Bhim Shanker vs State Of U.P.Thr. Prin Secy ...
2021 Latest Caselaw 9700 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 18
 
Case :- SERVICE SINGLE No. - 4587 of 2006
 
Petitioner :- Bhim Shanker
 
Respondent :- State Of U.P.Thr. Prin Secy Panchyati Raj And 2 Ors.
 
Counsel for Petitioner :- Umesh Kumar Srivatava,Sudhir Kumar Singh
 
Counsel for Respondent :- C.S.C,M.K.Singh,Sudheer Tripathi,Virendra Kumar Shukla
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for petitioners, learned Standing Counsel for State and Shri Sudheer Tripathi, learned counsel for respondents no. 2 & 3.

2. At the very outset learned counsel for petitioners contends that petitioner no. 1 has already retired from service on 31.10.2020 and also been paid his retiral dues in pursuance of judgement and order dated 22.02.2021 passed by this Court in Writ Petition 23990 (Service Single) of 2020 in re: Bheem Shanker Verma @ Bhim Shanker vs State of U.P. & others.

3. So far petitioner no. 2 is concerned, learned counsel for petitioners contends that the petitioner no. 2 had died on 19.08.2019 and in his place his son has been appointed on compassionate ground. He prays that the petition be dismissed as not pressed so far as it pertains to petitioner no.2. Accordingly, the writ petition is dismissed as not pressed so far as it pertains to petitioner no. 2 and it only survives for petitioners no. 1 & 3.

4. The instant petition has been filed praying for quashing of orders dated 12.05.2006 passed by the respondent no. 3, copies of which are annexure nos. 1, 2 & 3 to the petition. A further prayer is for a writ of mandamus commanding the respondents to not enforce the impugned order dated 12.05.2006 against the petitioners and allow them to continue to work on the post of peon and security guard in Zila Panchayat, Barabanki.

5. Learned counsel for petitioners contends that the petitioners were appointed as peon and security guard in the Zila Panchayat, Barabanki after issue of advertisement dated 02.01.1999, a copy of which is annexure 4 to the petition. The petitioners applied in pursuance of the said advertisement and after due selection process were appointed as peon and security guard respectively and appointment orders were issued on 17.03.1999, copies of which are annexure nos. 5 & 7 to the petition. The petitioners joined on the respective posts and have also been confirmed vide order dated 12.12.2001 and 01.06.2000 copies of which are annexure 8 & 10 to the petition.

6. It is contended that the State Government issued an order dated 12.04.2006, copy of which is annexure 11 to the petition, in which it was indicated that the appointments in Zila Panchayat have been made in violation of the rules and as such the respondent no. 2 was directed to cancel all appointments and to inform the government about the same as after an enquiry was conducted by the District Magistrate on 20.07.2002, certain irregularities regarding the recruitment came into light.

7. Based upon the same a show cause notice was issued to all the petitioners on 28.04.2006, copies of which are annexure nos. 12 & 14 to the petition asking the petitioners to show cause as to why their appointments should not be cancelled. The reply of the show cause was submitted by the petitioners in April 2006, copies of which are annexure nos. 15 & 17 to the writ petition. Subsequent thereto the impugned orders dated 12.05.2006, copies of which are annexure nos. 1 & 3 to the petition have been passed whereby it has been indicated that the appointment of the petitioners have been found to be irregular and hence have been terminated from service.

8. Upon approaching this Court, this Court had passed a detailed order on 22.05.2006 by which the termination orders dated 12.05.2006 had been stayed. Thereafter, pleadings in the matter have been completed and the matter is being heard today.

9. Learned counsel for petitioners contends that once the appointments were made by the Panchayat, which was the competent appointing authority, as such it was for the competent authority to have held an inquiry regarding the irregularities, if any, of the appointments of the petitioners and no such decision could have been taken on the diktats of the State Government as is apparent from a perusal of order dated 12.04.2006 which order directed the Adhyaksh of Zila Panchayat to cancel the selection and thus even if the orders of termination have been passed by the competent authority, yet at the diktats of another authority, it would be patent non application of mind.

10. It is also contended that the impugned orders do not indicate any reasons for termination and consequently the same is bad on this ground also.

11. On the other hand Shri Tripathi learned counsel appearing for Zila Panchayat, on the basis of averments contained in the counter affidavit, argues that an inquiry had been conducted by the District Magistrate which resulted in passing of order dated 12.4.2006, a copy of which is annexure 11 to the petition whereby the Panchayat was required to cancel the selections made and thus the Panchayat after issuing show cause to the petitioners proceeded to cancel the said selections. He also argues that once there was irregularity in the recruitment process, consequently, there was no illegality in the impugned order.

12. Heard learned counsel for parties and perused the records. From the perusal of the record it is apparent that the petitioners have been appointed after due selection process adopted by the panchayat i.e. the appointments were made after issue of the advertisement and after the petitioners have been found suitable for appointment. Appointment orders have also been issued to the petitioners and thereafter they were confirmed in service vide order dated 12.12.2001 and 01.06.2001 copies of which are annexure nos. 8 to 10 to the petition. Subsequent thereto the State Government vide order dated 12.04.2006 required the Adhyaksh of Nagar Panchayat to cancel the selections and in pursuance thereof the show cause notices have been issued by the Panchayat to the petitioners and after considering the reply the impugned order of termination from service have been passed.

13. The short question which arises is that though the respondent no. 3 in the capacity of being the appointing authority could have passed the termination order at his discretion yet when the said order has been passed on the diktats of another authority whether it can be said that the appointing authority has exercised its powers bonafidely? The Panchayat has also proceeded to issue a show cause notice based on the directions issued by the State Government on 12.04.2006. Thus, this would be a case in which the appointing authority has proceeded to issue the show cause notice and thereafter terminated the services of the petitioners yet the said power has been exercised at the diktats of the State Government.

14. In this regard it would be apt to refer to the judgement of the Hon'ble Apex Court in the case of Anirudhsinghji Karansinghji Jadeja v. State of Gujarat reported in 1995 (5) SCC 302 wherein Hon'ble the Supreme Court has held that where an authority has been vested with jurisdiction, he has to exercise it according to his own discretion, but if the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise the discretion altogether. For the sake of convenience, the observations of the Hon'ble Supreme Court are reproduced as under:-

"This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20A (1) was not exercised by the DSP at all.

12. Reference may be made in this connection to Commissioner of Police vs. Gordhandas Bhanji, 1952 SCR 135, in which the action of Commissioner of Police in cancelling the permission granted to the respondent for construction of cinema in Greater Bombay at the behest of the State Government was not upheld, as the concerned rules had conferred this power on the Commissioner, because of which it was stated that the Commissioner was bound to bear his own independent and unfettered judgment and decide the matter for himself, instead of forwarding an order which another authority had purported to pass.

13. It has been stated by Wade and Forsyth in 'Administrative Law', 7th Edition at pages 358 and 359 under the heading 'SURRENDER, ABDICATION, DICTATION' and sub- heading "Power in the wrong hands" as below:-

"Closely akin to delegation, and scarcely distingushable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them.....".

"Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise....".

14. The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of information under TADA in exercise of his discretion."

15. When the impugned order is tested on the touchstone of the law as laid down by Hon'ble Apex Court in the case of Anirudhsinghji Karansinghji Jadeja(Supra) it is apparent that though the competent authority in this regard i.e the Panchayat has proceeded to issue show cause notice and thereafter terminated the services of the petitioners yet when the said power has been exercised on the diktats of the State Government it would be failure to exercise the discretion vested in the Panchayat as held by the Hon'ble Apex Court.

16. Even otherwise the petitioners are said to have been working since their appointment in the year 1999 and this Court vide the order dated 22.05.2006 have stayed the termination of services of the petitioners and the petitioners are in continuous service and petitioner no. 1 has retired from service and petitioner no. 2 has died in the interregnum period and his dependent has been appointed on compassionate ground.

17. Keeping in view the aforesaid discussion, the writ petition is allowed. The termination order dated 12.05.2006, copies of which are annexure no.s 1 & 3 to the petition so far as it pertains to petitioners no. 1 & 3 are quashed.

18. Consequences to follow.

Order Date :- 6.8.2021

J.K. Dinkar