High Court of Judicature at Allahabad
Case Law Search
Brij Bhushan Maurya v. State Of U.P. And Others - WRIT - A No. 17873 of 2003  RD-AH 118 (25 April 2003)
COURT NO. 38
CIVIL MISC. WRIT PETITION NO. 17873 Of 2003
Brij Bhushan Maurya ----- Petitioner
State of U.P. & ors. ----- Respondents
Hon'ble Ghanshyam Dass, J.
(Delivered by Hon'ble Dr. B.S.Chauhan, J.)
This writ petition has been filed for quashing the order dated 17.4.2002 (Annex.-2), passed by the respondent no. 1, by which the petitioner has been transferred by the respondent no.1 from Basti to Lucknow and an enquiry has been initiated against him.
Facts and circumstances of the case giving rise to this case are that one Writ Petition No. 36148 of 1994 had been filed before this Cdourt by one Smt Geeta Devi claiming the relief of payment of salary as a Class IV employee and to pay the arrears of salary since her appointment in the institution. In spite of several opportunities no counter affidavit had been filed. When again the matter was listed before the Court on 3rd April, 2003, the learned Standing Counsel sought time to file counter affidavit. As there has been already a stop order vide order dated 3.2.2003, the Court was reluctant to grant further time. The Court expressed its displeasure for not extending the cooperation by the petitioner. However, the time was granted to the Standing Counsel to file counter affidavit within three weeks with a cost of Rs.1000 to be paid by the petitioner personally. This Court passed the following oder:-
"------------- Now a non bailable warrant is issued to the District Inspector of Schools, Basti to ensure his presence on the next date of hearing and also to ensure his inability to file the reply. Director of Education and Secretary, Intermediate Education is also directed to be present physically in the court on the next date of hearing and if Director of Education and Secretary failed to appear non bailable warrant shall also be issued against them. The Director of Education and Secretary of Intermediate Education are directed to be present physically in the court on the next date of hearing and if Director of Education and Secretary failed to appear non bailable warrant shall also be issued against them. The Director of Education and Secretary of Intermediate Education is being asked to be present in the court to know the pitiable condition of the education department as their sub-ordinates are not responding at the command of the Court. Therefore, if no reply is filed the conduct, behaviour, non cooperation inaction and inefficiency on the part of the D.I.O.S. shall be looked into and he has to be immediately sent from the present place of posting to another place."
In view of the said order, the impugned order has been passed. Hence this petition.
Shri A.B.Saran, learned Senior Advocate appearing on behalf of the petitioner has submitted that undoubtedly the writ petition filed by Smt Geeta Devi is pending for last 9 years and no counter affidavit has been filed. The impugned order has been passed in pursuance of the order passed by this Court on 3.4.2003. Thus, the petitioner has filed an application to recall the said order dated 3.4.2003 before the learned Single Judge in the said writ petition. Now the counter affidavit has been filed by the petitioner on 17.4.2003. As the order passed by the learned Single Judge in the said writ petition is violative of principles of natural justice and the impugned order has been passed as a consequence thereof, the order impugned dated 17.4.2003 is liable to be quashed.
We have considered the submissions made by Mr. Saran and perused the record.
In this writ petition only the order dated 17.4.2003 (Annex.- 2), passed by respondent no. 1 has been challenged. The order passed by the learned Single Judge has not been challenged, nor it can be challenged by filing the writ petition in view of the law laid down by Nine Judges Bench of the Hon'ble Supreme Court in Naresh Sridhar Mirazkar Vs. State of Maharashtra, AIR 1967 SC 1, an order passed in writ jurisdiction cannot be challenged in writ jurisdiction.
Similar view has been reiterated in Cotton Corporation of India Ltd. Vs. United Industrial Bank Ltd., AIR 1983 SC 1272; and Khodey Distillaries Ltd. & Anr. Vs. Registrar General, Supreme Court of India, (1996) 3 SCC 114, wherein the Supreme Court considered its earlier judgments and held that writ petition challenging the final decision on merit in a judicial proceeding, is not maintainable. The Supreme Court has explained that the judgmet in A.R. Antuley Vs. R.S. Nayak, AIR 1988 SC 1531 stood on its own facts and the same was explained and distinguished. The said judgment in Antuley (supra) also stood distinguished on similar ground in a Constitution Bench judgment in Krishnaswamy Vs. Union of India, (1992) 4 SCC 605, wherein the Hon'ble Supreme Court held as under:-
"In a case like the present, wherein substantially the challenge is to the correctness of the decision on merits after it had become final, there can be no question of invoking Article 32 of the Constitution to claim reconsideration of decision on the basis of its effect in accordance with law. Frequent resort to the decision in Antuley in such situations is wholly misconceived and impels us to emphasise this fact."
The Hon'ble Supreme Court further explained that under Article 32, the petition filed in Antulay's case challenging the decision of the decision of the Supreme Court was dismissed and it was only in an appeal filed subsequently by Antulay against an order of the Bombay High Court made during trial that relief was granted to him. While dismissing the earlier writ petition under Article 32 of the Constitution filed by Antulay, the Supreme Court had observed as under:-
"....... The writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise incorrect, cannot be entertained."
Similar view has been reiterated by the Hon'ble Supreme Court in P. Ashokan Vs. Union of India & ors., AIR 1998 SC 1219; and Ajit Kumar Barat Vs. Secretary, Indian Tea Association & ors., (2001) 5 SCC 42.
Challenging the consequential odder without challenging the basic order is also not permissible.
In C.P. Chitranjan Menon & ors. Vs. A. Balakrishnan & ors., AIR 1977 SC 1720, the Hon'ble Supreme Court held that in absence of challenge to the basic order, subsequent consequential order cannot be challenged.
Similar view has been reiterated in Roshan Lal & ors. Vs. International Airport Authority of India & ors., AIR 1981 SC 597, wherein the petitions were primarily confined to the seniority list and the Apex Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential seniority cannot be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined.
In H.M. Pardasani Vs. Union of India & ors., AIR 1985 SC 781, the Apex Court observed that if "petitioners are not able to establish that the determination of their seniority is wrong and they have been prejudiced by such adverse determination, their ultimate claim to promotion would, in deed, not succeed."
Similar view reiterated in Govt of Maharashtra Vs. Deohor's Distillery, (2003) 5 SCC 669.
Thus, in view of the above as the basic order has not been challenged nor it is permissible in law to be challenged in a writ jurisdiction, entertaining this petition would amount to sitting in appeal against the order passed by the learned Single Judge without any challenge to it. Thus, we are of the considered opinion that the writ petition is not maintainable and is liable to be dismissed.
Petitioner has already filed an application before the learned Single Judge to recall the order dated 3.4.2003. It is desirable that either the petitioner must pursue the said remedy or approach the appellate court.
Writ petition is not maintainable and is hereby dismissed.
Double Click on any word for its dictionary meaning or to get reference material on it.