Sachchida Nand Chaturvedi vs State Of U.P. Thru The Principle ...
2019 Latest Caselaw 4468 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A    F    R
 
Reserved on 03.01.2019
 
Delivered on 14.05.2019
 
Court No. - 34
 

 
Case :- WRIT - A No. - 4849 of 2004
 
Petitioner :- Sachchida Nand Chaturvedi
 
Respondent :- State Of U.P. Thru' The Principle Secy. & Ors.
 
Counsel for Petitioner :- Bhoopendra Nath Singh
 
Counsel for Respondent :- C.S.C.,S.M.A. Kazmi
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Bhoopendra Nath Singh, learned counsel for petitioner and learned Standing Counsel for State-respondent.

2. This writ petition under Article 226 of Constitution of India has been filed challenging order dated 10.12.2003 (Annexure 1 to writ petition) whereby officiating temporary promotion of petitioner from Class IV post to Junior Accounts Clerk has been cancelled and he has been reverted to his substantive post of Messenger (Patrawahak).

3. Pursuant to Selection Committee's recommendation dated 11.11.1995, petitioner was appointed as Class IV employee on the post of Messenger (Patrawahak) vide order dated 02.01.1996 passed by District Development Officer, Bhadohi (hereinafter referred to as "D.D.O.") against an existing vacancy in Development Block, Barshathi, District-Jaunpur. He was confirmed in Class IV post by order dated 18.09.2000 with effect from 01.11.1998. Thereafter, petitioner was promoted as 'Junior Accounts Clerk' on temporary and officiating basis, and posted at Development Block, Dobhi by District Development Officer, Jaunpur.

4. Vide Government order dated 30.09.2003 cadre of Junior Accounts Clerk was declared 'dying cadre' and it was provided that those 'Junior Accounts Clerk' who are presently getting salary in scale of Rs.4000-6000/-, under time bound scheme, they shall be redesignated as 'Assistant Accountant'. It also provided that cadre of 'Accounts Clerk' and 'Assistant Accountant' shall be merged and be redesignated as 'Assistant Accountant' in the scale of Rs.4000-6000/-.

5. Petitioner claims that his promotion was made pursuant to recommendation made by Departmental Promotion Committee (hereinafter referred to as "D.P.C.") but without any show cause notice or opportunity, by means of impugned order dated 10.12.2003, said promotion has been cancelled by D.D.O., Jaunpur and petitioner has been reverted to his substantive post of Messenger (Patrawahak).

6. A counter affidavit has been filed by respondents stating that in District-Jaunpur, under D.D.O., sanctioned posts of Junior Clerk (Group C) are 27 while those of Junior Accounts clerk are 15. 20 percent Class III posts are to be filled in by promotion of Class IV employees in accordance with procedure prescribed in Government Orders dated 01.01.1970, 21.08.1976, 19.05.1979 and 31.08.1982. For considering eligible candidates for promotion, a seniority list is prepared. Thereafter on the basis of merit and seniority, promotions are made. The then D.D.O. Sri Lal Bahadur Singh was transferred and charge was given to Sri Sharad Kumar Verma, Accounts Officer, who was on deputation in District Rural Development Authority (hereinafter referred to as "DRDA") and could not have exercised powers of D.D.O., but he made illegal promotions on ad hoc/officiating basis. Therefore, departmental enquiry was recommended against Sharad Kumar Verma and another official namely, Sri Vishu Dutt Chaubey, Stenographer, who was placed under suspension vide order dated 25.11.2003. Charge sheet was also served upon him vide order dated 29.11.2003. Alleged order of promotion was issued ignoring seniority of other two class IV employees, Rajesh Kumar and Sunil Kumar, who were senior to petitioner and without following procedure i.e. written test and interview, which is a procedure prescribed under the Rules for promotion of Class IV employees to Class III.

7. In rejoinder affidavit filed by petitioner it is said that in Group C , cadre of 'Junior Clerk' and 'Junior Accounts Clerk' are different. Qualification of Junior Clerk is Intermediate while for Junior Accounts Clerk it is Intermediate with Commerce and Accountancy. Promotion made from Class IV to Class III is to be made as per Rules, on the basis of written test and interview and those Class IV employees who have completed 5 years of continuous service, are entitled to be considered for promotion. Petitioner's promotion was made after written test, interview and he secured highest mark. Thereafter he has been promoted. Subsequent Government Order declaring 'Junior Account Clerk' as dying cadre would not invalidate petitioner's promotion already made. It is also said that petitioner is being victimized, since, he is nephew of Vishnu Dutt Chaubey, Stenographer of then Officer Sri Sharad Kumar Verma, who was holding charge of Office of D.D.O. and issued order of promotion.

8. A supplementary counter affidavit has also been filed on behalf of respondents stating that in the seniority list of Messenger/Patrawahak, Class IV employees in Rural Development Department, District-Jaunpur, petitioner is at Serial No.43. In the seniority list of Messenger/Patrawahak, Class IV Post, there are other Class IV cadres also namely Chowkidar etc. which have different seniority list. Sri Sharad Kumar Verma was not promoted or posted as D.D.O., but given charge of said Office and he was not competent to make appointment by promotion on Class III post. Further on the post of Junior Accounts Clerk, which is a post in Accounts Cadre, Class IV employees are not eligible to be considered for promotion, inasmuch as, Group C (Ministerial Cadre) is governed by U. P. Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 (hereinafter referred to as "Rules, 2001") and it covers promotion of Group 'D' employees to Group 'C' posts to the extent of 15 % of Group 'C' vacancies from such substantively appointed Group 'D' employees, who have passed High School and have completed 5 years' service and 5 % substantively appointed Group 'D' employees, who have passed Intermediate and completed 5 years' service. Selection was made after holding interview by Five Members Committee. Backlog quota was not complete and,

therefore, promotion of Class III posts could not have been made. Knowledge of cycling is must but no cycle test was conducted.

9. A supplementary rejoinder affidavit has also been filed denying pleading of respondents and it is said that for promotion to Class III, seniority is not a relevant criteria and selection is to be made on the basis of written test and interview; and, petitioner having fulfilled qualification, he was rightly selected and promoted.

10. It is not in dispute that promotion of Group 'D' employees to Group 'C' posts is governed by Rules, 2001. Rule 2 (2) of Rules, 2001 states that all vacancies of Ministerial Group 'C' posts of Lowest Grade to which Rules, 2001 applies shall be made in accordance with Rules, 2001. The aforesaid Rules have also given overriding effect by Rule 3 thereof. 'Appointing Authority' is defined in Rule 4 (a) and Ministerial Group 'C' post is defined in Rule 4 (f) of Rules, 2001. These two provisions read as under :-

"4(a) 'appointing authority' is relation to a ministerial Group 'C' post of the lowest grade in a subordinate office means the authority empowered under the relevant rules or orders to make appointment on that post.

(f) 'Ministerial Group 'C' Posts of the Lower Grade' shall refer to the Ministerial group 'C' posts of the lowest scale of pay, excluding the posts belonging to the Stenographer cadre, Accounts cadre or the posts of technical nature in the subordinate offices which are filled both by direct recruitment and by promotion and which are outside the purview of the Public Service Commission, Uttar Pradesh." (emphasis added)

11. Part II of Rules, 2001 deals with provisions for recruitment, which read as under :-

"5. Source of recruiment.-Recruitment to twenty per cent of the vacancies of the ministerial group 'C' posts of the lowest grade in a subordinate office shall be made by promotion through the Selection Committee from the following sources :

(1) Fifteen per cent from amongst such substantively appointed group 'D' employees who have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto and who have completed five years service as such on the first day of the year of recruitment.

(2) Five per cent from amongst such substantively appointed Group 'D' employees who have passed the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto and who have completed five years service as such on the first day of the year of recruitment.

6. Reservation.-Reservation for the candidates belonging to the Scheduled Castes and Scheduled Tribes shall be in accordance with Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classed) Act, 1994, as amended from time to time, and the orders of the Government in force at the time of the recruitment."

(emphasis added)

12. Part III of Rules, 2001 deals with procedure for recruitment as contained in Rules 7 and 8, which read as under :-

"7.Determination of vacancies.-The appointing authority shall determine the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes and Scheduled Tribes under rule 6.

8. Procedure for recruitment by promotion.-(1) For the purpose of recruitment by promotion, there shall be constituted a Selection Committee in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee for posts outside the purview of the Public Service Commission Rules, 1992, as amended from time to time.

Note.-Nomination of Officers for giving representation to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of Citizens in the Selection Committee shall be made in accordance with the order made under section 7 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, as amended from time to time.

(2) Recruitment by promotion shall be made on the basis of merit as disclosed by marks obtained in the test for selection through the Selection Committee constituted under sub-rule (1). The test for selection shall include a simple written test, interview and evaluation of character roll. The maximum marks to be assigned for written test, interview and evaluation of character roll shall be as given below :

(a)		Written Test 				Thirty marks
 
(b)		Interview				Ten marks
 
(c)		Evaluation of character roll	Ten marks       
 
			TOTAL		 	Fifty marks
 
Note 1.-The written test shall include a single question paper. The question paper shall contain two questions. Each question shall carry fifteen marks. One question shall be on Hindi Essay writing on a simple topic and the other shall be on General Knowledge.
 

Note 2.-Where recruitment by promotion is being made for the post of Typist or a post for which Hindi Typewriting is essential, there shall be conducted a qualifying test of Hing Typewriting also, as prescribed by the Government from time to time. To qualify this test a candidate must have a minimum speed of twenty five words per minute in Hindi Typewriting.

(3) The Selection Committee shall conduct the test of eligible candidates under sub-rule (2). After the marks obtained by the candidates in the said test have been tabulated, the Selection Committee shall, having regard to the need for securing due representation of the candidates belonging to Scheduled Castes and Scheduled Tribes in accordance with rule 6, prepare a list of candidates in order of merit as disclosed by marks obtained by them in the said test and recommends such number of candidates as on the basis of the result of the said test have come up to the standard fixed by the Selection Committee in this respect. If two or more candidates obtain equal marks the candidate obtaining higher marks in the written test shall be placed higher in the list. In case two or more candidates obtain equal marks in the written test also, the candidate senior in age shall be placed higher in the select list. The Selection Committee shall forward the list to the appointing authority." (emphasis added)

13. Aforesaid Rules make it clear that eligible Class IV employees shall be tested by holding written test, interview and then evaluation of character roll and a merit list shall be prepared on the basis of marks obtained by candidates in above three tests. If there are two or more candidates, who have secured equal marks then candidate who has secured more marks in written test shall be placed higher. It is only when in written test two or more candidates have secured equal marks then person senior in age, shall be placed higher in selection list.

14. Aforesaid Rules make it clear that seniority has no relevance in the matter of promotion of Group 'D' employees to Group 'C' post under Rules 2001. Petitioner has specifically pleaded that written test was held on 14.05.2003, thereafter interview was held and in accordance with Rules, Departmental Selection Committee prepared merit list on the basis of marks obtained by candidates. This fact that written test and interview was held by D.P.C. has been stated in para 12 of writ petition and it has been replied in para 9 of counter affidavit. There is general denial, but in details given, I find that holding of written test and interview has been admitted, though it is claimed that it was wrongly done, since, Selection Committee was not validly constituted, inasmuch as, Sri Sharad Kumar Verma holding Office of D.D.O. was not competent to make such appointment. The relevant facts stated in para 9 of counter affidavit reads as under :-

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In this respect, apart from this, it is to also say that Shri Vishnu Dutta Dubey, uncle of the petitioner and Stenographer to the then District Development Officer, in collusion with the then In-charge District Development Officer, Shri Verma, ensured promotion from Group D to Group C to be held and his nephew (the petitioner), the junior-most employee, to be promoted in an irregular way by moving the file by himself instead of counter-assistant concerned, and without going for publication of the gradation list of the Group D employees. Seeking departmental action against the concerned officer involved in this irregular promotion i.e. Shri Sharad Kumar Verma, Accounts Officer, DRDA/In-charge District Development Officer, the matter has been sent to the government vide letter dated 30.01.2004 of the I/c District Magistrate and letter 10.03.2004 of the District Magistrate; and Shri Vishnu Dutta Chaubey, Stenographer to the then District Development Officer, involved in this matter has been placed under suspension vide letter/order dated 25.11.2003 and served with charge-sheet vide letter dated 02.11.2003. The petitioner is the junior-most employee of Group D, and this fact finds mention in para 10 to CA in reference to office order dated 29.06.2002 of the Commissioner, Rural Development, U.P., Lucknow. Hence, on the basis of the grounds as in these paras, the petitioner does not deserve promotion."

(English translation by Court)

15. Contention of respondents and also ground on which impugned order has been passed is that no seniority list was prepared or finalized and that promotions have been made by overlooking seniority, is clearly contrary to statutory provisions contained in Rules, 2001, wherein seniority is not a criteria for promotion. A junior most Class IV employee, if otherwise eligible, compete for promotion with senior most Class IV employee. Selection is to be made only on the basis of marks obtained by candidates in written test, interview and on evaluation of character roll. Entire assumption on the part of respondents that since seniority was not taken into consideration, has no basis or legal substance, hence, on this ground selection of petitioner to Class III post cannot said to be bad or illegal.

16. However, matter does not rest here for the reason that record shows that selection itself was not made in accordance with Rules, relevant Rules were not followed and Rules, 2001 relied by petitioner is not applicable for promotion to the post of 'Junior Accounts Clerk.' In fact, Rules 2001 nowhere contemplates promotion of a Class IV employee to a post in Accounts Cadre and it is admitted that 'Junior Accounts Clerk' is a post in Accounts Cadre.

17. Admittedly, petitioner has claimed promotion on a Ministerial Group 'C' post governed by Rules, 2001. He further claimed that after making selection in accordance with the procedure prescribed in Rules 2001 i.e. after holding written test, interview etc, he was promoted as 'Junior Accounts Clerk', which shows that procedure of Rules 2001 was followed. But the most important aspect in this case is that Rules 2001 are not at all applicable to any post in Accounts Cadre. Therefore, on the post of 'Junior Accounts Clerk', no promotion from Class IV posts could have been made at all, since, Accounts Cadre is beyond purview of Rules, 2001.

18. This is evident from definition of "Ministerial Group 'C' posts of Lowest Cadre" in Rules 4 (f), which I have already quoted above. It clearly says that "Ministerial Group 'C' post of lowest scale of pay" exclude specifically such posts that belong to Stenographer Cadre, Accounts Cadre or post of technical nature in Subordinate Offices. Therefore, Ministerial Group 'C' post for which Rules 2001 have been framed, excludes from its ambit the entire Accounts Cadre. This covers the post of Junior Accounts Clerk also. Rules 2001 were not at all applicable and no Class IV employee could have been promoted by taking recourse to Rules, 2001 to any post in Accounts Cadre. Thus, stand taken by respondents that selection was not made in accordance with Rules has to be upheld. It cannot be doubted that petitioner could not have been promoted to the post of 'Junior Accounts Clerk' under Rules, 2001. It is not the case of petitioner that any other Rule applicable to Accounts Cadre was followed to make his promotion to the post of 'Junior Accounts Clerk'. It is also not disputed that selection was held for promotion to the post of 'Junior Accounts Clerk' in May 2003 and at that time Rules 2001 were in existence, therefore, petitioner has relied on said Rules to bring in validation to his promotion on the post of Junior Accounts Clerk.

19. The above discussion leads to only conclusion that the very promotion of petitioner on the post of 'Junior Accounts Clerk' by taking recourse to Rules, 2001, was patently illegal.

20. In that view of the matter, I find that even if order of reversion was passed without any show cause notice, this Court would not be justified in setting aside such order of reversion on the ground of violation of principles of natural justice for the reason that there are some exceptions to application of principles of natural justice. One such well recognized exception is when only possible conclusion in the facts of case is that what was given to petitioner was illegal and same has to be taken back. When appointment ex facie is illegal and a nullity and such promotion is cancelled, no opportunity need be given.

21. It is next contended that impugned order of reversion has been passed in utter violation of principles of natural justice and without giving any show cause notice or opportunity. Reliance is placed on Supreme Court's Judgment in Shridhar vs. Nagar Palika, Jaunpur and others, AIR 1990 SC 307; Shrawan Kumar Jha and others vs. State of Bihar and others, AIR 1991 SC 309 and Bhagwan Shukla vs Union of India, AIR 1994 SC 2480.

22. I have gone through above authorities. In Shridhar Vs. Nagar Palika (supra), Court said :

"It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void."

23. In Shrawan Kumar Jha (supra), Court said:

"In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice."

24. Lastly in Bhagwan Shukla (supra), Court has held:

"fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter."

25. Before dealing with issue as to whether principles of natural justice are applicable in the case in hand at all and will help petitioner, I propose to consider one more aspect which also goes to the root of the matter and has to be answered against petitioner.

26. It is admitted that petitioner was issued letter of promotion/appointment by Sri Sharad Kumar Verma, who was holding charge of Office of D.D.O. It is the specific case of respondents that Sharad Kumar Verma was not appointed as D.D.O., but only he was holding charge of the Office.

27. It is said that Sri Sharad Kumar Verma was D.D.O. for limited purpose and could not have made appointments. It is pointed out that Sri Sharad Kumar Verma was not appointed as D.D.O., but due to transfer of then D.D.O., L.B. Singh, charge of Office of D.D.O. was given to Sri Sharad Kumar Verma, who was Accounts Officer. Power of appointment under the Rules was on Head of Office i.e. D.D.O. and since it is statutory power, same could not have been exercised by Accounts Officer, who was only holding charge of D.D.O.

28. Now both the aspects, whether an appointment made by a person holding charge of the Office only can be valid and whether if such appointment is illegal then principles of natural justice will apply or not, has been considered in a recent decision of Supreme Court in Union of India & Another Vs. Raghuwar Pal Singh, (2018) 15 SCC 463, wherein it was held that a person looking after charge/duties of Office, could not discharge statutory power of appointment to Group 'C' or Group 'D' post. In fact even the question of applicability of principles of natural justice in such case where appointment has not been made by Competent Authority in accordance with Rules, which requires prior approval, has been considered in Raghuwar Pal Singh (supra), and it has been held that appointment de hors the Rules is nullity, hence, even principles of natural justice are not applicable in such cases. Paras 16 and 17 of judgment reads as under :

"16. We shall now consider the efficacy of the reason so recorded in the office order. The recruitment procedure in relation to the post of Veterinary Compounder is governed by the statutory Rules titled 'Central Cattle Breeding Farms (Class III and Class IV posts) Recruitment Rules, 1969, as amended from time to time and including the executive instructions issued in that behalf. As per the stated dispensation for such recruitment, the appointment letter could be issued only by an authorised officer and after grant of approval by the competent authority. Nowhere in the Original Application filed by the Respondent, it has been asserted that such prior approval is not the quintessence for issuing a letter of appointment.

17. For taking this contention forward, we may assume, for the time being, that the then Director Incharge H.S. Rathore, Agriculture Officer had the authority to issue a letter of appointment. Nevertheless, he could do so only upon obtaining prior written approval of the competent authority. No case has been made out in the Original Application that due approval was granted by the competent authority before issue of the letter of appointment to the Respondent. Thus, it is indisputable that no prior approval of the competent authority was given for the appointment of the Respondent. In such a case, the next logical issue that arises for consideration is: whether the appointment letter issued to the Respondent, would be a case of nullity or a mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non grant of opportunity may not vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law." (emphasis added)

29. Court also relied on its earlier judgment in Kendriya Vidyalaya Sangathan & Ors. Vs. Ajay Kumar Das & Ors. 2002 (4) SCC 503 wherein it had observed that if appointment letters are nullity, having been issued by an officer who did not wield authority to do so, there was no question of observance of principles of natural justice even though affected party was not before Court.

30. In Union of India & Anr. Vs. Raghuwar Pal Singh (supra), Court clearly held that letter of appointment was issued by Director Incharge, without prior approval of Competent Authority is a nullity and that being so principles of natural justice are not attracted. It has also held that it was not an essential requirement and would have been an exercise in futility.

31. Since, in the present case also, promotion has been made under Rules 2001, not applicable in this case, it was a nullity and therefore, cancellation thereof cannot be interfered on the ground that no opportunity was given, since principles of natural justice are not attracted in the case in hand.

32. There are some other principles applicable in a writ jurisdiction which are attracted in the present case and go against petitioner. An order is not to be interfered in violation of principles of natural justice if in the given facts and circumstances of the case, only view possible is that order which is affected by impugned order, was patently illegal.

33. It is well established that principles of natural justice cannot be put in a straight jacket formula and there are certain circumstances particularly when the facts are not in dispute wherein non compliance of principles of natural justice will not vitiate administrative or quasi judicial order and/or High Court in exercise of writ jurisdiction may not interfere. One such exception to the application of principles of natural justice is where only one conclusion is possible. In the present case, it is evident from record that very promotion of petitioner as Junior Accounts Clerk was illegal, hence this Court, while exercising power under Article 226 of the Constitution is not bound to interfere. Observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Article 226 of the Constitution.

34. In Karnataka State Road Transport Corporation and another Vs. S.G. Kotturappa AIR 2005 SC 1933, Court held:

"The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criterias required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with...". (emphasis added)

35. In Punjab National Bank and others Vs. Manjeet Singh and another AIR 2007 SC 262, Court said:

"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice." (emphasis added)

36. In P.D. Agrawal Vs. State Bank of India and others (2006) 8 SCC 776, it has been observed :

"The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets."

37. In Writ Petition No. 31995 of 2000 (Ganesh Singh Vs. District Magistrate & others), decided on 29.4.2011, Court has held as under:

"16. The principles of natural justice cannot be kept in a straight jacket formula. They apply in the facts and circumstances of each and every case. If the appointment of petitioner would have been made in accordance with law or at least some prima facie material would have to be placed to show what has been stated by respondents is not ex facie correct, then the matter may have required some further investigation. In the case in hand no such thing has been placed on record by petitioner or even pleadings to show that procedure prescribed under 1974 Rules was observed and thereafter petitioner was appointed. The appointment, therefore, is ex facie illegal and in the teeth of the Rules.

17. In the circumstances, this Court under Article 226 of the Constitution do not find it a fit case warranting interference. The writ petition, therefore, lacks merit and is dismissed."

(emphasis added)

38. In Writ Petition No. 38893 of 2008 (Brijendra Singh Vs. State Of U.P. and Others) decided on 18.5.2011 this Court has taken somewhat similar view as under:

"... it is well settled that if only one conclusion is possible, the Court would not interfere in the impugned order ...."

(emphasis added)

39. Another principle well established when a Court is required to exercise its extraordinary jurisdiction under Article 226 of Constitution, it would be justified in declining to interfere in an order which has been passed in violation of principles of natural justice, if setting aside of such an order would result in revival of another illegal order. In other words, Court will not set aside an order merely on the ground that opportunity was not given or principles of natural justice were not followed, if as a result of setting aside such an order would revive in favour of petitioner concerned, another illegal order for the reason that this Court will not perpetuate illegality and no person can be allowed to enjoy benefit of an illegal order, by taking recourse to Institution of justice under Article 226 of Constitution.

40. A Division Bench of this Court (of which I was also a member) in Amarendra Singh Vs. State of U.P. 2008(1) ADJ 397 (DB)=2008(1)ESC 734 has held that since the petitioner has invoked extraordinary jurisdiction under Article 226 of the Constitution, the remedy is not as a matter of right and this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. There are certain exceptions which are well recognised and one of such exceptions is where setting aside of an order will result in revival of another illegal order.

41. In Champalal Binani v. The Commissioner of Income Tax west Bengal and others AIR 1970 SC 645, Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."

42. In Durga Prasad v. The Chief Controller of Imports and Exports and others AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay v. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para 13), it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.

43. It would be appropriate to refer the view expressed in Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and 1982(3) SCC 331, which reads as under:

"...this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136."

44. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in my view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the facts and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival lot another illegal order, the Court would be justified in refusing to interfere.

45. In Employees' State Insurance Corporation and others vs. Jardine Henderson Staff Association and others AIR 2006 SC 2767, Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment Court held that High Court under Article 226 and Supreme Court under Article 136 read with 142 of the Constitution has the power to mould relief in the facts of the case.

46. In Ramnik Lal N. Bhutta and Anr. v. State of Maharashtra, AIR 1997 SC 1236, Court observed:

"The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point."

47. In State of H.P. v. Raja Mahendra Pal and Ors. (1999) 4 SCC 43, in para 6 of the judgment, Court held:

"...It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article...."

48. Similarly, in Director of Settlement v. M.R. Apparao (2002) SCC 638 in para 17 Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.

49. Following the principle laid down in the aforesaid decisions, this Court has reiterated the same view in a number of cases, including R.K. Shukla VS. Chairman Town Area Committee & Another (Writ A No. - 19889 of 1991 decided on 17.1.2013). Suffice it to say that this Court is not bound to interfere even if technically or otherwise, order impugned, is found to be illegal or erroneous.

50. In Amrendra Singh Vs. State of U.P. & Ors., 2008 (2) UPLBEC 60, this Court has declined to interfere in intra Court appeal with an order of Single Judge even though legally it was not sustainable since substantial justice had been done therein and setting aside order may have resulted in revival of another pernicious order.

51. In view of above discussions, I find myself unable to interfere with impugned order dated 10.12.2003 whereby petitioner's promotion to the post of 'Junior Accounts Clerk' has been cancelled.

52. Writ petition lacks merit and it is accordingly dismissed.

53. Interim order, if any, stands vacated.

Order Date : 14.05.2019

Manish Himwan