Punjab-Haryana High Court
Bir Singh vs State Of Haryana And Others on 19 November, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
C.W.P.No.784 of 1996 1
637
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
C.W.P.No.784 of 1996
Date of Decision: 19.11.2013
Bir Singh ... Petitioner
Versus
State of Haryana and others ... Respondents
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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present:- Mr. J.V.Yadav, Advocate,
for the petitioner.
Mr. Deepak Jindal, DAG., Haryana.
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RAMESHWAR SINGH MALIK , J (ORAL)
The present writ petition is directed against the orders dated 07.10.1994 (Annexure P-3) and dated 04.01.1996 (Annexure P-4), whereby petitioner was sought to be reverted.
To unravel the controversy involved between the parties, brief narration of essential facts would be required. Petitioner joined the service of Haryana Vidhan Sabha on the post of Watch and Ward Assistant on 21.11.1980. Vide Annexure P-1 dated 06.09.1991, respondent No.2 issued the communication inviting applications from the eligible candidates with a view to fill up two vacant posts of Clerks, by way of transfer. Petitioner being fully eligible for the post, Vandana 2013.11.27 14:40 I attest to the accuracy and integrity of this document C.W.P.No.784 of 1996 2 applied through proper channel. He faced the competition and was selected. Accordingly, vide Annexure P-2 dated 28.11.1991, offer of appointment was given to the petitioner and he joined the respondent-Department. Petitioner had already served the respondent-Department for more than three and a half years, when impugned order dated 07.10.1994 (Annexure P-3) came to be issued by respondent No.2, thereby reverting the petitioner to his parent department. However, it seems that implementation of this order dated 07.10.1994 (Annexure P-3) was stayed by the Department itself. Finally, impugned order dated 04.01.1996 (Annexure P-4) was issued by respondent No.2, thereby implementing the above said impugned order (Annexure P-3) and petitioner was ordered to be relieved. Feeling genuinely aggrieved, petitioner approached this Court by way of instant writ petition.
Notice of motion was issued and pursuant thereto written statement on behalf of the respondents was filed. After hearing the parties, a Division Bench of this Court admitted the writ petition for regular hearing on 25.03.1996 by passing the following order:-
"After hearing the learned counsel for the parties, we are of the opinion that the case requires consideration at greater length.
Admitted. To be listed for hearing within six months.
The operation of the impugned orders dated October 7, 1994, and January 4, 1996, copies Anneuxres P-3 and P-4 respectively, shall remain stayed."Vandana 2013.11.27 14:40 I attest to the accuracy and integrity of this document C.W.P.No.784 of 1996 3
During the pendency of the writ petition, Civil Miscellaneous No.9103 of 2002 was filed by the respondents seeking vacation of the above said stay order dated 25.03.1996. However, after hearing the parties, this stay application was dismisssed vide order dated 10.07.2002. After some time, another application bearing Civil Miscellaneous No.12553 of 2004 was moved on behalf of the respondents seeking vacation of the stay order. This application also came to be dismissed by this Court vide order dated 23.08.2004.
In the interregnum, petitioner kept on serving the respondent-Department and is going to retire after about 11 months.
Learned counsel for the petitioner strenuously argued that the only ground for reverting the petitioner, taken in the impugned orders was, as a matter of fact, not available to the respondent- Department. He also contends that neither in the communication (Annexure P-1) nor in the offer of appointment (Annexure P-2), there was any condition that the appointment of the petitioner was subject to approval of S.S.S.Board, Haryana. Since the petitioner applied through proper channel, there could not be any scope of misrepresentation or even misunderstanding on the part of the respondent-Department. He further submits that the present case is squarely covered by judgment of this Court in Mrs. Chander Mani and others Vs. Haryana State and another 1992 (2) RSJ 457. Finally, he prays for setting aside the impugned orders by allowing the present writ petition.
Vandana 2013.11.27 14:40 I attest to the accuracy and integrity of this document C.W.P.No.784 of 1996 4
Per contra, learned counsel for the State submits that the impugned orders were not suffering from any vice of arbitrariness because the appointment of the petitioner was governed under the Punjab Civil Service Rules as applicable to the Haryana Government Employees and also the Service Rules of the Department. He next contended that once the appointment of the petitioner was subject to the Service Rules, no prejudice was caused to the petitioner while passing the impugned orders. He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case, and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the present case, instant writ petition deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
It is an admitted position on record that right from 1991 till date, petitioner is continuously serving the respondent-Department. Learned counsel for the State also could not dispute the material fact that either in view of Annexure P-1 or the order of appointment Annexure P-2, appointment of the petitioner was subject to approval of S.S.S.Board, Haryana. Further, learned counsel for the State could not distinguish the judgment relied upon by the learned counsel for the petitioner in Chander Mani's case (supra). After careful persual of the judgment cited by learned counsel for the petitioner, it has been found that the present case is squarely covered by the Vandana 2013.11.27 14:40 I attest to the accuracy and integrity of this document C.W.P.No.784 of 1996 5 judgment of this Court in Chander Mani's case (supra).
Out of the three, two petitioners in Chander Mani's case were also from Vidhan Sabha, Haryana. While considering the similar controversy in Chander Mani's case (supra), this Court observed as under:-
"I have heard Mr. J.S.Malik, learned counsel for the petitioners and Mr. Randip Singh Surjewala for the respondents. Mr. Malik has raised a two-fold contention. He submits that the petitioners were, in fact, working in various departments of the Government and as such they were eligible to be appointed by transfer. He has drawn my attention to the Gradation and Distribution list issued by the State of Haryana to show that the Vidhan Sabha Secretariat and the office of the High Court were part of the departments of Election and Justice of the Government of Haryana. In case of the Vidhan Sabha Secretariat, the Speaker Haryana Vidhan Sabha is the Head of the Department and in case of the staff of the High Court, the Registrar is the Head of the Department. On this premises, the learned counsel contends that the action of the respondents in holding the petitioners as ineligible for appointment by transfer is untenable. The learned counsel further submits that except petitioners No.2 and 3 in CWP No. 13122 of 1989, who have a lien in the Haryana Vidhan Sabha, the remaining five petitioners did not have any lien in their parent departments. Consequently, the orders of reversion in their cases would actually amount to termination of their services. The learned counsel submits that Vandana 2013.11.27 14:40 I attest to the accuracy and integrity of this document C.W.P.No.784 of 1996 6 the petitioners were permitted to compete and were appointed after they were duly selected. The State Government having permitted them to complete and appointed them is now estopped from questioning their eligibility as they lost their lien on acceptance of the offer of appointment made to them. The learned counsel further submits that it was incumbent on the State of Haryana to afford an opportunity of hearing to the petitioners before they could actually be ordered to be reverted. On the other hand, learned counsel for the respondents Mr. Surjewala has submitted that the petitioners had been appointed on purely temporary basis. They had no right to the posts. They were not actually serving in any departments of the State of Haryana and as such their reversion is justified and legal. He further submits that the petitioners having been appointed on purely temporary basis could be reverted at any time and that there was no requirement of giving them an opportunity of hearing.
A perusal of the sequence of events show that the petitioners had opted to join the Haryana Civil Secretariat Services in response to an offer received from the State Government. They had competed and were duly selected. On receipt of the offer of appointment, they suffered the termination of their lien in the parent departments. At least five out of the seven petitioners, as noticed above, lost their lien. That having happened, it would be absolutely unfair and inequitable to now permit the respondents to take the view that the petitioners were not eligible for appointment. They Vandana 2013.11.27 14:40 I attest to the accuracy and integrity of this document C.W.P.No.784 of 1996 7 have served on their respective posts for more than a year and have in fact continued even after the passing of the impugned order under the interim directions given by this Court. At this point of time they would be ineligible for recruitment to any other civil post under the State. It was only on account of the offer made to them that they had suffered the termination of their lien. Otherwise, they would have continued on the posts on which they were originally working. In this situation, I am of the considered view that the respondent-State had to consider the eligibility of the candidates prior their being allowed to compete for the posts of Clerks. Once they were selected and actually appointed, it would not be fair to permit the State to declare the petitioners as ineligible to compete or to be appointed. The rule of 'Equitable Estoppel' in fully attracted and on that ground alone the petitioners must succeed.
Further more, even if it is assumed that the State Government was entitled to question the eligibility of the petitioners, it should have afforded them at least an opportunity to show that in fact they were eligible. If such an opportunity had been afforded, the petitioners could have produced the Gradation List or some other relevant evidence and satisfied the authorities concerned that they fulfilled the requirement of the rules. It deserves notice that Rule 6 itself uses two different expressions. At certain places it provides for transfer of employees working in "departments of Government other than the Civil Secretariat," while at others it contemplates transfer" of officials already in Government Vandana 2013.11.27 14:40 I attest to the accuracy and integrity of this document C.W.P.No.784 of 1996 8 Service". The expressions appear to have been used interchangeably. In fact, in case of Junior Clerks in service the rule contemplates appointment by transfer of the officials who are already in Government Service. That being the position, the petitioners could have reasonably satisfied the authority that they were, in fact, Government officials and were working in departments of the Government failure to grant an opportunity deprived the petitioner of a chance to establish this factual position. Action of the respondents is not giving an opportunity to the petitioners amounted to violation of the principles of natural justice. Even on this ground the claim of the petitioners deserves to succeed.
Mr. Surjewala, however, pointed out that so far as petitioner Nos.2 and 3 in C.W.P.No.13122 of 1989 are concerned, the Vidhan Sabha Secretariat, is willing to accommodate them. That may be so. However, since I have found that the action of the respondents is violative of the principles of natural justice, the impugned order qua these two petitioners also cannot be sustained."
Reverting back to the facts of present case and respectively following the law laid down in Chander Mani's case (supra), this court is of the considered view that the judgment is fully applicable to the facts of present case.
It is also undisputed on record that before passing the impugned orders (Annexures P-3 and P-4), respondent No.2, did not issue any show cause notice or granted any opportunity being heard Vandana 2013.11.27 14:40 I attest to the accuracy and integrity of this document C.W.P.No.784 of 1996 9 to the petitioner. By now, it is the settled proposition of law that as and when any administrative order entails civil consequences, the authority would be under legal obligation to support its order with reasons and is also obliged to follow the basic principles of natural justice. The law on this issue has been settled by the Hon'ble Supreme Court way back in the year 1967 in State of Orissa Vs. Dr. (Miss) Binapani Dei and others 1967 AIR (SC) 1269. The law laid down by the Hon'ble Supreme Court in Dr. Binapani Dei's case (supra) has been consistently followed in a long series of later judgments. Since the basic principles of natural justice have been glaringly violated in this case while passing the impugned orders (Annexures P-3 and P-4), the same cannot be sustained.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that in the peculiar fact situation of the present case, instant writ petition deserves to be allowed.
Consequently, the impugned orders (Anneuxre P-3 dated 07.10.1994 and Annexure P-4 dated 04.01.1996) passed by respondent No.2, are hereby ordered to be set aside.
Resultantly, the present writ petition stands allowed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK)
November 19, 2013 JUDGE
vandana
Vandana
2013.11.27 14:40
I attest to the accuracy and
integrity of this document