Delhi High Court
Zahoor Ahmed Akhoon vs Archaelogical Survey Of India on 28 November, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No. 11240/2016
% 28th November, 2016
ZAHOOR AHMED AKHOON ..... Petitioner
Through: Mr. Suhail Khan, Advocate.
versus
ARCHAELOGICAL SURVEY OF INDIA ..... Respondent
Through: Mr. Manish Mohan, CGSC with
Mr.Shivam Chanana, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution of India,
petitioner seeks compassionate appointment on the ground that petitioner's
father died in harness.
2. In the opinion of this Court, this Court does not have territorial
jurisdiction because, admittedly, the father of the petitioner was employed
with, worked and died in harness while working for the respondent at
Srinagar, Jammu and Kashmir. Entire services of the father of the petitioner
were therefore performed at Srinagar, Jammu and Kashmir.
3. Merely because office of the respondent is situated at Delhi and it is
thus argued on behalf of the petitioner that the competent authority sits at
Delhi which will pass the order for appointment, will not give this Court
territorial jurisdiction because the order of grant of compassionate
appointment or denial of compassionate appointment will have to be
communicated to the petitioner where the petitioner is residing and as per
the memo of parties petitioner is residing at Village Pandrathan, Srinagar,
Kashmir. It is only on the receipt of such a communication that a cause of
action will arise in favour of the petitioner and the receipt of the
communication will be not as Delhi but at Srinagar and hence the existence
of jurisdiction at Srinagar and lack of jurisdiction of the Delhi courts.
4. Merely because an order can be passed in favour of the petitioner as
per the writ petition at Delhi, the same will not give territorial jurisdiction to
this Court ,because, it is not the passing of the order which will give cause
of action but the communication thereof to the petitioner. An order in the
Government file, unless communicated, does not create a right or a liability
is a settled legal position right from the Constitution Bench judgment of the
Supreme Court in the case of Bachhittar Singh Vs. The State of Punjab,
AIR 1963 SC 395 and which ratio of Bachhittar Singh's case (supra) has
been recently followed by the Supreme Court in the judgment in the case of
Sethi Auto Service Station and Another Vs. Delhi Development Authority
and Others, 2009 (1) SCC 180. The relevant paragraphs of the judgment in
the case of Sethi Auto Service Station (supra) are paragraphs 14 to 17 and
the same read as under:-
"14. It is trite to state that notings in a departmental file do not have the
sanction of law to be an effective order. A noting by an officer is an
expression of his viewpoint on the subject. It is no more than an opinion by an
officer for internal use and consideration of the other officials of the
department and for the benefit of the final decision-making authority.
Needless to add that internal notings are not meant for outside exposure.
Notings in the file culminate into an executable order, affecting the rights of
the parties, only when it reaches the final decision-making authority in the
department, gets his approval and the final order is communicated to the
person concerned.
15. In Bachhittar Singh v. The State of Punjab a Constitution Bench of this
Court had the occasion to consider the effect of an order passed by a Minister
on a file, which order was not communicated to the person concerned.
Referring to the Article 166(1) of the Constitution, the Court held that order of
the Minister could not amount to an order by the State Government unless it
was expressed in the name of the Rajpramukh, as required by the said Article
and was then communicated to the party concerned. The court observed that
business of State is a complicated one and has necessarily to be conducted
through the agency of a large number of officials and authorities. Before an
action is taken by the authority concerned in the name of the Rajpramukh,
which formality is a constitutional necessity, nothing done would amount to an
order creating rights or casting liabilities to third parties. It is possible,
observed the Court, that after expressing one opinion about a particular matter
at a particular stage a Minister or the Council of Ministers may express quite a
different opinion which may be opposed to the earlier opinion. In such cases,
which of the two opinions can be regarded as the "order" of the State
Government? It was held that opinion becomes a decision of the Government
only when it is communicated to the person concerned.
16. To the like effect are the observations of this Court in Laxminarayan R.
Bhattad v. State of Maharashtra, wherein it was said that a right created under
an order of a statutory authority must be communicated to the person
concerned so as to confer an enforceable right.
17. In view of the above legal position and in the light of the factual scenario
as highlighted in the order of the learned Single Judge, we find it difficult to
hold that the recommendation of the Technical Committee of the DDA
fructified into an order conferring legal right upon the appellants."
(underlining added)
6. A query was posed to the counsel for the petitioner as regards the lack of
territorial jurisdiction of this Court and it was asked if the petitioner wanted
this Court to grant liberty to him to approach the competent Court in Jammu
and Kashmir, but counsel for the petitioner says that the judgment be passed.
7. In view of the above, this writ petition is dismissed as this Court has no
territorial jurisdiction.
NOVEMBER 28, 2016/ AK VALMIKI J. MEHTA, J
