Pramod Kumar vs State Of U.P. Thru. Addl. Chief ...
2021 Latest Caselaw 9208 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 15271 of 2019
 

 
Petitioner :- Pramod Kumar
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy.Madhyamik Education&Ors
 
Counsel for Petitioner :- Umesh Chandra Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. Present petition has been filed praying for quashing of the order dated 26.04.2019 passed by opposite party no.1, a copy of which is Annexure-1 to the writ petition, by which the claim of the petitioner for appointment as Subject Specialist has been rejected. A further prayer is for a mandamus commanding the respondents to issue appropriate order of appointment treating the appointment of the petitioner to be a notional appointment and pay salary in terms of order passed in case of Awadhesh Kumar.

3. The case set forth by the petitioner is that in pursuance to an advertisement dated 12.12.1999 for the post of Subject Specialist, a selection had been held in which the petitioner also qualified along with one Awadhesh Kumar. The petitioner claims to have submitted his joining as a Subject Specialist at R.R. Inter College, Sandila, District Hardoi. Subsequently, the selection was stayed by the order of the respondents dated 12.10.2000.

4. In the meanwhile, a selected person namely Awadhesh Kumar filed writ petition at Allahabad bearing Writ A No.10448 of 2001 in re: Awadhesh Kumar vs. State of U.P. and others, and this Court vide order dated 09.03.2010, a copy of which is Annexure-4 to the writ petition, after considering that there were certain irregularities in the selection by which ineligible persons had been permitted to participate in the selection, was of the view that mass cancellation of the selection held in pursuance to the advertisement dated 12.12.1999 is legally unsustainable and accordingly required the State Government to constitute a Scrutiny Committee in respect of the selection in question for segregating the good part from bad part after examining the records of each of the selected candidate separately.

5. The petitioner also filed Writ Petition No.7474 (SS) of 2000 before this Court which remained pending. The same was decided vide order dated 26.03.2012 requiring the respondents to decide the representation of the petitioner in light of the judgment of Awadhesh Kumar (supra). The said representation was decided vide order dated 11.01.2013, a copy of which has been filed as Annexure-6 to the writ petition, whereby the claim of the petitioner was rejected. Being aggrieved, the petitioner filed Writ Petition No.1369 (SS) of 2013. The said petition was disposed of requiring the respondents to consider the case of the petitioner vide order dated 07.07.2015, a copy of which is Annexure-7 to the writ petition. Again the claim of the petitioner was rejected vide order dated 10.09.2015, a copy of which has been filed as Annexure-8 to the writ petition.

6. Being aggrieved, the petitioner filed a third writ petition namely Writ Petition No.6217 (SS) of 2015 and the same was allowed vide judgment and order dated 10.11.2016, a copy of which has been filed as Annexure-3 to the writ petition, in terms of the decision of this Court in the case of Varunesh Chandra Shukla vs. State of U.P. and others passed in Writ Petition No.6216 of 2015. The judgment of Varunesh Chandra Shukla (supra) is Annexure RA-1 to the rejoinder affidavit filed by the petitioner. The writ Court in the case of Varunesh Chandra Shukla (supra) required the matter to be considered by the State Government in light of the direction issued in the case of Awadhesh Kumar (supra).

7. Incidentally, all the three judgments of this Court passed in the case of the petitioner attained finality.

8. Again the claim of the petitioner was rejected vide order dated 22.01.2018, which lead to a fourth round of litigation by the petitioner by filing Writ Petition No.6001 of 2018. The writ petition has been allowed vide judgment and order dated 25.09.2018, a copy of which has been filed as Annexure-2 to the writ petition, whereby the respondents were required to consider the appointment of the petitioner on the post of Assistant Teacher (Subject Specialist).

9. The claim of the petitioner has once again been rejected vide order dated 26.04.2019, a copy of which has been filed as Annexure-1 to the writ petition. Being aggrieved, the petitioner is before this Court.

10. Perusal of the impugned order dated 26.04.2019 would indicate that the respondents have stated that the Scrutiny Committee has found the case of the petitioner to be correct but no reasons have been assigned by the Scrutiny Committee as to why it has done so.

11. Learned counsel for the petitioner argues that in case the reasons are not forthcoming then the respondents should have asked the reasons from the Scrutiny Committee but once in terms of the directions issued by the writ Court in the case of Awadhesh Kumar (supra) of constituting a Scrutiny Committee and the Scrutiny Committee having found the claim of the petitioner to be correct in the eyes of law, there was no occasion for the respondents to have blown hot and cold in the same breath i.e. by indicating that the Scrutiny Committee has found the claim of the petitioner to be correct and thereafter not acting upon the report of the Scrutiny Committee by contending that no reasons are forthcoming from the said said order. It is thus contended that the impugned order is patently bad in the eyes of law and reflects patent non-application of mind.

12. Learned counsel for the petitioner further argues that in paragraph 13 of the counter affidavit, the respondents have admitted that Awadhesh Kumar, upon filing of the contempt petition, had been issued with a letter dated 22.11.2001, meaning thereby that Awadhesh Kumar has been given the benefit of the judgment passed at Allahabad whereby his case has been found to be genuine by the Scrutiny Committee and thus there cannot be any occasion for the respondents to not extend the benefit to the petitioner once admittedly even the case of the petitioner has been found to be correct as per the Scrutiny Committee.

13. Per contra, learned State Counsel on the basis of averments contained in the counter affidavit contends that though the Scrutiny Committee has found the claim of the petitioner to be correct yet no reasons are forthcoming in the report of the Scrutiny Committee as to why the claim of the petitioner is correct therefore despite the petitioner's claim having been found correct it has not been acted upon.

14. Heard learned counsel for the parties and perused the records.

15. From perusal of the records, it is apparent that the selection of Subject Specialist and its cancellation was challenged before the writ Court at Allahabad in the case of Awadhesh Kumar (supra) wherein the writ Court specifically directed that mass cancellation of the selection held in pursuance to the advertisement cannot be legally sustained more so when a large number of persons have already been appointed and they have joined in pursuance to the selection so held. Accordingly, the State Government was required to constitute a Scrutiny Committee in respect of the selection in question for segregating the good part from bad part after examining the records of each of the selected candidate separately and thereafter to take appropriate action.

16. In the instant case the petitioner had joined after a selection as a Subject Specialist at R.R. Inter College, Sandila, District Hardoi, on 12.10.2000 as would be apparent from a perusal of the impugned order dated 26.04.2019.

17. In pursuance to the directions issued by the writ Court at Allahabad in the case of Awadhesh Kumar (supra) a Scrutiny Committee had been constituted, which, as per orders issued by the respondents, found the case of the petitioner to be correct. However, from perusal of the impugned order, it comes out that no reasons were forthcoming from the Scrutiny Committee as to why the case of the petitioner has been found to be correct. Once the Scrutiny Committee had been constituted in pursuance to the directions issued by the writ Court and the respondents themselves have acted upon the same in the case of Awadhesh Kumar accordingly they cannot be allowed to do a volte face by contending that though the Scrutiny Committee has found the petitioner to be eligible yet no reasons are forthcoming, as such recommendations of the Scrutiny Committee cannot be upheld. Further, the respondents themselves have admitted in paragraph 13 of the counter affidavit that Awadhesh Kumar had filed a Contempt Petition and thus action was taken by the State. In the instant case, it is apparent that the petitioner has been litigating right since the year 2000 i.e. for a period of 21 years. Five petitions have been filed and in four of the earlier petitions, the writ Court primarily required the respondents to consider the case of the petitioner in light of the directions issued in the case of Awadhesh Kumar (supra). All the orders passed by the writ Court attained finality as they were never challenged by the respondents. As already indicated above, the respondents have indicated in the impugned order that the Scrutiny Committee has found the case of the petitioner to be correct yet have not proceeded further on the ground that the Scrutiny Committee has not assigned reasons. At the risk of repetition, once the Scrutiny Committee has found the case of the petitioner to be correct and in case the reasons were not forthcoming, it was for the respondents to have called upon the Scrutiny Committee to indicate the reasons, if any, but then sitting over the recommendations of the Scrutiny Committee which, as already indicated above, was formed in pursuance to the directions of the writ Court, would not be in the fitness and fairness of things.

18. Keeping in view the aforesaid discussions, it is apparent that the impugned order dated 26.04.2019 is legally unsustainable in the eyes of law and the writ petition deserves to be allowed.

19. However, whether the matter is to be remitted back to the authorities concerned the fifth time to reconsider the matter or whether a direction should be issued by the writ Court is the next issue which has to be considered by this Court.

20. As already indicated above, this is the fifth round of litigation for the petitioner and the petitioner is continuously agitating since the year 2000 for his right. Admittedly, the Scrutiny Committee has also found the case of the petitioner to be correct but the respondents, through the impugned order dated 26.04.2019, have rejected the claim of the petitioner on the ground that no reasons are forthcoming from the report of the Scrutiny Committee. Thus, it is admitted that the petitioner is eligible but for the impugned order passed by the respondents.

21. A Division Bench of this Court in the case of Sangita Srivastava vs. University of Allahabad and others-(2002) 3 UPLBEC 2502 has considered the issue that in cases where an authority does not take a decision on relevant considerations or totally misdirects itself and the objective material on the basis of which such decision is to be taken is before the Court, then the Court, in certain exceptional circumstances, can itself take that decision instead of remanding the matter to the authority, particularly when such remand would entail further delay and hardship.

22. For the sake of convenience, the relevant observations of the Division Bench of this Court in the case of Sangita Srivastava (supra) are reproduced below:-

"30. We may, however, also consider the matter from the point of view of Section 31 (3) (c). We have already observed that the petitioner fulfils the conditions in Sub-clauses (i) and (ii) of the above provision. The question is about Sub-clause (iii) which requires that he (or she) should be found suitable for regular appointment by the Executive Council. The Executive Council by its resolution dated 4.5.2002 has rejected the petitioner's claim, relying on the report of the Committee dated 2.5.2002 (Annexure-C.A. 3). We have already observed that the Committee's report is incorrect and based on misconceptions. Hence, we quash the said report dated 2.5.2002 as well as the Executive Council's resolution dated 4.5.2002 (Annexure-C.A. 4). The question is now what is to be done? We could have remanded the matter to the Executive Council, but the Executive Council having already disclosed its mind, a remand would be an exercise in futility. No doubt Clause (iii) of Section 31 (3) (c) states that the opinion regarding suitability should be of the Executive Council. But here we find that the Executive Council has only relied on the report of a Committee which is totally incorrect and misconceived. A remand to the Executive Council would entail further delay and harassment for the petitioner as the Executive Council would attain set up a Committee and we cannot say what would happen thereafter.

31. In our opinion, if a statute requires that a decision on a matter is to be taken by a certain authority, and if that authority does not take the decision on relevant considerations or totally misdirects itself, and the objective material on the basis of which such decision is to be taken is before the Court, then the Court, in certain exceptional circumstances, can itself take that decision instead of remanding the matter to the authority, particularly when such remand would entail further delay and hardship. This proposition gets support from the decision of the Supreme Court in B.C. Chaturvedi v. Union of India. 1995 (6) SCC 749, where it was held (in para 18) that although ordinarily it is for the authority concerned to decide the punishment of an employee found guilty, in exceptional circumstances the High Court itself can impose the punishment.

32. In the State of Bihar v. Dr. Braj Kumar Mishra and Ors., 1999 (9) SCC 546, the Supreme Court observed (in paragraph 7) :

"It is true that normally the Court, in exercise of its power under Article 226/227 of the Constitution of India, after quashing the impugned order should remand the matter to the authority concerned particularly when such authority consists of experts for deciding the issue afresh in accordance with the direction issued and the law laid down by it but in specified cases, as the instant case, nothing prevented the Court from issuing directions when all the facts were admitted regarding the eligibility of respondent No. 1 and his possessing the requisite qualifications. Remand to the authorities would have been merely a ritual and ceremonial. Keeping in mind the lapses attributable to the Commission which had failed to take appropriate action despite recommendation made in favour of respondent 1, the learned single Judge as also the Division Bench of the High Court felt it necessary to declare respondent No. 1 promoted with effect from 1.2.1985. We do not find any illegality or error of jurisdiction."

33. In the present case, all the objective material for deciding the petitioner's suitability is before the Court. Her academic qualifications are before us. She has got first class first in B.Sc. and M.Sc. She has taught and done other work of regular lecturer for 12 years continuously, including the work of taking classes (in fact she has done more work than regular lecturers vide paragraph 8 of the writ petition, setting papers, examining answer copies, conducting examinations, etc. She has done Ph.D. and NET, even though these were not essential. There is no allegation in the counter-affidavit that her work was not satisfactory during these 12 years.

34. Ordinarily, suitability is to be judged by the Executive Council and not by this Court. But what are we to do when the Executive Council acts in a patently unfair manner, as it has done in this case? This Court is a Court of Justice. No doubt it has to do justice based on law, but the Court will interpret law in a way that leads to justice and not injustice.

35. On the facts of this case, and in view of the fact that the Executive Council has acted on irrelevant considerations and has misdirected itself, and since a remand to it would lead to further delay and harassment of the petitioner, we ourselves have Judged the petitioner's suitability and we find her suitable to be appointed as regular lecturer, and we hold that she fulfils all the requirements of Section 31 (3) (c) of the Act.

36. In the circumstances, a mandamus is issued to the respondents to regularise the petitioner as lecturer in Home Science forthwith and pay her salary of regular lecturer. The petition is allowed. No order as to costs."

23. Likewise, this Court in the case of Sheela Devi vs. Managing Director and others - (2007) 2 UPLBEC 1853 while placing reliance on the judgment of Sangita Srivastava (supra), in the case of compassionate appointment after repeated rounds of litigation, has held as under:-

"15. Normally, the Court is very loathe to grant a mandate itself for appointment but as has been noted hereinabove, twice the Bank has raised the same bogey and misleading grounds to reject the claim of the widow. Since the Bank appears to have a closed mind on the issue and is harassing a young widow by forcing her to approach the Court time and again it would be against the interest of justice to remand the matter for decision afresh. Applying the ratio of a Division Bench of this Court rendered in the case of Dr. Sangeeta Srivastava v. University of Allahabd and Ors. (2002) (3) U.P.L.B.E.C. 2502, which has been affirmed by the Apex Court, remand would be futile.

16. For the reasons above, this petition succeeds and is allowed and the impugned order dated 3.5.2005 is hereby quashed and the respondent bank is directed to grant compassionate appointment to the petitioner expeditiously, preferably within a period of six weeks from the date of submission of a certified copy of this order. Petitioner would be entitled to her costs."

24. Considering the aforesaid proposition of law as laid down by the Division Bench in the case of Sangita Srivastava (supra) and Sheela Devi (supra) and this being a fifth round of litigation for the petitioner, the writ petition is allowed. A writ of certiorari is issued quashing the order dated 26.04.2019, a copy of which is Annexure-1 to the writ petition. A writ of mandamus is issued directing the respondents to act upon the recommendations of the Scrutiny Committee within a period of three months from the date of communication of a certified copy of this order with respect to the petitioner.

25. In case the petitioner is appointed then the consequences of his appointment at par with Awadhesh Kumar, who, as per the averments made in paragraph 13 of the counter affidavit is said to have been issued letter dated 22.11.2001, will follow.

26. Before parting with the case and considering the harassment of the petitioner and this being the fifth round of litigation starting from the year 2000 and culminating in the present petition, which has resulted in the impugned order which is being set-aside by this Court, whether some costs should be imposed upon the respondents who have continued with their stand of rejecting the claim of the petitioner on one ground or the other?

26. In this regard, from a perusal of the discussion made above, it is apparent that the respondents have adopted an adamant attitude while reiterating the earlier order despite the specific observations of this Court in the earlier round of litigations. It is thus apparent that the respondents have not taken pain to look into the earlier judgment of this Court and primarily the same grounds have been reiterated in the impugned order as already indicated above.

27. The Apex Court in the case of Commissioner, Karnataka Housing Board Vs. C. Muddaiah reported in (2007) 1 SCC 689 has considered somewhat akin facts that even if the Court's order is wrong and illegal, that is binding on the parties unless that order is challenged in the superior Court. The Hon'ble Supreme Court also held that if this principle is not adhered to by the State, there will be end of the rule of law.

28. The relevant observations of the Hon'ble Supreme Court in this regard are reproduced below :-

"32. We are of the considered opinion that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.

33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged."

28. The Hon'ble Supreme Court in the case of Subrata Roy Sahara Vs. Union of India and ors. reported in (2014) 8 SCC 470 has held as to when the Court should impose cost to check the frivolous writ petition and the orders which are cause of explosion of dockets of the Court. As already observed above, the impugned order herein has been a cause of unnecessary and avoidable litigation had the respondents applied their mind to the observations of this court in the earlier judgment.

29. For the sake of convenience, the relevant observation of the Hon'ble Supreme Court in the case of Subrata Roy Sahara (supra) are being reproduced below:-

"191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for what he has lost for no fault? The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a "Code of Compulsory Costs"."

30. Accordingly, taking into consideration the law laid down by the Hon'ble Supreme Court in the case of Subrata Roy Sahara (supra), while allowing the writ petition, this Court imposes cost of Rs. 50,000/- on the State to be paid to the petitioner. It would be open for the State to recover the said cost from the officer concerned who has passed the impugned order dated 26.04.2019 and whose action has resulted in such avoidable litigation causing repeated harassment to the petitioner.

31. Let this order be complied within four weeks from the date of receipt of a certified copy of this order.

Order Date :- 2.8.2021

A. Katiyar