Allahabad High Court
Dr. Umesh Dutt Awasthi vs State Of U.P. Thru. Its Addl. Chief ... on 17 May, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:34534
Court No. - 17
Case :- WRIT - A No. - 3279 of 2023
Petitioner :- Dr. Umesh Dutt Awasthi
Respondent :- State Of U.P. Thru. Its Addl. Chief Secy. , Agriculture Edu. And Reasearch Lko. And 3 Others
Counsel for Petitioner :- Himanshu Kamboj,Amit Dwivedi
Counsel for Respondent :- C.S.C.,Uttam Kumar Verma
AND
Case :- WRIT - A No. - 3013 of 2023
Petitioner :- Dr. Umesh Dutt Awasthi (Assistant Professor)
Respondent :- State Of U.P. Thru. Its Addl. Chief Secy. Agriculture Edu. And Research, Lko. And 4 Others
Counsel for Petitioner :- Himanshu Kamboj,Amit Dwivedi
Counsel for Respondent :- C.S.C.,Uttam Kumar Verma
AND
Case :- WRIT - A No. - 3432 of 2023
Petitioner :- Dr. Arvind Kumar Srivastava And 2 Others
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Krishi Shiksha Evam Anusandhan Vibhag Lko. And 3 Others
Counsel for Petitioner :- Rakesh Chandra Tewari
Counsel for Respondent :- C.S.C.,Satyanshu Ojha,Uttam Kumar Verma
Hon'ble Pankaj Bhatia,J.
1. All the writ petitions raise a common question, thus, they are being decided together.
2. Present petition has been filed challenging the order dated 12.04.2023 whereby a general order has been passed in respect of the petitioners to the effect that the absorption granted to the petitioners shall come to an end immediately and the pay band of the petitioners has also been reduced.
3. Contention of learned counsel for the petitioners, in brief, is that the petitioners were initially appointed as Research Assistants and in view of the directions given by this Court in Writ Petition No.836 (SB) of 1994 on 18.08.1999, various orders came to be passed by the State Government and ultimately in the 117th meeting of respondent no.2/University, a decision was taken to declare them as teachers.
4. It is argued that in pursuance to the said declaration, not only the petitioners continued to work, specific orders of absorption were also passed in favour of the petitioners on 05.07.2003. It is argued that subsequent thereto, the petitioners are working and are drawing their salary. It is stated that misinterpreting the judgment of this Court in Special Appeal No.75 of 2022, Government Orders came to be passed on 14.06.2022 & 16.06.2022 whereby general directions were issued. It is in pursuance to the said general directions given vide Government Orders dated 14.06.2022 & 16.06.2022 that the impugned order came to be passed.
5. Contention of learned counsel for the petitioner is that the very genesis of the Government Orders dated 14.06.2022 & 16.06.2022 is the judgment of this Court passed in Special Appeal No.75 of 2022 on 21.03.2022. It is argued that from perusal of the judgment which is on record, it is clear that the Government Order is based upon the misreading of the judgment passed in Special Appeal No.75 of 2022. He further argues that even in terms of the Government Order, there was a specific bar in taking action against the persons whose writ petitions were pending and who were working in terms of the directions given by the Court. He further argues that in any case, specific order of absorption was passed in the case of the petitioners and thus, they were not covered with the Government Order and no order of the nature as has been passed against the petitioners could have been passed.
6. He further argues that in any case it is evident that the petitioners were working since 2003 and the order has been passed after about 20 years without even affording an opportunity of hearing. He argues that it is well settled that in the places where no limitation is prescribed, the action should be taken within a reasonable time whereas in the present case, the action has been taken after a gap of 20 years from the date of absorption. He argues that on being absorbed as teachers, the petitioners were entitled to continue to work up to the age of 62 years whereas in pursuance to the impugned order, they are being forced to retire at the age of 60 years.
7. In the light of the said, he argues that the impugned order is liable to be set aside.
8. Shri Uttam Kumar Verma, learned counsel appearing for the respondent/University tries to justify the impugned order. He argues that in terms of the manner of recruitment prescribed under the statute, the post of teacher can be filled only by direct recruitment and as the petitioners were absorbed, which is not a mode prescribed under the statute, the State Government has rightly took a decision for taking away the benefits granted to the persons similar to the petitioners and in pursuance to the directions given by the State Government, the impugned order has been passed. He, however, admits that no opportunity of hearing was granted to the petitioners prior to passing of the impugned order.
9. Shri Kuldeep Pati Tripathi, learned Additional Advocate General appearing on behalf of the State/respondent no.1 has demonstrated utmost fairness and assistance by admitting that no opportunity of hearing was granted prior to the passing of the impugned order. The Court appreciates his fairness.
10. In sum and substance, as per the arguments what can be discerned is that no opportunity of hearing was granted to the petitioners prior to the passing of the impugned order whereby the services of the petitioner were disturbed adversely in terms of the their pay-scale, in terms of their date of retirement and in terms of the other benefits that they were drawing.
11. The said orders clearly are expropriatory in nature and have an adverse effect on the rights vested in favour of the petitioners by virtue of their absorption order of the year 2003, which has been taken away without affording any opportunity of hearing.
12. To test the argument of Shri Uttam Kumar Verma, learned counsel appearing for the respondents, on the ground of test of prejudice, this Court is of the view that it cannot be said that the issuance of a show-cause notice or giving opportunity of hearing prior to the passing of the order would have been an empty formality as the petitioners have raised very serious arguments to demonstrate that neither the judgment of the special appeal nor the Government Order could be applied to the petitioners.
13. Thus, it is clear that the impugned order is clearly in violation of principles of natural justice and on that count alone, the order dated 12.04.2023 is quashed.
14. Respondents would be at liberty to pass fresh orders in accordance with law.
15. It is further made clear that prior to the passing of the fresh order, the respondent/university shall serve a show-cause notice and grant an opportunity of hearing to the petitioners to demonstrate their case.
16. In case, the respondent/University takes a decision to proceed and pass any fresh order, it will be incumbent upon the respondent/University to take into consideration the judgment of this Court in Special Appeal No.75 of 2022 as well as record as to how the Government Orders are applicable on the petitioners.
17. As a result of the impugned order dated 12.04.2023 being quashed, the services of the petitioners shall be restored and they shall be paid all the benefits subject to the passing of the fresh orders.
18. The writ petition stands allowed in above terms.
Order Date :- 17.5.2023
nishant
