Rakesh Parihar And Anr vs State Of Rajasthan And Anr
2021 Latest Caselaw 18004 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16754/2017

Jagdish Chhangani S/o Shri Pukhraj Chhangani, Resident Of Ravto Ki Gali, Gundhi Ka Mohalla, Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.

2. The Director, Urban And Housing Development, Jaipur.

----Respondents Connected With S.B. Civil Writ Petition No. 3653/2017 Sanjeev Kumar Sharma S/o Late Shri U.m. Sharma, Resident Of 88, Polo Ground, Udaipur

----Petitioner Versus

1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur

2. The Urban Improvement Trust UIT, Udaipur Through Its Secretary

----Respondents S.B. Civil Writ Petition No. 3657/2017 Rakesh Parihar S/o Shri Madan Lal Parihar, Resident Of Behind Mahamandir Railway Station, Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.

2. The Urban Improvement Trust Uit, Bhilwara Through Its Secretary.

3. Ravindra Prakash Mathur s/o Late Shri Bhawani Mal Mathur, aged about 45 years, resident of A-94, Shastri Nagar, Jodhpur, at present resident at B-4/140, Chitrakoot Nagar, Jaipur, presently working as Executive

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Engineer, Jaipur Development Authority, Jaipur (Raj.)

4. Bhanwru Khan s/o Shri Navarang Khan, aged about 49 years, R/o Noorsar House, Street No. 18, Rampura, Lalgarh, Bikaner, present working as Executive Engineer, Urban Improvement Trust, Bikaner.

----Respondents S.B. Civil Writ Petition No. 3522/2018

1. Rakesh Parihar S/o Shri Madan Lal Parihar, Resident Of Behind Mahamandir Railway Station, Jodhpur.

2. Sanjeev Kumar Sharma, S/o Late Shri U.m. Shamra, Resident Of 88, Polo Ground, Udaipur.

----Petitioners Versus

1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.

2. The Joint Secretary-I, Urban Development Department, Jaipur.

----Respondents S.B. Civil Writ Petition No. 3640/2018 Chandra Prakash Purohit S/o Shri Jai Kishan Purohit, Jalap Mohalla, Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.

2. The Joint Secretary-I, Urban Development Department Jaipur.

----Respondents S.B. Civil Writ Petition No. 3884/2018 Jagdish Chhangani S/o Shri Pukhraj Chhangani, Resident Of Ravto Ki Gali, Gundhi Ka Mohalla, Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department,

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Government Of Rajasthan, Jaipur.

2. The Director, Urban And Housing Development, Jaipur.

----Respondents S.B. Civil Writ Petition No. 3918/2018 Arvind Kumar Mathur S/o Shri Amba Lal Mathur, 2-Ja-3, CHB, Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan Through The Secretary To The Urban And Housing Development Department, Government Of Rajasthan, Jaipur.

2. The Joint Secretary-I, Urban Development Department, Jaipur.

                                                                      ----Respondents


For Petitioner(s)             :     Mr. Manoj Bhandari.
                                    Mr. Pramendra Bohra.
                                    Mr. Sushil Solanki.
For Respondent(s)             :     Mr. Rajesh Parihar
                                    Mr. Anirudh Purohit.
                                    Mr. P.R.Mehta.



              HON'BLE MR. JUSTICE ARUN BHANSALI

                                         Order

1/12/2021

These writ petitions have been filed by the petitioners

aggrieved against the order dated 20/2/2017 and order dated

21/2/2018 passed by the respondents. While Civil Writ Nos.

3657/2017, 3653/2017 and 16754/2017 have been filed

questioning the validity of order dated 20/2/2017, Civil Writ

Petition Nos. 3522/2018, 3884/2018, 3918/2018 and 3640/2018

have been filed to question the validity of order dated 21/2/2018.

The subject matter of the present petitions has a chequered

history. The petitioners were initially appointed as Junior

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Engineers on temporary basis for a period of six months on

8/1/1997. Whereafter, they came to be appointed pursuant to the

orders passed in Civil Writ Petition No. 3659/2000 and 1650/2001

by order dated 28/12/2001 as Junior Engineers on contract basis

for a period of one year on a fixed monthly salary of Rs.5,000/-.

The said appointments made on contractual basis came to be

extended for a period of one more year by order dated 7/1/2003.

Whereafter, on 18/7/2003 (Annex.4 in C.W.No. 16754/2017) the

petitioners came to be appointed as Junior Engineers from the

date of joining in regular pay scale. It was also indicated that the

benefit of seniority would be given to them w.e.f. the date they

joined the duty pursuant to the orders dated 28/12/2001 and

26/2/2002. Petitioners Rakesh Parihar, Arvind Mathur, Pankaj

Agarwal and Sanjeev Kumar Sharma came to be promoted as

Assistant Engineers by order dated 10/12/2009.

The petitioners represented to the State seeking

regularization of their services from the date of their purported

initial appointment dated 8/1/1997.

As few of the petitioners had approached this Court by filing

Civil Writ Petition No. 4890/2009, wherein, on 15/5/2009 the

petitioners were directed to submit their representations and

required the respondents to consider the same. By order dated

18/1/2010, the representations made by Prakash Parihar and

Jagdish Chhangani came to be rejected and further prayer made

seeking reconsideration of rejection of representation also came to

be rejected by order dated 2/2/2011.

The petitioners again represented to the respondents, based

on which the State Government required the U.I.T. to pass

appropriate orders. By resolution dated 25/6/2012, the J.D.A.

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formed a committee to take a decision and by order dated

5/9/2013, it was decided to grant the benefit to the petitioners

Rakesh Parihar, Jagdish Chhangani and Chandra Prakash Purohit

w.e.f 8/1/1997. Their salary was fixed by order dated 19/9/2013

and by order dated 4/6/2014 their seniority was also fixed by

taking their date of appointment as 8/1/1997.

By order dated 21/8/2015 the State Government cancelled

the order dated 18/1/2010 by which the representation filed by

the petitioners was rejected seeking benefits from initial date of

appointment.

Thereafter, the impugned order dated 20/2/2017 was issued

inter alia indicating that as the seniority list of Junior Engineers

was issued on 26/3/2008, while the said list was in existence, by

order dated 5/6/2008 new seniority list was issued and the earlier

seniority list dated 26/3/2008 was not superseded, therefore, the

seniority list dated 5/6/2008 and the amendments made therein

were withdrawn. The consequence of the said order was that the

order by which petitioners were accorded seniority by order dated

4/6/2014 also stood set aside.

Feeling aggrieved, the first set of writ petitions challenging

the order dated 20/2/2017 were filed.

By interim order dated 30/3/2017, a coordinate bench of this

Court ordered that the petitioners' position may not be altered to

their detriment pursuant to the order dated 20/2/2017. During the

pendency of said writ petitions questioning the validity of order

dated 20/2/2017, the respondents passed order dated 21/2/2018

inter alia noticing that the petitioners had not worked with the

Trust for the period 18/7/1997 to 28.2.2001/26.2.2002 and they

were accorded appointments by orders dated 28/12/2001 and

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26/2/2002 and by order dated 18/7/2003 they were granted

regular pay scale and benefit of seniority from the date they took

charge in the respective Trusts, as such their representations

seeking seniority and other benefits from 1/8/1997 were rejected

and representation made pursuant to the order passed by the

Court were rejected on 18/1/2010. The grant of seniority and

other benefits to the petitioners w.e.f. 8/1/1997 has been found to

be irregular and as such the order dated 18/1/2010 was restored

and order dated 21/8/2015 was cancelled.

Feeling aggrieved the other set of writ petitions questioning

the validity of the order dated 21/2/2018 have been filed,

wherein, also the operation of the order dated 21/2/2018 was

stayed by this Court.

Learned counsel for the petitioners made submissions that

both the order dated 20/2/2017 and 21/2/2018 have been passed

without affording any opportunity of hearing to the petitioners,

despite the fact that by both the orders, whereby, the seniority

conferred on the petitioners and the regularization of their

services w.e.f. 8/1/1997 have been effected and as such the

orders could not have been passed without affording opportunity

of hearing to the petitioners.

Submissions were also made that the decision taken cannot

be applied with retrospective effect as the petitioners were

promoted in the meanwhile and that the directions of the Court in

the petitions filed earlier were to decide the representation based

on the judgment in the case of one Rameshwar Lal Mathur and as

the respondents have given effect to the said order of the Court,

the subsequent actions are vindictive, malafide and arbitrary and

the same, therefore, deserves to be quashed and set aside.

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Reliance was placed on Shrawan Kumar Jha & Ors. vs. State

of Bihar : AIR 1991 SC 309 and Sarika Digambar Lokare vs. Chief

Executive Officer : 2015 (4) Bom CR 615.

Learned counsel for the State made submissions that a bare

look at the facts would reveal that the petitioners were appointed

purely on temporary basis by order dated 6/1/1997 for a period of

six months and, thereafter, came to be granted contractual

appointment on 28.12.2001/26.2.2002 and during the period

8/7/1997 till 28/12/2001 and 7/1/2003 the petitioner had not

served the respondents and, therefore, there was no question of

petitioners being entitled for seniority and other benefits w.e.f.

8/1/1997 and as such the respondents were justified in passing

the orders dated 20/2/2017 and 21/2/2018.

Submissions were made with reference to the report filed as

Annex.R/1/4 in CW No. 3522/2018 that the committee appointed

to examine the aspect of giving benefit to the petitioners has

categorically come to the conclusion that the petitioners were

wrongly granted benefit of seniority and other benefits w.e.f.

8/1/1997 and as such the orders impugned do not call for any

interference.

During the pendency of the writ petitions, by order dated

1/2/2018 Ravindra Prakash Mathur and Bhanwru Khan were

impleaded as respondents no. 3 and 4 in Civil Writ Petition no.

3657/2017.

Learned counsel appearing for the private respondents made

vehement submissions that in writ petition 16553/2015 filed by

the said petitioners by order dated 7/12/2015, a coordinate bench

at Jaipur had specifically stayed the order dated 4/6/2014 by

which the petitioners were accorded seniority and as such the

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petitioners, though aware of the pendency of the said writ petition

and the interim order granted by the Court, chose to suppress the

said aspect from the Court and have obtained interim order. The

said writ petition is still pending before the bench at Jaipur and on

that count alone the petitions deserve to be dismissed.

Further submissions were made that a bare look at the facts

would reveal that the petitioners without being in service for about

four years were seeking to take advantage of seniority for the said

period and having march over the respondents, who are otherwise

senior to them, as such they are not entitled to any relief from this

Court.

Learned counsel for the petitioners made submissions that

the petition at Jaipur Bench has been dismissed for not filing

requisites on 28/3/2016 and came to be restored on 7/12/2016 by

serving copy on the Government counsel and as such the

petitioners being unaware of passing of the order in the writ

petition cannot be accused of suppressing the facts.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The facts which emerge from the chequered history as

noticed hereinbefore reveals that on18/1/2010, the respondents

had rejected the representations made by the petitioners seeking

seniority and other benefits w.e.f. 8/1/1997. However, on account

of persistent follow up by the petitioners, by order dated 5/9/2013

the petitioners came to be conferred with benefits w.e.f.

8/1/1997,which was followed by their fixation and insertion of

their names as per seniority in the existing seniority list by order

dated 4/6/2014.

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Whereafter, first of all the order dated 18/1/2010, by which

the representation made by the petitioners was rejected, came to

be recalled by order dated 21/8/2015, which completed entire

sequence of events insofar as the claim of petitioners seeking

benefit w.e.f. 8/1/1997 was concerned.

Whereafter, on 20/2/2017, first of all the seniority list dated

5/6/2008 in which by amendment dated 4/6/2014 names of the

petitioners were inserted came to be withdrawn on account of the

fact that when the said list dated 5/6/2008 was issued the same

did not supersede the earlier existing seniority list dated

26/3/2008. The necessary consequence of the order dated

20/2/2017, whereby, the seniority list dated 5/6/2008 along with

its amendment came to be withdrawn, was that the insertion of

petitioners' names in the seniority list also stood deleted. The said

action of the respondents by merely indicating that in the seniority

list dated 5/6/2008 the fact of superseding the existing seniority

list dated 26/3/2008 had not been indicated, which affected the

petitioners also, as in the said list dated 5/6/2008 by amendment

dated 4/6/2014 their names were entered into, the order could

not have been passed without affording an opportunity of hearing

to the petitioners.

Submission made by the respondents that as the entire list

along with its amendments was withdrawn, the petitioners alone

cannot claim to be affected by the same has no substance

inasmuch as any person, who feels affected by any action, has a

right to question the same irrespective of the fact whether other

persons, if affected by it, choose not to question the same.

The attempt made to justify the withdrawal of the seniority

list on account of purported wrong according of seniority to the

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petitioners also cannot be countenanced, as admittedly the

petitioners were not afforded any opportunity of hearing.

The further action of the respondents subsequent to passing

of the order dated 20/2/2017, to pass order dated 21/2/2018,

which is under challenge in second set of writ petitions, recalling

the order dated 21/8/2015, is also bad for violation of principles of

natural justice inasmuch as, as noticed hereinbefore, by order

dated 18/1/2010 the representation made by the petitioners for

seniority and other benefits w.e.f. 8/1/1997 came to be rejected,

which order dated 18/1/2010 was recalled by order dated

21/8/2015, prior to which on 5/9/2013, the petitioners were

conferred seniority and other benefits w.e.f. 8/1/1997 and the

order dated 21/8/2015, was sought to be recalled again by order

dated 21/2/2018, which necessarily meant that rejection of

petitioners' representation by order dated 18/1/2010 would have

sprang up to the detriment of the petitioners, which could not

have been passed without affording opportunity of hearing to the

petitioners.

Submission made that as the committee had come to the

conclusion that petitioners were not entitled for benefit w.e.f.

8/1/1997, the order impugned does not call for any interference

also cannot be accepted for the simple reason that the committee

had not involved the petitioners and/or had not afforded any

opportunity of hearing to the petitioners before coming to the

conclusion regarding petitioners being not entitled for the benefits

w.e.f. 8/1/1997.

The Hon'ble Supreme Court in the case of Shrawan Kumar

Jha (supra), where appointments were cancelled by the

Government on the ground that the District Superintendent had

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no authority to appoint the petitioners therein, came to the

conclusion that the petitioners should have been given an

opportunity of hearing before cancellation of their appointments

and that no order detrimental to the petitioners could be passed

without complying with the rules of natural justice.

In Sarika Digambar Lokare (supra) the Bombay High Court

held that even if it is claimed that the order passed is beyond the

competence of the authority which has passed the order, the

affected persons must be heard before passing of the order.

In view of the above, the orders impugned dated 20/2/2017

and 21/2/2018 having been passed in violation of principles of

natural justice cannot be sustained.

So far as the submission made by counsel for the respondent

nos. 3 and 4 in C.W. No. 3657/2017 regarding pendency of their

writ petition before the Jaipur Bench, wherein, the order dated

4/6/2014 had been stayed, is concerned, suffice it to say that the

said petition is independent of the present controversy inasmuch

as the petitioners were seeking to question the validity of the

orders dated 20/2/2017 and 21/2/2018, which were passed

subsequent to the said order dated 4/6/2014, nullifying the same,

and as such the petition filed by the respondent nos. 3 and 4

would have to be dealt with by the appropriate court on its own

merit.

It may be observed here that in the circumstances of the

case, wherein, the orders impugned were passed in violation of

principles of natural justice, this Court did not find it appropriate

to examine the validity as to whether the petitioners were rightly

granted benefit w.e.f. 8/1/1997 or not.

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In view of the above discussion, the writ petitions filed by

the petitioners are allowed on the limited ground, as noticed

hereinbefore. The orders dated 20/2/2017 and 21/2/2018 are

quashed and set aside qua the petitioners.

The respondents would be free to pass fresh orders after

affording opportunity of hearing to the petitioners in accordance

with law. In case the respondents decide to take steps in this

regard, the proceedings therein should be decided in a most

expeditious manner, as apparently the issue has dragged on for

over two decades now.

(ARUN BHANSALI),J

baweja/-

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