Allahabad High Court
Avdhesh Kumar Tripathi And Others vs State Of U.P. Trhough Secretary Nagar ... on 21 April, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:22473
Reserved on 08.04.2025
Court No. - 28
Case :- WRIT - A No. - 4642 of 2001
Petitioner :- Avdhesh Kumar Tripathi And Others
Respondent :- State Of U.P. Through Secretary Nagar Vikas Government Of
Counsel for Petitioner :- L.P. Misra,A.P.Singh Bisen
Counsel for Respondent :- C.S.C.,R.D. Shahi
Along with connected writ petition
Case :- WRIT - A No. - 4274 of 2000
Petitioner :- Rajesh Shanker Pandey
Respondent :- Nagar Palika Parishad Ayodhya Through Executive Officer
Counsel for Petitioner :- Dr.L.P.Misra,.,L.P.Mishra
Counsel for Respondent :- C.S.C.,R.D.Shahi
AND
Case :- WRIT - A No. - 4592 of 2000
Petitioner :- Avdhesh Kumar Tripathi
Respondent :- Nagar Palika Parishad Ayodhya Faizabad
Counsel for Petitioner :- Dr.L.P.Misra
Counsel for Respondent :- C.S.C.,D.P.Singh,R.D.Shahi
Hon'ble Brij Raj Singh,J.
1. Heard Shri Tarun Mishra, holding brief of Dr. L.P. Misra, learned counsel for the petitioner, Shri R.D. Shahi, learned counsel for the Nagar Nigam, Ayodhya and learned Standing Counsel for the State.
2. The above three writ petitions, connected with each other, filed by the petitioners were heard simultaneously and since they involve common questions of facts, a common judgment is being passed.
3. In the writ petition No.4642 (S/S) of 2001, the petitioners have prayed for the following reliefs :
"(i). issue a writ, order or direction in the nature of certiorari quashing the orders dated 24.07.2001 issued by the opposite party no.1 and the consequential orders dated 07.03.2001 passed by the District Magistrate, Faizabad and the order dated 21.08.2001 passed by the Additional District Magistrate (City)/Prabhari Adhikari, Local Bodies, Faizabad. the true copies of which are contained as Annexure 1 to the writ petition and further consequential order of termination dated 28.08.2001, passed by Adhyaksh, Nagar Palika Parishad, Ayodhya, District Faizabad. The true copy of which is contained as Annexure 1 to the writ petition ;
(ii). issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioners to continue on the post of Clerk and to pay them their salary as admissible against such posts, notwithstanding the impugned orders contained in Annexure 1 and 2 to the writ petition."
4. The brief facts of the case are that Udai Bhan Pandey, Shivanand Singh Bisen and Ashok Kumar Misra, who were working on the post of Clerk were promoted as Accountant, Assistant Tax Superintendent and Light Inspector. In pursuance of the aforesaid promotions, Class III posts were fallen vacant in the establishment of Nagar Palika Parishad, Ayodhya. Vide Court's order dated 18.04.2024, the nomenclature has been changed to Nagar Nigam. The Selection Committee was constituted and pursuant to the recommendations made by the Selection Committee, the petitioners who were working as Clerk on daily wage basis for long period were appointed as Clerks vide order dated 12.07.1999 on probation for one year. The appointment letters were issued on 12.07.1999 to all the aforesaid petitioners. The Petitioners joined their services as Clerk on 12.07.1999 and during probation period, their salary was paid and they completed their probation period successfully. They were confirmed on the said post vide order dated 28.07.2000 of Chairman, NagarPalika Parishad, Ayodhya. They were also paid remuneration till November, 1999. Thereafter, the petitioner's salary was stopped.
5. Feeling aggrieved, Avdhesh Kumar Tripathi, and Manoj Kumar Pandey, petitioner nos.1 and 2 filed Writ Petition No. 4642 (S/S) of 2001 before this Court challenging the order dated 31.03.2000 passed by the Commissioner, Faizabad Division, Faizabad requiring the District Magistrate, Faizabad, to ensure that the salary be not paid to the petitioners and further required that the District Magistrate, Faizabad, to take legal action under Section 34 (1-B) of the U.P. Municipalities Act, 1916 (for short 'Act, 1916). The order of Commissioner was intimated by the Executive Officer, Nagar Palika Parishad, Ayodhya, District Faizabad vide orders dated 05.08.2000 and 28.07.2000 stating that under the orders of Additional District Magistrate (City), Faizabad, salary cannot be paid to the petitioners.
6. The orders dated 05.08.2000 and 28.07.2000 passed by Executive Officer, Nagar Palika Parishad, Ayodhya, District Faizabad and the orders dated 22.05.2000 passed by Additional District Magistrate (City), Faizabad and order dated 31.03.2000 passed by the Commissioner, Faizabad Division, Faizabad have been challenged in this writ petition by which the authorities passed the order stopping the salary of the petitioners.
7. This Court passed a detailed interim order on 22.08.2000 by admitting the writ petition and the opposite parties were directed to pay the salary to the petitioners of the post of Clerk. The order dated 22.08.2000 is quoted below :
"Admit.
Notice on behalf of opposite parties has been accepted by Sri D.P. Singh, who prays for and is granted six weeks time to file counter affidavit.
List this petition along with Writ petition nos. 3877 (S/S) of 2000.
In the meantime, the opposite parties are directed to pay salary to the petitioners of the post of Clerk."
8. Shri Rajesh Kumar Pandey, the other petitioner filed Writ Petition No.4274 (S/S) of 2000 in which same interim order was also passed in his favour.
9. The court after hearing learned counsel for the parties passed an interim order in Writ Petition No.4642 of 2001. The operative portion of the order dated 07.09.2001 reads as under:-
"Till then, in view of the direction given in the G.O. dated 24.07.2001 that in cases where interim orders are continuing, steps for getting it vacated be taken. The petitioners who are also enjoying the interim order, the order dated 28.08.2001, shall not be given effect to with respect to the petitioners."
10. It has been vehemently submitted by learned counsel for the petitioners that the petitioners were not afforded opportunity prior to passing the impugned orders. The interim orders were operating in favour of the petitioners but during the operation of the interim orders, the impugned orders in the writ petition no.4642 of 2001 was passed. The impugned orders which are annexed in the writ petitions were passed which is in utter violation of the earlier interim orders dated 22.08.2000. This Court had already passed the interim orders in Writ Petition no.4274 (S/S) of 2000 and 4642 (S/S) of 2001 wherein it is provided that the petitioners will be paid salary.
11. During the pendency of the aforesaid writ petitions, the impugned order dated 24.07.2001 was passed by the State of U.P. holding therein that the appointment of the petitioners were irregular and their services were liable to be terminated. It was not incumbent upon the respondents to issue such adverse order and without waiting the outcome of the pendency of the aforesaid writ petitions.
12. It has been further submitted by learned counsel for the petitioners that petitioners were granted interim orders in all the three writ petitions and they are continuing for more than 25 years in the Department and their selection was made in accordance with law after following the due procedure.
13. It has been submitted by learned counsel for the petitioners that the Commissioner passed the order on 31.03.2000 which was addressed to the District Magistrate to take action under Section 34 (1-B) of The U.P. Municipalities Act, 1916 (hereinafter referred to as Municipality Act). In pursuance of the said order dated 31.03.2000 the Additional District Magistrate passed the order on 22.05.2000 and action against the petitioner which is without jurisdiction. In view of Section 34 (1-B) reads as under :
"Section 34. Power of the State Government or the Prescribed Authority or the District Magistrate to prohibit execution or further execution of resolution or order of Municipality. -
(1) The Prescribed Authority may], by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a Municipality or a committee of a [Municipality] or a Joint Committee or any officer or servant of a Municipality or of a Joint Committee [if in its opinion] such resolution or order is of a nature to cause or tend to cause obstruction, annoyance or injury to the public or to any class or body of persons lawfully employed and may prohibit the doing or continuance by any person of any act in pursuance for or under cover of such resolution or order.
(1-A) The District Magistrate may, within the limits of his district, by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a] Municipality or a committee of a Municipality or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee if in his opinion such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety, or a riot or affray, and may prohibit the doing or continuance by any person of any act, in pursuance of or under cover of such resolution or order.
(1-B) the State Government may, on its own motion or on report or complaint received by order prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a Municipality or a committee of a Municipality or a Joint Committee or any officer or servant of a Municipality or of a Joint Committee, if in its opinion such resolution or order is prejudicial to the public interest, [or has been passed or made in abuse of powers or in flagrant breach of any provision of any law for the time being in force, and may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order.
(2) Where an order is made under sub-section (1) or (1-A), a copy thereof with a statement of the reasons for making it, shall forthwith be forwarded by the Prescribed Authority or the District Magistrate through the Prescribed Authority, as the case may be, to the State Government which may thereupon, if it thinks fit, rescind or modify the order.
(3) [* * *]
(4) Where the execution or further execution of a resolution or order is prohibited by an order made under sub-section (1), (1-A) or (1-B) and continuing in force, it shall be the duty of the Municipality, if so required by the authority making the order under the said sub-sections to take any action which it would have been entitled to take, if the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything under cover of the resolution or order of which the further execution is prohibited."
14. On the other hand, Shri R.D. Shahi, has pointed out that selection was made by the then Chairman against whom show cause notice was given and it was found that the appointment of the petitioners were illegal. He has further submitted that on the strength of interim orders, the petitioners have no right and writ petitions are liable to be rejected.
15. Heard learned counsel for the petitioners, Shri R.D. Shahi for the respondents Nagar Palika Parishad and learned Standing Counsel for the State-respondents.
16. After going through the record and after hearing learned counsel for the parties, I find that the petitioners were selected after following due procedure and they had also completed their services for more than one year. The Selection Committee was constituted and meeting took place on 12.07.1999 and the Executive Committee of Nagar Palika Parishad took decision to appoint the petitioners on the vacant substantive posts which fell vacant due to promotion of the employees of the Nagar Palika Parishad. The interim orders passed by this Court indicates that after hearing learned counsel for the parties direction was issued to pay salary and in pursuance of the directions issued by this Court, the petitioners are being paid salary and entire consequential benefits. They have been working for more than 25 years and are working regularly.
17. The respondents' counsel is unable to point out as to what is the irregularity or illegality committed by the then Selection Committee while issuing the appointment letters to the petitioners.
18. The issue regarding opportunity of hearing is also relevant to mention here that while passing the impugned orders in all the three Writ Petitions, the petitioners were not afforded opportunity of hearing by the Department and their valuable rights were infringed.
19. The record reveals that all the impugned orders which are passed against the petitioners are without affording opportunity of hearing to the petitioners which are under challenge in the above three writ petitions. The petitioners were appointed after following the procedure of selection as duly constituted Committee had undertaken proceedings for appointment and the petitioners were appointed which was not questioned by the appointing authority, after affording opportunity of hearing at any point of time, the petitioners are working on their posts for more than 25 years with all service benefits.
20. A bare perusal of provision under Section 34(1-B) indicates that it empowers the District Magistrate to prohibit the execution of further resolution or order of Municipality but by the impugned order dated 22.5.2000 the Additional District Magistrate has taken decision and the District Magistrate has not taken such decision. The statutory power under Section 34 of the Act, 1916 can be exercised only by the District Magistrate therefore, the impugned order dated 22.5.2000 is also not sustainable. The letter dated 31.03.2000 has been issued by the Commissioner, Faizabad to District Magistrate, Faizabad but the impugned order dated 22.5.2000 is passed by the Additional District Magistrate in utter violation of Section 34 (!-B) of Act, 2016.
21. All the above three writ petitions are liable to be allowed and the impugned orders are also liable to be set aside.
22. Accordingly, the impugned orders dated 24.07.2001 passed by the opposite party no.1 as well as the consequential orders dated 7.08.2001 passed by District Magistrate, Faizabad, order dated 21.08.2001 passed by Additional District Magistrate (City), Prabhari Adhikar, Local Bodies, Faizabad, as well as the termination order dated 28.09.2001 passed by Nagar Palika Parishad, Ayodhya, District Faizabad are quashed.
23. In Writ Petition Nos.4274 of 2000 and 4592 of 2000 ; the impugned orders dated 28.07.2000 passed by Executive Officer, Nagar Palika Parishad, order dated 22.05.2000 passed by Additional District Magistrate (City), as well as order dated 31.03.2000 passed by the Commissioner, Faizabad Division, Faizabad are also quashed.
24. The writ petition is allowed.
Order Date : 21/04/2025
Pks
( Brij Raj Singh, J. )
