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Allahabad High Court · body

2019 DIGILAW 2047 (ALL)

State of U. P. v. Jagannath

2019-09-03

JASPREET SINGH, P.K.JAISWAL

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ORDER : 1. Heard Shri Q.H. Rizvi, learned Additional Chief Standing Counsel for the appellants-State and Dr. V.K. Singh, learned counsel for the private-respondent. 2. It has been reported that the above appeal is barred by 81 days. 3. We have perused the affidavit filed in support of the application for condonation of delay. On due consideration, the application for condonation of delay is allowed and the delay in filing the special appeal is condoned. 4. The appellants have challenged the order dated 05.02.2019, passed by the learned Single Judge in Writ Petition No. 3640 (S/S) of 2018, whereby it has quashed the impugned order dated 22.01.2018 while allowing the writ petition and has directed the appellants to permit the private-respondent to continue on the post of Additional Statistic Officer and to provide all consequential benefits in pursuance thereof. 5. The learned counsel for the appellants has submitted that the learned Single Judge has failed to note that the respondent had joined on the post of Assistant Teacher (LT-Grade) as a confirmed employee and this led to the termination of the lien from the post of Assistant Development Officer (Statistic) and thereafter it was not permissible for the respondent to join on the said post. It has been submitted by the learned counsel for the appellants that the learned Single Judge has noted that certain officers were also relieved without lien from their respective posts and consequently they were permitted to join and it has been held that the respondent has been discriminated which is also a ground taken by the learned Single Judge for quashing the order dated 22.01.2018. In this regard, it has been submitted that the respondent could not claim parity. In this regard, it has been submitted that the respondent could not claim parity. Moreover, the person, who had passed the order permitting the respondent to join was subjected to the departmental inquiry and moreover upon considering the order dated 29.07.2016, the State Government has disapproved which led to passing of the order dated 22.01.2018, which was impugned by the respondent in the writ petition and it was found that the lien on the earlier post could not be given to the respondent for two reasons namely (i) that in his initial relieving order, there was a explicit condition that the moment he joins on the post of Assistant Teacher (LT-Grade) his lien will stand terminated and (ii) that once the respondent had completed more than six years in service on the post of Assistant Teacher (LT-Grade) he stood confirmed on the said post. Thus, for the said reason, his lien in the earlier department stood terminated. It is in this backdrop that the order passed by the learned Single Judge has been impugned in the above special appeal. 6. Per contra, Dr. V.K. Singh, Advocate appearing for the respondent has submitted that the order impugned before the learned Single Judge dated 22.01.2018 whereby rejoining of the respondent has been considered holding that there was no lien was apparently in violation of Rule 9(13) and 14(a) of the Fundamental Rules and further that before passing of the said order, no opportunity of hearing was granted to the respondent and, therefore, the learned Single Judge considering the totality of the circumstances clearly has recorded a finding that no opportunity of hearing was granted to the respondent coupled with the fact that certain officers in the same department were permitted to rejoin and thus the respondent has been discriminated in a hostile manner and that the learned Single Judge was justified in quashing the order dated 22.01.2018 and, therefore, the order passed by the learned Single Judge dated 05.02.2019 is absolutely just and proper and does not require any interference. 7. The Court has heard learned counsel for the parties and has also perused the record. 8. To put the controversy in a perspective, certain facts are being noted hereinafter. 9. The respondent was granted appointment to the post of Assistant Development Officer (Statistic) in District Basti after facing selection proceedings on regular basis and an appointment order dated 02.06.2000 was issued. 8. To put the controversy in a perspective, certain facts are being noted hereinafter. 9. The respondent was granted appointment to the post of Assistant Development Officer (Statistic) in District Basti after facing selection proceedings on regular basis and an appointment order dated 02.06.2000 was issued. The respondent in pursuance of his appointment order joined on the said post on 08.06.2000. In the meantime, while the petitioner-respondent herein was holding the post of Assistant Development Officer, in pursuance of an advertisement applied for selection and appointment on the post of Trained Graduate Teacher in an Intermediate College recognized under the provisions of U.P. Intermediate Education Act, 1921. Significantly, prior to submitting the application form, the respondent had moved an application before the appellants seeking grant of "no objection certificate" to appear in the selection process of the Trained Graduate Teacher. The respondent was selected and placed in the list of selected candidates and was issued a placement order on 09.03.2010. The respondent once again applied for grant of "no objection certificate" from the appellants in accordance with the Rule 9(13) of the Fundamental Rules and he was relieved on 30.06.2010 with the condition that there was no lien on the post of Assistant Development Officer (Statistic). The respondent joined as Assistant Teacher (LT-Grade) on 01.09.2010, however, the respondent again approached the appellants wanted to join again on the post of Assistant Development Officer (Statistic). The appellant No. 2 by means of the order dated 29.07.2016 permitted the respondent to join on the post of Assistant Development Officer and in furtherance of the aforesaid order, the respondent joined on 01.08.2016 and was also granted consequential benefits of the post of Assistant Development Officer (Statistic) and he was consequently placed in the seniority list. The respondent resigned from the post of Trained Graduate Teacher on 17.10.2016. 10. By means of the order dated 22.01.2018, the rejoining of the respondent dated 29.07.2016 was cancelled holding that there was no lien to the post of Assistant Development Officer and that it was in violation of the Rules 9(13) and 14(a) of the Fundamental Rules. 11. The respondent being aggrieved against this order dated 22.01.2018 challenged the same by filing a writ petition before the learned Single Judge, which has been allowed by means of the order dated 05.02.2019, which has been impugned in the instant special appeal. 12. 11. The respondent being aggrieved against this order dated 22.01.2018 challenged the same by filing a writ petition before the learned Single Judge, which has been allowed by means of the order dated 05.02.2019, which has been impugned in the instant special appeal. 12. Considering the submissions made by the learned counsel for the parties and on perusal of the record, it could not be disputed by the learned counsel for the appellants that the so far as the passing of the order dated 22.01.2018 is concerned, no hearing was granted to the respondent. It could not also be disputed that in pursuance of the order dated 29.07.2016, the respondent had joined on 01.08.2016 and had been continuing in service as an Assistant Development Officer (Statistic). Before taking any decision, it was incumbent on the authority to provide an opportunity of hearing to the respondent which has not been done. 13. The learned Single Judge has clearly noted that the specific averment was made in Para-22 of the writ petition to the effect that the order dated 22.01.2018 has been passed in violation of the principles of natural justice and no notice or opportunity of hearing was provided to the respondent prior to passing of the order. It has also been noted by the learned Single Judge that the appellants could not deny this fact while giving a reply in their counter affidavit. 14. However, the defence of the appellants before the learned Single Judge regarding the fact that the respondent was relieved with a specific stipulation that the moment he joins as an Assistant Teacher his lien in the previous department would come to an end as well as the fact that after six years, the joining as an Assistant Development Officer (Statistic) was not in accordance with the Rules. This aspect of the matter has not been considered by the learned Single Judge. 15. Considering the totality of the facts and circumstances of the case coupled with the fact that the order dated 22.01.2018 was passed in violation of the principles of the natural justice whereas the order passed by the learned Single Judge does not consider the substantive defence of the appellants herein. 16. 15. Considering the totality of the facts and circumstances of the case coupled with the fact that the order dated 22.01.2018 was passed in violation of the principles of the natural justice whereas the order passed by the learned Single Judge does not consider the substantive defence of the appellants herein. 16. Thus, without commenting on merits of the case and taking a holistic view of the matter, this Court is of the considered opinion that ends of justice would be met by providing opportunity to the appellants to reconsider the rejoining of the respondent afresh after giving appropriate notice and sufficient opportunity of hearing to the respondent and pass a fresh order. 17. With the aforesaid liberty, the impugned order is modified to the above extent and the aforesaid special appeal is disposed of. 18. No order as to costs.