Mazhar Alam And Another vs D.M. And Others
2023 Latest Caselaw 23338 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172466
 
Court No. - 10
 

 
Case :- WRIT - A No. - 25296 of 1995
 

 
Petitioner :- Mazhar Alam And Another
 
Respondent :- D.M. And Others
 
Counsel for Petitioner :- R.N. Singh,G.K. Singh,S.N. Singh,V.K. Singh
 
Counsel for Respondent :- S.C.
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Mr. Srivats Narain, learned Advocate holding brief of Shri Sankalp Narain, learned counsel for the petitioners and Mr.Navneet Chandra Tripathi, learned Additional Chief Standing Counsel appearing for the State-respondents.

2. By the order impugned dated 31.8.1995, the services of the petitioners in relation to post of Urdu Translator-cum-Junior Clerk have been terminated. The said order substantially speaks only one line that it has been passed in compliance of the order dated 24.8.1995 passed by District Magistrate, Siddharthnagar.

3. It is contended that the basic order dated 24.8.1995 passed by the District Magistrate has also been challenged through amendment application, which has already been allowed and even the said order is only to the effect that certain departments are facilitating appointments in violation of relevant reservation rules and, therefore, they may ensure that while making appointments, reservation rules be taken care of and if appointments have been made in violation of sub-rules, the concerned appointees be removed from service and the persons entitled be appointed.

4. The submission of learned counsel for the petitioners is that no valid reason has been assigned in either of the orders impugned as to which law or rule was violated. Further submission is that the orders impugned have been passed without affording any opportunity of hearing to the petitioners. Learned counsel also argued that even otherwise, the appointment of the petitioners is in consonance with the reservation rules.

5. Learned Additional Chief Standing Counsel, in support of the stand taking in the counter and supplementary affidavits, submits that considering the reservation quota and the number of persons working in the establishment, it stood revealed that the petitioners' appointment was contrary to the Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes And Other Backward Classes) Act, 1994, and, hence, the impugned orders do not suffer from any illegality. He has also referred to different persons working as per the quota.

6. During the course of arguments, learned counsel for the petitioners has placed before this Court a copy of the detailed judgment dated 14.12.2017 passed by a co-ordinate Bench of this Court in Writ-A No.25903 of 1995 (Javed Hasan Khan vs. District Magistrate, Siddharthnagar and others) in which identical orders of the same dates were under challenge and the Court, after discussing the entire case on merits as well as on law, allowed the writ petition quashing the orders impugned and left it open for the respondents to pass a fresh order in accordance with law. The said order is quoted herein below:

"Heard Sri Vijay Kumar Singh, learned Counsel for the petitioner and learned Standing Counsel for the respondents.

The petitioner has filed the above noted writ petition, praying for the quashing of the orders dated 31.08.1995 and 24.08.1995, passed by District Development Officer, Siddharth Nagar and District Magistrate, Siddharth Nagar respectively, by the aforesaid orders the appointment of the petitioner on the post of Urdu Translator-cum- Junior Clerk has been cancelled with immediate effect.

The brief facts of the case are that the petitioner along with 13 others were appointed on the post of Urdu Translator/ Assistant Junior Clerk after following the due procedure under the Rule by a duly constituted Committee, by the appointment letter dated 01.02.1995, issued by the Additional District Magistrate (Finance & Revenue). The petitioner was posted at Block Development Office, Etwa, Siddharth Nagar and he joined his services on 22.02.1995. By the order dated 24.08.1995, the District Magistrate cancelled the appointment of the petitioner and in pursuance thereof the District Development Officer, Siddharth Nagar directed termination of his services. The petitioner's case is that his services have been terminated without opportunity of hearing and as per the policy of pick and chose since 15 persons were appointment including the petitioner, together and appointments of only 5 persons were cancelled, including the petitioner. The appointment letter itself shows that the appointment of the petitioner was on temporary basis or for a limited period.

The learned Standing Counsel has filed Counter Affidavit on behalf of respondents, stating that the appointment of the petitioner in pursuance of the order dated 24.08.1995 of the District Magistrate has been cancelled by the order dated 31.08.1995 because the appointment was made in violation of the norms of reservation of seats, i.e., in violation of Rules of 1994 and therefore, it was rightly cancelled. Since the appointment was in violation of Rules of Reservation, there was no requirement of issuing notice. The appointment of the petitioner was temporary but against the sanctioned post.

The petitioner has filed a Supplementary Affidavit bringing on record the documents to show that the petitioner is still working on the post of Urdu Translator/Assistant Junior Clerk by virtue of interim order dated 14.09.1995 passed by this Court.

The learned Counsel for the petitioner has relied upon the Judgment in the case of Shridhar son of Ram Dular Vs. Nagar Palika, Jaunpur and others, AIR 1990, Supreme Court, 307. In this Judgment, the Apex Court disapproved the action of the employers in setting aside the order of appointment of an employee without affording him any opportunity of hearing.

The learned Counsel for the petitioner has relied upon the Judgment in the case of Vijay Shankar Tripathi Vs. State Public Service Tribunal, MANU/UP/1752/2005, Mohd. Firoz Khan Vs. State of U.P. and others, Special Appeal No.31/2011, Sneha Gupta Vs. State of U.P. and others, 2016 (10) ADJ 1997 (DB) and Jai Kishan Srivastava Vs. State of U.P. and others, in support of his contention that the order against the petitioner was punitive in nature and therefore without enquiry his services should not have been dispensed with.

The learned Standing Counsel has stated that the observance of the norms of reservation by the respondents as per the U.P. PUBLIC SERVICES (RESER. FOR S.C., S.T. & O.B.C.) At, 1994 was mandatory for the respondents and because the appointment letter of the petitioner was issued in violation of the provisions of the Act, therefore, it was rightly cancelled. The issuance of show cause notice was only a formality.

After consideration of the rival submissions, it is clear that the appointment of the petitioner was made by the respondent nos. 1 and 3 after due selection against a substantive post. If, they committed any fault in compliance of any mandatory law, they were required to inform the petitioner and only after considering his reply any order should have been passed. This was required more when there was material on record to prove that out of 15 appointments made only 5 were cancelled. What was the break up of the quota of reservation for different categories of seats and which were complete and which were not complete should have been stated in the order passed. The impugned order dated 31.08.1995 only states that in view of the letter dated 24.08.1995 of the District Magistrate, the appointment order dated 21.02.1995 issued to the petitioner is being cancelled, in order to comply the provisions of reservations.

Therefore, the impugned order does not states the facts, on which the conclusion of his appointment being in violation of Rules of reservation was drawn by the respondent no.1 and complied by the respondent no.3. The Judgment of the Apex Court, in the case of Shridhar, son of Ram Dular Vs. Nagar Palika, Jaunpur and others (supra) comes to the rescue of the petitioner. The other Judgments cited by the petitioner apply to the cases where the orders passed against the employee were casting stigma or were punitive in nature. Here no stigma has been cast upon the petitioner and therefore, these Judgments will not apply to his case.

From the above discussions it is clear that the impugned order dated 31.08.1995 passed by the respondent no.3 on the basis of order dated 24.08.1995 of the respondent no.1 are illegal and both are hereby quashed.

However, it is open for the respondents to pass a fresh order in accordance with law.

The writ petition is allowed. No order as to costs."

7. Learned counsel for the petitioners submits that the case of the petitioners exactly stands on identical footings and is squarely covered by the aforesaid judgment of this Court and has also argued that when this writ petition was filed in the year 1995, by an interim order, the effect and operation of the orders impugned was stayed till the next date of listing, which order was, later on, extended until further orders and, even as on today, at the strength of the interim order, the petitioners are in service.

8. Considering the entire facts and circumstances coupled with the order of this Court referred to herein above, this petition also succeeds and is allowed.

9. The impugned orders dated 24.8.1995 and 31.8.1995 passed by the District Magistrate, Siddharthnagar and District Development Officer, Siddharthnagar, respectively, are hereby set aside on the same lines and reasoning.

10. The respondents are at liberty to pass a fresh order in accordance with law after providing full opportunity of hearing to the petitioners and dealing with factual and legal position of the case.

Order Date :- 25.8.2023

LN Tripathi