Allahabad High Court
Sunita Yadav vs Addl.Commissioner (Judicial) Lucknow ... on 19 October, 2019
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 25 Case :- MISC. SINGLE No. - 28880 of 2019 Petitioner :- Sunita Yadav Respondent :- Addl.Commissioner (Judicial) Lucknow Div.Lucknow And Ors. Counsel for Petitioner :- Triloki Nath Yadav Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
(1) Heard learned counsel for the parties and perused the record.
(2) The petitioner is aggrieved by the order passed by the Dy. Collector dated 18.12.2014 in Case No.90 of 2012-13 (Lakhbeer Singh and Others Vs. Sangeeta Yadav) and also the order dated 04.05.2019 passed by the Additional Commissioner (Judicial), Lucknow, in Revision No.20150000056 filed under Section 210 of the Revenue Code (Lakhbeer Singh and Others Vs. Sangeeta Yadav).
(3) From a perusal of the order passed by the Dy. Collector dated 18.12.2014, it is apparent that the same has been passed on a Mutation application. It is a settled law that only against the decision passed on Mutation application or Revision arising therefrom, writ petitions are not maintainable. This Court in Awadhesh Singh Vs. Additional Commissioner & Others in Writ-C No.13751 of 2005 decided on 04.08.2017 reported in 2017 (9) ADJ 378, has considered all the law on the subject and has carved out only two exceptions on the basis of binding precedents which make the writ petition maintainable even against a Mutation order. The petitioner's case does not fall in any of the two.
(4) This Court has held in the aforesaid decision that the writ petition can be entertained in Mutation proceedings only where (a) the order passed by the Mutation Court is without jurisdiction (b) the order creates a right which is against a statute or settled position in law.
(5) Learned counsel for the petitioner says that the order passed by the Additional Commissioner in Revision is without jurisdiction. He has stated that the order can be said to be without jurisdiction as no consideration has been made of the issues and straightway without framing any issue, the matter has been remanded to the court of Tehsildar. He has relied upon the judgment rendered by a Co-ordinate Bench of this Court in Shri Mainuddin Vs. Managing Director, U.P. State Road Transport Corporation, Lucknow and others reported in 2008 (26) LCD 1001.
(6) In the aforesaid judgment of Mainuddin (Supra) the Court was considered a case where after holding the Disciplinary Enquiry on charges of misconduct levelled against 28 employees including the petitioner in respect of the same incident and similar misconduct some persons were inflicted minor penalties but a very harsh penalty of dismissal from service was imposed upon the petitioner. The petitioner preferred an Appeal which was rejected. He filed a Writ Petition and this Court disposed off the same by making an observation that the Appellate Authority should consider the fact that in similar matter lesser penalty had been given to similarly situated delinquent employees. The Managing Director was to decide the matter again within six weeks from the date of order passed by this Court. The Managing Director passed an order reiterating the earlier order passed by the U.P.S.R.T.C. dismissing the petitioner. The petitioner filed a writ petition, the Court considered the issue in the light of the law laid down by the Hon'ble Supreme Court and came to the conclusion that the Respondent-U.P.S.R.T.C. could not be given the liberty to argue the matter on merits of the judgment passed earlier by the Court. The arguments advanced by the U.P.S.R.T.C. could have been advanced by the learned counsel in the first innings of the litigation in the earlier writ petition. In case, such arguments raised in the earlier writ petition was not looked into by the Court, it was open for the U.P.S.R.T.C. to challenge the decision rendered by the Court on 15.03.2012 before the Higher Forum. However, it was not open to the Authorities to sit over the judgment of the Court and take different view in the matter, contrary to the tenor of the decision and direction of the Court, when the issue regarding discrimination was concluded before this Court and the matter was remanded to the Managing Director U.P.S.R.T.C.for the limited purpose of passing fresh order on the quantum of punishment, taking into account that similarly situated persons had been given lesser punishment.
(7) It is evident from the facts of this case as are being considered by me that the judgment rendered in the case of Shri Mainuddin (Supra) is not applicable to the case of the petitioner. Learned counsel for the petitioner has further submitted that on the basis of the judgment rendered by the Hon'ble Supreme Court in Radha Raman Samanta Vs. Bank of India reported in 2004 (1) SCC 605 that the order passed by the Additional Commissioner is without jurisdiction and he has remanded the matter without framing any issue.
(8) This Court has considered the judgment rendered by the Hon'ble Supreme Court, the Supreme Court was considered the case for regularization of Badli workers who had rendered services in the vacancy of the Administrator post for more than 240 days. It was observed by the Hon'ble Supreme Court, that this was sufficient to treat them as badli workers for the purpose of absorption and a legal right had been created in his favour by virtue of bipartite agreement between the Union and the respondent Bank. The Supreme Court had observed in Paragraph 12 that initially the learned Single Judge had directed the Bank to absorb the appellant, the Bank filed an Appeal against the said order. The Division Bench observed that the bipartite agreement on which the appellant was in the apprehension that his claim could not be enforced by filing a writ petition and remanded the issue. The judgment of the Division Bench was challenged by the appellant in Appeal before the Supreme Court, the Supreme Court observed that on the earlier occasion when the matter was considered by the Division Bench the Bank did not raise any issue any alternative remedy or any question relating to non-maintainability of the writ petition. The Supreme Court observed that when such issues might and ought to have been raised but had not been raised, it must be taken that the Division Bench had rejected the such contentions of the Bank and remanded the matter to the learned Single Judge which order was not carried out in Appeal and had become final. Learned Single Judge was bound to address only on one issue upon which the matter had been remanded to it. The Division Bench could not have over looked the said facts in Appeal arising from the order of the learned Single Judge on the second occasion after remand and need not have gone into the question as to whether the writ petition could have been entertained at all.
(9) It is evident that the judgment cited by the learned counsel for the petitioner is of no help at all to him, therefore, the writ petition is dismissed as not maintainable.
Order Date :- 19.10.2019 PAL