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Manish Asija v. State Of U.P. Thru' Principal Secy. & Others - WRIT - C No. 60275 of 2005 [2005] RD-AH 2784 (13 September 2005)


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Court No.37

Civil Misc. Writ Petition No. 60275 of  2005

Manish Asija v. State of U.P. and others.

Hon'ble R.K.Agrawal, J.

Hon'ble (Mrs.) M. Chaudhary, J.

In the present writ petition, the petitioner has challenged the order dated 25th August, 2005 passed by the State Government by which he has been removed from the post of Chairman, Nagar Palika Parishad, Firozabad on the ground that in respect of resolution No.18 passed in the meeting of Nagar Palika Parishad, Firozabad, held on 2.6.2004, he as the Chairman has not taken any steps to get it cancelled.

We have heard Sri Manoj Misra, learned counsel for the petitioner, Sri A.K. Shukla, learned Standing Counsel, who represents respondents No.1 to 3, Sri N.K. Chaturvedi, who represents respondent No.4 and Sri Tejpal assisted by Sri Shukhendu Pal Singh on behalf of the two applicants, who have filed an application for impleadment on the question of admission and also grant of interim relief.

Learned counsel for the petitioner submitted that the resolution dated 2nd June, 2004 was passed unanimously by which it was resolved by the General House of the Nagar Palika Parishad, Firozabad to withdraw the special appeals, being special appeal nos.371 to 374, 433 of 1996 and special appeal Nos.2 to 5 of 1997 filed against the judgment and order passed by the learned Single Judge of this Court in Civil Misc. Writ Petition No.19434 of 1994, 19435 of 1994, 19437 of 1994 and other cases, wherein a learned Single Judge of this Court had quashed the order of termination of certain adhoc employees.     According to Sri Misra, the resolution was passed by the General House on 2nd June, 2004 and it was a unanimous resolution. However, the petitioner had not given any instruction to withdraw the special appeals, which were ultimately allowed by this Court against which the Special Leave Petitions filed by the aggrieved employees have also been dismissed.  He, thus, submitted that in a democratic set up, the petitioner cannot be penalised for any resolution which has been passed by the General House.

Learned Standing Counsel, however, submitted that the petitioner being the Chairman of  Nagar Palika Parishad, Firozabad was enjoined to see as to whether the resolution was in the interest of the Nagar Palika Parishad or not.  He having been failed to exercise his discretion has rightly been removed.

Sri Tejpal, learned Senior Counsel for the applicants, who have filed the application for impleadment,  submitted that a contempt petition being Contempt Petition No.15 of 2002 is pending before this Court in which notices have been issued to the present petitioner also for alleged disobedience of  this Court's order dated 11th May, 2002 and  the final order passed by this Court, thus,  till such time the petitioner purges himself of contempt, which is pending, he should not be heard at all,  in support whereof he has relied upon the following three decisions:-

1.Hadkinson v. Hadkinson, 1952(2) All England Law Reports, 567.

2.Dr.Madan Gopal Gupta v. The Agra University and others, AIR 1974 Allahabad 39.

3.Pravin C.Shah v. K.A.Mohd. Ali and another, (2001) 8 SCC 650.

He further submitted that the petitioner had not filed copy of the minutes of the meeting held on 2nd June, 2004 and further  when the quorum was not complete, in such situation no resolution could have been passed for withdrawal of the special appeals. According to him, the resolution could have been passed only by way of a special resolution and, therefore, the order passed by the State Government does not suffer from any illegality. According to him, the petitioner having failed to file the minutes of the meeting dated 2nd June, 2004 is guilty of concealment and, therefore, the principle laid down by the Apex Court in the cases of Bharat Singh and others v. State of Haryana and others, AIR 1988 SC 2181 and S.P.Chengalvaraya Naidu (dead) by LRs v. Jagannath(dead) by L.Rs. And Ors., JT 1993(6) SC 331 should be applied and the writ petition be thrown on this ground alone.  He further submitted that a duty has been enjoined upon the Chairman, Nagar Palika Parishad that if any resolution is against the Nagar Palika Parishad, then he ought to have referred the matter to the Director for appropriate action instead of acting upon the same.

Sri Manoj Misra learned counsel for the petitioner, in reply submitted that the State Government has removed the petitioner only on the basis of the resolution passed by the General House of the Nagar Palika Parishad n 2nd June, 2004 regarding withdrawal of the special appeals pending before this Court and therefore the validity of the removal order has to be judged on the reasonings given therein and not the ground which are being raised by the applicants' counsel Sri Tejpal. Sri Misra in support of his aforesaid plea has relied upon the following decisions of the Apex Court:

1.Mohinder Singh Gill and another v. The Chief Election Commissioner, New    Delhi and others, AIR 1978 SC 851

2.State Govt. Houseless Harijan Employees' Association v. State of Karnataka and others, (2001) 1 SCC 610.

3.Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and another,(2002) 1 SCC 520.

4.Union of India and another v. GTC Industries Ltd., Bombay, (2003) 5 SCC 106.

Having given our anxious consideration to the various points raised by the learned counsel for the parties, we are,  prima facie, of the  view that the State Government had removed the petitioner only on the ground that in the resolution passed on 2nd June, 2004 the General House has resolved to withdraw the special appeals and the petitioner had not taken any steps to get it cancelled.   At present we have to consider only the reasons given in the impugned order and to prima facie satisfy ourself as to whether it would stand the test of judicial scrutiny or not.   Our answer prma facie is, it would not stand the test.  It is to be remembered that the members and the Chairman of the Nagar Palika Parishad have been elected democratically and, therefore, they are entitled to function in a democratic manner.  If the General House has passed a resolution seeking withdrawal of the special appeals , then the Chairman alone cannot be penalised or blamed  and if  this approach is permitted the entire process of democracy will be negated.  Further we find that the said resolution has not been acted upon and, therefore, the action taken by the State Government is, prima facie, based on wholly irrelevant material and consideration.  So far as the principles laid down in the decisions relied upon by Sri Tejpal are concerned there cannot be any two opinions. However, their applicability to the facts of the present case can only be gone into after the exchange of affidavits. The plea pertaining to purging of contempt by the petitioner  and concealment in the pleadings, raised by Sri Tejpal  shall be considered after the application for impleadment is disposed of.

In view of the foregoing discussion, we are of the considered opinion that the matter requires consideration by this Court and the petitioner has made out a case for grant of interim order.


Issue notice.

As an interim measure, the operation of the  impugned order dated 25th August, 2005, filed as Annexure 12 to the writ petition,  is hereby stayed.

Sri Manoj Misra, learned counsel for the petitioner is granted three weeks' time to file reply to the impleadment application and the counter affidavit.  Rejoinder affidavit, if any, be filed within two weeks.   List the application for impleadment thereafter.

Learned Standing Counsel may file counter affidavit within four weeks and the rejoinder affidavit, if any, be filed within three weeks. The parties are at liberty to apply for vacation of the interim order and if any such application is made, it may be listed before the appropriate Bench. The matter shall not be treated as tied up or part heard with this Bench.

Sri Tejpal, learned counsel for the applicants has made an oral prayer under clause (b) of Article 134A of the Constitution of India for grant of certificate of appeal to the Supreme Court.

We have considered the oral prayer of the applicants and are of the considered opinion that we have not finally decided any issue and therefore, the order does not involve any substantial question of law. The oral prayer is rejected.





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