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Allahabad High Court · body

2019 DIGILAW 297 (ALL)

Jagannath v. State of U. P.

2019-02-05

IRSHAD ALI

body2019
JUDGMENT : Irshad Ali, J. 1. Heard Dr. V.K. Singh, learned counsel for the petitioner and to the learned Standing Counsel on behalf of State respondents. 2. Brief fact of the case is that the petitioner was granted appointment on the post of Assistant Development Officer (Statistics) in District Basti by facing a selection proceeding on regular basis vide appointment order dated 2.6.2000. In pursuance thereof, he joined on the said post on 8.6.2000. The petitioner while holding the post of Assistant Development Officer, applied in pursuance to an advertisement for selection and appointment on the post of Trained Graduate Teacher (TGT) in an intermediate college recognized under the provisions of U.P. Intermediate Education Act, 1921. Prior to submitting the application form, the petitioner moved an application before the respondents for grant of no objection certificate to appear in the selection proceeding of TGT. In the selection proceeding initiated by the U.P. Secondary Education Services Selection Board, the petitioner was selected and was placed in the list of selected candidates and in pursuance thereof an order of placement was issued on 9.3.2010. The petitioner applied for grant of no objection certificate from the respondents in accordance with Rule 9 (13) of the Fundamental Rules and was relieved on 30.6.2010 with the condition that there shall be no lien on the post of Assistant Development Officer (Statistics). 3. In pursuance to the placement in the seniority list for appointment on the post of TGT, the Committee of Management issued appointment letter on 28.4.2010 to the petitioner and he joined as Assistant Teacher (Lt. Grade) on 1.7.2010. 4. The petitioner approached to the respondent No. 4 requesting that he wants join on the post of Assistant Development Officer (Statistics), therefore, his application be considered and appropriate order be passed. In this regard, the petitioner made several representations before the authorities and ultimately an order was passed on 29.7.2016 by the Director-respondent No. 2 permitting the joining of the petitioner on the post of Assistant Development Officer. In pursuance to the said order, the petitioner joined on 1.8.2016 and was granted consequential benefits of the post of Assistant Development Officer (Statistics) and was subsequently placed in the seniority list and he resigned from the post of TGT on 17.10.2016. 5. In pursuance to the said order, the petitioner joined on 1.8.2016 and was granted consequential benefits of the post of Assistant Development Officer (Statistics) and was subsequently placed in the seniority list and he resigned from the post of TGT on 17.10.2016. 5. By means of the impugned order dated 22.1.2018, re-joining of the petitioner dated 29.7.2016 has-been cancelled holding that there was no lien to the post of Assistant Development Officer. Thus, the same is in violation of Rule 9 (13) and 14 (a) of the Fundamental Rules. Assailing the impugned order, submission of learned counsel for the petitioner is that the impugned order was passed in violation of principles of natural justice and neither notice nor opportunity of hearing was provided to the petitioner prior to 'passing of the order and in this regard averment has been made in paragraph No. 22 of the writ petition, reply to which has been given in paragraph No. 17 of the counter-affidavit, wherein there in no denial to this effect. 6. He further submitted that the action of the respondents is discriminatory and arbitrary in nature, as in the department one Sri Rajnish was appointed, who was subsequently selected on the post of Excise Inspector and for joining on the said post he was relieved with the same condition as of the petitioner and subsequently vide order dated 10.7.2006 he was re-instated in service and he is still continuing. Likewise, one Sri Rajesh Kumar Chauhan was also relieved to join on some other post with the same condition and vide order dated 28.3.2018, he was he was permitted to join on the post of Assistant Development Officer (Statistics), who is still working in the department. 7. He next submitted that the statement of fact made in the counter-affidavit that rejoining of the petitioner in the department was in violation of Rule 9(13) of the Fundamental Rules, is also not acceptable. 8. On the other hand, learned Standing Counsel appearing on behalf of the respondents submitted that there is no illegality in the impugned order and the same does not suffer from any infirmity or illegality. Once, the petitioner was relieved without providing lien to the post of Assistant Development Officer, his re-joining in the department cannot be termed to be legal. On the other hand, learned Standing Counsel appearing on behalf of the respondents submitted that there is no illegality in the impugned order and the same does not suffer from any infirmity or illegality. Once, the petitioner was relieved without providing lien to the post of Assistant Development Officer, his re-joining in the department cannot be termed to be legal. He further submitted that the order is just and valid and the writ petition being misconceived is liable to be dismissed. 9. Having heard the rival contentions advanced by learned counsel for the parties, I perused the pleadings of the writ petition, counter-affidavit and the rejoinder-affidavit. 10. On perusal of the contents of paragraph No. 22 of the writ petition, there is specific recital in regard to non providing the opportunity of hearing to the petitioner, which has not been denied in paragraph No. 17 of the counter-affidavit. 11. On perusal of the impugned order also, it does not disclose that prior to passing of the order notice was issued to the petitioner to submit his claim in his defense. The impugned order notices the narration of facts and the provisions of Rule 9(13) of the Fundamental Rules, which explains the lien. In view of the above, it is well established that there is violation of principles of natural justice in passing the impugned order. 12. Therefore, the submissions advanced by learned counsel for the petitioner appears to have substance and it is held that the impugned order is in violation of principles of natural justice. 13. The next submission advanced in regard to discrimination and arbitrariness on the part of the respondents, I perused the orders passed by the Director, who has passed the impugned order. On perusal of the orders, it is evident on the face of it that both the aforesaid officers i.e. Sri Rajnish and Sri Rajesh Kumar Chauhan were relieved without lien from their respective posts and subsequently, they were permitted to join their respective posts in similar manner. 14. In view of the above, the exercise of power by the respondent No. 2 in the case of aforesaid two employees, whereby they permitted to continue the aforesaid two officers in the same manner and the exercise of power in regard to case of the petitioner taking shelter of Rule 9(13) of the Fundamental Rules, appears to be not justified. In view of the above, the exercise of power by the respondent No. 2 in the case of aforesaid two employees, whereby they permitted to continue the aforesaid two officers in the same manner and the exercise of power in regard to case of the petitioner taking shelter of Rule 9(13) of the Fundamental Rules, appears to be not justified. Thus, it is a case of violation of Article 14 of the Constitution of India. 15. Therefore, the Court records that it is a case of discrimination amongst the employees of the same department. Thus, the impugned order is liable to be quashed. 16. In view of the above reasons recorded, the impugned order dated 22.1.2018 is not sustainable in law and is hereby quashed. The writ petition succeeds and is allowed. The respondents are directed to permit the petitioner to continue on the post of Additional Statistics Officer and to provide all consequential benefits in pursuance thereof within a period of three months from the date of production of a certified copy of this order.