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2017 DIGILAW 1253 (ALL)

STATE OF U. P. v. SUBODH KUMAR GUPTA

2017-05-11

ARUN TANDON, REKHA DIKSHIT

body2017
JUDGMENT Ref: Order on Special Appeal Defective No. 596 of 2016 By the Court.—This intra Court appeal is directed against the judgment and order of the learned Single Judge dated 15.7.2016 whereunder the learned Single Judge has been pleased to hold that the order terminating the services of the petitioner dated 29.11.2012 passed by the District Magistrate under Section 34 of the U.P. Municipalities Act, 1916 (hereinafter referred to as ‘Act’) was legally not sustainable. It has been recorded that the appointment had been made under Section 17 of the Act with the approval of the Chairman of the Municipal Board and that such appointment could have been cancelled only after following the provisions of the U.P. Municipal Board Servants (Inquiry, Punishment and Termination of Services) Rules, 1960. 2. On behalf of the State, it has been contended that the legal principles laid down in the said judgment can hardly be disputed but however one of the grounds raised before the learned Single Judge was that the petitioners were offered appointment without any advertisement in the newspaper and therefore, such appointment was a backdoor entry being hit by the Article 14 of the Constitution of India, such appointment would confer no legal right upon the petitioner to seek protection from this Court under Article 226 of the Constitution of India. It is contended that whatever may be the illegality in the order of the District Magistrate terminating the services of the writ petitioners vide order dated 29.11.2012 this Court under Article 226 of the Constitution of India should not have interfered with such an order, inasmuch as, the order of the District Magistrate dated 29.11.2012, on being set aside would result in continuance of an illegal appointee. This aspect of the matter has escaped attention of the learned Single Judge despite specific objection in that regard having been taken. 3. Learned counsel for the respondents in reply supports the judgment and order of learned Single Judge and submits that in the facts of the case having regard to the law which has been laid down in the matter of termination of services of such employees and there being manifest violation of principle of natural justice, the present intra Court appeal may not be entertained. 4. We have heard learned counsel for the parties and examined the record in the present writ petition. 5. 4. We have heard learned counsel for the parties and examined the record in the present writ petition. 5. From the records, we find that on behalf of the State, a specific objection was taken before the learned Single Judge qua the appointment of the writ petitioners having been made without advertisement in newspapers thereby the right to participate in the process of the selection to similarly situated person had been denied. 6. It was the case of the State that such appointments are in violation of Article 14 of the Constitution of India, therefore a nullity. The learned Single Judge has not returned any finding on the aforesaid aspect of the matter. 7. The Apex Court has repeatedly held that any appointment in public service has to be made in confirmity with Article 14 of Constitution of India and after due advertisement. Reference in that regard may be had to the judgment of the Apex Court in the case of Renu and others v. District and Sessions Judge, Teesh Hajari Court, Delhi, 2014(1) ESC 58 (SC). 8. A Special Bench of this Court has also taken a similar view in Public Interest Litigation No. 54860 of 2004: In Re: Regularization of Class IV Employees of the High Court of Judicature at Allahabad, 2013(8) ADJ 43 (Larger Bench). 9. In view of the plea taken by the State Government to the effect that the appointment claimed by the writ petitioner was violation of Article 14 of Constitution of India being a backdoor entry, the minimum required from the Writ Court was to consider the aforesaid objection and to record its reasons for accepting or not accepting the said plea. 10. The Apex Court has repeatedly held that the High Court shall not exercise its powers under Article 226 of the Constitution of India by interfering with an order, which has the affect of restoring an earlier illegal order. [Reference. Gadde Venkateshwara Rao v. Government of Andhra Pradesh and others, AIR 1966 SC 828 and in the case of Mallikarjuna Muddnagal Nagappa and others v. State of Karnataka and others, (2000) 7 SCC 238 ] 11. For all the aforesaid reasons, the judgement and order of the learned Single Judge dated 15.7.2016 is hereby set aside. [Reference. Gadde Venkateshwara Rao v. Government of Andhra Pradesh and others, AIR 1966 SC 828 and in the case of Mallikarjuna Muddnagal Nagappa and others v. State of Karnataka and others, (2000) 7 SCC 238 ] 11. For all the aforesaid reasons, the judgement and order of the learned Single Judge dated 15.7.2016 is hereby set aside. Writ petition is restored to its original number with a request upon the learned Single Judge to consider and decide the writ petition afresh after affording opportunity of hearing to the parties concerned, by means of the reasoned order, keeping in mind the observations made hereinabove. 12. The appeal is allowed.