Hari Govind Tewari vs State Of U.P. And 4 Others
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Allahabad High Court

Hari Govind Tewari vs State Of U.P. And 4 Others on 29 March, 2024

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:54391-DB
 
Court No. - 29
 

 
Case :- WRIT - A No. - 39315 of 2017
 

 
Petitioner :- Hari Govind Tewari
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Arvind Kumar Srivastava,Sanjeev Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon'ble Manish Kumar Nigam,J.

1. Heard Sri Sanjeev Singh, learned Counsel for the petitioner and Dr. D.K. Tiwari, learned Addl. Chief Standing Counsel.

2. The present petition has been filed for the following relief:

"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 30.10.2012 and 16.5.2013 passed in Claim Petition No.502 of 2010 and in Review Petition No.132 of 2012 respectively by the Hon'ble State Public Services Tribunal (Annexure Nos.9 and 12 to the writ petition)

(b) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 6.5.2017 passed by the respondent no.4, Executive Engineer, Provincial Division, Lok Nirman Vibhag, Etawah (Annexure No.18 to the writ petition).

(c) Issue a writ, order or direction in the nature of mandamus directing the respondent no.4 to regularize the service of the petitioner with effect from 12.8.1999 and pay all the consequential benefits which could have accrued to him with interest."

3. Brief facts of the case are that the petitioner was initially appointed as daily wager in the Lok Nirman Vibhag in the year 1978 and was subsequently appointed as a Pump Operator on work charge basis on 1.11.1981 in Provincial Division, Lok Nirman Vibhag (Public Works Department), Mainpuri. Subsequently, he was transferred as work charge employee to the Provincial Division, Lok Nirman Vibhag, Etawah. On 30.9.1999, a seniority list was published and according to the same, the petitioner was at serial no.3. Two vacancies were available for the post of Pump Operator. The senior most, Suresh Singh was regularized and there was a complaint against Mahesh Kumar Yadav, who was at serial No.2 of the seniority list regarding his date of birth as such a post was reserved for him as inquiry was being conducted against him. It is submitted that no appointment was granted to Mahesh Kumar Yadav at Serial No.2 on the post of Pump Operator. It is being claimed that a representation was made by the petitioner but his claim was not considered, therefore, he filed a Writ Petition No.33403 of 2008, which was disposed of by this Court by the order dated 18.7.2008 directing the competent authority to decide the claim of the petitioner on merits. The order was not complied with, therefore Contempt Petition No.369 of 2009 was filed by the petitioner. Thereafter, the competent authority vide order dated 21.3.2009 regularize the service of the petitioner w.e.f. 21.3.2009. It is being claimed that the petitioner was entitled for regularization w.e.f. 12.8.1999 when the post was get reserved for Mahesh Kumar Yadav as on that date he was not eligible for promotion. The claim of the petitioner is that when his representation for regularization w.e.f. 12.8.1999 was not considered, the petitioner filed Claim Petition No.502 of 2010 before the Public Service Tribunal claiming regularization w.e.f. 12.8.1999. The said claim petition was dismissed after exchange of pleadings vide order and judgment dated 30.10.2012. A Review Petition No.132 of 2012 was filed by the petitioner before the learned Tribunal, which was also dismissed by order dated 16.5.2013 passed by the Tribunal. The review application filed by the petitioner on the ground that the Government order dated 15.10.1997 was not considered by the Tribunal. None of the orders passed by the Tribunal were challenged by the petitioner before this Court. However after dismissal of claim petition by the Tribunal, the respondent no.4 passed an order dated 16.4.2013 granting regularization to the petitioner w.e.f. 25.11.1999 and to that extent earlier order of regularization dated 21.3.2009 stood modified. In the year 2016, the issue of date of birth of Mahesh Kumar Yadav was settled and he was regularized by the order dated 6.7.2016. The petitioner retired on 30.9.2016 and thereafter he was issued a show cause notice on 4.2.2017 to submit his reply as to why the order of regularization dated 14.6.2013 granting regularization w.e.f. 25.11.1999 be not recalled being an incorrect order. The petitioner submitted his reply to the show cause notice. By the impugned order dated 6.5.2017, the order of regularization dated 14.6.2013 was reviewed and recalled. The present petition is against both the orders dated 30.10.2012, 16.5.2013 passed by the learned Tribunal and order dated 6.5.2017 passed by respondent No.4.

4. Learned Counsel for the petitioner submitted that no post could have been reserved in favour of Mahesh Kumar Yadav, whose date of birth was in dispute and an inquiry proceeding was pending. Learned Counsel for the petitioner further submitted that under these circumstances, the petitioner was entitled for promotion w.e.f. 25.11.1999 and in this respect, the petitioner was entitled for the benefit of Government Order dated 15.10.1997. It is further submitted that a claim petition was filed by the petitioner before the Tribunal seeking regularization w.e.f. 25.11.1999 but the same was erroneously rejected by the Tribunal by the order dated 30.10.2012. Since, the Tribunal failed to consider the Government Order dated 15.10.1997 while deciding the claim petition by the order dated 30.10.2012, a review petition being Review No.132 of 2012 was filed by the petitioner before the Tribunal with the prayer that the order dated 30.10.2012 be reviewed in view of Government Order dated 15.10.1997. The review petition was also rejected by the Tribunal vide its order dated 16.5.2013. Learned Counsel next submitted that the respondent no.4 has rightly allowed the claim of the petitioner for regularization w.e.f. 25.11.1999 by the order dated 16.4.2013. It is submitted by learned Counsel for the petitioner that the petitioner retired from service on 30.9.2016 and after the retirement the petitioner was served with a show cause notice dated 4.2.2017 calling for explanation from the petitioner as to why the order dated 16.4.2013 passed by respondent no.2 be not cancelled. Learned Counsel for the petitioner submitted that the notice dated 4.2.2017 was wholly without jurisdiction as the order dated 16.4.2013 passed by respondent no.2 could not be reviewed. The submission, therefore, is that the order impugned dated 6.5.2017 whereby the order dated 14.6.2013 has been recalled is arbitrary and, therefore, the orders dated 30.10.2012 and 16.5.2013 passed by State Public Services Tribunals and the order dated 6.5.2017 passed by respondent no.4 are liable to be quashed and the petitioner is entitled to be granted regularization w.e.f. 25.11.1999.

5. Per contra, learned Standing Counsel submitted that the orders are perfectly just and legal and no interference is warranted. The order, which has been passed by any authority illegally can always be reviewed and it was not open for the respondent no.4 to pass the order dated 14.6.2013 once the claim of the petitioner was rejected by the Tribunal and was not challenging before any higher forum. It is submitted that the illegal order can always be reviewed and illegality can be set right by passing subsequent orders.

6. The submission therefore is that the petition is devoid of merits and is dismissed.

7. We have perused the record.

8. From perusal of the record, it is clear that the petitioner is claiming regularization since 12.8.1999 when Suresh Singh who was at Serial No.1 in the seniority list was regularized. Though, the petitioner was not regularized at that point of time, the petitioner did not take any action to raise his grievance before the higher forum and has also not challenged the reservation of one post in favour of Mahesh Kumar Yadav who was at serial No.2 in the seniority list. The Government Order dated 15.10.1997 was admittedly in existence when the claim of the petitioner was not considered and the post was reserved in favour of Mahesh Kumar Yadav. At a belated stage, a claim petition was filed by the petitioner before the Tribunal on the basis of Government Order dated 15.10.1997, which was dismissed by the Tribunal vide order dated 30.10.2012. The review petition filed by the petitioner was also dismissed by the Tribunal by the order dated 16.5.2013. The petitioner did not challenge the orders passed by the Tribunal dated 30.10.2012 and 16.5.2013 before any higher forum. In the meantime, an order dated 16.4.2013 was passed by the respondent no.4 granting benefit of regularization w.e.f. 25.11.1999, which was subsequently recalled by the order dated 6.5.2017 passed by respondent no.4. At this stage, the petitioner has challenged the orders passed by the Tribunal as well as the order dated 6.5.2017 passed by respondent no.4 by means of the present petition. The respondent no.4 passed the order dated 16.4.2013 ignoring the fact that the Tribunal has rejected the claim of the petitioner as to regularization w.e.f. 25.11.1999 by its order dated 30.10.2012. The order passed by the Tribunal was not challenged by the petitioner before any higher forum and in view of the same, it was not open for the respondent no.4 to pass any order granting regularization to the petitioner w.e.f. 25.11.1999 ignoring the orders passed by the Tribunal. No doubt, a show cause notice was issued to the petitioner after his retirement on 30.9.2016, however, in our opinion, it was open to the authorities to set right the order illegally passed by the authority earlier.

9. All these facts have been recorded by the authority concerned while passing the impugned order dated 6.5.2017 whereby the orders passed by this Court as well as by the Tribunal have been taken note by the authority concerned and in our considered view, no illegality has been committed by the respondent no.4 in passing the order dated 6.5.2017.

10. The petition is devoid of merits and is accordingly dismissed.

Order Date :- 29.3.2024

S. Singh