Uttarakhand High Court
Trilok Chand Sharma vs State Of U.P. & Others on 1 March, 2021
THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 2922 of 2001 (Old No. 2210 of 1998)
Trilok Chand Sharma ....... Petitioner
Vs.
State of U.P. & others
......Respondents
Present: Mr. Bhagwat Mehra, Advocate for the petitioner.
Mr. Gopal K. Verma, Standing Counsel for the State of U.P.
Ms. Anjali Bhargava, Additional CSC for the State of Uttarakhand.
Judgment
Hon'ble Ravindra Maithani, J. (Oral)
Challenge in the writ petition is mainly to an order dated
08.12.1992 (Annexure 12), by which the appointment of the petitioner
as Co-operative Kurk Amin has been cancelled.
2. According to the petitioner, he was appointed to the post
of Kurk Amin on 19.02.1981 on commission basis. Subsequently on
21.01.1984, he was appointed on salary basis, but suddenly on
09.01.1991, the petitioner was reverted to the post of Co-operative
Collection Amin on commission basis. This order was challenged by
the petitioner before the State Public Services Tribunal, Lucknow (for
short "the Tribunal") in Claim Petition No.352 of 1995 (for short "the
claim petition"). The claim petition was allowed on 30.07.1997 and the
order of reversion of the petitioner dated 09.01.1991 was quashed.
Directions were also issued to reinstate the petitioner on the post of
Co-operative Kurk Amin on salary basis. This order was produced by
the petitioner before the competent authority on 23.09.1997. On that
date, the petitioner also gave his joining.
3. It is the case of the petitioner that the order dated
08.12.1992 was never brought to the notice of either the petitioner or
before the Tribunal when the claim petition was heard and decided
finally on 30.07.1997. It has been passed without affording any
opportunity of hearing being given to the petitioner; without
conducting any inquiry. The order dated 08.12.1992 was sent to the
petitioner vide communication dated 05.11.1997 (Annexure-11),
which is also impugned in this petition.
4. On behalf of the respondents, a counter affidavit has been
filed. According to it, the order dated 30.07.1997 passed by the
Tribunal had already been challenged by the respondents in Civil
Miscellaneous Writ Petition No. 43719 of 1997, in which a stay was
granted. Reference has been made to the Uttar Pradesh Co-operative
Collection Dues Rules, 1982, while stating that the petitioner is
governed by these Rules. According to the learned counsel for the
State of Uttar Pradesh, the interim order dated 04.02.1998 was
procured by the petitioner by suppressing the material facts.
5. Learned counsel for the petitioner would submit that after
the order of the Tribunal dated 30.07.1997, the petitioner was given
joining by the department. He continuously served thereafter and as
such retired from the service in the month of December, 2020.
According to the learned counsel for the petitioner, when the claim
petition was heard, the impugned order dated 08.12.1992 was never
brought to the notice of the Tribunal; it was never served upon the
petitioner; no inquiry was ever conducted; and the petitioner was not at
all aware that any such order was passed till it was served upon him on
05.11.1997 by way of communication which is Annexure No. 11.
6. Learned counsel for the petitioner would argue that, in
fact, the matter is only academic now because the petitioner has
already served his entire tenure of service. He has retired now and the
existence of the impugned orders make no difference, as such.
Therefore, they deserve to be set aside.
7. On behalf of State of Uttar Pradesh, learned counsel
would submit that the impugned order dated 08.12.1992 was sent to
the petitioner through registered post, but it was returned un-served.
8. Undisputedly, the petitioner was appointed as Kurk Amin
on 19.02.1981 and he continued his services till 09.01.1991, when
suddenly, according to him, he was reverted from salary based Kurk
Amin to commission based Kurk Amin. This order dated 09.01.1991
was challenged by the petitioner in the claim petition, which was
finally decided on 30.07.1997. These facts are not disputed. Even it is
not disputed that this order dated 30.07.1997 passed by the Tribunal
was challenged by the respondents in Civil Miscellaneous Writ
Petition No. 43719 of 1997, in which initially on 04.02.1998, a stay
was granted, but the fact remains that it is now undisputed that the said
writ petition was dismissed for want of prosecution on 24.02.2004.
9. If the appointment of the petitioner was cancelled on
08.12.1992, why the respondents did not bring it to the notice during
the pendency of the claim petition before the Tribunal? How suddenly
on 05.11.1997, the impugned order dated 08.12.1992 was served upon
the petitioner? How the impugned order dated 08.12.1992 was passed?
What inquiry was conducted? According to this impugned order dated
08.12.1992 since the petitioner remained absent since December, 1991,
his appointment was cancelled. Who gave this report? Who conducted
this inquiry? No material is placed before this Court. Though the
respondents have filed counter affidavit, but nothing has been given in
support of the impugned order dated 08.12.1992.
10. What is more interesting, according to the counter
affidavit of the respondents, is that the impugned order dated
08.12.1992 was sent to the petitioner through registered post, but it
was never served upon the petitioner. It means that the respondents had
conducted some sort of inquiry in secrecy, or at least, without any
notice to the petitioner, and the impugned order was sent through
registered post, which was not served, but kept safely with the
respondents and it was not brought to the light till five more years. Did
it mean that the order was kept close in the file during the pendency of
the claim petition before the Tribunal? If so, why?
11. According to the petitioner, in the year 1998, he was
allowed to join his services by the respondents, and he continued to
render his services till he was superannuated in the month of
December, 2020.
12. In view what has been stated hereinbefore, this Court is of
the view that the impugned order dated 08.12.1992 deserves to be set
aside and the petition allowed.
13. Impugned order dated 08.12.1992 is hereby set aside.
14. The writ petition is allowed.
(Ravindra Maithani, J.)
01.03.2021
AR/
