Priya Pandey vs State Of U.P. Through Its ...
2022 Latest Caselaw 13397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 3
 
Case :- WRIT - A No. - 5259 of 2022
 
Petitioner :- Priya Pandey
 
Respondent :- State Of U.P. Through Its Principal Secretary, Panchayat Raj, Civil Secretariat, Lucknow And Others
 
Counsel for Petitioner :- Santosh Kr. Yadav Warsi
 
Counsel for Respondent :- C.S.C.,Pankaj Gupta
 

 
Hon'ble Rajan Roy,J.

Heard Shri Santosh Kumar Yadav Warsi, learned counsel for petitioner, learned Additional Chief Standing Counsel for the State and Shri Pankaj Gupta, learned counsel for the contesting opposite parties.

Petitioner was engaged as Panchayat Mitra. Her services were terminated which led to filing of a writ petition by her bearing Writ Petition No. 5718 (S/S) of 2011 wherein initially an interim order was passed and she continued to work. Thereafter, the writ petition was dismissed by this Court vide judgment dated 05.04.2018, a copy of which is annexed as Annexure No. 1 to the writ petition. The petitioner being aggrieved filed a Special Appeal Defective No. 559 of 2018 challenging the aforesaid judgment of the learned Single Judge. The said appeal was dismissed on 18.08.2021 in the following terms:-

"1. This intracourt appeal has been filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 challenging the judgment and order dated 05.04.2018 passed in Writ Petition No.5718(SS) of 2011 whereby the writ petition preferred by the appellant-petitioner has been dismissed.

2. Learned counsel for the appellant tries to submit that the order impugned has been passed ex-parte as he was not present in the Court and by the impugned order, the writ petition has been dismissed without giving opportunity to the petitioner to file rejoinder affidavit to the counter affidavit filed by the respondent.

3. Mr.Amitabh Rai, learned A.C.S.C. informs that nomenclature of Panchayat Mitra has been changed. Now, they are designated as Gram Rozgar Sewak. They are engaged under MGNREGA Scheme for three years. In this regard, State Government has issued Government Order dated 23.11.2007. His submission is that the period of three years of engagement of the appellant has expired, as such this special appeal has become infructuous. It is also informed that the matter is also drawing attention of the Apex Court with regard to the engagement of Gram Rozgar Sewak in which no interim order has been granted against the judgment passed in Special Appeal No.61 of 2011.

4. The appellant was engaged in 2007. Now in 2021, she cannot claim to continue in the post of Panchayat Mitra, re-designated as Gram Rozgar Sewak.

5. The special appeal as such is dismissed as having become infructuous."

Thereafter, the petitioner filed a review application which was also dismissed on 27.08.2021. Against the said judgment the petitioner preferred Special Leave Petition bearing (C) No. 2651-2652 of 2022 which has been dismissed on 14.03.2022. The right if any of the petitioner stands concluded in terms of the aforesaid decisions. The appointment of opposite party no. 7 has been made thereafter in May, 2022, as, informed by the petitioner's counsel.

The contention of petitioner's counsel is that once the post has been abolished how the opposite party no. 7 could have been appointed on the same post. Hence, the writ petition claiming the following reliefs:-

"i) Issue a writ, order or direction in the nature of the certiorari thereby quashing the impugned office order/letter No.1046 dated 31.05.2022 issued by the O.P.No.4 and order / letter No.255 dated 08.06.2022 issued by the O.P.No.5 (part of annexure No.1)

Or alternatively

Issue a writ, order or direction in the nature of quo warranto declaring the appointment of the O.P.No.7 on the post of Gram Rojgar Sewak under MANREGA Scheme of the government is illegal and malafide and oust him from the office holding, with immediate effect.

ii) Issue a writ, order or direction in the nature of mandamus directing the state respondents to stop the functioning of the O.P.No.7 as Gram Rojgar Sewak and making payment against his engagement as Gram Rojgar Sewak forthwith.

iii) Issue a writ, order or direction in the nature of mandamus directing the state respondents to hold inquiry in the matter and pass appropriate order against the responsible and accountable officials in making appointment of O.P.No.7 against the judgment of the Hon'ble High Court and the Supreme Court."

The petition, it seems, is based on misunderstanding of facts and misreading of the judgments referred hereinabove. As far as the petitioner is concerned, she has no right whatsoever to the post involved as her rights stand concluded by the aforesaid judgment as already stated.

Now, as far as opposite party no. 7 is concerned, she has been appointed as Gram Rojgar Sewak. The order passed in Special Appeal dated 18.08.2021 itself records the contention of Shri Amitabh Rai, learned A.C.S.C. that nomenclature of Panchayat Mitra has been changed. Now, they are designated as Gram Rozgar Sewak. They are engaged under MGNREGA Scheme for three years. In this regard, State Government has issued Government Order dated 23.11.2007. His submission is that the period of three years of engagement of the appellant has expired, as such this special appeal has become infructuous. It is also informed that the matter is also drawing attention of the Apex Court with regard to the engagement of Gram Rojgar Sewak in which no interim order has been granted against the judgment passed in Special Appeal No.61 of 2011. Thereafter, the Court went on to observe that the appellant was engaged in 2007. Now in 2021, she can not claim to continue on the post of Panchayat Mitra, re-designated as Gram Rojgar Sewak. The Court was of the opinion that her appointment as Panchayat Mitra was for three years and it is this post which has been re-designated. Rights, if any, of the petitioner could not be extended beyond three years, therefore, the Special Appeal in view of the observations made in Para 3 and 4 was dismissed as having become infructuous. The review application of the petitioner has also been rejected. The order dated 27.08.2021 passed on the review application filed by the petitioner reads as under:-

"1. Heard Mr. Santosh Kumar Yadav "Warsi", learned counsel for the review applicant-appellant and gone through the record.

2. The instant review application is arising out of the judgement and order dated 18.8.2021 passed in Special Appeal Defective No.559 of 2018.

3. It is to be noted that the learned Single Judge vide order dated 5.4.2018 has dismissed the writ petition noting the fact that appointment of the petitioner (review applicant-appellant herein) on the post of Gram Rozgar Sewak was cancelled as she was pursuing regular graduation course and this fact was not disclosed by the petitioner while applying for the post of Gram Rozgar Sewak. Therefore, the review applicant-appellant was not entitled to get the benefit of any order passed in any other case. The review applicant-appellant could not get the benefit of seeking continuation in service, once the post of Gram Rozgar Sewak has been abolished. We do not find any infirmity or illegality on the face of record of the order dated 18.8.2021.

4. The review application is accordingly rejected."

The learned counsel for petitioner seeks to draw mileage from the observation in the said order dated 27.08.2021 that once the post of Gram Rojgar Sewak has been abolished the applicant could not get the benefit of seeking continuation in service, however, the petitioner before this Court has not read the other orders passed as quoted hereinabove and also the preceding lines of the order dated 27.08.2021. The sum and substance of those orders is that the petitioner, if any, had a right to continue as Punchayat Mitra only for three years and her services were validly terminated. She has no right beyond three years. The stray observation in the order dated 27.08.2021 regarding the abolition of the post of Gram Rojgar Sewak can not enure to the benefit of the petitioner, as, the post is still continuing. This appears to have been error at best. In any case, if the petitioner is aggrieved in any manner she can seek a remedy of seeking recall of that order, but, there is no way that this writ petition is maintainable. There is no error whatsoever pointed by the petitioner assuming that she has locus standi to maintain this writ petition for issuing a writ of quo warranto in the context of appointment of opposite party no. 7. The post of Gram Rojgar Sewak still continues and the petitioner had no right to continue on the said post as has already adjudicated in the earlier proceedings.

Though, a writ of quo warranto can be maintained by any person but this Court is not inclined to interfere at the behest of the petitioner who has already lost in the earlier proceedings. This of course would not mean that if the authorities want to scrutinize the manner in which the opposite party no. 7 has been selected and appointed they can not do so nor that any other person can not challenge her selection, if he has locus in the matter.

Moreover, the post in question is purely a contractual post that too for a particular period, as such, a writ of quo warranto would not be maintainable in such cases, as, it is a high prerogative writ.

It is open for the petitioner to raise the issue of illegality, if any, of opposite party no. 7's selection and appointment before appropriate authorities.

The writ petition is dismissed in the aforesaid terms.

.

(Rajan Roy,J.)

Order Date :- 19.9.2022

R.K.P.