Surya Vijoy Singh v. State Of Bihar — 1969 DIGILAW 64 (PAT)

Judgment Kanhaiyaji, J. 1. All the three cases have been heard together, but I shall take up C.W.J.C. No. 206 of 1968 first. In this case, petitioner Shri S.V. Singh was appointed as a technical assistant of the Patna Improvement Trust, hereinafter referred to as the Trust, in the year 1955. He was promoted to the rank of the Assistant Trust Engineer on the 22nd February, 1956. Respondent No. 5, Shri R.K. Akhaury, was appointed Assistant Engineer in the Trust on the 22nd July, 1955. The seniority of the Assistant Engineers was determined by resolution Nos. 4 and 5 of 1957. Shri R.K. Akhaury was No. 4, whereas Shri S.V. Singh was placed as No. 2. A permanent post of Executive Engineer fell vacant with effect from the 1st April, 1958, against the vacancy caused by the resignation of Shri J. P. Das, Executive Engineer. In 1966, two permanent posts of Executive Engineers came to be filled up-- one against the vacancy caused by the resignation of Shri J.P. Das, as said earlier, and the other with effect from the 10th January, 1966, as a result of the resignation of Shri S.R. Munipali, Executive Engineer. 3. In the year 1961, two divisions were created by the Trust Resolution No. 210/61 and the Government sanctioned the creation of these two divisions by their Memo No. 6501 dated the 9th August, 1962. These two posts were filled up by Shri R. K. Akhaury and Shri S.v. Singh, who were temporarily appointed as Executive Engineers for a period of six months under the second proviso to Sec.28 (c) of the Bihar Town Planning and Improvement Trust Act, 1951, hereinafter referred to as the Act. The Public Service Commission was, in the meantime, accordingly moved through the Government for concurrence in their appointment as Executive Engineers. The concurrence of the Public Service Commission was received in the month of March, 1963. The Public Service Commission observed that concurrence in their appointment was without prejudice to the claim of Shri Ranjit Sinha. The Trust by its Resolution No. 198/64 dated the 27th September. 1964, regularised the appointment of these two officers: "Resolved unanimously that the appointment of Shri R.K. Akhauri and Shri S.v. Singh as Executive Engineers with effect from the 1st October, 1961, be approved in accordance with the recommendation of the Public Service Commission, Bihar." 4. The Trust by its Resolution No. 198/64 dated the 27th September. 1964, regularised the appointment of these two officers: "Resolved unanimously that the appointment of Shri R.K. Akhauri and Shri S.v. Singh as Executive Engineers with effect from the 1st October, 1961, be approved in accordance with the recommendation of the Public Service Commission, Bihar." 4. Meanwhile, Shri R.K. Akhauri sought employment under the Magadh University and he was relieved from the services of the Trust to join his new assignment on the 6th October, 1963. He was granted lien on his substantive post of the Assistant Trust Engineer. 5. Petitioner Shri S.v. Singh moved the Trust by letter dated the 17th March, 1966, for his substantive appointment as Executive Engineer with effect from the 1st October, 1961. Sarvashri R.K. Akhauri and Ranjit Sinha also made representations to the Trust for their appointment to the permanent posts of Executive Engineers caused by the resignations of Shri J.P. Das and Shri S.R. Munipali, Executive Engineers. The Trust by its Resolution No. 4-Spl. 66 considered the representations of the three officers and passed the following resolution: "Resolved unanimously that Shri S.v. Singh be appointed on probation with effect from 1-10-61 against the permanent post of Executive Engineer caused by the resignation of Shri J.P. Das and further that he be confirmed on the said post with effect from the 1st October. 1963. The question regarding filling up the vacancy of the permanent post of Executive Engineer caused by the resignation of Shri S. R. Munipali be taken up for consideration when both (Shri R.K. Akhauri and Shri R. Sinha) or either of them returns back to the Trust." 6. On the date the resolution was passed, the petitioner was the only Executive Engineer holding a temporary appointment in the Trust as Shri R. Sinha had gone out of India and Shri R. K. Akhauri was in the employment of the Magadh University. Shri R.K. Akhauri, who was serving under the Magadh University holding a lien in the Trust, came back to the Trust and joined his service on the 28th February, 1967. Shri R. K. Akhauri filed a representation before the Government under Sec.32 of the Act for the cancellation of the resolution of the Trust being No. 4-Spl. 66 appointing and confirming the petitioner in the permanent post of Executive Engineer. Shri R. K. Akhauri filed a representation before the Government under Sec.32 of the Act for the cancellation of the resolution of the Trust being No. 4-Spl. 66 appointing and confirming the petitioner in the permanent post of Executive Engineer. The Government treated the representation as an appeal and cancelled Resolution No. 4-Spl. 66, appointing and confirming the petitioner in the permanent post of Executive Engineer, under Sec.32 of the Act. According to the order passed by the Government, the resolution of the Trust was in excess of the powers conferred by law. 7. The petitioner has obtained a rule from this Court calling upon the respondents to show cause as to why the order of the Government dated the 16th January, 1968, should not be quashed by the High Court by a writ in the nature of certiorari under Article 226 of the Constitution. 8. Cause has been shown by the Advocate-General and other counsel on behalf of the respondents to whom the notices of the rule were ordered to be given. 9. On behalf of the petitioner, learned counsel put forward the argument that the order passed by the Government under Sec.32 of the Act was unconstitutional as there was violation of the principle of natural justice. Sec.32 of the Act reads as follows: "The State Government may set aside any resolution of the Trust or any order of the Chairman or of the Trust, if in the opinion of the State Government the resolution or order is in excess of the power conferred by law." 10. On behalf of the petitioner, great stress was laid on the fact that no notice was given to the petitioner either by the Trust or by the Government before the order was passed setting aside the resolution passed by the Trust. This position is admitted on behalf of the respondents and in the affidavit filed on behalf of the State, it is conceded that no notice was given to the petitioner before the impugned order was made. This position is admitted on behalf of the respondents and in the affidavit filed on behalf of the State, it is conceded that no notice was given to the petitioner before the impugned order was made. It is true that Sec.32 of the Act does not expressly say that notice must be given to the party who is to be affected prejudicially by the order of the Government, but it is well-established as a matter of law that in a case of this description, a notice is necessary to be given by the authority to a person who is prejudicially affected by the order which is to be ultimately made. As a matter of necessary legal implication, the Government is bound to act in accordance with natural justice before exercising the statutory powers conferred by Sec.32 of the Act. The principle is enunciated in Ridge V/s. Baldwin (1963) 2 All ER 66. A Division Bench of this Court in Ram Kripalu Mishra V/s. University of Bihar, AIR 1964 Pat 41 , after considering a series of decisions of the English Courts on the point held that La a case of this description a notice was necessary. The absence of a notice before passing an order which prejudicially affected a party to the proceeding violates the principle of natural justice and makes the order ultra vires. 11. Mr. Basudeva Prasad, learned counsel appearing for respondent No. 5, on the other hand, raised the contention that the Government was competent to pass the order under Sec.32 of the Act. He pointed out on the basis of the counter-affidavit filed on behalf of respondent No. 5 that the order passed by the Trust was illegal and prejudicial to the seniority of respondent No. 5. He urged that by virtue of the resolution the petitioner has obtained seniority over respondent No. 5 without consideration of the material fact that the seniority of respondent No. 5 had already been determined by the Trust It was further argued that the writ of certiorari is not a writ of course. It is a discretionary remedy. The very object of this writ is to foster justice and right a wrong. Before a person can be entitled to invoke the prerogative power of the Court under Article 226 of the Constitution, it must be shown that the order to be set aside must have occasioned injustice to the party. It is a discretionary remedy. The very object of this writ is to foster justice and right a wrong. Before a person can be entitled to invoke the prerogative power of the Court under Article 226 of the Constitution, it must be shown that the order to be set aside must have occasioned injustice to the party. In support of his contention, learned counsel relied on a decision of this Court in Abdul Majid V/s. State Transport Appellate Authority, AIR 1960 Pat 333 at p. 338. In this case, this Court held: "The very object of this writ is to foster justice and right a wrong arising from the subordinate tribunals or bodies or officers acting wholly without jurisdiction or in excess or denial of it, or In violation of the principles of natural justice, and, therefore, where such wrong occurs, the Court intervenes and issues such prerogative writs, orders or directions, where the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles of natural justice, or refuses to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act or omission or error, or excess, has resulted in manifest injustice." In that case, the impugned order did not work injustice to any party, rather it cured manifest illegality, and, therefore, the extraordinary jurisdiction of the Court was refused to be invoked. In my opinion, the facts of that case are clearly distinguishable and not applicable to the facts of the present case. 12. Applying the principle of natural justice to the present case, it is manifest that the order of the Government dated the 16th January, 1968, which is Annexure 7 to the writ application, is ultra vires and it must be quashed by a writ in the nature of certiorari under Article 226 of the Constitution. Accordingly, the application is allowed, but there will be no order as to cost. C.W.J.C. No. 238 of 1968. 13. Accordingly, the application is allowed, but there will be no order as to cost. C.W.J.C. No. 238 of 1968. 13. In this writ application, the petitioner, Shri Ranjit Sinha, has prayed for a declaration that the resolution passed by the Trust dated the 27th May, 1966, Annexure 6 of this petition, should be held illegal, ultra vires and of no effect and the Government order dated the 16th January, 1968, setting aside the above resolution be held as a valid order, and for the issue of a writ in the nature of mandamus restraining opposite party Nos. 1 and 2 giving effect to the impugned decisions and to make the appointment of the petitioner as Executive Engineer of the Trust from the 1st April, 1958. 14. Most of the material facts have already been given in C.W.J.C. No. 206 of 1968. The additional facts, which will be necessary for the decision of this application, are that the petitioner was appointed by the Trust in the design and planning section as Assistant Engineer on the 17th February, 1955, and he was third in the rank of the Assistant Engineers of the Trust. The seniority of the Assistant Engineers was fixed by the Trust by its resolution Nos. 4 and 5 of 1957. By virtue of these resolutions, the position of Shri Ranjit Sinha was fixed as the third, whereas that of Shri R.K. Akhauri was the fourth and of Shri S.v. Singh was the seventh (vide Annexure A of the counter-affidavit in C.W.J.C. No. 206 of 1968). In 1957, the topmost two Assistant Engineers were promoted as Executive Engineers, and one Shri J.P. Das had been directly appointed as one of the Executive Engineers of the Trust. In March, 1958, Shri J.P. Das resigned and consequent upon his resignation a post of Executive Engineer fell vacant on the 1st of April, 1958. 15. The Trust, opposite party No. 1, decided to fill up the vacancy caused by the resignation of Shri J.P. Das, and a resolution in this connection was passed on the 30th April, 1958, as follows: "Resolved unanimously that the recommendation of the Chief Engineer to promote Shri Ranjit Sinha, the Senior-most Assistant Trust Engineer to this post be accepted as required under Rule 23 of the Bihar Improvement Trusts Officers and Servants (Appointment, Classification, Conduct, Control and Punishment) Rules, 1956. His name be forwarded to the Public Service Commission through the State Government together with all the particulars for concurrence to the proposed promotion. Resolved further unanimously that as Shri Sinha has already been placed in charge of the Division with effect from 1st April, 1958 afternoon and is discharging his duties as such, he may be given a special duty allowance of Rs. 100.00 per month and car allowance of Rs. 100.00 per month with effect from the date tall the question of his promotion to the post of Executive Engineer is finally decided and in case he is ultimately promoted to the post of the Executive Engineer, then he be given the pay and allowance of this post with effect from the date of his actual holding charge of the Division, i.e., the 1st April, 1958 (afternoon)." 16. It is material at this stage to quote Rule 23 of the Bihar Improvement Trusts Officers and Servants (Appointment, Classification, Conduct, Control and Punishment) Rules, 1956, hereinafter referred to as the Rules: "When appointment to any of the posts referred to in Clauses (b) and (c) of Sec.28 is to be made by nomination the following procedure shall be followed: (i) The Chairman of the Trust shall forward to the Commission through the State Government the names of the candidates nominated for appointment by the Trust and along with the proposal for nomination the following information shall also be sent to the Commission by the Chairman of the Trust:- - (a) Academic and other qualifications and age of the candidate or candidates; (b) Service Books of the candidates; (c) Character Roll of the candidate or candidates; and (d) A copy of the resolution of the Trust nominating such candidate or candidates for appointment. (ii) The Commission shall after proper examination of the service records and other qualifications of the candidates either concur in the proposal of the Chairman or express its inability to do so for the specific reasons to be stated by it. (iii) In no circumstances the candidate in whose appointment the Commission has not concurred shall be appointed by the Trust." 17. (iii) In no circumstances the candidate in whose appointment the Commission has not concurred shall be appointed by the Trust." 17. In pursuance of the aforesaid resolution, the Chairman of the Trust, opposite Party No. 2, sent his recommendation to the Public Service Commission (hereinafter to be referred to as the Commission) for concurrence, but the Commission disagreed to concur in the promotion of the petitioner, which will appear from Annexure 1. On receipt of the aforesaid letter of the Commission, the Chairman of the Trust called for a fresh report from the Chief Engineer about the petitioners record of service, and the matter was again referred to the Commission seeking them to reconsider the case of the petitioner for concurrence. This time, the Commission desired that in order to enable them to reconsider the matter, a fresh resolution of the Trust was essential. In the circumstances, the matter was placed before the Board of the Trust (hereinafter referred to as the Board) again with a proposal that the Board may pass a suitable resolution. On the 11th February, 1963, the Board passed a resolution reiterating their previous decision taken in their previous resolution referring the case of the petitioner to the Commission for consideration and concurrence. On the 13th March, 1964, the Commission sent the recommendation to the Trust concurring in the promotion of the petitioner to the post of Executive Engineer with effect from the 1st January, 1962 (vide Annexure 3). The Trust on the aforesaid recommendation by its resolution No. 224/64 dated the 31st October, 1964, approved the appointment of the petitioner as Executive Engineer with effect from the 1st January, 1962 (vide Annexure 2-1). The petitioner made a representation to the Chairman of the Trust requesting that his appointment should be made effective from the 1st April, 1958, in accordance with the decision of the Board on the 30th April, 1958. The representation of the petitioner is contained in Annexure 5. 18. The petitioner, while functioning as Executive Engineer of the Trust, secured leave for advanced training abroad, and on the 16th July, 1966, he went out of India. The representation of the petitioner is contained in Annexure 5. 18. The petitioner, while functioning as Executive Engineer of the Trust, secured leave for advanced training abroad, and on the 16th July, 1966, he went out of India. In the meantime, on the 27th May, 1966, the impugned resolution was passed appointing Shri S.v. Singh, petitioner of C.W.J.C. No. 206 of 1968 and opposite Party No. 3 of this petition, on probation with effect from the 1st October, 1961 against the permanent post of Executive Engineer caused by the resignation of Shri J.P. Das and further confirming him on the said post with effect from the 1st October, 1963. 19. The petitioner filed a writ application (C.W.J.C. No. 563 of 1967) for quashing the order of the Board and for mandamus for his appointment as Executive Engineer in the Trust with effect from the 1st April, 1958; but before the final hearing of the above mentioned case the petitioner came to know that the resolution (Annexure 6) had been set aside by the Government of Bihar. In view of the above mentioned Government order and the assurance given on behalf of the Trust that the petitioners representation would be disposed of within three months, the said petition was withdrawn on the 20th March, 1968. 20. Thereafter, opposite party No. 3, Shri S.v. Singh filed a writ petition (C.W.J.C. No. 206 of 1968) challenging the validity of the above mentioned Government order which was admitted by this Court on the 27th March, 1968. Hence, the petitioner filed the present writ petition. 21. The contention on behalf of the petitioner is that the appointment of opposite party No. 3, Shri S.v. Singh, as Executive Engineer with effect from the 1st October, 1961, was illegal. The grounds given on behalf of the petitioner in support of the contention are that the appointment was not in pursuance of the recommendation of the Commission conveyed in the letter to the Government dated the 25th March, 1963 (vide Annexure 8). In this letter, the Commission had observed that two officers in order of seniority were considered as suitable for promotion to the two temporary posts of Executive Engineers in the Trust and they were (1) Shri R.K. Akhauri and (2) Shri S.v. Singh. The above recommendation was without prejudice to the claim of Shri Ranjit Sinha. In this letter, the Commission had observed that two officers in order of seniority were considered as suitable for promotion to the two temporary posts of Executive Engineers in the Trust and they were (1) Shri R.K. Akhauri and (2) Shri S.v. Singh. The above recommendation was without prejudice to the claim of Shri Ranjit Sinha. Further, the appointment had been made in clear violation of Rule 23 of the Rules. 22. In the counter-affidavit filed on behalf of the Trust and its Chairman, it is stated that the Trust could not have made the appointment of the petitioner in spite of its own resolution in 1958 or at any time between 1958 and 1st January, 1962 as the Commission had refused to concur in the appointment of the petitioner prior to the 1st January, 1962, and the petitioner had taken leave without a lien on the substantive post of Assistant Engineer. In the counter-affidavit filed on behalf of opposite party No. 3, the stand taken by the Trust and its Chairman was supported. There are several other supplementary affidavits filed on behalf of the parties in respect of their respective claims and counter-claims. 23. The contention of Mr. Basudeva Prasad, appearing for the petitioner, is that the Trust by its resolution No. 4-SPL/66 dated the 27th May, 1966, by which Shri S.v. Singh was appointed on probation with effect from the 1st October, 1961 against the permanent post of Executive Engineer caused by the resignation of Sri J.P. Das and further confirming him on the said post with effect from the 1st October, 1963, has prejudiced the case of the petitioner by making him junior to Shri S.v. Singh. He has submitted that the petitioner had already been appointed Executive Engineer in the vacancy caused by the resignation of Shri J.P. Das and he had a lien on the post while going out of India. Mr. B.C. Ghosh, learned Counsel appearing for opposite party No. 3, Shri S.v. Singh, contended that as both Shri Ranjit Sinha and Shri R.K. Akhauri were on leave without lien when the Trust passed the impugned resolution, the Trust acted bona fide and within its ambit. 24. Mr. B.C. Ghosh, learned Counsel appearing for opposite party No. 3, Shri S.v. Singh, contended that as both Shri Ranjit Sinha and Shri R.K. Akhauri were on leave without lien when the Trust passed the impugned resolution, the Trust acted bona fide and within its ambit. 24. Resolution No. 79/59 passed by the Board ordered that the petitioner be allowed to hold charge of the Division with effect from the 1st April, 1958, for which he was given a special duty allowance and car allowance till the question of his promotion was finally decided. The case of the petitioner was duly recommended to the Commission for concurrence as required under Rule 23 (ii) of the Rules. Though the Commission in the first instance refused to give concurrence, but subsequently on receipt of the letter from the Chairman, the matter was considered afresh and concurrence was given by the Commission for the appointment of the petitioner with effect from the 1st January, 1962. From the papers on the record, it appears that both Shri Ranjit Sinha and R.K. Akhauri had lien on their posts when they proceeded on leave and on deputation respectively. In this situation, resolution No. 4-SPL/66 passed by the Board on the 27th May, 1966, appointing Shri Singh on probation from the 1st October. 1961, against the permanent post of Executive Engineer caused by the resignation of Shri J.P. Das and confirming him on the said post with effect from the 1st October, 1963, is contrary to the provisions of the Act and the Rules. This resolution will surely affect the seniority of the petitioner and Shri R.K. Akhauri. In my opinion, the effect of the resolution would be to give seniority to Shri S.v. Singh over the petitioner and Shri R.K. Akhauri. It is noted in the resolution that the question of filling up the vacancy to the permanent post of Executive Engineer caused by the resignation of Shri S.R. Munipali would be taken up for consideration when both Shri R.K. Akhauri and R. Sinha or either of them returns back to the Trust. This clearly contemplates that on the appointment of the petitioner and Shri R. K. Akhauri when made, they would rank junior to Shri S. V/s. Singh. 25. This clearly contemplates that on the appointment of the petitioner and Shri R. K. Akhauri when made, they would rank junior to Shri S. V/s. Singh. 25. Learned counsel appearing for the respondents has submitted that as a matter of fact there are two more vacancies in the permanent post of Executive Engineers in the Trust, and the Trust would very likely appoint the petitioner and Shri R. K. Akhauri to those very posts and thereafter the seniority of the officers will be determined by the Trust inter se. If this be the position, I feel no hesitation in quashing the resolution No. 4-SPL/66 dated the 27th May, 1966, contained in Annexure 6, with a direction to the Trust to consider the representations made by the petitioner and Shri R.K. Akhauri vis-a-vis Shri S.v. Singh, and after appointing them to the remaining posts of Executive Engineers, settle their seniority at an early date. The Trust will also consider the claim of the petitioner as to whether the petitioner will take appointment from the 1st April, 1958, or from the 1st January, 1962, as concurred by the Commission. 26. As a result, the application is allowed subject to the observations made above; but, in the circumstances of the case, there will be no order for cost. C.W.J.C. No. 532 of 1968. 27. In this writ application, the petitioner, Shri Ranjit Sinha, has prayed for quashing resolution No. 4-SPL/66 of the Trust and for a direction to appoint the petitioner as Executive Engineer with effect from the 1st April, 1958, on the ground that the impugned resolution for appointment of opposite party No. 3, Shri S.v. Singh, as Executive Engineer is ultra vires of the Bihar Improvement Trusts Officers and Servants (Appointment. Classification, Conduct, Control and Punishment) Rules, 1956, hereinafter referred to as the Rules. 28. This application is also similar to the writ application numbered as C.W.J.C. No. 238 of 1968. This application has been filed by the petitioner in view of the fact that the Patna Improvement Trust (opposite party No. 1) has not carried out the direction given by this Court on the 20th March, 1968, in C.W.J.C. No. 563 of 1967. 29. The facts stated and the contentions raised by the petitioner in this writ application are similar to those given in C.W.J.C. No. 238 of 1968. 29. The facts stated and the contentions raised by the petitioner in this writ application are similar to those given in C.W.J.C. No. 238 of 1968. When C.W.J.C. No. 563 of 1967 came up for hearing it appeared from the affidavit filed by Shri Shatnajib Jha on behalf of the Trust that the representation of the petitioner was still pending and no final decision had been taken by the Trust on the same. In view of the observation made by the Hon ble Judges who heard the case to the effect that "we trust that the Patna Improvement Trust will dispose of the representation (Annexure E) within three months from today", the writ application was withdrawn. 29A. A counter-affidavit on behalf of the Trust has been filed in this case in which it has been explained that the disposal of the representation of the petitioner could not be done by the Trust, because the matter became pending before this Court in C.W.J.C. No. 206 of 1968 and C.W.J.C. No. 238 of 1968. 30. In view of the fact that resolution No. 4-SPL/66 dated the 27th May. 1966, has been quashed with a direction to the Trust to consider the representation made by the petitioner and Shri R.K. Akhauri vis-a-vis Shri S.v. Singh, this writ application has become infructuous. In the said case, a direction has also been given to the Trust to consider the claim of the petitioner as to whether the petitioner will take appointment from the 1st April, 1958, or from the 1st January, 1962, as concurred by the Commission. 31. For the reasons given above, it is not necessary to issue any writ or give further direction in this case. The writ application stands disposed of in terms of the order made in C.W.J.C. No. 238 of 11968. There will be no order for cost. Misra, J. 32 I agree.