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Brij Bhushan Maurya v. State Of U.P. And Others - WRIT - A No. 17873 of 2003 [2003] RD-AH 118 (25 April 2003)


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Brij Bhushan Maurya -----           Petitioner


State of U.P. & ors. -----        Respondents    


Hon'ble Dr.B.S.Chauhan,J.

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.




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