Gujarat High Court
Haresh K Borisagar & 29 vs State Of Gujarat & 3 on 23 August, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/7886/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7886 of 2003
With
SPECIAL CIVIL APPLICATION NO. 8032 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7967 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7994 of 2003
With
SPECIAL CIVIL APPLICATION NO. 12081 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7948 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7996 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7973 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7974 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7975 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7976 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7977 of 2003
With
SPECIAL CIVIL APPLICATION NO. 8148 of 2003
With
SPECIAL CIVIL APPLICATION NO. 7921 of 2003
TO
SPECIAL CIVIL APPLICATION NO. 7932 of 2003
With
SPECIAL CIVIL APPLICATION NO. 844 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HARESH K BORISAGAR & 29....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MS SANGEETA PAHWA, ADVOCATE FOR M/S. THAKKAR AND PAHWA ADVOCATES,
ADVOCATE for the Petitioner(s) No. 1 - 30
MR G M JOSHI, ADVOCATE for the Petitioner(s)
MR T R MISHRA, ADVOCATE for the Petitioner(s)
MR JAYANT P BHATT, ADVOCATE for the Petitioner(s)
MR VISHRUT JANI, AGP for the Respondent(s) No. 1 - 3
MR YOGEN N PANDYA, ADVOCATE for the Respondent(s) No. 4
MR YATIN SONI, ADVOCATE for the Respondent(s)
RULE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 23/08/2017
COMMON ORAL JUDGMENT
1. Heard Ms.Sangeeta Pahwa, Mr.Jayant P. Bhatt, Mr.U.T. Mishra, learned advocates for the petitioners.
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1.1 Mr.G.M. Joshi, Mr.N.D. Buch, Ms.S.A. Kapadia, Mr.B.N. Dave, learned advocates who have entered appearance for the petitioners in Special Civil Application Nos.8072/2003, 12081/2003 and 7948/2003 are not present.
1.2 Mr.Jani, learned AGP for the respondent State is present. Mr.Y.N. Pandya, Mr.Yatin Soni, learned advocates for the respondents are not present.
2. The petitioners in the captioned group of petitions have declared that all of them are employees of the respondent Gondal Municipality.
3. It is also declared by learned advocates for the petitioners in the captioned petitions that all petitioners felt aggrieved by order dated 3.6.2003 passed by the respondent Municipality and that, therefore, the petitioners filed respective petitions against the said order dated 3.6.2003.
4. It is also claimed by learned advocates for 3 HC-NIC Page 3 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT the petitioners that the cause for the grievance / dispute and the ground of challenge against the impugned action/ order are almost similar and identical and all petitioners have challenged the action / order dated 3.6.2003 and that the challenge against said order is raised on almost similar contention. In that view of the matter, the captioned petitions are decided by this common judgment.
5. Before proceeding further, it will be appropriate to take into account the relief prayed for by the petitioners.
6. In Special Civil Application No.7886 of 2003, the petitioners have prayed, inter alia, that:
"8(A) YOUR LORDSHIPS be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction for quashing and setting aside the impugned orders dtd. 03.06.2003, annexed at Annexure 'I' Colly to this petition, terminating the services of the petitioners as being illegal, arbitrary, bad in the eye of law as also violative of Art.14 of the Constitution of India;
(B) YOUR LORDSHIPS be pleased to stay the further implementation and operation of the impugned orders dtd.
03.06.2003, annexed at Annexure 'I' Colly to this petition, and also direct respondent], terminating the services of the petitioners as being illegal, arbitrary, bad in the eye of law as also violative of Art.14 of the Constitution of India;
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7. Mr.Jayant P. Bhatt, learned advocate for the petitioners in Special Civil Application Nos.7967/2003 and 7921/2003 to 7932/2003 submitted and declared that all the petitioners in the said petitions have prayed for similar relief. Therefore, the relief prayed in Special Civil Application No.7967 of 2003 is quoted below:
"8(b) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus and/or any other appropriate writ, order or direction for quashing and setting aside the impugned order dated 03.06.2003 issued by the respondent no.1 herein, terminating the services of the petitioner as Gangman.
(c) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the implementation, execution and operation of the impugned order of termination at AnnexureA terminating the service of the petitioner and/or direct the respondent no.1 to maintain the status quo with regard to the service condition of the petitioner and his status."
8. Mr.U.T. Mishra, learned advocate for the petitioners in Special Civil Application No.7973/2003, to 7977/2003 and 8148/2003 submitted and declared that all the petitioners in the said petitions have prayed for similar relief. Therefore, the relief prayed in Special Civil Application No.7973 of 2003 is quoted below:
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HC-NIC Page 5 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT "14(A) That Your Lordships be pleased to issue an order and or direction or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 3.6.2003 marked Annexure 'A' to this petition being illegal, perverse and in utter disregard to and violation of Article 14 and 16 of the Constitution of India.
(B) Pending admission and final disposal of this petition, Your Lordships be pleased to suspend the operation, implementation and execution of the order dated 3.6.2003 marked Annex. 'A' to this petition."
9. It has emerged from the record that vide order dated 3.6.2003 respondent No.4 municipality terminated services of the petitioners concerned in the captioned petitions or by order/s dated 3.6.2003 reverted the petitions (in Special Civil Application Nos.7973/2003 to 7977/2003 and 8148/2003).
10. The impugned order/s dated 3.6.2003 is available on record. On plain reading of the order dated 3.6.2003, it comes out that respondent No.4 municipality resorted to enmass termination of several employees vide said order dated 3.6.2003 and in some cases enmass reversion of several employees, mainly on the premise that the said persons were, allegedly, appointed irregularly and without following 6 HC-NIC Page 6 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT procedure for selection and recruitment by order of even date, i.e. 6.3.2003, the respondents, en mass and after long time, cancelled the promotions of several employees and reverted them to their original posts. The respondents have claimed that before the authority passed the orders dated 3.6.2003, notices were served to the petitioners whereby the petitioners were, allegedly, called upon to show cause as to why the irregular appointment should not be cancelled. Subsequently, the municipality took recourse of Rule 33 of the BCSR and terminated service of the persons concerned in the captioned petitions.
11. Feeling aggrieved by the said decision and the order of respondent municipality, the petitioners approached this Court and filed captioned petitions.
12. The petitioners have claimed, inter alia, that they were in service with the municipality for more than 5 years and that initially they 7 HC-NIC Page 7 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT were engaged on probation and subsequently on completion of period of probation, they were continued in service. They have also claimed and contended that they served with the municipality regularly, continuously and sincerely and that their services have not been terminated on ground of any misconduct. They have also claimed that they have worked for more than 240 days in each year and there was no illegality or irregularity in their appointment.
13. From the record, it appears that on 3.6.2003, the municipality passed similar and identical orders terminating service of present petitioners and thereby enmass termination and reversion of several employees was effected on singular ground viz. that they were allegedly appointed without following prescribed procedure for selection and recruitment. Likewise, the orders dated 3.6.2003 whereby the other set of employees also came to be passed on similar singular ground viz. that the concerned employees were promoted without 8 HC-NIC Page 8 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT following prescribed procedure.
14. This Court initially issued notice and called upon the respondents to answer the petitions. The respondent municipality filed affidavit by In charge Assistant Director of the municipality in Special Civil Application No.7886 of 2003.
15. After considering reply and objection by the respondent and the contention by the petitioners, this Court (Coram: Hon'ble Mr.Justice H.K. Rathod, as His Lordship then was) passed interim order dated 23.7.2003. In the said order, the Court observed, inter alia, that:
"21. Therefore, it is necessary to keep in mind the predicament of these petitioners whose services came to be terminated in the result of having difference of opinion between two State Authorities and not to follow certain guidelines by the respondent municipality. It is not case of the respondent municipality that any of the petitioners has committed any misconduct relating to dishonesty and misappropriation of funds. There is no indiscipline alleged against the petitioners but ultimately, the petitioners are the sufferers because of inaction on the part of the Gondal Municipality while not following certain safeguards before recruitment and confirming the petitioners in service. Therefore, the petitioners can be said to be the victims of inaction on the part of both the State Authorities viz. Gondal Municipality and the Regional Director of Municipality, Rajkot because the Gondal Municipality has not obtained any prior permission of Finance Department nor obtained any sanction from the Regional Director of Municipality for the additional set up in view of the hard reality of increase population in respondent municipality in last 25 years. Therefore, without any lapse or any inaction on the part of the petitioners, they made to suffer in the guise of non compliance of certain 9 HC-NIC Page 9 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT administrative instructions and circulars. It is also pertinent to note that the petitioners were working with the respondent municipality since last 15 20 years and in the reply filed by the respondent municipality, there is no mention to the fact that the performance of the petitioner were not satisfactory, meaning thereby, inspite of all satisfactory work and confirmation after probation period, now on account of inaction and lethargic approach of the respondent Gondal Municipality and the Regional Director of the Municipality, poor employees are made victims who have not committed any mistake or fault in the entire service record. This is also one of the considerations for grant of the interim relief in favour of the petitioners. Ultimately, it is the spirit and not the form of law that keeps justice alive.
22. In view of above discussion, this Court is inclined to entertain and admit this group of petitions and this being the fit case for grant of interim relief, hence the following order;
Rule, returnable in 3rd week of January, 2004.
By way of interim order, it is directed to the respondents to suspend the operation of the order of termination order and not to implement the order of termination dated 3rd June, 2003 against the petitioners of this group of petitions and further directed to reinstate each of the petitioners in service within three weeks from the date of receiving the copy of this order.
It is open for the Regional Director of Municipalities Rajkot as well as the State Government to consider this question as to on which date, the sanction or permission was given to the Gondal Municipality for necessary staff within set up or on the last date on which the said set up has been granted in light of the population of the Gondal City and further to consider that the population which has been increased in Gondal City during the intervening period and how many further posts in entire Gondal Municipal limits is required now and also to consider the observations made by this court and to take appropriate decision without being influenced by the pendency of this petition before this court.
23. This Court makes it clear that whatever observations made in the present order, are based on prima facie At the time of final hearing, this Court will examine the merits of the matter independently without being influenced by this interim order.
Direct service permitted."
16. At this stage, it is necessary to mention, so as to clarify factual aspect, that the said order came to be passed in Special Civil Application 10 HC-NIC Page 10 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT Nos.7886/2003, 803/2003, 7921/2003 to 7932/2003, 7967/2003, 7948/2003, 7996/2003 and 7994/2003.
17. Separate order but of similar nature and to similar effect came to be passed by the Court (Coram: Hon'ble Mr.Justice H.K. Rathod, as His Lordship then was) in Special Civil Application Nos.7973/2003, 7974/2003 to 7979/2003 and 8148/203, which reads thus:
"Heard learned advocate Mr.T.R.Mishra on behalf of the petitioners and learned Advocate Mr.P.K.Parekh for respondent Gondal Municipality, so also, learned AGP Mr.P.D.Bhate for respondent No.2.
In this group of petitions, the petitioners have challenged the order of reversion dated 3rd June, 2003. Today, this Court has passed order issuing Rule and granting interim relief in favour of the petitioners of Special Civil Application No.7886 / 2003 and other allied group matters, with directions to the respondent Municipality while suspending operation of termination order and not to implement the order of termination and with further directions on the respondent Gondal Municipality to reinstate that petitioners within three weeks. It may be appreciated that the petitioners of this group of petitions situate similar to the petitioners of Special Civil Application No.7886 / 2003 and allied matter inasmuch as, the order of reversion impugned in this group of petitions is also based on the instructions and / or directions issued by the Regional Director of Municipality, Rajkot vide his letter dated 10th July, 2001. Therefore, the reasons given by this Court while granting the interim relief in favour of the petitioners of Special Civil Application No.7886 / 2003 and other allied group matters, with directions to the respondent Municipality while suppending the operation of termination and not to implement the order of termination, shall apply to the facts of this case on principle and therefore, this Court is not repeating the same reasoning in this group of petitions at this stage of grant of interim relief.
In above view of the matter, the questions raised in the group of petitions require detailed examination by this Court and hence;
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Rule, to be heard with Special Civil Application No.7886 / 2003 and allied group of matters.
By way of interim order, it is directed to the Chief Officer of Gondal Municipality and the other respondent not to implement the order of reversion against the petitioners and shall allow all the petitioners of this group of petitions to work on the post where they were already working before service of reversion order in question, within three weeks from the date of receiving the copy of this order.
Direct Service permitted."
18. On plain reading of the said order/s it comes out that the Court restrained the municipality from implementing the order dated 3.6.2003 i.e. the orders of termination / reversion of service of the concerned petitioners and the Court directed the municipality to continue / reinstate the petitioners in service / on same post or position.
19. What is more important - so far as this group of petitions is concerned - is that the Court also directed the municipality to initiate steps and actions for regularization of service of the claimants.
20. It is given out that the said order dated 23.7.2003 in Special Civil Application No.7886 of 12 HC-NIC Page 12 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT 2003 was carried before the Division Bench in Letters Patent Appeal No.806 of 2003, wherein the Court initially passed below quoted order on 14.8.2003:
"Notice returnable on 02.09.2003. Notice as to interim relief. In the meantime by way of adinterim relief, the directions referable to reinstatement in the impugned interlocutory order shall stand stayed till the next date."
21. However, the said Letters Patent Appeal No.806 of 2003 came to be disposed of vide order dated 16.12.2003. According to the petitioners said interim order/s were not disturbed in the appeal and consequently the said interim order/s are still alive and in operation.
22. It is given out by learned advocates for the petitioners that in pursuance of and in compliance of the order passed by this Court and on 23.7.2003, the petitioners have been reinstated / continued in service on the same post on which they were working before 30.6.2003.
23. The said claim and submission by the petitioners is not denied by the respondents.
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24. Under the circumstances, after 2003, by virtue of the order dated 23.7.2003, the petitioners have, undisputedly, continued in service for further / additional 14 years.
25. As mentioned above, at the relevant time, i.e. in June 2003, the municipality sought to terminate / revert service of the petitioners on singular ground viz. that their appointments / promotions were irregular, however, in view of the order dated 23.7.2003, the petitioners came to be reinstated and continued in service / continued on same post and after the order dated 23.7.2003, the petitioners have continued in service for further 14 years.
26. The length of service put in by the petitioners prior to June 2003 is besides the length of service completed by the petitioners after July 2003 until now.
27. At this stage, it is appropriate to recall the direction passed by this Court vide above 14 HC-NIC Page 14 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT mentioned interim order dated 23.7.2003. By the said interim order, this Court also directed the respondent municipality that:
"... ... ... it is directed to the respondents to suspend the operation of the order of termination order and not to implement the order of termination dated 3rd June, 2003 against the petitioners of this group of petitions and further directed to reinstate each of the petitioners in service within three weeks from the date of receiving the copy of this order.
It is open for the Regional Director of Municipalities Rajkot as well as the State Government to consider this question as to on which date, the sanction or permission was given to the Gondal Municipality for necessary staff within set up or on the last date on which the said set up has been granted in light of the population of the Gondal City and further to consider that the population which has been increased in Gondal City during the intervening period and how many further posts in entire Gondal Municipal limits is required now and also to consider the observations made by this court and to take appropriate decision without being influenced by the pendency of this petition before this court."
28. In view of the said direction passed by the Court under the interim order, the respondent municipality and the Director of municipality were directed to take steps to determine the requirement of total number of employees and to accordingly revise the sanctioned set up of the establishment of municipality.
29. Ms.Pahwa, learned advocate for the petitioners that since the respondent municipality did not pass any further order in 15 HC-NIC Page 15 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT compliance of the said direction in the interim order, petitioner No.1 and certain other petitioners concerned in Special Civil Application No.7866 of 2003 filed Special Civil Application No.10153 of 2016 and prayed for further direction to the respondents and failed to comply the direction in the interim order dated 23.7.2003.
30. In the said petition, i.e. Special Civil Application No.10153 of 2016, the petitioners have prayed, inter alia, that:
"9(A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction, directing the respondent nos.1 and 2 to forthwith absorb the petitioners in the sanctioned setup as directed by this Hon'ble Court vide order dated 23.7.2003 in Special Civil Application No.7886 of 2003 and as directed by respondent no.4 vide order dated 17.1.2013, in the interest of justice;
(B) YOUR LORDSHIPS may be pleased to the direct respondent nos.1 and 2 to absorb the petitioners in the sanctioned setup as directed by this Hon'ble Court vide order dated 23.7.2003 in Special Civil Application No.7886 of 2003 and as directed by respondent no.4 vide order dated 17.1.2013, pending the admission, hearing and final disposal of this petition;"
31. Ms.Pahwa, learned advocate for the petitioners also submitted that in the said Special Civil Application No.10153 of 2016, initially the Court passed order dated 29.6.2016 16 HC-NIC Page 16 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT which is followed by orders dated 27.6.2017 and 4.8.2017.
32. The order dated 29.6.2016 reads thus:
"Heard learned advocate Ms. Natasha Sutariya for M/s. Thakkar and Pahwa Advocates for the petitioners.
2. The prayer in this petition is for issuing direction against the first and second Municipal Authorities to absorb the petitioners in the sanctioned setup of the third respondent Municipality.
3. The petitioners are Class IV and Class III employees working in the third respondentNagar Palika, who have pleaded their claim for absorption on the basis of the order passed in the earlier writ petitions by this Court. With reference to that learned advocate for the petitioners further submitted that all the petitioners have been working against the sanctioned posts in the setup of the Municipality and further that earlier a scheme was mooted for absorbing the petitioners. The petitioners have been still waiting for the fruits to be yielded.
4. Notice returnable on 25th July, 2016."
33. The order dated 27.6.2017 reads thus:
"Heard learned advocates for the respective parties. Perused the record. It would be appropriate for the respondent to come forward, irrespective of filing detailed affidavit in reply, to disclose on record what decision they have taken pursuant to issue under reference, whereby practically respondent no.2 has to comply with the order passed by this Court in Special Civil Application No.7886 of 2003. It is made clear that if respondent does not take decision on or before 18.07.2017, then adverse inference shall be drawn against them.
List on 18.07.2017."
34. The order dated 4.8.2017 reads thus:
There is non compliance of order dated 27.06.2017so also 18.07.2017. Therefore, adverse inference is required to be drawn against the respondent no.2. However, one more chance is given in the interest of justice. Matter is to be listed on 28.08.2017. It is made clear that if order dated 27.06.2017 read with 18.07.2017 is not complied, then responsible officer from office of respondent no.2 shall 17 HC-NIC Page 17 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT remain present before this Court with entire record and explain that what steps they have taken in compliance of above referred orders."
35. According to Ms.Pahwa, learned advocate for the petitioners, the said petition, i.e. Special Civil Application No.10153 of 2016 is pending and is likely to be listed for further hearing and orders on 28.8.2017.
36. In this background, the Court is of the view that the captioned petitions can be disposed of at this stage in light of the interim order dated 23.7.2003 which has remained in operation until now i.e. for 14 years.
37. Ms.Pahwa and Mr.Bhatt, learned advocate for the petitioners have declared that the said order dated 23.7.2003 has remained in operation until now.
38. It is also declared and clarified that the petitioners in the captioned petitions are also continued in service until now, except the persons who might have reached age of 18 HC-NIC Page 18 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT superannuation or whose services might have been terminated on any other ground like misconduct, etc.
39. So far as the orders dated 3.6.2003 whereby the promotions in respect of group of employees came to be cancelled and such employees came to be reverted to original posts are concerned, it is submitted by Mr.Mishra, learned advocate for the petitioners that in view of the interim order dated 23.7.2003, the said employees are continued on the same post (i.e. promotional post) and their promotions have not been cancelled and the employees are not reverted to original posts.
40. However, the fact remains that the said orders whereby the respondents, enmass cancelled promotions of several employees and reverted them to original posts, are considered alive by the respondents. Of course, since last 14 years, operation of the said orders has remained in abeyance.
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41. The respondents have not clarified as to whether the respondents have granted promotions to the said employees after 23.7.2003 or not. Even learned advocate for the petitioners, for want of information, could not clarify this aspect.
42. It is quit possible that during subsequent period, the said petitioners might have earned promotions.
43. On the other hand, the probability that the respondents may have denied and may not have granted promotions to such persons on the ground that the said promotions (i.e. the promotion granted before 3.6.2003) have been cancelled.
44. Be that as it may, the relevant fact, so far as the petitions by such petitioners are concerned, is that the operation of the orders cancelling the promotion have remained in abeyance for almost 14 years.
45. When the said orders dated 30.6.2003 are 20 HC-NIC Page 20 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT examined, it comes out that all orders are based on similar and singular ground viz. that the promotion was granted irregularly / without following proper procedure. The petitioners, on the other hand, claim that there was no irregularity when promotions were granted and that each petitioner possesses requisite and prescribed qualifications and experience for the post where they came to be promoted.
46. It is pertinent that the said said orders do not reflect relevant rule relevant eligibility criteria or relevant qualifications which the petitioners, allegedly, did not possess at the time when the promotions were granted. The orders also do not clarify actual irregularity which was allegedly committed inasmuch as neither the procedure which was allegedly not followed is specifically mentioned in the order nor the orders indicate the eligibility criteria which the concerned person did not possess or did not fulfill at the time when he / they was / were 21 HC-NIC Page 21 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT promoted. Differently put, stereotype orders, whereby the respondents effected enmass cancellation of promotion, came to be passed mechanically and they are bereft of reasons and do not reflect application of mind. Consequently, impugned orders are vitiated on account of the said defects.
47. At the same time, in absence of relevant details and since relevant and applicable eligibility criteria and requisite qualifications applicable to the promotional post/s in respect of each case are not available on record, this Court cannot hold and declare that the petitioners are or are not eligible for the promotion which was granted at the relevant time (i.e. which came to be cancelled by impugned orders). It is only the competent authority who can examine relevant aspects i.e. the details regarding qualifications, experience, etc. of the petitioners visavis the provisions under the Rules and prescribed eligibility criteria. It is 22 HC-NIC Page 22 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT only the competent authority who can, after taking into account the said aspects, decide as to whether the petitioner was eligible for the promotion at the relevant time or not. Since the orders which are impugned in present petition are bereft of discussion and reasons, the orders are not sustainable.
48. However, only on that ground it cannot be declared by the Court that the petitioners were rightly promoted and there was no mistake or irregularity.
49. For determination of the said aspect, the cases of those petitioners whose promotions came to be cancelled by impugned orders deserve to be reexamined by the competent authority.
50. Consequently, the said cases are required to be remitted to the competent authority for re consideration and fresh orders which should reflect application of mind and which should contain the reasons in support of final 23 HC-NIC Page 23 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT conclusion.
51. Therefore, the orders whereby the authorities cancelled promotions of several employees, are also set aside and the said cases are remitted to the competent authority.
52. In light of the submissions by Ms.Pahwa, learned advocate for the petitioners in Special Civil Application No.10153 of 2016, it appears that this Court is examining the grievance with regard to alleged noncompliance or partial compliance of the directions vide order dated 23.7.2003 to the municipality and Regional Director of municipality and their request for direction to take steps to comply the order dated 23.7.2003 and to assess the requirement of staff and to increase / expand the set up of the municipality in light of the relevant factors.
53. She also submitted that according to the information available with the petitioners, as of now, about 135 vacancies exist on the 24 HC-NIC Page 24 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT establishment / set up of the municipality.
54. In this view of the matter, there is scope and possibility that the interim direction by the Court vide order dated 23.7.2003 can be taken to its logical end which, of course, depends on the final decision by the Government with regard to the review and revision of the set up of the municipality.
55. If at all the decision of the Government does not help the petitioners, then obviously the municipality shall have to take appropriate decision afresh in accordance with law and after granting opportunity of hearing to the petitioners because, obviously after passage of long time i.e. after almost 14 years, the respondent municipality cannot turn to its original order dated 3.6.2003 and implement the said order (after almost 14 years).
56. Under the circumstances, This Court is of the view that present petitions can be disposed of in 25 HC-NIC Page 25 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT terms of the interim relief granted by the Court vide order dated 23.7.2003, more particularly because pursuant to the said order the petitioners have been continued in service and they have, consequently, remained in service for further 14 years.
57. Therefore, following order is passed:
(a) In light of said order dated 23.7.2003 the order dated 3.6.2003 have not been implemented for 14 years.
(b) In view of the fact that according to the subject matter of Special Civil Application No.11053 of 2016 and allegations therein the direction under order dated 23.7.2003 are yet not fully complied, said order dated 23.7.2003 and its effect should continue, otherwise said Special Civil Application No.11053 of 2016 will be rendered infructuous and the order dated 23.7.2003 shall be rendered redundant and otiose and second part of the direction vide order dated 26 HC-NIC Page 26 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT 23.7.2003 shall be frustrated.
(c) Therefore the order dated 3.6.2003 cannot be permitted to operate and effect of the directions vide order dated 23.7.2003 should continue and it should remain alive and binding.
(d) Further, until second part of the direction under the order dated 23.7.2003 is not complied and so long as government does not take final decision to comply the direction, the order dated 3.6.2003 cannot operate. Thus, said order dated 3.6.2003 shall be deemed to have lapsed.
(e) However, with the clarification that the order dated 23.7.2003 and/or this judgment shall not stand in way of municipality if any need to take any action against any employee arises. In such circumstances, the municipality can take appropriate action against erring employee in accordance with law.
(f) It would also be open to the municipality to take appropriate decision and action in 27 HC-NIC Page 27 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT accordance with law after above quoted directions vide impugned order dated 23.7.2003 are complied and decision with regard to the revision of set up is taken by the Government and conveyed to the municipality.
(g) If any need or circumstance arises for taking action depending on the decision of the Government / Director of municipalities e.g. regularizing service of some of the claimant (based on their inter se seniority and their qualification, experience etc.) and relieving some other i.e. extra / additional employees who may be excess over revised and sanctioned set up / strength, then the municipality can take such action in accordance with law.
(h) Such action by the municipality would constitute fresh cause of action for the petitioner/s who feel aggrieved by such action.
(i) For such purpose, appropriate order shall have to be passed in accordance with law by 28 HC-NIC Page 28 of 30 Created On Mon Dec 18 23:10:52 IST 2017 C/SCA/7886/2003 JUDGMENT respondent No.4 municipality however, 14 years old order (i.e. order dated 3.6.2003) shall not be taken recourse of and/or shall not be relied upon and/or shall not be implemented or pressed in service by the municipality, after 14 years, against the employees concerned in this group of petitions, on the basis of the decision by the State Government and/or Director of municipalities with regard to the set up of the municipality.
(j) So far as the orders dated 3.6.2003 cancelling promotion orders and reverting the employees to their original post are concerned the municipality may pass appropriate fresh orders after considering foregoing discussion and after correcting / reversing the defects and by keeping in focus the aspects discussed above.
(k) It is further clarified that the disposal of present petitions will not stand in way of the petitioners of Special Civil Application No.10153 of 2016 to pursue the said petition.
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C/SCA/7886/2003 JUDGMENT
With the aforesaid clarifications, directions and observations, the petitions are disposed of.
Sd/ (K.M.THAKER, J.) Bharat 30 HC-NIC Page 30 of 30 Created On Mon Dec 18 23:10:52 IST 2017