointment letters of the petitioners are of the year 2001 on a reading of which it cannot be said that the petitioners were freshly appointed in the Handloom Corporation between the years 1986 and 1988. In view of the above, the submission of the opposite parties that the petitioners were given fresh appointments in the State Handloom Corporation and were, therefore, not similarly situated to other 234 persons, does not hold good.

The Government Order dated 29.08.2001 pertaining to the petitioners' transfer to Resham Development Project clearly indicates that the transfer of petitioners to Resham Development Department was being done   pursuant to and in continuation of the Government Order dated 25.11.1988 pertaining to the other 234 persons which clearly signifies the fact that the petitioners were clearly similarly situated to  other 234 persons.

On a consideration of all the documents indicated herein above, it is clear that the petitioners were similarly situated as the other 234 persons who were transferred from Tasar Project of the Handloom Corporation to the Resham Development Department and, as such, indication of a new criteria by means of the impugned order merely to deprive the petitioners from their right of being treated fairly and equally with other similarly situated persons is not only arbitrary but illegal being against the provisions of Articles 14 and 16 of the Constitution of India. Once the Government itself did not indicate the criteria of eligibility, qualification and availability of sanctioned posts with regard to 234 persons so transferred earlier, then imposition of such condition only upon the remaining ten petitioners is arbitrary and is, therefore, held to be illegal.

So far as the submission of learned counsel for the petitioners is concerned that the transfer order dated 29.08.2001 was a Government Order whereas the order dated 29.07.2002 was merely an administrative order and would, thus, not supersede the Government Order, it is seen that no such pleading has been made in the Writ Petition and, therefore, such an issue does not require to be gone into. However, in view of the fact that the aforesaid argument is clearly legal in nature and is covered by a decision of Hon'ble the Supreme Court in State of Bihar and another v. Sunny Prakash and others(supra) wherein the conditions under which an order can be said to be a Government Order has been considered relying upon other judgments of Hon'ble the supreme Court itself pertaining to Articles 162 and 166(3) of the Constitution of India the same is being dealt with.  A perusal of the aforesaid judgments clearly indicates that for an order to be a Government Order under Article 166 of the Constitution of India, it is required that it should be either in the name of the Governor of the State or purported to be passed in compliance of directions of the Governor of the State.  Hon'ble the Supreme Court relying upon the decision in State of U.P. v. Neeraj Awasthi reported in (2006) 1 SCC 667 has held that the directions should be shown to have been issued pursuant to any decision  taken by a competent authority in terms of the Rules of Executive Business of the State framed under Article 166 of the Constitution and, therefore, the decision of the State Government must be in compliance of the requirement of Article 162 read with Article 166 of the Constitution and, therefore, a direction issued merely by an officer of the State without following such procedure is not binding on the Government. 

A perusal of the order dated 29.08.2001 transferring the petitioners to Resham Development Department clearly indicates that it has been issued in compliance of the directions issued by the Governor of the State whereas the order dated 29.07.2002 does not carry any such indication.  In terms of the judgment of Hon'ble the Supreme Court in State of Bihar and another v. Sunny Prakash and others(supra), it can, therefore, be safely said that the order dated 29.07.2002 is merely an administrative order and, thus, would not supersede the order dated 29.08.2001 which is clearly in nature of a Government Order.

It is also a relevant factor that in pursuance of the directions of this Court, the petitioners subsequently joined the Resham Development Department and have been continuously working there for more than about 15 years.

As regards Writ Petition No.2961 (S/S) of 2014, the petitioner Mithilesh Singh joined in the Resham Development Department  and by means of the order dated 08.02.2006 was granted the scale of Rs.3050-4590 with effect from 1.1.1996 which was also enhanced and refixed subsequently vide orders dated 24.01.2008 and 07.01.2009.  However, by means of the orders dated 02.05.2014 and 12.05.2014, the fixation of the said pay-scale was cancelled and recovery thereof was issued.  In view of the fact that Sri Mithilesh Singh is similarly situated to the aforesaid 234 persons and has been found entitled to parity with them, the impugned orders dated 02.05.2014 and 12.05.2014 are hereby quashed.

In view of the above, the aforementioned three petitions are allowed.  A writ in the nature of Certiorari is issued quashing the order dated 29.07.2002 and a writ in the nature of Mandamus is issued to the opposite parties to continue the petitioners on their respective posts in the Resham Development Department in terms of the Government Order dated 29.08.2001.  A further direction in the nature of Mandamus is issued to the opposite parties to pay the arrears of salary to the petitioners with effect from 30.08.2001 till the date of their joining in the Resham Development Department.

Order Date :- 27.3.2019

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