Rajasthan High Court - Jaipur
Inder Singh vs The State Of Rajasthan And Anr. on 9 June, 1999
Equivalent citations: 2000(1)WLC169, 1999(1)WLN543
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT N.N. Mathur, J.
1. The instant writ petition has been filed under Article 226 of the Constitution challenging the order dated 2.6.1999 passed by the respondent State of Rajasthan, whereby the petitioner has been reverted to the post of L.D.C. as his promotion/appointment on the post of Assessor has been found to be illegal by the judgment of this court, rendered in S.B.Civil Writ Petition No. 3340/95, Inder Singh v. State.
2. The facts giving rise to the present writ petition are that the petitioner was initially appointed as a Lower Division Clerk in the year 1984 in the Municipal Board, Nagaur. He was appointed as an Assessor by the order of the Municipal Board dated 7.8.1995. However, the chairman of the Board by order dated 23rd Sept., 1995 cancelled the said order, as in his opinion, it was not in accordance with the rules. The said decision was challenged by the petitioner by way of a writ petition before this court which was registered as S.B.Civil Writ Petition No. 3340/95. In reply to writ petition, it was pointed out that the Board, which passed the resolution for appointment of petitioner as Assessor, passed number of illegal orders while departing on completion of its terms on 27.8.1995, which were corrected by the newly elected Board. It was also pointed out that the order dated 7.8.1995 promoting the petitioner on the post of Assessor was beyond the resolution of the Board dated 1.8.1995 and recommendation to Director, Local Self Government dated 7.8.1995 as petitioner was to be given only additional work of Assessor, in addition of his duties as L.D.C. Various contentions were raised including that even in the cadre of L.D.C, there were persons senior to the petitioner. The learned Single Judge (Coram Shri P.P. Naolekar J.) rejected the petition by order dated 29.11.1995 holding that the order of cancellation of promotion of the petitioner was in accordance with law as his promotion was ab-initio void being in disregard of the Act and the Rules. While dealing-with the contention as to the requirement of following the principles of natural justice, the court held that rule of natural justice is not required to be followed in a case where the order, on the basis of which a right is claimed, is ab initio void being contrary to law, rules or regulations governing the filed. The learned Single Judge, after examining the provisions of the Rajasthan Municipalities Act, 1959, hereinafter referred- to as 'the Act' and the rules framed thereunder viz; the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963, hereinafter referred-to as 'the Rules of 1963', held that the channel of promotion for the post of Assessor is the Executive Officer of Class V Municipality or Revenue Inspector with five years experience. The court in terms held that in accordance with the Rules of 1963, a L.D.C. cannot be promoted to the post of Assessor. The petitioner carried the matter in appeal. It was defective appeal being presented on the court fee of Rs. 2/-only instead of Rs. 100/-. The appeal was, therefore, deficit of court fees of Rs. 98/-. On 9.1.1997 petitioner submitted an application that he wants to pursue the grievance before the Government and, therefore, he may be permitted to withdraw the appeal with liberty to pursue the grievance before the State Government. On that application, the Division Bench of this court dismissed the appeal as withdrawn with leberty to pursue the grievance before the State Government. It appears from the order dated 15.3.1997 (Annex. 2) that the petitioner preferred a revision petition before the State Government under Section 300 of the Act A reading of the order does not show if the petitioner had brought to the notice of the revisional Authority the fact that he had challenged the order dt. 23.9.1995 by way of filing a writ petition before this court, whereby his appointment on the post of Assessor was cancelled. There is no reference of the High Court proceedings in the order either before the Single Bench or the Division Bench. The petitioner cited an unreported decision dated 3.2.1994 rendered in S.B. Civil Writ Petition No. 19/1993 "Satish Chand v. State". On the basis of that order, the Hon'ble Deputy Minister Shri Mangla Ram Koli, held the order dt. 7.8.1995 appointing the petitioner as Assessor, as legal and valid. Accordingly, he set aside the order dated 23.9.1995. The Hon'ble Minister also accepted the resolution of the Municipal Board dated 7.8.1995 for creation of the post of Assessor. The said sanction was given for the period 7.8.1995 to 15.2.1997. It was also made clear that the resolution of the Board dt. 1.8.1995 promoting the petitioner as Assessor be treated as an appointment by way of direct recruitment. The Hon'ble Minister was further pleased to treat his appointment as from the date of his joining as Assessor i.e. 8.8.1995 and to give all consequential benefits and seniority. It was subsequently noticed that the said order has been passed by the Hon'ble Minister in ignorance of the order of this court and, as such, by the impugned order dated 2.6.1999, petitioner had been reverted to the post of L.D.C.
3. Challenging the said order, it is contended by Mr. K.N. Joshi, learned Counsel for the petitioner, that the order of reversion of the petitioner is ex facie illegal and void as the same has been passed in violation of the principles of natural justice inasmuch as that adverse order has been passed without hearing him. In support of his contention, Mr. Joshi has placed reliance on number of authorities, which are as under:
1. Nandlaletc. v. State of Rajasthan 1988 R.LR. 738.
2. Mukat Behari v. State of Rajasthan 1984 R.L.R. 357.
3. Usmani and Ors. v. Union of India .
4. Ladu Ram v. State of Rajasthan 1990 (2) RLW 85
5. Laddu v. Municipal Council, Tonk 1991 (2) RLR 353.
4. In my view, the contention deserves to be rejected out rightly. The rules of natural justice are not cast in a rigid mould nor can they be placed in legal strait jacket. There are situations, which do not call for application of the rules of natural justice. The Apex Court in the case of the Chairman, Board of Mining Examination and Chief Inspector of Mines and Anr. v. Ramjee observed thus:
Natural justice is no unruly horse, no lurking landmine, nor a judicial cure all.
5. In the instant case, the impugned order has been passed on the basis of the order passed by this court in a writ petition filed by none else but the petitioner himself. Thus, when an order is passed in pursuance of a judicial order, the principles of natural justice need not be complied-with.
6. In Dr. Suresh Chandra Verma and Ors. v. The Chancellor, Nagpur University AIR 1990 SC 2024, the services of the appellants were terminated by the Chancellor. A Division Bench of the Bombay High Court held that termination was illegal as they were appointed in accordance with law. The decision was based on an earlier judgment of that court. Said earlier decision was subsequently over-ruled by the Supreme Court. Consequently, the law laid down by the Supreme Court became the law from the beginning replacing the law laid down by the High Court and the termination was, therefore, legal. The Apex Court held that in the facts of the case in view of the Supreme Court decision, the rule of audi alteram partem does not apply and there is no breach of principles of natural justice.
7. It is next contended that by order dated 15.3.1997, the Deputy Minister treated the petitioner's appointment by way of direct recruitment, as such the judgment of this court in earlier petition has no relevance. The contention is wholly misconceived and deserves to be rejected. Once this court has found the case of petitioner, that of promotion and returned the finding thereon, it cannot be side-tracked by the Minister, or petitioner or his learned Counsel, just by saying that judgment of the High Court has no relevance. The petitioner has ventured to take off, considering the order of Hon'ble Minister a firm strip, ignoring the existence of judgment of this court giving a casual reference, the ill advised flight has to be shot down firmly. It is the obligation of the court to ensure that the courts verdict is respected. In Sanjiv Datta's case , the Apex Court observed thus:
The court's verdict has to be respected not necessarily by the authority of its reason but always by reason of its authority. Any conduct designed to or suggestive of challenging this crucial balance of power devised by the Constitution is an attempt to subvert the rule of law and an invitation to anarchy.
8. Even if it is assumed that it is a case of direct recruitment, it is ex facie malafide, illegal and void ab-initio. No authority including the Minister has power to make appointment as per his whim and wish in disregard to the statutory provisions. A minister holds the office of trust. He is supposed to act in a fair and just manner, in accordance with law. The impugned order dated 2.6.1999 says that for the post of Assessor, direct recruitment can be made only through selection by Municipalities Ministerial and Subordinate Staff Recruitment Board. The Dy. Minister Shri Mangla Ram Koli in his order dated 15.3.1997 has exceeded his authority in directing that the petitioner's appointment be treated as appointment by direct recruitment. Admittedly, petitioner has not undergone the process of selection for the post of Assessor. It is well settled that in the matter of public employment, the doctrine of equality before law and equal opportunity before law enshrined under Articles 14 and 16 of the Constitution demands appointment strictly on the basis of open invitation of application and merit. No appointment can be a deemed appointment by way of direct recruitment de hors of the statutory provisions.
9. Even on the basis of order dated 15.3.1997, petitioner cannot be continued on the post of Assessor, as. Government sanctioned the post of Assessor in Nagaur Municipal Board only for the period 9.8.1995 to 15.2.1997. Thus, it appears that Hon'ble Dy. Minister only intend to regularise his appointment, for the interragnum period. It is well settled that a tainted initial appointment cannot be regularised.
10. This writ petition also deserves to be rejected on the ground that petitioner has not approached to this court with clean hands, which is evident from the fact that though, the impugned order entirely proceeds on the basis of a judgment of this court and the fact that in the memo of writ petition, reference has been made to the earlier judgment of this court but the same has not been produced. The petitioner has not produced the copy of the judgment of this court but has ventured to criticize the said judgment. It will be relevant to extract para 18 of the writ petition.
That it may also be pertinent to note here that the earlier proceedings by way of writ petition and appeal has got no relevance, inasmuch as, by misunderstanding these cases were decided and dealt-with on the basis of the promotion of the petitioner.
11. The petitioner has not only said in the writ petition that this court decided the earlier petition by misunderstanding but the learned Counsel Mr. Joshi emphasised and re-emphasised, the statement made in para 18 of the petition. This infact amounts to contempt. The petitioner has mentioned incorrect number of the writ petition and special appeal in the memo of writ petition. Be that as it may, I have called-for the original file of earlier writ petition and gone through the same. Petitioner has neither produced the copy of the judgment of the learned Single Judge nor the order of the Division Bench, nor the resolution and order of his initial appointment as Assessor. A reading of these documents (available in earlier petition) hereinafter will demonstrate that petitioner has deliberately not produced these documents with a view to mislead this court. The basic document on which the petitioner relies is resolution dated 1.8.1995 passed by the Municipal Board, Nagaur, whereby resolution was adopted to appoint the petitioner as Assessor and also to move the Govt. for creation of the post of Assessor. I have read the said resolution. It speaks that since there is a ban on the direct recruitment and as the petitioner, a clerk in the Municipal Board, fulfills the qualification of Assessor, his services may be utilised and as and when the post is created, he may be given promotion in the regular pay scale in accordance with the rules. The relevant part of the resolution is extracted as follows:
jkT; ljdkj }kjk lh/kh HkrhZ ij izfrcU/k yxk j[kk gS ,slh fLFkfr es dk;Z djokuk ikfydk ds fgr es gS] ekStwnk deZpkjh;skes Jh bUnzflag dfu"B fyfid tks ch-,-] ,y-,l-th-Mh- o ,llsj dkslZ mRrh.kZ gSA deZpkjh ;ksX; ,oa dk;Z dk tkudkj gksus ls Lohd`r gks rks dk;Z O;oLFkk cuk;s j[kus ds fy, mDr Jh bUnzflag ls dk;Z djok;k tkos rFkk jkT; ljdkj }kjk in l`tu dh fLFkfr es fu;ekuqlkj osru Ja[kyk es inksUufr nh tkos A ckn fopkj foe'kZ loZlEefr ls Lohd`fr iznku dh xbZ A
12. By communication dated 7.8.1995, the Executive Officer, Municipal Board, Nagaur, wrote a letter to the Director, Local Self Govt., that permission may he granted for appointment of the petitioner on temporary basis on the post of Assessor in addition to his usual duties. The relevant portion of the letter is extracted as follows:
Jh bUnzflag ftldk nl lky ls vf/kd lsokdky gks x;k gSA tks ch-,-] ,y-,l-th-Mh- ,oa ,lslj dkslZ mRrh.kZ gS A dks vfxze O;oLFkk gksus rd dj fu/kkZjd ds in ij dk;Z djus ds fy, Lohd`r iznku dh xbZ gS ,oa vLFkkbZ :i ls Jh bUnz flag d-fy- dks vius dk;Z ds vfrfjDr dj fu/kkZjd in dk dk;Z djus ds fy, vkns'k tkjh fd;s x;s gS A
13. Thus, it is evident that the petitioner was only given an additional charge of Assessor in addition to his own duties as L.D.C. These documents have material bearing on the controversy but they have been suppressed by not producing them. It is significant to notice that these documents were produced by the petitioner in earlier writ petition. Though, it is not open for the petitioner to criticise the judgment of this court rendered in the earlier petition filed by him referred-to above but having seen the record, there is nothing on the basis of which the petitioner can say that the said case was decided on account of misunderstanding. If it was so, he should have either pressed the appeal or applied for review. The learned Single Judge held that petitioner's promotion on the post of Assessor was not in accordance with law. On further close scrutiny of the documents, it is clear that even the Municipal Board had adopted resolution only for utilising his services as Assessor in addition to his normal work. Petitioner has also concealed the fact that Special Appeal filed against the judgment of the learned Single Judge was withdrawn by him. In para 8 of the writ petition, petitioner has ventured to say that-
However, without considering the arguments of the appellant, the Division Bench rejected the appeal with liberty to the petitioner to pursue his grievance before the Government.
14. Giving the benefit of loose drafting, I confine only to the simple fact that while the appeal was lying in defect on an urgent application dated 9.1.1997 filed by the petitioner, the Division Bench passed the order on 10.1.1997 as follows:
There is an application filed by the appellant petitioner to withdraw the appeal. It has been submitted before us that the writ petitioner appellant will pursue his grievance before the State Govt. With such liberty the appeal stands dismissed as withdrawn.
15. The aforesaid order clearly shows that the petitioner withdrew the appeal with the liberty to pursue the grievance before the State Government but that does not mean that the judgment of the learned Single Judges has been set aside or wiped out. The petitioner grossly abused the liberty granted by this court. Once this court held that the appointment of the petitioner on the post of Assessor was not in accordance with law and the order cancelling the said appointment was upheld, the State Govt. could not have taken a decision contrary to the decision of the High Court by holding that the order of cancellation of petitioner's appointment as Assessor was valid. I have no hesitation in saying that it could be a fit case for initiating contempt proceedings against the Hon'ble Dy. Minister Shri Mangla Ram Koli but a reading of the order clearly shows that the judgment of this court was not brought to the notice of the Hon'ble Minister. Thus, petitioner is not only guilty of misleading this court but he is also guilty of misleading the State Government, its officials and the Minister by concealing the fact that on the same controversy, he had obtained a judgment against him from the High Court.
16. So far as the non-production of the judgment of the learned Single Judge and also of the Division Bench is concerned, Mr. Joshi learned Counsel for the petitioner submitted that it was an inadvertent mistake on the part of his office for which the court should not take a serious view of the matter. At the first instance, it is difficult for me to conceive that the non- production of the material documents in the facts of the case was inadvertent mistake by the office of the learned Counsel. The said judgment referred-to above is the most important document in the case inasmuch as the impugned order has been passed on that basis and not only that petitioner has ventured to criticise the said judgment by saying that the case has been decided on the basis of misunderstanding. The pleadings and the oral submissions has aggravated the conduct of the petitioner. If it is taken that it was just a mistake on the part of the office of the learned Counsel, then all the more, it is a serious matter. The normal rule is that all the documents on which the petitioner intends to rely upon for the purpose of supporting or opposing the case, should be produced along with the writ petition. This is of-course true that, of late, a wrong practice has developed of producing the documents during the course of arguments. In fact, it is permitted sometimes in the interest of justice, but this cannot be permitted in routine, as a matter of course, particularly in a case where the documents have not been produced with a view to mislead the court. The court shall be failing in its duty if such sort of trends are not firmly checked, as such sort of mischief will sabotage the rule of law. Even if it is assumed that there was some mistake by the office of the learned Counsel, I disapprove this sort of casual approach. It is the duty of the counsel to check the petition before it is presented. Justice P.B. Sawant criticising the casual approach in the legal profession observed in Sanjiv Datta's case (supra) that a casual approach in the profession not only amounts to contempt of the court but do positive dis-service to the litigants and create embarrassing situation in the court leading to avoidable unpleasantness and delay in disposal of the matters. His lordship further observed that this augurs ill for the health of our judicial system.
17. The over all reading of the petition and hearing the vehement arguments of Mr. Joshi learned Counsel, I am satisfied that the petitioner for personal gain or advantage has entered in adventurism to mislead this court. Thus, the obnoxious conduct of the petitioner disentitles him of relief from this court in exercise of its equitable jurisdiction under Article 226 of the Constitution of India.
18. While dismissing the petition, I am of the view that the conduct of the petitioner to obtain an order from the Hon'ble Dy. Minister, running counter to the judgment of this court, could lend the Hon'ble Minister in trouble to face the contempt proceedings. In fact the conduct of the petitioner has embarrassed the Government and the order of the Hon'ble Minister had to be recalled by impugned order. This conduct need to be enquired-into by initiating departmental enquiry against him. It is, thus, directed that a departmental proceeding be initiated against the petitioner for major penalty for enquiry of the aforesaid conduct.
19. Before parting with, it is made clear that any observation made in this order will not have reflection on merits of the case in departmental enquiry. The finding confines to the instant case alone. It is also made clear that assertion of authority of the court in this order should not be construed as disrespect to any functionary under the Constitution. I am conscious of the fact that three known wings of the Government performs their functions in the field entrusted to them and respect functioning of others.
20. Consequently, the writ petition is dismissed in limine with exemplary cost which is quantified as Rs. 10,000/- and with a further direction that the departmental enquiry be initiated against the petitioner as indicated above. The cost amount shall be recovered from the petitioner and deposited with this court within a period of two months from the date of receipt of the writ. The Deputy Secretary cum Director, Local Self Govt. is directed to ensure the compliance of this order and submit a compliance report by Sept. 30, 1999. The writ be sent down forthwith.