Vaishali Yadav vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 22674 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:55424
 
Court No. - 17
 

 
Case :- WRIT - C No. - 5897 of 2023
 

 
Petitioner :- Vaishali Yadav
 
Respondent :- State Of U.P. Thru. Prin. Secy. Panchayati Raj, Lucknow And 4 Others
 
Counsel for Petitioner :- Kaushlendra Yadav
 
Counsel for Respondent :- C.S.C.
 
Along with
 
Case :- WRIT - C No. - 2044 of 2023
 
Petitioner :- Vaishali Yadav
 
Respondent :- State Of U.P. Thru. Prin. Secy. Panchayati Raj Civil Sectt. Vidhan Sabh Marg Lko. And 4 Others
 
Hon'ble Alok Mathur,J.

1. Heard Sri O.P. Srivastava, learned Senior Counsel assisted by Sri Kaushlendra Yadav, learned counsel for petitioner as well as learned Standing Counsel for respondents.

2. With the consent of learned counsel for the parties, both the aforesaid writ petitions are being heard and decided by a common judgment.

3. Sri O.P. Srivastava, learned Senior counsel appearing on behalf of petitioner submits that he does not want to file any rejoinder affidavit in response to the counter affidavit filed by the State in Writ C No. 5897 of 2023.

4.It has been submitted by learned counsel for petitioner that after approaching this Court by filing Writ C. No. 2044 of 2023 assailing the order dated 06.02.2023 whereby in exercise of its power under Section 95 (1)(g) of U.P. Panchayat Raj Act, 1947, the administrative and financial powers of the petitioner who was working on the post of Gram Pradhan, Tera Pursauli, District Hardoi had been ceased. The said order has been passed in light of the fact that there was several complaints against the petitioner with regard to discharge of her public duty attached to the office and she did her all steps to cater the need of public by providing the solutions like street light, public toilets, construction of the additional room in panchayat bhawan, thermal scanner, pulse oxi meter, weighing machine for anganwadi centers, repairing of hand pumps etc. and these issue were published in the Newspaper, the 'Telecost News' and accordingly a decision was taken to hold preliminary inquiry into the said matter.

5. The response of the petitioner was also sought by giving a show cause notice on 08.03.2022 to which the petitioner duly responded and submitted her rely and matter was kept pending, subsequently without taking any decision, the petitioner was given second show cause notice dated 23.12.2022 to which according to the petitioner she has submitted her reply but it seems that the impugned order dated 06.02.2023 was passed without considering the response of the petitioner.

6. The petitioner while assailing the order dated 06.02.2023 had vehemently submitted that despite submission of her response and as per postal receipt the said response was duly received in the office of District Magistrate on 19.01.2023 still the same was not considered and the impugned order dated 06.02.2023 was passed. The Court noticing the arguments of the petitioner has sought a response from the State Government in this regard.

7. The State Government had filed its counter affidavit and admitted receiving of an envelop sent by the petitioner but only blank pages were found inside the envelop.

8. The respondent, during the pendency of previous writ petition instead of awaiting for the outcome of the writ petition, proceeded to pass an order dated 27.03.2023 thereby staying the previous order dated 06.02.2023. In the said order, it was recorded that a fresh order would be passed after considering the reply of the petitioner. The petitioner has preferred a writ petition being Writ C No. 5897 of 2023 when the fresh order was passed by the respondents on 03.06.2023.

9. It has been submitted by learned counsel for petitioner that the matter was sub-judice before this Court when the previous order dated 06.02.2023 was passed by the District Magistrate in exercise of powers under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 and after passing of the said order, the District Magistrate had become functus officio and either the regular inquiry should have been conducted and further order passed in light of the provisions contained in the Act of 1947 or he should have awaited for the outcome of the writ petition, namely, Writ C No. 2044 of 2023.

10. Instead of waiting for the outcome of the challenge made by the petitioner to the order dated 06.02.2023, the respondent has pre-empted the action and themselves initially stayed the order dated 06.02.2023 and subsequent proceeded to pass a fresh order dated 03.06.2023.

11. Learned counsel for petitioner submits that it was open for the respondents to have noticed the infirmity in the previous order dated 06.02.2023 and was open for them to have withdrawn the said order and should have taken leave of this Court to pass a fresh order.

12. He submits that by staying the order dated 06.02.2023, the said order continues to be in existence and during its existence, second order on the same subject and issue could not have been passed by the District Magistrate. He has categorically submitted that the previous order is still in operation and merely its implementation has been stayed by the order of District Magistrate dated 27.03.2023 and hence has submitted that both the orders cannot co-existence simultaneously.

13. In support of his submission he has relied upon the judgment passed in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (Civil Appeal NO. 2553 of 1991) decided on 29.04.1992, in which it has been held as under:-

"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending"

14. While placing reliance on the aforesaid judgment, it has been submitted that it is admitted that the order dated 06.02.2023 was passed without considering the response of the petitioner and this fact finds mention in the order dated 27.03.2023 where it was proposed that the fresh order would be passed after considering the reply of the petitioner.

15. He has accordingly submitted that it is undisputed that the order dated 06.02.2023 was passed in violation of principle of natural justice inasmuch the response of the petitioner which was received by the respondents on 19.01.2023 was not considered and accordingly the said order is illegal, arbitrary and violative of Article 14 of the Constitution of India. He submits that the order dated 03.06.2023 is also infirm inasmuch as it has been passed during the existence of the previous order dated 06.02.2023 and accordingly both the orders cannot coexists simultaneously, and the impugned order are without jurisdiction illegal and arbitrary.

16. Learned Standing Counsel on the other hand has opposed the writ petition but does not dispute the aforesaid factual controversy. He submits that the order dated 06.02.2023 was passed without considering the reply of the petitioner to the second show cause notice as the blank papers were received in the office of District Magistrate and it is only when the writ petition was filed enclosing the response of the petitioner, the respondents was inappropriate to pass a fresh order after considering the reply of the petitioner.

17. He does not dispute the fact that the order dated 06.02.2023 was only stayed and not set aside or withdrawn and does not dispute the fact that the order dated 06.02.2023 continues to be in existence. He further submits that liberty may be given to the competent authority to pass the fresh order in accordance with law.

18. I have heard learned counsel for parties and perused the record.

19. The factual controversy arising in the present case is not disputed. Admittedly, the order dated 06.02.2023 was passed without considering the reply of the petitioner which was received in the office of the District Magistrate on 19.01.2023. The said fact has been admitted by the respondents in their order dated 27.03.2023 where the operation of the previous order dated 06.02.2023 was stayed. Instead of awaiting the judgment of this Court, the District Magistrate proceeded to pass a fresh order dated 03.06.2023. This court finds force in the contention raised by learned counsel for petitioner that both the orders namely 06.02.2023 and 03.06.2023 cannot co-exists simultaneously. Though, it may have been open for the respondents to have withdrawn or recalled previous order dated 06.02.2023 but by merely staying the operation of the order dated 06.02.2023 did not empower or clothe the District Magistrate to assume the jurisdiction again and to pass a fresh order in exercise of power under Section 95(1)(g) of the U.P. Panchayat Raj Act 1947 and pass a fresh order dated 03.06.2023. After passing of the order dated 06.02.2023 he had become functus official, and till the said order was set aside or withdrawn, afresh order could not be passed The exercise of the District Magistrate in this regard is therefore arbitrary and illegal.

20. Accordingly both the orders dated 06.02.2023 and 03.06.2023 are set aside. Liberty is given to the competent authority to pass a fresh order in accordance with law, if they so choose.

21. In view of the aforesaid observations / directions, both the writ petitions are allowed.

(Alok Mathur, J.)

Order Date :- 22.8.2023

Ravi/