Sudhir Chandra Chaudhary v. Commissioner, Nainital
2007-11-26
P.C.VERMA
body2007
DigiLaw.ai
Judgment By means of this writ petition, the petitioner has challenged the order dated 18-10-2000, by which the Commissioner, Kumaon Division has reviewed the order dated 22-9-1999 passed prior to the re-organisation of the State. The petitioner S.C. Chaudhary filed an appeal before the Commissioner, Kumaon Division claiming his promotion on the post of Office Superintendent. The Commissioner decided the appeal! representation holding Sri S.C. Chaudhary to be fully eligible and qualified to be promoted and Amrit Singh was not found eligible. This was the dispute for promotion between S.C. Chaudhary and Amrit Singh. In compliance of the Commissioner's order, the Chairman, Zila Parishad promoted Sri S.C. Chaudhary on the post of Office Superintendent and put him on probation for one year. Thereafter the petitioner continued to work as Office Superintendent. 2. Feeling aggrieved by the promotion of the petitioner, Smt. Heema Joshi filed a writ petition and the High Court while entertaining the writ petition passed the following order: "Issue notice. In the meantime, the operation of order dt. 4-4-92 passed by the Commissioner shall remain stayed. Until further order, respondent No.4 is restrained from functioning as Office Superintendent in Zila Parishad Nainital. Dt. 6-12-1993. S.D. A.P.S., J" 3. The writ petition was contested by the petitioner and by the order dated 24-21995, the High Court vacated the interim order dated 6-12-1993. The order dated 24-12-1995 is reproduced as under: "Taken up on revised list. Stay vacation application dt. 21-4-94 is put up for orders. Learned counsel Sri H.N. Singh presses this petition and points out that the petitioner is avoiding to utilize the fruits of the stay order granted in their favour by this court on 6-12-93. His submission is that respondent no. 4 in the writ petition has got an order from U.P. Lok Sewa Ayog and he is functioning as Office Superintendent since 1992 when the order of Commissioner dt. 4-4-92 was passed in his favour. According to him stay granted by this court on 6-12-93 has unsettled the settled things and now the petitioners are avoiding and not appearing before the court. The petition is perhaps now centered only on the question whether the respondent no. 4 should continue as Office Superintendent or not. The stay granted against respondent-4, who is applicant in this stay vacation application is creating legal prudent against the functioning of the official of Zila Parishad Nainital.
The petition is perhaps now centered only on the question whether the respondent no. 4 should continue as Office Superintendent or not. The stay granted against respondent-4, who is applicant in this stay vacation application is creating legal prudent against the functioning of the official of Zila Parishad Nainital. I think any stay is not at all warranted in this case in the present nature of the dispute. Accordingly the interim stay order dt. 6-12-93 is vacated allowing the application of respondent-4. Sd./R.K. Singh, J. Dt./24-2-95." 4. Thereafter on the direction of Assistant Director, Local Funds &Audits dated 225-1998, the Chairman, Zila Parishad, Nainital passed a fresh order on 29-8-1998 reverting the petitioner to the post of Accounts Clerk. A perusal of the order shows that this reversion was on account of some illegal payment made by the petitioner. It was further provided in the order that the recovery order shall be issued separately. 5. Against the order dated 29-8-1998, the petitioner filed a fresh writ petition bearing no. 3360/1998. The writ petition was disposed of directing the petitioner to file an appeal under Rule 41 (3) of the U.P. Zila Parishad Service Rules 1970. 6. The petitioner filed the appeal on 10-11-1998 as per order of the High Court dated 23-10-1998. The appeal was allowed vide order dated 22-02-1999. In compliance of the order dated 22-02-1999 passed by the Appellate Authority Le. Commissioner, Kumaon Division, Nainital, the order dated 22-08-1998 reverting the petitioner was set aside and copy thereof was sent to Sri S.C. Chaudhari designating him as Office Superintendent, Zila Parishad, Nainital. 7. Smt. Heema Joshi filed a review petition before the Appellate Authority i.e. Commissioner, Kumaon Division to review the order dated 22-02-1999. A perusal of the order passed in review petition, which is impugned in this writ petition, reveals that the Commissioner has reviewed not only the order dated 22-2-1999 but has also reviewed the order dated 4-4-1992, though the review of the said order was not sought, in which the total length of service was counted for reckoning the seniority of Sri S.C. Chaudhary and accordingly, 'he was promoted. The Commissioner, Kumaon Division fell into error in not appreciating the fact that the appeal of Sri S.C. Chaudhary was against the reversal order dated 28-8~ 1998.
The Commissioner, Kumaon Division fell into error in not appreciating the fact that the appeal of Sri S.C. Chaudhary was against the reversal order dated 28-8~ 1998. There was no reason indicated in the reversal order for which the petitioner was reverted, only reference is of the direction of Assistant Director, Local Funds &Audits and direction of Commissioner dated 8-6-1998 and the order of the Collector dated 27-5-1998. These directions have not been discussed on merit by the Commissioner, Kumaon Division in the impugned order. No opportunity of hearing was given to the petitioner to represent his case against the directions issued by the Assistant Director, Local Funds & Audit and the order of the Commissioner dated 8-6-1998 and the order of the Collector dated 27-5-1998. 8. From the perusal, it appears that the Assistant Director, Local Funds & Audits, directed the reversion of the petitioner by his letter dated 22-5-1998 ignoring the decision of the appellate authority Le. Commissioner, Kumaon Division dated 22-02-1999 and did no consider the order of the Commissioner dated 4-4-1992 and 13-4-1992 and the order of the High Court vacating the interim order restraining the petitioner to function as Office Superintendent. The Commissioner, Kumaon Division in the review petition though have taken into account the orders passed on 4-4-1992 and the consequential order, but has ignored that in writ petition filed by Smt. Heema Joshi, High Court has vacated the interim order and allowed Sri S.C. Chaudhary to function as Office Superintendent. The Commissioner, Kumaon Division has further ignored the fact that the• promotion of the petitioner Sri S.C. Chaudhary was duly approved by the Public Service Commission, which was stated in the affidavit filed in support of application for vacation of interim order. Thus the Commissioner, Kumaon Division, had to consider as to whether the dictate of Assistant Director was prevail over the quasi judicial decision of the appellate authority passed under Section 41 (1) of the U.P. Zila Parishad Service Rules, 1970. The quasi judicial order was binding upon the Assistant Director as well as the District Magistrate and the Commissioner both on the administrative side. Even the administrative discretion amounts to abdication of discretion when it is exercised at the dictate as held by the Hon'ble Apex Court in Purtabpur Company Ltd. v. State of Bihar reported in AIR 1970 SC 1896.
Even the administrative discretion amounts to abdication of discretion when it is exercised at the dictate as held by the Hon'ble Apex Court in Purtabpur Company Ltd. v. State of Bihar reported in AIR 1970 SC 1896. The Commissioner, Kumaon Division failed to appreciate that the order of reversion was passed without affording any opportunity to the petitioner as he has completed his probation period of one year and thereafter he has successfully rendered 7 years' service. Thus, the order of the Commissioner cannot be sustained on merit. 9. The order of the Commissioner suffers from the jurisdictional error as well. It is the settled law that power of review is a statutory power and can only be exercised when it is conferred specifically by the Statute. Neither under the Zila Parishad Act nor under the rules framed thereunder, the power of review has been conferred upon the appellate authority. Reliance is placed upon the case of Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Ors. reported in (1987) 4 SCC 525, wherein the Hon'ble Apex Court has held as under: "It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without• jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice-Chancellor dated March 7, 1987 was a nullity." 10. For the reasons recorded above, order dated 18-10-2000 passed by the Commissioner, Kumaon Division and consequential order dated 31-10-2000 passed by the Chairman, Zila Parishad, Nainital is set aside. Petition is allowed. No order as to costs.