Paras Nath vs State Of U.P. Through Its Secy. ...
2023 Latest Caselaw 13762 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- WRIT - A No. - 2032 of 2003
 

 
Petitioner :- Paras Nath
 
Respondent :- State Of U.P. Through Its Secy. Deptt. Of Mahila Evem Samaj
 
Counsel for Petitioner :- Afawzaki Khan,A. Khan,Pradeep Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,C.S.C.
 

 
Hon'ble Alok Mathur,J.

(Order on C.M.A. No. C.M. Application No. 10 of 2022 -Substitution)

Heard learned counsel for applicant and perused the record.

In view of the facts stated in the accompanying affidavit filed in support of application for substitution, the application is allowed.

Learned counsel for petitioner prays for and is directed to make necessary incorporation in the memo of writ petition during course of the day.

(Order on Writ Petition)

Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the respondents.

By means of the present petition, the petitioner has prayed for the following reliefs:-

"(i) Issue a writ order or direction in the nature of Certiorari thereby quashing the impugned order dated 27.03.2003 contained in Annexure No.1 to this writ petition.

(ii) issue a writ order or direction in the nature of Mandamus commanding the opp. parties to allow the petitioner to continue on his post and pay him salary accordingly as prior to impugned order dt. 27.03.2003.

(iii) issue any other writ order or direction which this Hon'ble Court may deem just and proper under the circumstances of the case.

(iv) allow the instant writ petition with costs."

The case set forth by the petitioner is that he was initially appointed on the post of Peon under opposite party No. 4 vide order dated 09.02.1995 , a copy of which is Annexure No. 2. Vide order dated 27.03.2003 the petitioner was terminated from the post of peon. Being aggrieved with the said termination order, the petitioner preferred the instant writ petition and this Court vide order dated 10.04.2003 stayed the operation of the termination order. On the basis of the said interim order, the petitioner has been continuing as peon.

Learned counsel for the petitioner, while seeking to challenge the impugned order, has contended that the impugned termination order has been passed without affording any opportunity of hearing to the petitioner despite the fact that the petitioner had work continuously for more than eight and half years after appointment as peon vide order dated09.02.1995 and thus the impugned order is in gross violation of the principles of natural justice as on account of his long working, the petitioner had acquired a right to hold the said post of peon. It is also contended that while issuing the impugned termination order, it has been recorded that as per the rules the competent authority to issue the promotion order would be the Director and the appointment order of the petitioner having been made by the Deputy Director, was thus beyond the competence of the Deputy Director and as such the same occasioned passing of the termination order.

While challenging the ground contained in the impugned order of termination , learned counsel for the petitioner argues that it cannot be said that there was any misrepresentation on the part of the petitioner at the time of passing of the promotion order and once a conscious decision was taken by the Department, may be by the Deputy Director, the petitioner appointed and continued for a period of almost eight years and had also been given the pay scale and the revised pay scale and thereafter continued on the post of peon for a period of almost 08 years as of date would thus entitle him for continuance on the said post.

In support of his arguments with regard to violation of principles of natural justice, learned counsel for the petitioner has placed reliance on the following judgments:-

(i) Shrawan Kumar Jha and others vs. State of Bihar and others reported in 1991 Supp.(1) SCC 330,

(ii) Bhagwan Shukla vs. Union of India and others reported in A.I.R. 1994 SCC 2480,

(iii) Harish Chandra Srivastava vs. State of U.P. and others reported in 1996(14) LCD,

(iv) Allwyn Housing Colony Welfare Association vs. Government of Andhra Pradesh and others reported in 2009(27) LCD 1258 and

(v) Paras Jain vs. State of U.P. and others reported in 2016(34) LCD 424.

On other other hand, learned Additional Chief Standing Counsel, on the basis of averments contained in the counter affidavit, argues that once the Deputy Director was not competent to issue the appointment order, consequently when this fault was discovered, the termination order was passed inasmuch as, as per the rules applicable upon the petitioner, it is the Director of the Department who could have issued the appointment order and the said appointment order of the petitioner having been issued by an incompetent authority i.e. the Deputy Director, was thus patently illegal and without jurisdiction and there is no illegality or infirmity in the impugned reversion order.

Having heard the learned counsel for the parties and having perused the record, what this Court finds is that once the petitioner has been appointed as peon vide order dated 09.02.1995 and the said appointment order had been issued and the petitioner continued to work on the basis of the said appointment order and had also been given the pay scale applicable for the said post and subsequently the revised pay scale, consequently he acquired a vested right to hold the said post. It is not the case of the respondents that any fraud or misrepresentation was done by the petitioner at the time when appointment order was issued. Thus when the appointment order was issued and the petitioner was appointed in pursuance thereof and thereafter continued to work without any complaint to the full knowledge of the Department itself, as such he acquired a vested right to hold the said post. A perusal of the promotion order dated 09.02.1995 also indicates that the same has not been made as a stop gap arrangement or on a temporary basis and thus after issue of the said order without any caveat, the petitioner acquired a vested right to hold the said post. Consequently, in case the said right was to be taken away or the petitioner was sought to be terminated, in that circumstances a minimal opportunity of hearing was required to be given and no such order could have been passed to the detriment of the petitioner without affording any opportunity of hearing. Thus on this ground alone, the impugned order dated 27.03.2003 becomes vitiated in the eyes of law.

In this regard, the law laid down by the Hon'ble Supreme Court is clear and categoric. The Hon'ble Supreme Court in the case of State of Orissa vs. Binapani Dei reported in A.I.R. 1967 SC 1269 has held as under:-

"12. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State?."

In another case reported in (1969)2 SCC 262 In re: A.K. Kraipak vs. Union of India, the Hon'ble Supreme Court has held as under:-

"13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate, if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power."

Again the issue of opportunity of hearing came up before the Hon'ble Supreme Court in the case of Sayeedur Rehman vs. State of Bihar reported in (1973)3 SCC 333 wherein the Hon'ble Supreme Court held as under:-

"11. .. This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties. ? The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order dated 22-4-1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties."

To the same effect are the judgments of the Hon'ble Supreme Court in the case of (i) Shrawan Kumar Jha, Bhagwan Shukla, Harish Chandra Srivastava, Allwyn Housing Colony Welfare Association and Paras Jain (supra).

Accordingly, keeping in view the aforesaid discussions and the fact that the petitioner has continued for a period of almost 26 years since his appointment as peon and the fact thatthe impugned order being in gross violation of the rules of natural justice, the impugned order dated 27.03.2003 (Annexure-1 to the writ petition) is quashed. Consequences to follow.

The writ petition is allowed.

(Alok Mathur, J.)

Order Date :- 2.5.2023

Ravi/