Allahabad High Court
Rajveer Singh vs State Of U.P. And Ors. on 28 October, 2002
Equivalent citations: 2003(1)AWC292, (2003)1UPLBEC296
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. By means of the present petition, the petitioner has assailed the orders dated 2.6.2001 passed by the Commissioner, Agra Division, Agra and the consequent order made by the respondent No. 2 dated 21.12.2001.
2. The matrix of necessary facts is that the petitioner who had entered the service as Clerk in the Zila Parishad, Aligarh in the year 1967, came to be promoted as Senior Clerk and thereafter as Accountant in the year 1984. In the year 1993, his career suffered a set-back when his services came to be terminated vide order dated 5.6.1993. The petitioner challenged the order of termination by filing a writ petition in which the Court in its discretion granted interim order on 26.9.1993 staying operation of the termination order. Without going into minute details. It would suffice to state that ultimately, the termination order came to be recalled by the appointing authority vide order dated 16.5.2000 and the petitioner was re-situated in service. As a necessary consequence of reinstatement of the petitioner by means of the order dated 16.5.2000, the opposite party No. 4 who had been drafted to hold officiating charge on the post of Accountant in between the period, was ordered to be relegated to his substantive post and aggrieved the opposite party No. 4 preferred representation before the Commissioner, Agra Division, Agra. The representation culminated in being allowed and the order reverting the opposite party No. 4 to his substantive post was set aside and it is this order allowing the representation of the opposite party No. 4, i.e., the order dated 2.6.2001, which is the subject-matter of impugment in the petition in hand.
3. I have heard learned counsel for the petitioner and also Srt Murlidhar, senior advocate appearing for the respondent No. 4. Learned counsel for the petitioner began his argument with the submission that the impugned order was made by the Commissioner, Agra Division, Agra without affording any opportunity to the petitioner to have his say in the matter and further that he was not impleaded in the appeal/ representation preferred by the opposite party No. 4 nor he was served with any notice. The quintessence of his submission is that the order was passed behind his back and had the complexion of being an ex parte order and he being a necessary party by reason of the fact that any order to be passed by the Commissioner detrimental to the petitioner was bound to impinge upon his Interest.
4. Sri Murlidhar, learned senior advocate appearing for the opposite party No. 4 canvassed that proviso to Section 46 (2) (b) of the U. P. Kshetra Samitis and Zila Parishad Adhiniyam, 1961, provides for representation before the Commissioner and representation was made to the Commissioner impugning the order dated 17th May, 2000 by which the opposite party No. 4 was relegated to his substantive post of clerk from the post of accountant. He further submitted that as the petitioner was not aggrieved by the order dated 16.5.2000, there was ostensibly no occasion for him to prefer any appeal or representation against the said order and rather, proceeded the submission, he was aggrieved against the order reverting him from the post of the accountant to the post of accounts clerk, he rightly filed the appeal/representation. He further alleged that as the order dated 16.5.2000 was not challenged, the petitioner was neither a necessary party nor any notice was required to be given.
5. I have heard the learned counsel for the parties. It brooks no dispute that the impugned order was passed without giving opportunity of hearing to the petitioner and further that he was neither impleaded as a party in the representation/appeal nor notice was given to him. From the above, it is obvious that the impugned order was fraught with the consequence of affecting the reinstatement/continuance of the petitioner on the post of accountant and by this reckoning alone, he was a necessary party and it was thus, incumbent upon the Commissioner to have issued notice and given him opportunity of having his say in the matter before making the Impugned order. The learned counsel further submitted that the opposite party No. 4 was given officiating appointment on the post of accountant and he cannot stake claim to the said post on substantive basis pending matter relating to reinstatement of the petitioner in the High Court or before the competent authority. The threadbare approach by the authorities not consistent with the spirit of Article 14 of the Constitution certainly detracts from the object and militates against the provisions for which Article 14 has been engrafted in the Constitution. Regard being had to the fact that the order passed by the Commissioner is ex parte and was passed behind the back of the petitioner without issuing any notice to him and without affording him any opportunity of having his say, it militates against the principles of natural justice and is liable to be quashed.
6. Now the question that begs consideration is whether any representation lies at the Instance of opposite party No. 4, namely, Dinesh Chand Sharma before the Commissioner against the order dated 17.5.2000. It is not disputed that no representation/appeal or any proceeding before the High Court or at any place against the order dated 16.5.2000 was preferred by the opposite party No. 4 with the result, the order dated 16.5.2000 remains intact and is not under challenge before any forum. The order dated 17.5.2000 was a consequential order reinstating the petitioner on the post of accountant. It followed as a necessary corollary because reinstatement of the petitioner had been ordered by the appointing authority. Sri Murlidhar referred to Section 46 (1) of the U. P. Kshetra Samitis and Zila Parishad Adhiniyam, 1961, in order to fortify his submission that the representation lay before the Commissioner at the instance of opposite party No. 4. I have considered the arguments propounded by the learned counsel for the opposite party No. 4 in all its ramifications. The word 'appointment' does not take within its sweep reversion as a consequence of reinstatement. Besides, the opposite party No. 4 had been appointed to officiate on the post of accountant pending matter pertaining to reinstatement of the petitioner on the said post. In the facts and circumstances of the case, the opposite party No. 4 had no right to stake claim to be appointed or promoted on substantive basis. I, therefore, veer round to the view that no representation lay under Section 46 of the U. P. Kshetra Samitis and Zila Parishad Adhiniyam, 1961, against the order of reversion from the post of accountant to the post of accounts clerk. The learned counsel for the opposite party No. 4 in ultimate analysis submitted that the matter may be relegated to the Commissioner for decision afresh. Since, in my considered opinion, no statutory representation lies before the Commissioner against the impugned order dated 16.5.2000, it would be an exercise in futility to remit the matter to the Commissioner for decision afresh.
7. As a result of foregoing discussion, the petition succeeds and is allowed. The order dated 2.6.2001 passed by the Commissioner is hereby quashed. It needs hardly be said that as a consequence of quashment of the order dated 2.6.2001, the orders dated 16.5.2000 and 17.5.2000 shall stand revived. In the facts and circumstances of the case, I feel inclined to impose cost on the opposite party No. 4, which is quantified at Rs. 2,000. It is ordered accordingly.