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HAR GOVIND DIWAKAR versus UNION OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Har Govind Diwakar v. Union Of India And Others - WRIT - A No. 3321 of 2006 [2006] RD-AH 12978 (4 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                Court no.7

                Civil Misc. Writ Petition No. 3321 of 2006    

Har Govind Diwakar          versus         Union of India and others

Hon'ble Rakesh Tiwari,J.

         Heard counsel for the petitioner and Sri B.N. Singh, counsel for the respondents BSNL as well as the Standing counsel on the Recall Application No.67471 of 2006.

The order-dated 23.1.2006 which has been extracted and quoted in paragraph in Civil Misc. Recall Application No.67741 of 2006 does not give complete and comprehensive facts and background in which it was passed. The complete order dated 23.1.2006 in this writ petition is as under:-

        "The petitioner was appointed on 5.8.1996 as Stenographer Gr.III. His services were terminated by respondent no.2 on 30.6.1999. Aggrieved by order of termination, the petitioner filed O.A. No. 802 of 1999, which was heard along with other connected Original Applications and the Original Applications were allowed by the Central Administrative Tribunal  (for short CAT) vide judgment and order dated 12.2.2001. The operation order of the CAT is as under:-

       "We thus, find that in any view of the matter, the act of cancellation of selection and termination of appointments of the applicants can not be sustained. We, therefore, set aside the orders of cancellation of selection as challenged in O.A. No. 1012 of 1998 and O.A.No. 1038 of 1998. We also set aside orders of termination of appointments dated 30.6.99 impugned in O.A. No. 989 of 1999. O.A. no. 802 of 1999 and O.A. no. 812 of 1999. The applicants in the latter set of Original Applications shall be entitled to all consequential benefits.

         The costs as worked out of the office of the Tribunal as per rules shall be paid by respondent no.1 to the applicants.

         The compliance of the order shall be made within two months of receipt of a copy of this order.

           Sd. Illegible                                        Sd/- Illigible

                  A.M.                                                     V.C."

       Aggrieved by the above quoted order of CAT, Bharat Sanchar Nigam Ltd. U.P. Telecom Circle, Dehradun and respondent nos. 2 to 4 in this writ petition filed Civil Writ Nos. 20440/2001, 20433/2001, 20460/2001, 20459/2001 and 20440 of 2001 before this Court, which were allowed by a Division Bench by judgment dated 17.6.2002 holding that the selection made by the Department cannot be said to be illegal and the candidates who were selected have been continuously working. In the opinion of the Court, even a temporary appointment cannot be cancelled arbitrarily at the whims of the authority. The relevant portion of the judgment is as under:-

             "The jurisdiction under Article 226 of the Constitution of India is tampered with equity. The apex Court in several cases has held that equitable considerations should also be kept in mind while deciding the cases and appointments made pursuant to a selection need not necessarily be disturbed on technical grounds. Reference can be made to the cases of:

1. Ram Swaroop Vs. State of Haryana 1979 (1) SCC-168

2. District Collector V. Vidanagam Social Welfare   Residential Schllo Society V. Tripura Sundari Devi- 1990 (3) SCC-655

3. H.C. Puttaswamy V. Hon'ble Chief Justice.

     

     These cases have been followed in a recent judgment of the apex Court in AIR 2001 1176 Buddhi Nath Chaudhary V. Abahi Kumar.

      Learned counsel for the petitioner has contended that the appointments made in this case amounted to back door entries.

      We do not agree. It was the persistent inaction of the staff selection commission, which led to this situation. After all, the work of the corporation had to go on and it could not be stopped due to the lethargy of others.

Learned counsel for the respondents has referred to case of K.A. Abdul Majeed V. State of Kerala 2002(6) SCC-292 in which the apex Court has held that where the appointment was made after selection pursuant to an advertisement was made after selection pursuant to an advertisement, though not made through the Public Service Commission, it would not be said to be an appointment through back door.

          So far as the question of termination on the ground of temporary nature of appointment is concerned, we are of the opinion that even a temporary appointment cannot be cancelled arbitrarily at the whims of the authority and without a valid reason. If the appointment is cancelled arbitrarily without a valid reason and without following principles of natural justice, such an action is arbitrary and capricious and is hit by Article 14 of the Constitution of India and has to be struck down. It has been held by the Supreme Court in Maneka Gandhi V. Union of India, AIR 1978 SC-597 that arbitrariness violates Article 14 of the Constitution of India.

We see no reason to interfere with the view taken by the CAT. Accordingly, all the five writ petition nos. 20440/2001, 20433/2001, 20460/2001, 20459/2001 and 20440 of 2001 are dismissed. No order as to costs.

                                                                Sd/- M. Katju,J.

Dated 17.6.2002                                     Sd/- Rakesh Tiwari,J."

       It appears that Bharat Sanchar Nigam Ltd, did not comply with the order passed by the CAT. Even the judgment of this Court dated 17.6.2002 was not complied with. It also appears that the respondents sought opinion from their counsel in the matter, who opined in favour of the petitioner that the order and judgment of the Court should be complied with in letter and spirit.

Subsequently, the petitioner was permitted to join on 8.11.2002 in pursuance of the order-dated 31.10.2000 issued by the Department. In the mean time, D.P.C. recommended the case of the petitioner for promotion. However, the Department rejected the claim of the petitioner for promotion without any notice or opportunity of hearing.

Counsel for the petitioner has urged that the respondents are not complying with the order of the Court in letter and spirit and have rejected the claim of the petitioner for promotion without any notice or opportunity of hearing in violation of all cannons of natural justice.

Counsel for the respondents has controverted the arguments of counsel for the petitioner and submitted that the rules of promotion were amended in 2004 as such the petitioner is not entitled for promotion on the basis of the rules, which existed before the amendment.

            It is not disputed by the parties that when the judgments in O.A. No.802 of 1999 and Civil Misc. Writ Nos. 20440/2001,20433/2001,20460/2001,20459/2001 and 20440 of 2001 were delivered, the petitioner was entitled for promotion under the pre-existing rules. Thereafter, the department had sought opinion from their counsel who had opined in favour of the petitioner. There is no dispute that DPC has recommended the name of the petitioner for promotion. Officers of the Government are expected to implement judgments of Courts in letter and spirit. From what has been narrated above, it appears that there was no intention of the officers of the BSNL to comply with the judgments.

The Court has to see and ensure that its orders are complied with.

Sri N.P.Shukla, counsel for the respondents shall file a counter affidavit within four weeks from today giving details (place of present posting and status) of the officers who were and are, at the present responsible for non-compliance of the order of the Court. The counsel for the petitioner as well as the officers who are found responsible for non-implementation of the judgment by the BSNL shall be informed, in writing, along with a copy of this order within two weeks from today to enable the petitioner to implead them in writ petition and also to enable them (the officers) to submit their response within 4 weeks thereafter.

List after eight weeks.

                                                                                Sd/-Rakesh Tiwari,J.                                                                

                                                                                                      23.1.2006"

The Court while passing the order-dated 27.7.2006 has also extracted the operative portion of the order dated 23.1.2006.  Sri B.N.Singh, counsel for the respondents states that since he was on his legs in another court and his junior was present when the order dated 27.7.2006 was passed, hence he could not know the complete impact of the order.

        From the extract of order dated 12.2.2001 passed by the Central Administrative Tribunal, quoted above, it is clear that the applicants in the latter set of Original Applications were entitled to all consequential benefits. The Division Bench of this Court has affirmed the order dated 12.2.2001 passed by the CAT by emphasizing that we see no reason to interfere with the view taken by the CAT.

The contention of the counsel for petitioner is that all consequential benefits including promotion have not been given to the petitioner by the respondents. This Court in the order dated 27.7.2006 extracting the operative portion of the order dated 23.1.2006 directed respondent nos. 3,4 and 5 to be personally present in Court on 4th August, 2006 for non-compliance of the order dated 23.1.2006 for the reason that they had not been complying with any of the orders of the Court i.e. dated 12.2.2001 passed by the Central Administrative Tribunal. It was also provided that the counsel for the respondents shall inform about this order to the aforesaid respondents for compliance of order-dated 23.1.2006 as well as today's order.

It is urged by Sri B.N. Singh, counsel for the respondents that he has moved Civil Misc. Recall Application no.  153813 of 2006 dated 1.8.2006 for recall of the order dated 27.7.2006 with the following prayer:-

                                                  Prayer

    " It is therefore, most respectfully prayed that the order dated 27.7.2006 may kindly be kept in abeyance till the receipt of certified copy of the order dated 27.7.2006 or till the decision of Civil Misc. Recall Application after granting three weeks time to the answering respondents to file rejoinder affidavit to the counter affidavit in Civil Misc. Recall Application so that the answering respondents may get justice and may be in a position to put their case effectively before this Hon'ble Court and thus justice be done."

         It is apparent from the aforesaid prayer in the recall application that neither the prayer has been made for exemption of the respondents from personal appearance nor recall of the order dated 27.7.2006 has been prayed, though the heading given in the application is "Recall Application".  It is only prayed therein that the order dated 27.7.2006 kept in abeyance till the filing of the rejoinder affidavit to the counter affidavit in the aforesaid application.

Sri Irshad Ali, the counsel for the petitioner submits that counter affidavit has also been filed to the said recall application on 27.7.2006 itself and that further direction had been given to the counsel for the respondents to inform respondent nos. 3,4 and 5 about the order dated 27.7.2006 as such   it was incumbent upon him to have informed the aforesaid respondents for being personally present before the Court to explain their conduct of non compliance of the orders of the Courts passed from time to time.

Sri B.N. Singh, counsel for the respondents submits that he had applied for certified copy of the order dated 27.7.2006 on 28.7.2006 but the certified copy of the order has been given to him by the Registry on 2.8.2006. In para 2 of the supplementary affidavit filed along with application no. 155905 of 2006 it is averred that the certified copies of the orders dated 23.1.2006 and 27.7.2006 passed by this Court were duly served on respondent nos. 4,5 and 6 personally which was duly received by the office of respondents on 2.8.2006.

          After hearing Sri B.N. Singh, counsel for the respondents at length on the recall application nos. 67471 of 2006, 153813 of 2006 and supplementary affidavit with application no. 155905 of 2006 it is ordered:-

Looking to the fact that certified copy of the order dated 27.7.2006 has been made available to the counsel for the respondents on 2.8.2006 itself, some time may be granted to Sri B.N. Singh for compliance of the order dated 27.7.2006, as prayed by him.

In the circumstances, list on 4th September, 2006.  The respondent nos. 3,4 and 5 shall be personally present on that date as directed by order-dated 27.7.2006.

Dated 4.8.2006

CPP/-    

                                                                                                Court no.7

                Civil Misc. Writ Petition No. 3321 of 2006    

Har Govind Diwakar          versus         Union of India and others

Hon'ble Rakesh Tiwari,J.

         Heard counsel for the petitioner and Sri B.N. Singh, counsel for the respondents BSNL as well as the Standing counsel on the Recall Application No.67471 of 2006.

The order-dated 23.1.2006 which has been extracted and quoted in paragraph in Civil Misc. Recall Application No.67741 of 2006 does not give complete and comprehensive facts and background in which it was passed. The complete order dated 23.1.2006 in this writ petition is as under:-

        "The petitioner was appointed on 5.8.1996 as Stenographer Gr.III. His services were terminated by respondent no.2 on 30.6.1999. Aggrieved by order of termination, the petitioner filed O.A. No. 802 of 1999, which was heard along with other connected Original Applications and the Original Applications were allowed by the Central Administrative Tribunal  (for short CAT) vide judgment and order dated 12.2.2001. The operation order of the CAT is as under:-

       "We thus, find that in any view of the matter, the act of cancellation of selection and termination of appointments of the applicants can not be sustained. We, therefore, set aside the orders of cancellation of selection as challenged in O.A. No. 1012 of 1998 and O.A.No. 1038 of 1998. We also set aside orders of termination of appointments dated 30.6.99 impugned in O.A. No. 989 of 1999. O.A. no. 802 of 1999 and O.A. no. 812 of 1999. The applicants in the latter set of Original Applications shall be entitled to all consequential benefits.

         The costs as worked out of the office of the Tribunal as per rules shall be paid by respondent no.1 to the applicants.

         The compliance of the order shall be made within two months of receipt of a copy of this order.

           Sd. Illegible                                        Sd/- Illigible

                  A.M.                                                     V.C."

       Aggrieved by the above quoted order of CAT, Bharat Sanchar Nigam Ltd. U.P. Telecom Circle, Dehradun and respondent nos. 2 to 4 in this writ petition filed Civil Writ Nos. 20440/2001, 20433/2001, 20460/2001, 20459/2001 and 20440 of 2001 before this Court, which were allowed by a Division Bench by judgment dated 17.6.2002 holding that the selection made by the Department cannot be said to be illegal and the candidates who were selected have been continuously working. In the opinion of the Court, even a temporary appointment cannot be cancelled arbitrarily at the whims of the authority. The relevant portion of the judgment is as under:-

             "The jurisdiction under Article 226 of the Constitution of India is tampered with equity. The apex Court in several cases has held that equitable considerations should also be kept in mind while deciding the cases and appointments made pursuant to a selection need not necessarily be disturbed on technical grounds. Reference can be made to the cases of:

1. Ram Swaroop Vs. State of Haryana 1979 (1) SCC-168

2. District Collector V. Vidanagam Social Welfare   Residential Schllo Society V. Tripura Sundari Devi- 1990 (3) SCC-655

3. H.C. Puttaswamy V. Hon'ble Chief Justice.

     

     These cases have been followed in a recent judgment of the apex Court in AIR 2001 1176 Buddhi Nath Chaudhary V. Abahi Kumar.

      Learned counsel for the petitioner has contended that the appointments made in this case amounted to back door entries.

      We do not agree. It was the persistent inaction of the staff selection commission, which led to this situation. After all, the work of the corporation had to go on and it could not be stopped due to the lethargy of others.

Learned counsel for the respondents has referred to case of K.A. Abdul Majeed V. State of Kerala 2002(6) SCC-292 in which the apex Court has held that where the appointment was made after selection pursuant to an advertisement was made after selection pursuant to an advertisement, though not made through the Public Service Commission, it would not be said to be an appointment through back door.

          So far as the question of termination on the ground of temporary nature of appointment is concerned, we are of the opinion that even a temporary appointment cannot be cancelled arbitrarily at the whims of the authority and without a valid reason. If the appointment is cancelled arbitrarily without a valid reason and without following principles of natural justice, such an action is arbitrary and capricious and is hit by Article 14 of the Constitution of India and has to be struck down. It has been held by the Supreme Court in Maneka Gandhi V. Union of India, AIR 1978 SC-597 that arbitrariness violates Article 14 of the Constitution of India.

We see no reason to interfere with the view taken by the CAT. Accordingly, all the five writ petition nos. 20440/2001, 20433/2001, 20460/2001, 20459/2001 and 20440 of 2001 are dismissed. No order as to costs.

                                                                Sd/- M. Katju,J.

Dated 17.6.2002                                     Sd/- Rakesh Tiwari,J."

       It appears that Bharat Sanchar Nigam Ltd, did not comply with the order passed by the CAT. Even the judgment of this Court dated 17.6.2002 was not complied with. It also appears that the respondents sought opinion from their counsel in the matter, who opined in favour of the petitioner that the order and judgment of the Court should be complied with in letter and spirit.

Subsequently, the petitioner was permitted to join on 8.11.2002 in pursuance of the order-dated 31.10.2000 issued by the Department. In the mean time, D.P.C. recommended the case of the petitioner for promotion. However, the Department rejected the claim of the petitioner for promotion without any notice or opportunity of hearing.

Counsel for the petitioner has urged that the respondents are not complying with the order of the Court in letter and spirit and have rejected the claim of the petitioner for promotion without any notice or opportunity of hearing in violation of all cannons of natural justice.

Counsel for the respondents has controverted the arguments of counsel for the petitioner and submitted that the rules of promotion were amended in 2004 as such the petitioner is not entitled for promotion on the basis of the rules, which existed before the amendment.

            It is not disputed by the parties that when the judgments in O.A. No.802 of 1999 and Civil Misc. Writ Nos. 20440/2001,20433/2001,20460/2001,20459/2001 and 20440 of 2001 were delivered, the petitioner was entitled for promotion under the pre-existing rules. Thereafter, the department had sought opinion from their counsel who had opined in favour of the petitioner. There is no dispute that DPC has recommended the name of the petitioner for promotion. Officers of the Government are expected to implement judgments of Courts in letter and spirit. From what has been narrated above, it appears that there was no intention of the officers of the BSNL to comply with the judgments.

The Court has to see and ensure that its orders are complied with.

Sri N.P.Shukla, counsel for the respondents shall file a counter affidavit within four weeks from today giving details (place of present posting and status) of the officers who were and are, at the present responsible for non-compliance of the order of the Court. The counsel for the petitioner as well as the officers who are found responsible for non-implementation of the judgment by the BSNL shall be informed, in writing, along with a copy of this order within two weeks from today to enable the petitioner to implead them in writ petition and also to enable them (the officers) to submit their response within 4 weeks thereafter.

List after eight weeks.

                                                                                Sd/-Rakesh Tiwari,J.                                                                

                                                                                                      23.1.2006"

The Court while passing the order-dated 27.7.2006 has also extracted the operative portion of the order dated 23.1.2006.  Sri B.N.Singh, counsel for the respondents states that since he was on his legs in another court and his junior was present when the order dated 27.7.2006 was passed, hence he could not know the complete impact of the order.

        From the extract of order dated 12.2.2001 passed by the Central Administrative Tribunal, quoted above, it is clear that the applicants in the latter set of Original Applications were entitled to all consequential benefits. The Division Bench of this Court has affirmed the order dated 12.2.2001 passed by the CAT by emphasizing that we see no reason to interfere with the view taken by the CAT.

The contention of the counsel for petitioner is that all consequential benefits including promotion have not been given to the petitioner by the respondents. This Court in the order dated 27.7.2006 extracting the operative portion of the order dated 23.1.2006 directed respondent nos. 3,4 and 5 to be personally present in Court on 4th August, 2006 for non-compliance of the order dated 23.1.2006 for the reason that they had not been complying with any of the orders of the Court i.e. dated 12.2.2001 passed by the Central Administrative Tribunal. It was also provided that the counsel for the respondents shall inform about this order to the aforesaid respondents for compliance of order-dated 23.1.2006 as well as today's order.

It is urged by Sri B.N. Singh, counsel for the respondents that he has moved Civil Misc. Recall Application no.  153813 of 2006 dated 1.8.2006 for recall of the order dated 27.7.2006 with the following prayer:-

                                                  Prayer

    " It is therefore, most respectfully prayed that the order dated 27.7.2006 may kindly be kept in abeyance till the receipt of certified copy of the order dated 27.7.2006 or till the decision of Civil Misc. Recall Application after granting three weeks time to the answering respondents to file rejoinder affidavit to the counter affidavit in Civil Misc. Recall Application so that the answering respondents may get justice and may be in a position to put their case effectively before this Hon'ble Court and thus justice be done."

         It is apparent from the aforesaid prayer in the recall application that neither the prayer has been made for exemption of the respondents from personal appearance nor recall of the order dated 27.7.2006 has been prayed, though the heading given in the application is "Recall Application".  It is only prayed therein that the order dated 27.7.2006 kept in abeyance till the filing of the rejoinder affidavit to the counter affidavit in the aforesaid application.

Sri Irshad Ali, the counsel for the petitioner submits that counter affidavit has also been filed to the said recall application on 27.7.2006 itself and that further direction had been given to the counsel for the respondents to inform respondent nos. 3,4 and 5 about the order dated 27.7.2006 as such   it was incumbent upon him to have informed the aforesaid respondents for being personally present before the Court to explain their conduct of non compliance of the orders of the Courts passed from time to time.

Sri B.N. Singh, counsel for the respondents submits that he had applied for certified copy of the order dated 27.7.2006 on 28.7.2006 but the certified copy of the order has been given to him by the Registry on 2.8.2006. In para 2 of the supplementary affidavit filed along with application no. 155905 of 2006 it is averred that the certified copies of the orders dated 23.1.2006 and 27.7.2006 passed by this Court were duly served on respondent nos. 4,5 and 6 personally which was duly received by the office of respondents on 2.8.2006.

          After hearing Sri B.N. Singh, counsel for the respondents at length on the recall application nos. 67471 of 2006, 153813 of 2006 and supplementary affidavit with application no. 155905 of 2006 it is ordered:-

Looking to the fact that certified copy of the order dated 27.7.2006 has been made available to the counsel for the respondents on 2.8.2006 itself, some time may be granted to Sri B.N. Singh for compliance of the order dated 27.7.2006, as prayed by him.

In the circumstances, list on 4th September, 2006.  The respondent nos. 3,4 and 5 shall be personally present on that date as directed by order-dated 27.7.2006.

Dated 4.8.2006

CPP/-    


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