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2004 DIGILAW 1704 (ALL)

RENU PRAKASH v. STATE OF U. P

2004-08-31

JAGDISH BHALLA, P.K.CHATTERJI

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( 1 ) (DELIVERED by Honble Jagdish Bhalla, J)By means of this writ petition the petitioner has questioned the validity and the correctness of the order dated 5th October, 1987 whereby the petitioner who was working as District Panchayat Raj officer after being selected, has been appointed afresh on the post of district Saving Officer. ( 2 ) THE factual matrix, for appreciating the points involved in the present writ petition, are stated herein. In response to an advertisement issued by the U. P. Public service Commission in the year 1981, petitioner applied for recruitment in various services including the post of District panchayat Raj Officer cadre. In the year 1982 the result of the aforesaid examination was declared in which petitioners named figured in the waiting list of the selected candidates. By the order dated 10th May, 1984 the petitioner was appointed as District panchayat Raj Officer in the pay scale of Rs. 770-40-1050-EB-50-1300-60-1420-EB-60-1600 and was posted in District Lakhimpur-Kheri. Subsequently, on 13th June, 1984 another order was issued modifying the earlier order dated 10. 5. 1984 and the petitioner was directed to report for duties as District Panchayat Raj Officer, Lucknow. The petitioner joined her duties on 15. 6. 1984. A perusal of the appointment letter contained in Annexure-1 to the writ petition reveals that on the basis of a selection and approval by U. P. Public service Commission against the selection held in the year 1981, the petitioner was appointed in the cadre of District Panchayat Raj officer and not in any other cadre. ( 3 ) IT is seen from the materials and judgment on record that the genesis of this litigation relating to fresh appointment of the petitioner as District Saving Officer is traceable to writ petition no. 5603 of 1984. That writ petition was filed by one Kapil Asthana. It is said that Kapil Asthana also appeared in the examination conducted by the U. P. Public Service Commission and when the result was declared he was placed in the waiting list but he could not get any appointment. ( 4 ) NAME of one Kapil Asthana had also figured in the waiting list alongwith the petitioner. However, he could not get any appointment. Aggrieved by the same Kapil Asthana filed writ petition no. 5603 of 1984. ( 4 ) NAME of one Kapil Asthana had also figured in the waiting list alongwith the petitioner. However, he could not get any appointment. Aggrieved by the same Kapil Asthana filed writ petition no. 5603 of 1984. This Court while allowing his writ petition issued a writ in the nature of mandamus to the opposite parties to consider the case of the petitioner (Kapil Asthana) for appointment in one of the unfilled vacancies said to be 15 in number in order of preference indicated by him and those who are above him in the merit list if they are still interested before making appointment of the said posts from any other list prepared in any subsequent year. ( 5 ) THE State Government while ensuring compliance of the aforesaid judgment dated 23. 2. 1987 appointed Kapil Asthana on the post of District Panchayat Raj Officer alongwith two others and in the process the petitioner was appointed afresh as District Saving Officer by the impugned order dated 5th October, 1987 issued by the State government. Sri Kapil Asthana was appointed as District Panchayat raj Officer, Jalaun whereas other three persons were also given appointment as District Panchayat Raj Officer at different places. Consequently, the Directorate of Saving issued the order no. 1331/1/87 dated 8th October, 1987 appointing the petitioner as district Saving Officer, Farukhabad. One of the conditions mentioned in the appointment order was that the petitioner shall be on probation for a period of two years, which if need be, can be extended for a period of one more year and she would be made confirmed only when the work and conduct of the petitioner is found satisfactory. ( 6 ) THE order dated 5. 10. 1987 issued by the State Government and 8th October, 1987 issued by the Directorate of Saving have been challenged by the petitioner in the present writ petition. ( 7 ) THE grievance of the petitioner is that her change of category i. e. from District Panchayat Raj Officer to District Saving Officer is said to have been made in compliance of the judgment passed in Writ petition No. 5603 of 1984 filed by Kapil Asthana, aforesaid. Learned counsel for the petitioner has asserted that no opportunity or show cause was given to the petitioner by the opposite parties prior to passing of the order dated 5. 10. 1987 and 8. 10. Learned counsel for the petitioner has asserted that no opportunity or show cause was given to the petitioner by the opposite parties prior to passing of the order dated 5. 10. 1987 and 8. 10. 1987 and the persons junior to the petitioner have been retained on the post of District panchayat Raj officer as such the impugned orders besides being in total disregard of the principles of natural justice are also hit by the provisions of Article 14 of the Constitution. Further, the impugned order dated 8. 10. 1987 provides fresh appointment on the post of district Saving Officer meaning thereby the services rendered by her as District Panchayat Raj Officer has gone to dustbin, without their being any fault on her part. Not only this, posting of the petitioner on the post of District Saving Officer will put the petitioner on a lower post and lower pay which amounts to reduction in rank. ( 8 ) ELABORATING further, learned Counsel for the petitioner submitted that from the judgment passed in Writ Petition No. 5603 of 1984, which was filed by Kapil Asthana, it is clear that Kapil Asthana was having no grievance against the appointment of the petitioner as district Panchayat Raj Officer. As a matter of fact, he was aggrieved, as he was not given appointment although 15 vacancies out of the advertisement of 1981 remained vacant because the selected candidate did not join. Further, the verdict of judgement speaks in volume for the adjustment of Kapil Asthana. No where the intention of the judgement was to annul the period of service rendered by her as District Panchayat Raj Officer and giving fresh appointment on the lower post of District Saving Officer under the garb of the judgment and order dated 23. 2. 1987 is unjust and unwarranted apart from being violative of the principles of natural justice. ( 9 ) WE would like to mention here that the present writ petition was filed about 17 years hence and a Division Bench of this Court while admitting the writ petition on 18. 12. 1987 has directed that the petitioner shall be continued on the post of District Panchayat Raj officer. This stay order is still subsisting. ( 9 ) WE would like to mention here that the present writ petition was filed about 17 years hence and a Division Bench of this Court while admitting the writ petition on 18. 12. 1987 has directed that the petitioner shall be continued on the post of District Panchayat Raj officer. This stay order is still subsisting. Moreover, it seems that the state is not interested in contesting the writ petition as inspite of long time having elapsed neither any application for vacation of stay order was moved nor any counter affidavit has been filed till date. Today, when the case came for hearing, the only argument advanced by the learned Standing Counsel is that the petitioner has been given fresh appointment in compliance of the High Courts directions issued in kapil Asthanas case. It was further contended by the learned Standing counsel that the petitioner has neither any right nor lien on the post of District Panchayat Raj Officer in light of direction issued by this honble Court in writ petition no. 5603 of 1984. ( 10 ) STATE authorities as well as the opposite party no. 5 disdained from filing any counter affidavit. In absence of the counter affidavit, the allegation made by the petitioner in the body of the writ petition remained uncontroverted. However, we have looked into the merits of the case. ( 11 ) SUNIFICANTLY, when the impugned order dated 5. 10. 1987 was passed; the petitioner had completed more than three and a half years of service on the post of District Panchayat Raj Officer. In paragraph 22 of the writ petition, it has been averred by the petitioner that in the Seniority List of District Panchayat Raj Officers published by the State Government on 31st July, 1986 her name was at serial no. 35. After retirement of certain persons and promotion of the incumbent above the petitioner in the seniority list, she was at serial no. 5. In these circumstances, the rights, which have accrued to the petitioner, cannot be taken abruptly. ( 12 ) AS far as allegation that no opportunity was given to the petitioner, it clearly emerges out from the record that no opportunity or show cause was given to the petitioner before changing her cadre, which in any case was mandatory upon the authorities concerned. ( 12 ) AS far as allegation that no opportunity was given to the petitioner, it clearly emerges out from the record that no opportunity or show cause was given to the petitioner before changing her cadre, which in any case was mandatory upon the authorities concerned. The Honble Supreme Court in iota of cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D. K. Yadav Vs. J. M. A. Industries; (1993) 3 SCC 259 the Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Honble Apex Court concluded as under: -" The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive. " ( 13 ) IN National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66 it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons. In the case at hand, the petitioner under the garb of the judgment in which neither she was party nor the petitioner of that writ petition, namely, Kapil Asthana had any grievance against the appointment of the petitioner as district Panchayat Raj Officer, as such changing the cadre and appointing the petitioner afresh on the post of District Saving Officer carrying lesser pay scale without following the minimum principles of natural justice vitiates the impugned order. ( 14 ) WE find force in the arguments of the learned counsel for the petitioner that passing of the said order without affording an opportunity to the petitioner, the change of status of the petitioner who had already completed his probation an was made confirmed in the cadre of District Panchayat Raj Officer; and giving her fresh appointment in the cadre of District Saving Officer on temporary basis and putting her again on probation of 2 years; is apart from being in total disregard of the principles of natural justice but also amounts to termination of her services. The intention of this Court in the judgement of Kapil Asthana was only to the extent that Kapil asthana be adjusted on one of the unfilled vacancies and not by replacing anyone who are already working in the cadre. Kapil asthana had only prayed to accommodate him by giving an appointment against one of the unfilled vacancies said to be 15 in number (two in U. P. Civil Services Executive Side, Seven in U. P. Police Services and six in Manager Handloom, Handicrafts, Textiles and Cooperative and Manager Marketing and Economic Survey ). ( 15 ) IN these circumstances while adjusting Kapil Asthana there were no reason to disturb the petitioner the way it has been done. The said action of the State and the Director is perfectly arbitrary and illegal. The effect of the impugned order amounts that petitioners services as District Panchayat Raj Officer stands extinguished irrespective of the fact that the date on which the impugned order was passed she had been working since last 3. years after completing necessary probation period. The impugned order was passed without issuing any show cause to the petitioner but palpably under the garb of the judgement of this court. Kapil Asthana could have been easily adjusted against a vacant vacancy of D. P. R. O. or any other unfilled vacancy as directed by this Court. The fact that the post of D. P. R. O. was vacant is crystal clear from the fact that 24 persons of the cadre have already retired. Further by the efflux of time, the petitioner had reached to serial no. The fact that the post of D. P. R. O. was vacant is crystal clear from the fact that 24 persons of the cadre have already retired. Further by the efflux of time, the petitioner had reached to serial no. 5 among the District Panchayat Raj officer and in all likelihood would have been granted promotion by now as she was allowed to continue on the post of District Panchayat raj Officer by the interim order dated 18. 12. 1987. We cannot ignore the fact that while passing the impugned order numbers of juniors to the petitioner were allowed to work on the post of District Panchayat raj Officer as it comes out from the record. Only to adjust Kapil asthana and two others the impugned order was passed against the petitioner under the garb of the judgment passed by this Court in the aforesaid writ petition. Therefore, in the absence of any counter affidavit denying the aforesaid facts, there is no impediment or difficulty in holding that the order dated 5. 10. 1987 and 8. 10. 1987 were passed in violation of the principles of natural justice. ( 16 ) ACCORDINGLY the writ petition is allowed. A writ in the nature of certiorari is issued and the impugned orders dated 05. 10. 1987 issued by the State Government and 08. 10. 1987 issued by the Directorate of saving, contained in annexure nos. 4 and 5 respectively are hereby quashed. The petitioner shall be allowed to continue in the cadre of district Panchayat Raj Officer and her original seniority in the cadre of District Panchayat Raj Officer shall be maintained with all consequential benefits of promotion etc.