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Madhya Pradesh High Court

Gangeshwar Prasad Tripathi vs The State Of Madhya Pradesh on 20 July, 2022

Author: Maninder S Bhatti

Bench: Maninder S Bhatti

                                                                      1
                                               IN THE HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                  BEFORE
                                                  HON'BLE SHRI JUSTICE MANINDER S BHATTI
                                                               ON THE 20th OF JULY, 2022

                                                     WRIT PETITION No. 21252 of 2021

                                            Between:-
                                            GANGESHWAR PRASAD TRIPATHI S/O SHRI
                                            RAM YATAN TIRPATHI , AGED ABOUT 61
                                            YEARS, OCCUPATION: POSTED AS GRADUATE
                                            SUB ENGINEER (CIVIL) PUBLIC WORKS DEPT.
                                            (BRIDGE DIVISION) REWA DIST. REWA MP
                                            (MADHYA PRADESH)

                                                                                                      .....PETITIONER
                                            (SHRI SANJAY K. AGRAWAL, ADVOCATE)

                                            AND

                                 1.         THE STATE OF MADHYA PRADESH THR. ITS
                                            PRINCIPAL SECRETARY PUBLIC WORKS DEPT.
                                            GOVT. OF M.P. MANTRALAYA VALLABH
                                            BHAWAN BHOPAL (MADHYA PRADESH)

                                 2.         ENGINEER   IN   CHIEF PUBLIC               WORKS
                                            D EPARTM EN T NIRMAN BAHWAN                ARERA
                                            HILLS (MADHYA PRADESH)

                                 3.         EXECUTIVE  ENGINEER            PUBLIC   WORKS
                                            DEPARTMENT    (BRIDGE           DIVISION) REWA
                                            (MADHYA PRADESH)

                                                                                                   .....RESPONDENTS
                                            (SHRI VED PRAKASH TIWARI, GOVT. ADVOCATE)

                                        This petition coming on for admission this day, th e court passed the
                                 following:
                                                                       ORDER

The petitioner has filed this writ petition while praying for following Signature Not Verified SAN reliefs:

in the nature of mandamus quashing impugned order dated 11-8-2021 2 (Annexure-P/14) and impugned memo dt.11-8-21 (Annexure-P/15) being ex facie arbitrary and illegal.

(ii) The Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus commanding the respondents to grant seniority to the petitioner as Sub-Engineer strictly in terms of order dated 29-6- 2021 (Annexure-P/12) read with order dated 24-4-2009.

(iii) The Hon'ble Court may further pleased to issue a writ in the nature of mandamus commanding the respondents to conduct review DPC of petitioner for grant of promotion from the post of Sub-Engineer to the post of Assistant Engineer in terms of memo dated 30-6-2021 (Annexure-P/13).

(iv) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition."

2. The petitioner who was originally employed to the M.P. Rajya Setu Nigam, was absorbed with Public Works Department. Thus, an issue was raised as regards counting of his past services rendered with the Rajya Setu Nigam from the date of initial appointment with Bridge Corporation, i.e. 23-7- 1986. This issue was decided by Public Works Department vide its order dated 24-4-2009.

3. The order dated 24-4-2009 was cancelled vide another order dated 23-11-2009 without extending any opportunity of hearing to the petitioner. Therefore, the petitioner preferred a writ petition before this Court forming the subject-matter of W.P. No.743/2010 which was allowed on the Signature Not Verified ground that no opportunity of hearing was extended to the petitioner before SAN passing the order dated 23-11-2009.

Thus, this Court extended liberty to respondents to pass an order afresh 3 after affording opportunity of hearing to the petitioner.

4. Pursuant to the order passed by this Court in W.P. No.743/2010 the respondents passed an order dated 29-6-2021 contained in Annexure-P/12 whereby earlier order dated 24-4-2009 was affirmed and seniority of the petitioner with effect from 23-7-1986 was maintained and kept intact. However, again without extending an opportunity of hearing and without any notice to show cause, respondents passed the impugned order which is contained Annexure-P/14, dated 11-8-2021 by which the order dated 29-6-2021 contained in Annexure-P/12 has been withdrawn and cancelled.

5. Learned counsel for petitioner submits that again even in this second round of litigation respondents have acted in grass violation of principles of natural justice. Despite having dealt with by this Court in earlier round of litigation, respondents have again repeated the same mistake and the order of conferment of seniority has been cancelled without extending any opportunity of hearing or giving notice to show cause.

6. Learned counsel for petitioner while taking this Court to para 5.17 of the memo of writ petition submits that there are specific and categorical averments as regards violation of principles of natural justice. It is further submitted that there is no reply to para 5.17 in the return and, therefore, respondents do not dispute that no opportunity of hearing was afforded to the petitioner before passing the impugned order contained in Annexure-P/14, thus, prays for quashing of the same.

7. Per contra, learned counsel for respondents submits that the case Signature Not Verified SAN of the petitioner was considered in the light of decision of Hon'ble Supreme Digitally signed by AJAY KUMAR CHATURVEDI Court in the case of Rashi Mani Mishra and others vs. State of M.P. and Date: 2022.07.23 13:50:04 IST 4 others - Civil Appeal No.10788 of 2016 decided on 28-7-2021 and it was found that seniority which was extended to the petitioner was incorrect and, therefore, the said mistake was rectified in the light of the decision rendered in Rashi Mani Mishra and others (supra). Learned counsel for respondents submits that since the decision was taken in the light of law laid down by the Apex Court in Rashi Mani Mishra and others (supra), therefore, no any opportunity was required to be extended to the petitioner.

8. Heard rival submissions made at the Bar.

9. This Court while quashing the order dated 23-11-2009 passed in W.P. No.743/2010 had specifically directed respondents to pass a fresh order after affording due opportunity of filing reply and also hearing to the petitioner herein. Pursuant to the order passed by this Court a well reasoned order was passed by respondents on 29-6-2021 contained in Annexure-P/12. A perusal of the same shows that respondents while dealing with stand of petitioner as well as Department, categorically concluded, that seniority of the petitioner along with other three similarly situated persons, was rightly decided by order dated 24-4-2009 and, therefore, the order dated 24-4-2009 was affirmed and it was held that seniority of the petitioner and similarly placed three persons mentioned in the same order, shall be regulated by order dated 24-4-2009.

10. Once the order dated 29-6-2001 was passed and the issue was conclusively decided, respondents could not have reopened the same without giving opportunity of hearing or without issuing any notice to show cause to the petitioner by passing the impugned order dated 11-8-2021 (Annexure-P/14).

Specific stand taken by the petitioner in para 5.17 of the memo of writ Signature Not Verified SAN petition has not been controverted by respondents in their return. Therefore, Digitally signed by AJAY KUMAR CHATURVEDI the order impugned, dated 11-8-2021 is unsustainable being non est, inasmuch Date: 2022.07.23 13:50:04 IST 5 as the same has been passed in violation of the principles of natural justice.

11. At this juncture, it is apt to refer to the decisions of the Apex Court rendered in the cases of State of Orissa vs. Dr. (Miss) Binapani Dei and others, AIR 1967 SC 1269; Mrs. Maneka Gandhi vs. Union of India and another, (1978) 1 SCC 248; H.L. Trehan and others vs. Union of India and others, (1989) 1 SCC 764; and Prakash Ratan Sinha vs. State of Bihar and others, (2009) 14 SCC 690.

12. In Dr. (Miss) Binapani Dei and others (supra) the Hon'ble Supreme Court observed as under :

"9. ................. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."

13. In Mrs. Maneka Gandhi (supra) in paras 184 and 186 it is held Signature Not Verified SAN as under :

"184...........The frontier between judicial or quasi judicial CHATURVEDI Date: 2022.07.23 13:50:04 IST 6 determination on the one hand and an executive or administrative determination on the other has become blurred. The rigid view that principles of natural justice applied only to judicial and quasi judicial acts and not to administrative acts no longer holds the field.......:

xx xx xx

186. On a consideration of various authorities it is clear that where the decision of the authority entails civil consequences and the petition is prejudicially affected he must be given an opportunity to be heard and present his case......"

14. In H.L. Trehan and others (supra) it is ruled thus:

"11. ........... It is now a well-established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of Coril were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice."

15. In the case of Prakash Ratan Sinha (supra) the Supreme Court in paras 13 and 14 held as under :

"13. The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such Signature Not Verified a power and that the rule of natural justice operates in areas not covered SAN by any law validly made.

14. Corollary principles emanating from these cases are as to 7 what particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case and that it is only where there is nothing in the statute to actually prohibit the giving of an opportunity of being heard and on the other hand, the nature of the statutory duty imposed on the decision maker itself implies an obligation to hear before deciding. These cases have also observed, whenever an action of public body results in civil consequences for the person against whom the action is directed, the duty to act fairly can be presumed and in such a case, the administrative authority must give a proper opportunity of hearing to the affected person."

16. In view of the aforesaid enunciation of law, it is luminescent that the respondents have made an adroit attempt to unsettle the settled position that too, without affording an opportunity of being heard to petitioner. The respondents by passing a well reasoned and detailed order, dated 24-4-2009, have already fixed seniority of the petitioner and the said order has again been dealt with by respondents themselves by passing a well reasoned and cogent order, dated 29-6-2021 contained in Annexure-P/12. Therefore, there was no occasion with the respondents to reopen the same again, that too, without affording an opportunity of hearing to the petitioner and without issuing any notice to show cause.

17. Thus, in the considered view of this Court, the orders impugned contained in Annexure-P/14 and Annexure-P/15 - dated 11.8.2021, deserve to and are hereby quashed. Respondents are directed to implement the order dated 29-6-2021 (Annexure-P/12) pertaining to seniority of the petitioner with all consequential benefits.

SAN 18. Accordingly, the writ petition stands allowed in the above terms.

(MANINDER S BHATTI) JUDGE ac Signature Not Verified SAN Digitally signed by AJAY KUMAR CHATURVEDI Date: 2022.07.23 13:50:04 IST