Manish Rawat vs State Of U.P. Through Secy. ...
2022 Latest Caselaw 8627 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 
Case :- WRIT - A No. - 4832 of 2013
 
Petitioner :- Manish Rawat
 
Respondent :- State Of U.P. Through Secy. Irrigation Lko. And Ors.
 
Counsel for Petitioner :- Ramesh Kumar Srivastava,Raj Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.,Hemendra Pratap
 

 
Hon'ble Alok Mathur,J.

Heard Shri Raj Kumar Dwivedi, learned counsel for the petitioner, learned Standing Counsel on behalf of opposite parties no.1 to 7 and Shri Hemendra Pratap, learned counsel who has put in appearance on behalf of opposite party no.8.

By means of the present writ petition the petitioner has challenged the order dated 07.8.2013 as well as order dated 28.01.2013 and all the orders leading to his termination by means of order dated 07.8.2013.

It has been submitted by Shri Dwivedi, learned counsel for the petitioner that two posts of 'Runner' were advertised on 31.10.2008 by the Executive Engineer, Unnao Khand, Sharda Nahar, District - Unnao.

The petitioner being fully qualified and eligible moved an application and was called for an interview as well as physical test/ cycling test. Subsequent to the aforesaid, the petitioner participated in the interview on 31.01.2009 and his name found mention in the select list issued on 04.02.2009. He was also issued appointment letter on 09.02.2009 on the post of 'Runner' in the pay scale of 4440-7440 and on the basis of appointment letter dated 09.02.2009 petitioner had submitted his joining report under the opposite party no.4 on 18.02.2009.

Subsequent to his selection petitioner continued to discharge his duties and subsequently vide order dated 31.07.2012 petitioner was transferred from Unnao Khand Sharda Nahar, Unnao to Sinchai Khand, Lucknow and he was working in Lucknow till passing of the impugned order.

It has further been submitted that one of the candidates of the said selection who had approached this Court by filing Writ Petition No.34 (SS) of 2010 [Mayank Tiwari vs. State of U.P.] had sought a direction for being appointed on the post of 'Runner' (Dhawak) on the basis of select list declared on 04.02.2009. He had made allegations against the petitioner and submitted before the Court that the entire select list was manipulated and also stated that on the basis of his complaint some inquiry was also conducted where the facts about manipulation of the select list was confirmed. It is on the basis of the above material and while considering the aforesaid facts this Court while disposing of the writ petition has held that Mayank Kumar Tiwari was entitled to be appointed on the post of 'Runner' (Dhawak), in case any vacancy existed. It has been submitted that on the basis of direction issued by this Court in Writ Petition No. 34 (SS) of 2010 passed on 13.5.2011 that appointment letter was issued in favour of Mayank Kumar Tiwari and he is continuing as such on the strength of the judgment and consequential order of appointment.

On the basis of the material and the inquiry conducted with regard to the selection the impugned order dated 07.8.2013 has been passed terminating the services of the petitioner. It is noticed that it is an order simpliciter and only refers to the judgment of this Court dated 13.5.2011 as well as order passed in Review Petition No.97/2012.

It has further been informed that a review petition was filed by the State Government which was also dismissed on 10.9.2012 where this Court had directed the Secretary, Irrigation Department to hold an inquiry with respect to selection in pursuance of the advertisement dated 31.10.2008 and take appropriate action against the erring officials. It is submitted that it is in pursuance of the said order that the impugned order dated 07.8.2013 has been passed terminating the services of the petitioner.

The main plank for challenging the aforesaid order is that the opposite party has not afforded opportunity of hearing to the petitioner prior to passing of the said order. It is stated that in pursuance of the said selection the petitioner has joined in the year 2009 and was working for the last three to four years before the said order was passed.

He has stated that the said inquiry was illegal and arbitrary. Had petitioner been given an opportunity he could have demonstrated before the competent authority about the said fact. It is stated that said order has civil consequences and such an order could not have been passed without affording an opportunity of hearing to the petitioner and prejudice in any case is writ large upon the facts of the case.

Learned Standing Counsel at the very outset had candidly admitted that no opportunity of hearing was given to the petitioner prior to passing of the said order.

Shri Hemendra Pratap, learned counsel for the opposite party contesting the said facts said when there is fraud then there is no requirement of opportunity of hearing.

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

From the aforesaid arguments it is clear that it is in pursuance to the advertisement dated 31.10.2008 when the petitioner along with others had participated in the said selection process where as per the select list the petitioner was declared to be selected and he was also given appointment. He was working for nearly three years when by means of the impugned order his services had been terminated. The basis for the termination is inquiry conducted in pursuance of the review petition no.97/2012 where it was found that the result of the selection was manipulated. We have also considered the judgment of this Court where appointment was directed to be given to opposite party no.8 who has also joined in pursuance of said directions. In the entire judgment and material on record it has nowhere found that it is the petitioner who was anywhere involved in the said fraudulent conduct leading to the questioning of the entire selection process.

This Court is of the considered view that the petitioner having been appointed in pursuance of the regular selection and he had worked for nearly three to four years, an order simpliciter terminating his services without giving an opportunity of hearing could not have been passed. The opposite parties should have afforded an opportunity of hearing or at least a show cause notice to the petitioner and giving all the material to the petitioner including the inquiry report before passing an order terminating his services.

The order of termination has been passed by the appointing authority, i.e., Executive Engineer, Sinchai Khand, Lucknow but the said order also has been passed on the dictates of the higher authority whose details have been mentioned in the impugned order itself. The said order of termination has been passed on the basis of the direction issued by the State Government and on this account also it is noticed that the order of termination is illegal, arbitrary having been passed without application of mind.

This Court is of the considered view that the impugned order of termination is illegal and arbitrary having been passed in gross violation of the principle of natural justice and, hence, violative of the Article 14 and 16 of the Constitution of India. Order dated 07.8.2013 is set-aside. Liberty is granted to the opposite parties to pass a fresh order in accordance with law after giving opportunity of hearing to the petitioner. In terms of the interim order dated 22.8.2013 the petitioner is continuing in service. It is provided that the order dated 22.8.2013 shall continue till the final order is passed by the opposite parties in terms of the direction given hereinabove. Let a fresh order be passed not later than four months from the date a certified copy of this order is produced by the petitioner before the opposite parties.

Writ petition is allowed in aforesaid terms.

Order Date :- 1.8.2022//mks