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2004 DIGILAW 383 (ALL)

HARISH CHANDRA CHAUHAN v. STATE OF U. P

2004-02-25

G.K.GUPTA, JAGDISH BHALLA

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JAGDISH BHALLA, J. ( 1 ) PETITIONER was initially appointed as Assistant Engineer [e/m] in the U. P. Palika Centralised Services on 28. 10. 1977 and worked on the above in various districts of the State. In 1980-81 Kanpur Urban development Project with the financial assistance of the World Bank started and in this respect, it is said that an Agreement was also executed between the World Bank and State of U. P. As a consequence of this Agreement, by the G. O. dated 14. 6. 1984 read with G. O. dated 23. 6. 1984 a City Cleansing Department was created having one post of director and a post of Deputy Director in addition to other staff. Petitioner being the senior most Mechanical Engineer at kanpur was appointed as Deputy Director on 23. 2. 1985. In absence of any regular Director, one Sri J. C. Seth, who at that time was holding the post of Up Nagar Adhikari, Kanpur was given the charge of Director, City cleansing and thereafter Chief Engineer, Shri Sudhir Mehta took the charge of Director. On retirement of Shri Sudhir Mehta, the post of director, City Cleansing, which was a non-centralized post was advertised in the year 1986. On the recommendations made by the administrator [mukhya Nagar Adhikari ] and Mayor, Kanpur the State government considered the candidature of the petitioner alongwith others. As the petitioner was found fit, the State Government appointed the petitioner on the aforesaid post of Director, City Cleansing in the pay scale of Rs. 3700-5000. ( 2 ) ADMITTEDLY, petitioner continued to function as Director [city cleansing], which was a non-centralized post. On 20. 3. 1992, the State government amended the U. P. Palika Centralised Service Rules, 1966 by u. P. Palika [centralised Services] (Seventeenth Amendment) Rules, 1992. By the aforesaid amendment, Rule 3 of the Services Rules, 1966 was also amended and the post of Director and Deputy Director, City cleansing were also included in the Centralised Services. In pursuance of the aforesaid amendment in Rule 3 of the Service Rules, 1966, the state Government passed the order dated 23rd May, 1992 for absorption of the petitioner on the post of Director under Centralised Services. According to the petitioner, he became permanent in view of the G. O. dated 3. 4. 1979. In pursuance of the aforesaid amendment in Rule 3 of the Service Rules, 1966, the state Government passed the order dated 23rd May, 1992 for absorption of the petitioner on the post of Director under Centralised Services. According to the petitioner, he became permanent in view of the G. O. dated 3. 4. 1979. ( 3 ) THE grievance of the petitioner is that without affording any opportunity or show-cause, the order dated 8. 3. 1994 has been issued. By the impugned order dated 8. 3. 1994, the notification dated 20th march, 1992 has been rescinded and in the process the post of the director, City Cleansing came out of the Centralised Services. As a consequence whereof, the petitioner was placed on his earlier post of executive Engineer and given posting in Nagar Mahapalika, Kanpur. ( 4 ) THE main contention of the learned Counsel for the petitioner is that the Statutory Rules cannot be rescinded, altered or amended by any executive order as such the impugned order is illegal. According to learned Counsel, U. P. Palika (Centralised )Service (Seventeenth)Amendment Rules, 1992 were published in the Official Gazette as such it has a statutory force. Further, before passing the impugned order contained in Annexure-11 to the writ petition, neither any show cause was issued to the petitioner nor he was afforded any opportunity and on this ground alone, the impugned order is liable to be quashed being violative of the principles of natural justice. In support of his above contentions, learned Counsel for the petitioner has placed reliance on 1987 (1) SCC 658 ; B. K. Srinivasan and others vs. State of Karnataka and others, (1998) 8 SCC 469 K. Kuppusamy vs. State of Tamil Nadu. Lastly, it has been argued by the learned Counsel for the petitioner that the petitioner was given appointment after due selection and was discharging duties with due diligence in the scale of pay which was equivalent to the pay scale of Chief Engineer. Later on, he was absorbed in pursuance of the Amendment in the Service Rules, 1966 as such the rights and lien which have accrued to the petitioner cannot be undone by an executive order without there being any valid legislation altering or amending the said provision. In this connection, reliance has been placed on AIR 1987 SC 1858 ; K. C. Arora vs. State of Haryana and AIR 1979 crl. In this connection, reliance has been placed on AIR 1987 SC 1858 ; K. C. Arora vs. State of Haryana and AIR 1979 crl. L. J. ; Mehboob Raza Khan vs. Mohd. Sah Khan. Plea of legitimate expectation was also raised during the course of arguments. ( 5 ) LEARNED Counsel appearing for the respondents argued that the petitioner has rightly been reverted as the notification by which the post was included in the Centralised Services has been rescinded and further it was also found that the power of appointment on the post of Director, city Cleansing does not vest in the State Government as such there is no illegality in the impugned order. Further, the benefit of Government order dated 3. 4. 1979 cannot be extended to the petitioner as it was applicable to only those employees, who were working at the time when U. P. Centralised Services Rules, 1966 were enforced. No other point was pressed by the Counsel for the opposite parties. ( 6 ) WE have gone through the materials on record and have examined the submissions made by the learned Counsel for the parties. ( 7 ) ADMITTEDLY, U. P. Palika (Centralised)Service Rules, 1966 were amended by U. P. Palika (Centralised )Services (Seventeenth Amendment)Rules, 1992 and the post of Director, City Cleansing was included in the centralised Services and pursuant to the said Amendment, an order absorbing the petitioner in Centralised Services was also passed on 23rd may, 1992. ( 8 ) IT is settled law that statutory rules cannot be overridden by executive orders or executive practice as such the impugned order dated 8th March, 1994 passed by the State Government is merely an executive order which has been passed without there being any alteration or amendment in Rule 3 of the Amended Service Rules, 1992 by which post of Director was included in Centralised Services. In K. C. Arora case [supra] it has been held that vested rights acquired under existing laws cannot be taken so as to contravene fundamental rights. ( 9 ) IN D. K. Yadav v. J. M. A. Industries Ltd. (1993) 3 SCC 259 the honble Supreme Court articulated that an order involving civil consequences must be made consistently with the rules of natural justice but in the instant case no opportunity whatsoever was given by the respondent before issuing the order dated 8th March, 1994. ( 9 ) IN D. K. Yadav v. J. M. A. Industries Ltd. (1993) 3 SCC 259 the honble Supreme Court articulated that an order involving civil consequences must be made consistently with the rules of natural justice but in the instant case no opportunity whatsoever was given by the respondent before issuing the order dated 8th March, 1994. ( 10 ) 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. ( 11 ) IN a case of legitimate expectation if the authority proposes to defeat a persons legitimate expectation it should afford him an opportunity to make representations in the matter, which the respondents did not follow in the case at hand. Counsel for the respondents have failed to establish that any opportunity or show cause was ever given to the petitioner before passing the impugned order and on this ground the writ petition deserves to succeed. ( 12 ) ACCORDINGLY, the order-dated 8. 3. 1994 contained in Annexure-11 to the writ petition is hereby quashed. The petitioner shall be allowed to function, as Director, City Cleansing and he will be entitled to all the benefits. However, it is made clear that the State Government is free to proceed in accordance with law. .