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Allahabad High Court · body

2019 DIGILAW 2832 (ALL)

Town Area Committee Jhunsi Alld. v. Rajendra Bind

2019-12-19

SAURABH SHYAM SHAMSHERY, SUNEET KUMAR, SUNITA AGARWAL

body2019
JUDGMENT : 1. Supplementary affidavit filed today on behalf of respondent, is taken on record. 2. Heard Shri H.N. Singh, learned Senior Counsel assisted by Shri A.K. Trivedi on behalf of the appellants, Shri J.K. Tiwari on behalf of respondent nos.1 to 6 and Ms. Subhash Rathi, learned Additional Chief Standing Counsel for respondent no.7. 3. The present Larger Bench is constituted under the order of Hon'ble the Chief Justice in pursuance of the following questions referred by a Division Bench of this Court, vide order dated 28.9.2017, passed in Special Appeal No.219 of 2015 and Special Appeal (Defective) No.31 of 2003 : 1. "Whether the judgment of learned Single Judge passed in Rajendra Prasad Singh's case, which has been affirmed by the Division Bench in Special Appeal No.1211 of 2009, is correct or not. 2. Whether in absence of any post in the establishment/department in question, the appointment can be sustained or not. 3. Whether in the absence of post directives can be issued for ensuring payment of salary." 4. These cases have chequered history and before going into the questions referred above, it is necessary to consider the facts of the present case. From the record available, facts of the case are as follows : 5. The respondents/writ petitioners were appointed on temporary basis by individual appointment letters dated 1.4.1990 by the Town Area Committee, Allahabad under the order issued by the then Chairman, Town Area Committe, Jhunsi, Allahabad, on the post of Helper for the purpose of maintenance of tube wells, which were transferred from the department of Jal Nigam. It was specifically mentioned in their appointment letters that it would be subject to the approval of the Committee. 6. The said appointments were duly approved in the meeting dated 25.4.1990, conducted under the chairmanship of the then Chairman, Town Area Committe, Jhunsi, Allahabad. 7. The State Government issued Government Order dated 6.12.1991/24.12.1991 whereby ban was imposed on appointment of any person as daily wager or on work charge basis by the Nagar Palika Nagar Nigam Department. On the basis of said ban, the services of the respondents/writ petitioners were terminated by the Town Area Committee, Jhunsi, Allahabad, under a common order dated 21.3.1992. 8. The respondents/writ petitioners namely Babu Lal, Anis Ahmad and Ram Lal approached this Court by way of filing Civil Misc. On the basis of said ban, the services of the respondents/writ petitioners were terminated by the Town Area Committee, Jhunsi, Allahabad, under a common order dated 21.3.1992. 8. The respondents/writ petitioners namely Babu Lal, Anis Ahmad and Ram Lal approached this Court by way of filing Civil Misc. Writ Petition No.1093 of 1992 which was allowed by an order dated 8.12.1995 whereby their termination orders were set aside. For reference, the said order is reproduced hereinafter : “The petitioners have challenged the order dated 21.3.1992 annexure No.8 to the writ petition whereby petitioner's employments were terminated. The petitioners contend in the writ petition that they were appointed in various posts by order dated 1.4.1990 on temporary basis and started discharging their duties. Such appointment was duly approved by the Town Area Committee, Jhunsi in its meeting held on 25.4.1990. Thereafter, by order dated 21.3.1992 at Annexure No.8 to the writ petition the petitioners' services were terminated and hence the present writ petition. Counter Affidavit was filed by the respondent no.1 and 2, but no counter affidavit was filed on behalf of the respondent no.3. After hearing the parties and considering the materials available on record I find that the impugned order of termination in respect of the petitioners' services was passed in view of the fact that no clarification was given by the respondent no.3 in spite of the fact that such clarification was sought for by the respondent Nos.1 and 2 as to whether the petitioners' employment are to continue in spite of the Government Order dated 6.12.1991. Upon considering the material I find that the Government Order dated 6.12.1991 does not relate to the petitioners as they are not daily wager or on work charge basis and further the said order relates to future appointment. In the circumstances, the petitioners' employment already made on temporary basis could not be terminated in view of the said Government Order. In the aforesaid circumstances, there being justification in passing the impugned order of termination dated 21.3.1992 the said order is hereby quashed. Accordingly, the writ petition succeeds and is allowed. There will be no order as to costs.” (emphasis supplied) 9. As per the record available, no special appeal was filed against the order dated 8.12.1995, as such, the order passed by the learned Single Judge dated 8.12.1995, has attained its finality. 10. Accordingly, the writ petition succeeds and is allowed. There will be no order as to costs.” (emphasis supplied) 9. As per the record available, no special appeal was filed against the order dated 8.12.1995, as such, the order passed by the learned Single Judge dated 8.12.1995, has attained its finality. 10. Ramesh Bind, Rajendra Bind, Bhanu Pratap Singh, Paras Nath, Kishore Kumar, Ram Nath & Raghvendra Singh (respondents/writ petitioners) also challenged their termination order by way of filing Writ Petition No.10902 of 1992, which was also allowed by an order dated 29.7.2002 in terms of the earlier judgment and order dated 8.12.1995. The said order is also reproduced hereinafter : “Shri V.K. Gupta appears on behalf of the petitioners. Shri S.P. Gaur has not appear on behalf of the respondent. Shri V.K. Gupta contended that the controversy involved in this writ petition is exactly the same and is covered by the decision given in W.P. No.10903/1992, Babu Lal and others Vs. Town Area Committee, Jhunsi and others decided on 8.12.95 by this Court. Heard and perused the records of the writ petition. This writ petition is disposed of finally on the same terms and conditions given in judgment dated 8.12.95, Babu Lal and others Vs. Town Area Committee Jhunsi and others.” (emphasis supplied) 11. Belatedly, the special appeal was filed against the order dated 29.7.2002 which was once dismissed in default, however, restored and is also listed in the present bunch as Special Appeal (Defective) No.31 of 2003. 12. Rajendra Bind and 5 others (respondents/writ petitioners) approached this Court by way of filing a Civil Misc. Contempt Writ Petition No.2632 of 2005 for violation of order dated 29.7.2002, passed by the learned Single Judge in Writ Petition No.10902 of 1992. The said contempt petition was disposed of by order dated 21.8.2006, which is reproduced hereinafter : “The applicants contend that the order dated 29.7.2002 continues to be violated as they have not been paid their salary. The order which was issued in Writ Petition No.10903 of 1992 was for quashing of the order of termination whereby the services of the employees of the town area Jhunsi were terminated. The applicant's writ petition was also disposed of on the same terms and conditions. The order which was issued in Writ Petition No.10903 of 1992 was for quashing of the order of termination whereby the services of the employees of the town area Jhunsi were terminated. The applicant's writ petition was also disposed of on the same terms and conditions. There is no specific direction for payment of any past salary or any such other payments and as such, it would be appropriate that the applicants, approach the Chairman, Nagar Panchayat Jhunsi, Allahabad with a fresh application for clearance of their dues which shall be considered and disposed of preferably within 3 months of the date of production of the same alongwith a certified copy of this order. The contempt petition is consigned to records with the aforesaid observations.” (emphasis supplied) 13. One of the employee namely Rajendra Pratap Singh, who was aggrieved by his termination order, filed another Writ Petition No.32445 of 1992, which was allowed, vide order dated 21.8.2009. For reference, the said order is reproduced hereinafter : “This case was on cause list on 19.8.2009 and on the request of the learned counsel for the petitioner was adjourned for 20.8.2009 and then for today, but today also none appeared for the petitioner. Learned standing counsel representing respondent no.3 is present. I have perused the record. Aggrieved by the order dated 21.8.1992 (Annexure 8 to the writ petition) the under Article 226 of the Constitution seeking writ of certiorari quashing the said order whereby the Chairman, Nagar Kshetra Samiti Jhunsi, Allahabad has terminated his services from the post of Naib Moharrir. From the facts stated in the writ petition, it appears that on purely temporary basis on 1.4.1990 in the pay scale off Rs.305330 subject to approval by body. The aforesaid appointment of the petitioner was later on approved by the Committee on 25.4.1990 (Annexure 2 to the writ petition). Thereafter, by order dated 1.9.1991, the petitioner was promoted with effect from 1.9.1991 in the pay scale of Rs.325475 and the said promotion was also approved the Committee on 13.1.192. The district Magistrate, Allahabad vide letter dated 24.12.1991. However, informed all local bodies within Allahabad District that as per the Government Order dated 16.12.1991., no person should be employed on daily wage basis and pursuant thereto the impugned order has been passed. Even the facts stated above, it is evident that the petitioner was not appointed on daily wage basis. The district Magistrate, Allahabad vide letter dated 24.12.1991. However, informed all local bodies within Allahabad District that as per the Government Order dated 16.12.1991., no person should be employed on daily wage basis and pursuant thereto the impugned order has been passed. Even the facts stated above, it is evident that the petitioner was not appointed on daily wage basis. It is also not the case of the respondent 1 and 2 that his appointment was illegal or contrary to the statute. In the circumstances, termination of the services of the petitioner pursuant of the Government Order dated 16.12.1991 cannot sustain. The writ petition is, accordingly, allowed. The impugned order dated 21.08.1992 (Annexure 8 to the writ petition for all consequential benefits. No costs. ” (emphasis supplied) 14. The said order was challenged by the appellant Town Area Committee, Jhunsi, Allahabad, by filing Special Appeal No.1211 of 2009, which was dismissed by this Court, vide order dated 18.11.2009 with the following observations : Heard Shri V.K. Dwivedi, learned counsel for appellant. Shri Pankaj Agarwal has entered appearance on behalf of petitioner-respondent. By the judgment dated 21.8.2009 under challenge in this Special Appeal, learned Single Judge has found that the petitioner was initially appointed as Peon on temporary basis on 1.4.1990 in the pay scale of Rs.305330 subject to approval of the Committee constituted by Local Body. The appointment was approved by the Committee on 25.4.1990 and thereafter by the order dated 1.9.1991, the petitioner was promoted w.e.f. 1.9.1991 in the pay scale of Rs. 325475. This promotion was also approved by the Committee on 13.1.1992. The Town Area Committee, by the order dated 21.8.1992, to give effect to the Government Order dated 16.12.1991, circulated to the local bodies by the District Magistrate on 24.12.1991 to dispense with the services of daily waged employees, terminated the services of the petitioner. The Court found that the petitioner's appointment was neither illegal nor contrary to the rules. He was not appointed on daily wages and was not covered by the Government Order dated 16.12.1991. Shri V.K. Dwivedi, learned counsel for appellant states that the petitioner was earlier an employee of Jal Sansthan and that in the year 1991 there was only 14 sanctioned posts. The petitioner was appointed in addition to the sanctioned post. He was not appointed on daily wages and was not covered by the Government Order dated 16.12.1991. Shri V.K. Dwivedi, learned counsel for appellant states that the petitioner was earlier an employee of Jal Sansthan and that in the year 1991 there was only 14 sanctioned posts. The petitioner was appointed in addition to the sanctioned post. The appointment order dated 1.4.1990 would show that the petitioner was appointed on the post of peon to maintain the tubewell on temporary basis, and his services were thereafter confirmed. We do not find that learned Single Judge has committed any error of facts and law in dismissing the writ petition. The Special Appeal is dismissed.” (emphasis supplied) 15. Though the learned Single Judge as well as Division Bench had not noticed the earlier judgment, however, reasoning given by the learned Single Judge which was upheld by Division Bench was same as given by earlier Single Bench. 16. In pursuance of the order dated 21.8.2006 passed in contempt petition, the respondents/ writ petitioners approached the District Panchayat, Jhunsi, Allahabad, for ventilating their grievances regarding the nonpayment of their salary. The Chairman, Nagar Panchayat, Jhunsi, Allahabad, vide order dated 29.10.2008 while considering the representation, terminated the services of the respondents/writ petitioners on the ground that their initial appointments were based on forged documents vide individual orders. 17. Another contempt petition was filed in the year 2007 being Contempt Petition No.2284 of 2007 which was disposed of, vide order dated 5.1.2019 on the ground that decision was already taken. 18. Rajendra Bind & others (respondents/writ petitioners) approached this Court by way of filing Writ A No.23102 of 2009, challenging their termination order dated 29.10.2008. The said writ petition was allowed by the learned Single Judge, vide order dated 19.2.2015 and the impugned termination order dated 29.10.2008 was quashed. The relevant part of the order is reproduced hereinafter : “In the Counter Affidavit, it has been sought to be urged that the appointment of the petitioners was made without any sanction of the appropriate Government. It has further been contended that the petitioners had been engaged to perform functions only during the pendency of the 'Maha Kumbh Mela'. The relevant part of the order is reproduced hereinafter : “In the Counter Affidavit, it has been sought to be urged that the appointment of the petitioners was made without any sanction of the appropriate Government. It has further been contended that the petitioners had been engaged to perform functions only during the pendency of the 'Maha Kumbh Mela'. However, none of these contentions appear to be borne out from the orders of appointment and in any view of the matter do not appear to have been urged in defence in the earlier litigation taken before this Court. This Court is constrained to record its conclusion that the petitioners were never confronted with the adverse material nor were they afforded any opportunity of hearing prior to the making of the impugned order. Insofar as their appointments were concerned, no such plea was urged by the respondents in the earlier round of litigation. For all the aforesaid reasons, this Court finds that the impugned order dated 29th October, 2008 cannot be sustained. Accordingly, this writ petition is allowed. The impugned order dated 29th October, 2008 is hereby quashed. The petitioners shall be entitled to resume work on their posts and be paid salary and other emoluments regularly in accordance with law.” (emphasis supplied) 19. The order dated 19.2.2015 (passed in Writ A No.23102 of 2009 – Rajendra Bind & ors. vs. Town Area Committee & others) was challenged before the Division Bench of this Court in Special Appeal No.219 of 2015. As earlier mentioned, the Special (Defective) No.31 of 2003 was also tagged. The learned Division Bench while considering the appeal made the abovementioned reference, which is under consideration before this Larger Bench. 20. From the facts as mentioned above, it is evident that : (i) The initial termination orders passed in the year 1992 were set aside by the learned Single Judge in three writ petitions bearing Writ Petition Nos.10902, 10903 of 1992 and 32445 of 1992 by orders dated 8.12.1995, 29.7.2002 and 21.8.2009 respectively. One of the special appeal filed against the said order was dismissed vide order dated 18.11.2009 and another special appeal was filed belatedly, it was initially dismissed in default. Later on the appeal was restored which is listed along with the present bunch. One of the order passed by learned Single Judge was not even challenged. One of the special appeal filed against the said order was dismissed vide order dated 18.11.2009 and another special appeal was filed belatedly, it was initially dismissed in default. Later on the appeal was restored which is listed along with the present bunch. One of the order passed by learned Single Judge was not even challenged. The crux is that the initial termination orders were set aside on merit. (ii) The second round of litigation was initiated when the respondents/writ petitioners approached the Contempt Court by way of filing a contempt petition demanding their salary which was not paid. The said contempt petition was disposed of with liberty to approach the appellants for their redressal of grievances. (iii) When the representations were moved, the appellants without considering that the termination orders passed earlier were already set aside and special appeal was also dismissed, and as such, order of this Court had attained finality, acted beyond the directions passed by the Contempt Court and again terminated the respondents/writ petitioners on the ground that their initial appointments were based on forged document. (iv) The said order exfacie was beyond the powers of the appellants. There was no occasion for the appellants to pass such order on the representation moved by the respondents/writ petitioners in pursuance of the order passed by the learned Contempt Court. (v) The allegation of forged document was neither placed before the Court earlier nor any documents were ever confronted with the writ petitioners in earlier round of litigation. (vi) The issues, such as appointment beyond the sanctioned post and the initial appointment was illegal, has no relevance in the present facts and circumstances, as the order of initial appointment had already been confirmed way back in the year 1995. (vii) The entire exercise of the appellants by terminating the respondents/writ petitioners in the year 2008 was without jurisdiction, therefore,, it was an illegal order, which is unsustainable in the eyes of law also. (viii) The appellants have acted arbitrarily by terminating the services of the respondents/writ petitioners when they approached for their demand of salary. (ix) Appellants could not interfere with the order passed by the learned Single Judge, which was upheld by the Division Bench of this Court in the garb of contempt proceedings. 21. (viii) The appellants have acted arbitrarily by terminating the services of the respondents/writ petitioners when they approached for their demand of salary. (ix) Appellants could not interfere with the order passed by the learned Single Judge, which was upheld by the Division Bench of this Court in the garb of contempt proceedings. 21. Shri H.N. Singh, learned Senior Counsel appearing on behalf of the appellants has tried to convince the Bench that the initial appointments of the respondents/writ petitioners was itself bad as the Chairman had no power to appoint the respondents/writ petitioners. In support of his submission, he relied upon the United Provinces Town Areas Act, 1914. However, on a pointed query, raised by the Bench, whether the appellants had power to pass termination orders while considering the representation pursuant to the order passed by the Contempt Court? Learned Senior Counsel was unable to justify the action taken by the appellants. 22. Termination orders passed in the year 1992 were set aside by learned Single Judge in three different writ petitions. One of the special appeal filed by the State was also dismissed, as such, order of setting aside the termination order attained finality. Subsequently, appellants had passed termination order while considering the representation filed by respondent on the direction of this Court (Contempt Court). These orders were passed without even taking note that earlier termination orders were set aside and the issue brought before the authority was confined to payment of salary. There was no issue of termination of service before the authority, therefore, there was no justification in passing the termination order on the representation filed by the respondents. We are of the definite view that the appellants have acted illegally and in arbitrary manner. 23. In view of the above discussion, we do not find any illegality and infirmity in the judgment and order passed by the learned Single Judge whereby the termination orders passed in the year 2008, were set aside. Accordingly, the Special Appeal No.219 of 2015 is dismissed. 24. In Re:Special Appeal Defective No.31 of 2003 – In this special appeal, appellants have questioned judgment and order dated 29.7.2002 passed by learned Single Judge in Writ Petition No.10902 of 1992 whereby common termination order dated 21.3.1992 has been set aside qua the writ petitioners. Accordingly, the Special Appeal No.219 of 2015 is dismissed. 24. In Re:Special Appeal Defective No.31 of 2003 – In this special appeal, appellants have questioned judgment and order dated 29.7.2002 passed by learned Single Judge in Writ Petition No.10902 of 1992 whereby common termination order dated 21.3.1992 has been set aside qua the writ petitioners. The writ petition was allowed in same terms and conditions given in the judgment and order dated 8.12.1995 passed in Writ Petition No.1093 of 1992. 25. As already noted, the said common termination order was earlier challenged in the Writ Petition No.1093 of 1992 and the same was allowed and termination order dated 21.3.1992 was set aside, vide order dated 8.12.1995 qua the writ petitioners. Learned Single Judge held that : “Upon considering the material I find that the Government Order dated 6.12.1991 does not relate to the petitioners as they are not daily wager or on work charge basis and further the said order relates to future appointment. In the circumstances, the petitioners' employment already made on temporary basis could not be terminated in view of the said Government Order. In the aforesaid circumstances, there being justification in passing the impugned order of termination dated 21.3.1992 the said order is hereby quashed. Accordingly, the writ petition succeeds and is allowed. There will be no order as to costs.” This order remain unchallenged. 26. Similarly, the common termination order dated 21.8.1992 was challenged in Writ Petition No.32445 of 1992 also. Learned Single Judge, vide judgment and order dated 21.8.2009 quashed the said termination order qua the writ petitioners. The learned Single Judge held that “it is evident that the petitioner was not appointed on daily wage basis. It is also not the case of the respondent 1 and 2 that his appointment was illegal or contrary to the statute. In the circumstances, termination of the services of the petitioner pursuant of the Government Order dated 16.12.1991 cannot sustain”. Against the order, a Special Appeal 1211 of 2009 was preferred, however, the same was dismissed on 18.11.2009. The Division Bench held that “The appointment order dated 1.4.1990 would show that the petitioner was appointed on the post of peon to maintain the tubewell on temporary basis, and his services were thereafter confirmed. We do not find that learned Single Judge has committed any error of facts and law in dismissing the writ petition. The Division Bench held that “The appointment order dated 1.4.1990 would show that the petitioner was appointed on the post of peon to maintain the tubewell on temporary basis, and his services were thereafter confirmed. We do not find that learned Single Judge has committed any error of facts and law in dismissing the writ petition. The Special Appeal is dismissed”. The said judgment and order was not challenged further. 27. Now the appellants are trying to reopen the case. The appellants have failed to point out any error in the impugned order as well as in the consistent view taken by Single Benches and Division Bench of this Court that common termination order dated 21.3.1992 was bad in law. 28. We are of the considered opinion that view taken by learned Single Bench and Division Bench of this Court is correct. The common termination order was bad in law and rightly set aside on the ground that the Government Order dated 6.12.1991 was not related to writ petitioners as they were neither daily wagers nor working on work charge basis. The Government Order dated 6.12.1991 was related to future employments and services of the writ petitioners could not be terminated in view of the said Government Order. 29. Accordingly, the Special Appeal Defective No.31 of 2003 is dismissed. 30. While dismissing the appeal, we answer the reference as follows : (a) Referred question no.1 “Whether the judgment of learned Single Judge passed in Rajendra Prasad Singh's case, which has been affirmed by the Division Bench in Special Appeal No.1211 of 2009, is correct or not” –– We have dismissed Special Appeal Defective No.31 of 2003 by present judgment and affirmed the view taken by learned Single Judge in Writ Petition No.1093 of 1992, Writ Petition No.10902 of 1992, Writ Petition No.32445 of 1992 as well as view taken by Division Bench in Special Appeal No.1211 of 2009 that common termination order dated 21.8.1992 was bad in law, therefore, the view taken by the learned Single Judge in Rajendra Prasad Singh's case (Supra), which has been affirmed by the Division Bench in Special Appeal No.1211 of 2019 is a correct view. (b) Referred question no.2 “Whether in absence of any post in the establishment/department in question, the appointment can be sustained or not” & Referred question no.3 “Whether in the absence of post directives can be issued for ensuring payment of salary." – So far as the question nos.2 and 3 are concerned, there is no need to answer these questions as the issues do not arise in the facts and circumstances of the present case. 31. The reference is answered, accordingly.