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2019 DIGILAW 189 (UTT)

Devesh Kumar Sharma v. State of Uttarakhand

2019-03-12

N.S.DHANIK, RAMESH RANGANATHAN

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JUDGMENT : RAMESH RANGANATHAN, J. 1. Heard Mr. C.K. Sharma, learned counsel for the petitioner and Mr. Vikas Pande, learned Standing Counsel for the State of Uttarakhand and, with their consent, this writ petition is disposed of at the stage of admission. 2. This writ petition has been filed seeking a writ of certiorari to quash the order passed by the Secretary, Secondary Education, Government of Uttarakhand dated 30.08.2018, and a writ of mandamus directing respondent nos. 1 to 3 to allow the petitioner to join, and grant him all service benefits attached with his service conditions. 3. Facts, to the extent necessary, are that the petitioner, on his selection through the Uttar Pradesh Public Service Commission, was appointed as Principal, Government Inter College Paharpani, Nainital by order dated 19.04.1999. Selections to the post of Principal in Government Inter Colleges, during the relevant time, were made separately for the U.P. Hill Sub-Cadre, and for the U.P. Plains Cadre. While the petitioner was selected and appointed as a Principal in the U.P. Hill Sub-Cadre, one Mr. Devesh Kumar Mishra, who shared the same first name as that of the petitioner, was selected under the U.P. Plains Cadre. Erroneously the authorities concerned issued a corrigendum on 01.06.1999 stating that the petitioner was being posted as Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh (which forms part of the U.P. Plains Cadre). Taking advantage of this corrigendum (which was erroneously issued in his name), the petitioner joined as the Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh on 29.06.1999. A corrigendum was issued a day thereafter, by the Government of Uttar Pradesh, on 30.06.1999 placing Mr. Devesh Kumar Mishra, instead of the petitioner, at Serial No. 3 of the notification dated 01.06.1999. As a result of this corrigendum dated 30.06.1999, the petitioner was required to remain as Principal of the Government Inter College, Paharpani, Nainital, and Mr. Devesh Kumar Mishra was required to discharge his duties as the Principal of Government Inter College, Pipri, Sonbhadra, Uttar Pradesh. 4. The petitioner, however, questioned the corrigendum dated 30.06.1999 by way of Writ-A No. 32334 of 1999 before the Allahabad High Court and, by interim order dated 03.08.1999, operation of the order dated 30.06.1999 was directed to be stayed. Devesh Kumar Mishra was required to discharge his duties as the Principal of Government Inter College, Pipri, Sonbhadra, Uttar Pradesh. 4. The petitioner, however, questioned the corrigendum dated 30.06.1999 by way of Writ-A No. 32334 of 1999 before the Allahabad High Court and, by interim order dated 03.08.1999, operation of the order dated 30.06.1999 was directed to be stayed. As a result of this interim order, the petitioner continued to work as Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh till the year 2014 when Writ-A No. 32334 of 1999 was dismissed by the Allahabad High Court by order dated 07.03.2014. 5. In his order, in Writ-A No. 32334 of 1999 dated 07.03.2014, the learned Single Judge of the Allahabad High Court observed that the appointment letter dated 01.06.1999 clearly talked about appointment to the U.P. Plains Cadre; there was no occasion to place the petitioner at Serial No. 3 i.e. the post of Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh; there were two appointment letters, one issued for the U.P. Hill Sub-Cadre and one for the U.P. Plains Cadre; selections were also different; the discrepancy, which had cropped up due to inadvertence, in the appointment letter dated 01.06.1999 whereby, in the place of Mr. Devesh Kumar Mishra, Mr. Devesh Kumar Sharma had been shown, was rectified by the State Government by issuing a corrigendum dated 30.06.1999; under the protection of the interim order, the petitioner continued to work as Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh; as the petitioner had himself appeared in the selection process, and was issued an appointment letter for the post of Principal in the U.P. Hill Sub-Cadre, he could not have presumed that he had been shifted from the U.P. Hill Sub-Cadre to the U.P. Plains Cadre without following the prescribed procedure; there was no pleading on the part of the petitioner that, in effect, the subsequent appointment letter dated 01.06.1999, which talked about the U.P. Plains Cadre, entitled him to seek appointment to the post of Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh; it was apparent from the record that there were two different selections i.e. one for the U.P. Hill Sub-Cadre, and the other for the U.P. Plains Cadre; the petitioner was selected and appointed on 17.04.1999 only in the U.P. Hill Sub-Cadre; and, on the basis of another appointment letter dated 01.06.1999 issued in the name of Mr. Devesh Kumar Mishra, the petitioner had made claims to have been appointed to the Plains Cadre of the State of Uttar Pradesh. 6. The learned Single Judge further observed that no material was placed by the petitioner to show that he had participated in the selection process for the U.P. Plains Cadre, and that he was entitled for the said benefit; it was the petitioner’s responsibility to apprise the competent authority regarding the discrepancy; he should have informed them that he had not applied for the U.P. Plains Cadre, which he failed to do; and, concealing material facts, he had secured an ex parte interim order in his favour, even though he was fully conscious and aware of the fact that he had no entitlement to the post of Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh. 7. The learned Single Judge noted that Mr. Devesh Kumar Mishra, who was validly selected for the post of Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh, had died. While holding that the Court could visualize the traumatic situation of the deceased, though he was validly selected but unfortunately could not join as Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh, the learned Single Judge dismissed the writ petition as devoid of merits. 8. While holding that the Court could visualize the traumatic situation of the deceased, though he was validly selected but unfortunately could not join as Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh, the learned Single Judge dismissed the writ petition as devoid of merits. 8. Aggrieved thereby, the petitioner carried the matter in appeal and a Division Bench of the Allahabad High Court, in its order in Special Appeal No. 372 of 2014 dated 23.04.2014, observed that the petitioner had never pleaded, nor made any representation, that, since he had applied for both “Hills Cadre” and “Plains Cadre” and was selected for both the Cadres, he should be either allowed to be appointed to serve in the plains, or that his option for plains should be considered; the petitioner’s joining as Principal at Government Inter College, Pipri, Sonbhadra, Uttar Pradesh was not a bonafide act on his part; if he had joined in a bonafide manner, there was no occasion for him to give his option to be adjusted in the Plains Cadre; and this option, exercised by the petitioner, clearly demonstrated that he was fully aware that he was never selected for the Plains Cadre; he had taken advantage of a mistake, after which he joined as Principal of the Government Inter College, Pipri, Sonbhadra, Uttar Pradesh, and he had obtained an interim order against the order cancelling his posting in the plains cadre at Government Inter College, Pipri, Sonbhadra. The Special Appeal was dismissed holding that there was no error of law in the judgment of the learned Single Judge. 9. Aggrieved thereby, the petitioner carried the matter in appeal to the Supreme Court and, by order in Petition for Special Leave to Appeal (C) No. 20938 of 2014 dated 04.01.2018, the Supreme Court found no reason to interfere with the impugned order passed by the Allahabad High Court and, accordingly, dismissed the Petition for Special Leave to Appeal. While doing so, the Supreme Court observed that, if the petitioner wanted to make a representation for his absorption in the State of Uttarakhand, he was at liberty to make such a representation. 10. Even after the Special Appeal preferred by the petitioner was dismissed by the Allahabad High Court on 23.04.2014, the petitioner continued to function as the Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh. 10. Even after the Special Appeal preferred by the petitioner was dismissed by the Allahabad High Court on 23.04.2014, the petitioner continued to function as the Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh. It is only after the order of the Supreme Court dated 04.01.2018, that the District Inspector of Schools (DIOS) passed an order on 15.01.2018 directing the petitioner to hand-over charge of the post of Principal to the senior most teacher working in the said College. The petitioner questioned the said order in Writ – A No. – 3093 of 2018 contending that he had no role to play in his placement; since he was a selected candidate, he could not be denied continuity of service; and in case he handed-over charge, without being posted elsewhere, there would be a break in his service. The Division Bench of the Allahabad High Court held that the petitioner was never posted as Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh; since the matter had attained finality, he could not continue as a Principal of the said Government Inter College; and if the transfer order of the petitioner was illegal, his posting would be at Government Inter College, Paharpani, Nainital where he was posted at the initial stage, but he had left in view of the subsequent order of his posting at Sonbhadra. While opining that the petitioner had a right/claim on the post of Principal, Government Inter College, Paharpani, Nainital, the Division bench observed that the said College was no longer within the domain of the State of U.P., and it was for this reason that the Supreme Court, while dismissing the SLP of the petitioner, had permitted him to make a representation to the Chief Secretary, Education of the State of Uttarakhand for necessary orders with regard to his posting. 11. While taking note of the fact that the petitioner had submitted a representation on 16.01.2018 and the same was pending consideration, the Division Bench of the Allahabad High Court permitted the petitioner to make a fresh representation to the Chief Secretary, Secondary Education, U.P. within a period of three weeks in furtherance of his earlier representation dated 16.01.2016, marking a copy thereof to the Chief Secretary, Secondary Education, State of Uttaranchal. The Division Bench opined that, in case such a representation was filed, the Chief Secretary, Secondary Education, U.P. shall consider it, in the light of the directions of the Supreme Court, in consultation, if necessary, with the Chief Secretary, Secondary Education, State of Uttaranchal, keeping in mind that no break in service of the petitioner was occasioned; and, if any such break arises, the same may be considered for condonation, as a special case, subject to further proceedings and joining of the petitioner at the appropriate place. 12. Thereafter, the petitioner submitted another representation to the Chief Secretary, Government of Uttar Pradesh on 17.02.2018 who, by his proceedings dated 07.02.2018, informed the petitioner that, pursuant to the order of the Allahabad High Court dated 07.03.2014 and 23.04.2014, and the order of the Supreme Court dated 04.01.2018, the Governor was pleased to give acceptance to remove him as Principal, Government Inter College, Pipri, Sonbhadra from the service of the U.P. (General Education Cadre) Service Group “B”. The petitioner’s representation dated 12.01.2018 was also considered by the Secretary, Intermediate Education Department, Government of Uttarakhand and, by order dated 30.08.2018, he was informed that, since he has been removed by the Government of Uttar Pradesh, he was not a government servant; and, because of this, he could not be taken into the service of the State of Uttarakhand. Holding that the petitioner’s representation dated 12.01.2018 was not admissible, his representation was dismissed. Questioning the same, the petitioner has approached this Court. 13. It is not in dispute that the petitioner was selected by the Uttar Pradesh Public Service Commission for appointment to the post of a Principal in the U.P. Hill Sub-Cadre, and was rightly appointed and posted at the Government Intermediate College, Paharpani at Nainital. The subsequent error on the part of the officials, in issuing a corrigendum on 01.06.1999 stating that the petitioner was appointed and posted as Principal, Government Intermediate College, Pipri, Sonbhadra (in the Plains Cadre of the State of Uttar Pradesh), no doubt, resulted in the petitioner taking advantage of the error on the part of the officials, and in joining as Principal of the Government Inter College, Pipri, Sonbhadra, Uttar Pradesh. While the authorities concerned, on realizing their error, issued a corrigendum on 30.06.1999, the petitioner, who had already joined at the Government Inter College, Pipri, Sonbhadra prior thereto, approached the Allahabad High Court and obtained an interim order on 03.08.1999, which continued to remain in force till Writ – A No. 32334 of 1999 was finally dismissed on 07.03.2014. Just a year after the petitioner obtained an interim order in the Writ Petition filed before the Allahabad High Court, the State of Uttarakhand came into being on 09.11.2000; and employees, selected and appointed to various posts in the U.P. Hill Sub-Cadre, became the employees of the Government of Uttarakhand. The petitioner, having been selected and appointed to a post in the U.P. Hill Sub-Cadre, would consequently have become a government servant holding a post under the State of Uttarakhand. The fact that he continued to hold the post of Principal of the Government Inter College, Pipri, Sonbhadra, Uttar Pradesh, in the light of the interim order passed by the Allahabad High Court, did not result in his ceasing to be a government servant working in a post under the control of the Government of Uttarakhand. 14. Dismissal of Writ-A No. 32334 of 1999 by the learned Single Judge and Special Appeal No. 372 of 2014 by a Division Bench of the Allahabad High Court, and the SLP preferred thereagainst being dismissed by the Supreme Court, only resulted in the petitioner ceasing to have any right to hold the post of Principal, Government Inter College, Pipri, Sonbhadra, which is a College in the Plains Cadre of the State of Uttar Pradesh. The petitioner’s representation to the Chief Secretary to the Government of Uttarakhand was rightly rejected as he ceased, consequent on his no longer having the protection of the interim order of the Allahabad High Court, to be entitled to continue as Principal, Government Inter College, Pipri, Sonbhadra, Uttar Pradesh, since his selection and appointment in the year 1999 was not to a post in the Plains Cadre of the State of Uttar Pradesh, but in the U.P. Hill Sub-Cadre. 15. The mere fact that the Government of Uttar Pradesh, by proceedings dated 07.02.2018, removed the petitioner from service, as Principal of the Government Inter College, Pipri, Sonbhadra, Uttar Pradesh, did not mean that he ceased to be a government servant. 15. The mere fact that the Government of Uttar Pradesh, by proceedings dated 07.02.2018, removed the petitioner from service, as Principal of the Government Inter College, Pipri, Sonbhadra, Uttar Pradesh, did not mean that he ceased to be a government servant. All that it meant was that he was no longer a government servant, holding a post under the control of the State of Uttar Pradesh. Removal, by order dated 07.02.2018, was not as a measure of punishment, but was only because the petitioner was not a government servant holding a post under the control of the State of Uttar Pradesh. The mere fact that the Chief Secretary, Government of Uttar Pradesh had, by order dated 07.02.2018, informed the petitioner that he was removed from the U.P. (General Education Cadre) Service Group “B” did not justify the office order dated 30.08.2018 being passed by the Government of Uttarakhand holding that the petitioner ceased to be a government servant. The petitioner ceased to be a government servant, holding a post under the control of the Government of Uttar Pradesh, consequent on the order dated 07.02.2018 being issued. He was, however, entitled to be considered for absorption in the Uttarakhand (General Education Cadre) Service Group “B”, since he was selected and appointed on 19.04.1999 in the U.P. Hill Sub-Cadre, which now forms part of the Uttarakhand (General Education Cadre) Service Group “B”. 16. While we are satisfied that the impugned order dated 30.08.2018 necessitates being set aside, and that the first respondent should be directed to consider the petitioner’s representation for being posted as a Principal in any of the Government Intermediate Colleges in the State of Uttarakhand, the escapades of the petitioner and his taking advantage of a bonafide mistake on the part of the officials in erroneously issuing the corrigendum dated 01.06.1999, cannot be ignored; and the petitioner cannot be permitted to take advantage of his surreptitious acts. It is only because the petitioner took advantage of the error on the part of the officials, in issuing the corrigendum dated 01.06.1999, and had obtained an interim order, that he continued as Principal of Government Inter College, Pipri, Sonbhadra from 29.06.1999 (when he joined the post) till the District Inspector of Schools directed him, to hand-over charge of the said post, vide proceedings dated 15.01.2018. 17. 17. The maxim “actus curiae neminem gravabit”, which means that the act of Court shall prejudice no one, is applicable to the facts of the present case. In such a situation, the Court is under an obligation to undo the wrong done to a party by the act of the Court. Any undeserved or unfair advantage gained by a party, invoking the jurisdiction of the Court, must be neutralized as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. (Kalabharati Avertising v. Hemant Vimalnath Narichania : (2010) 9 SCC 437 ; A.R. Sircar (Dr) v. State of U.P. : 1993 Suppl. (2) SCC 734; Shivsankar v. Board of Directors, U.P.SRTC : 1995 Suppl (2) SCC 726; Inter College, Arya Nagar Kanpur v. Sree Kumar Tiwary : (1997) 4 SCC 388 ; GTC Industries Limited v. Union of India : (1998) 3 SCC 376 ; and Jaipur Municipal Corporation v. C.L Mishra : (2005) 8 SCC 423 ). No person can suffer from the act of the Court. In case an interim order has been passed and the petitioner takes advantage thereof, and ultimately the petition stands dismissed, interests of justice requires that any undeserved or unfair advantage gained by a party, invoking the jurisdiction of the Court, must be neutralized. (Ramakrishna Verma v. State of U.P. : (1992) 2 SCC 620 ; Grindlays Bank Ltd. v. ITO : (1980) 2 SCC 191 ; Mahadeo Savlaram Shelke v. Pune Municipal Corporation : (1995) 3 SCC 33 ). 18. Consequent upon dismissal of the SLP by the Supreme Court, and his being directed by proceedings dated 15.01.2018 to hand-over charge of the post of Principal, the petitioner has not been working ever since 17.01.2018 when he was relieved as Principal, Government Inter College, Pipri, Sonbhadra. Till orders are passed afresh by the first respondent, and the petitioner is issued posting orders consequent thereto, he shall not be entitled for salary during this intervening period on the principle of “no work no pay”. The first respondent shall reconsider the petitioner’s representation at the earliest and, in any event, not later than four weeks from the date of receipt of a copy of this order. 19. The writ petition is, accordingly, disposed of. However, in the circumstances, without costs.