Nem Chand Gangwar vs State of U.P.and others

H. NTilhari, J.—By this petition the petitioner has sought the issuance of writ, order or direction in the nature of writ of certiorai quashing the order passed by the Secretary, Medical and Health Services dated 11889, whereby the Government through Secretary, Medical and Health Department, has cancelled the order of petitioner''s confirmation and regularisation in the Medical and Health Department as a Junior Engineer as well as his absorption in that department and his position in the seniority list of the department. The petitioner has further prayed for a writ or direction in the nature of mandamus directing the oppositeparties to allow the petitioner to continue in Medical and Health Department with all consequential benefits in terms of annexure3, to the writ petition. The brief facts of the case, in the nut shell, are that the petitioner who had been appointed as Overseer, later on redesignated as Junior Engineer in the Public Works Department of the Government of Uttar Pradesh, with effect from 10862 and had been approved by the Public Service Commission for the said post in 1964 and after his having passed the departmental examination in 1965, he was also confirmed on that post i. e. Junior Engineer in Public Works Department in the year 1972. During the period he had appeared before the Public Service Commission and had been confirmed on the poct of Junior Engineer, the petitioner had been working on deputation in the Department of Medical and Health Services as a Junior Engineer since September, 1962. Accord�ing to the petitioner''s case, in the month of Feb. 1980 the petitioner was required to show his willingness to either remain permanently in the Medical Department, or in the alternative, to go back to his parent department i. e. Public Works Department and the petitioner expressed his option for Medical and Health Department, which option was accepted and he was subsequently made permanent Junior Engineer in the Medical and Health Department. As regards the allegations of paragraph 4 of the writ petition in which it has been stated that he had been required to show his willingness in 1980 he had expressed his option for the service in the Medical Department as Junior Engineer and that his option was accepted and he was made permanent and confirmed on the post of Junior Engineer in the Medical Department. This paragraph 4 has not been denied on behalf of the State. In paragraphs of the counter affidavit it has been stated :

"YAH KI YACHIKA KE PRASTAR 1 SE 4 TAK KE SAMBANDH MEN KOI TIPPANI VANCHHANIYA NAHIN HAI."

i. e. as regards allegations of paragraphs 1 to 4 of the writ petition there is no need to make any comment or to give any reply. According to the well settled principle of law when an allegation is made on affidavit and same is not denied it is to be taken to have been admitted, particularly, when there is no due denial. When the oppositeparties have not denied this fact I presume that the state of affairs stated in paragraph 4 of the writ petition has been accepted and admitted by the State. A perusal of annexure3 relating to the petitioner indicates that in the meeting dated 30787 in the Chamber of the Health Secretary the decision was taken to the effect as under :

A perusal of annexure1 , to the writ petition also shows that vide order dated 551980 the petitioner''s services as OverseercumJunior Engineer in the Directorate of Medical Health had been made permanent and confirmed with effect from 141975 and petitioner was required to submit medical fitness certificate if he had not already submitted at the time of his first appointment or posting in the department. That as appears from the record, thereafter the petitioner''s cafe is that under certain circumstances, specially, because of certain interested persons by order dated 11889 the order dated 5580 as well as the order of absorption and confirmation as well as the order of detcrminirg the seniority were held to be illegal and were set aside and cancelled with immediate effect by the Secretary of Medical and Health Department, Government of U. P. and in that order it was further mentioned that the petitioner be repatriated to the parent department i. e. it contained a direction to the Director of Medical and Health to repatriate the petitioner to the parent department, i e. Public Works Department. The petitioner has challenged this order on a number of grounds including the allegation of malafide and breach of principle of natural justice. The petitioner''s case is that the order dated 11889 has been passed cancelling and setting aside the order of confirmation of the petitioner, his regularisation in the department and his seniority without giving any notice or opportunity of hearing to the petitiocer, and, as such, the order is bad, illegal, null and void. Ihis petition had been filed in the year 1989. Counteraffidavit has been filed today after having served a copy of the same on the petitioner''s counsel and the petitioner has filed rejoinderaffidavit. In the counteraffidavit the case of the State has been that the absorption of the petitioner in the Medical and Health Department was not in accordance with law as it has been done without obtaining the consent of the parent department and the petitioner had no right to continue in the Medical and Health Department and as petitioner has no right to continue in the Medical and Health Department the petitioner cannot claim the seniority in the borrowing department. The oppositeparties have also denied the allegation of malafide In paragraph 16 of the counteraffidavit the State has specifically averred that the resolution relating to petitioner which has been passed on 30787 had also been cancelled by the issue of order dated 11889 for the administrative reasons and the State is free to take any decision in this regard. In the rejoinderaffidavit it has been stated that it is wrong to say that without approval of the Public Works Department the petitioner could not be absorbed in the Medical and Health Department. According to the petitioner''s case the petitioner has been working in the Medical Depart�ment as Junior Engineer since September, 1962 and the action of the oppositeparties was wrong. It has further been stated in paragraph 16 of the rejoinderaffidavit that the decision taken in the meeting dated 30787 had been legal and the order had been passed by the proper authorities so the decision taken could not be cancelled.

I have heard Sri L. P. Shukla, learned counsel for the petitioner as well as Shri R. S. Tripathi, learned Standing Counsel. Sri L. P. Shukla, learned counsel for the petitioner has challenged the order dated 11889 primarily on the ground that the said order has been passed in violation of the principles of natural justice and in violation of doctrireof equality and the principles of law enshrined in Articles 14 and 16 of the Constitu�tion of India making a command against arbitrary and discriminatory action. In paragraph 17 of the writ petition it has been stated :

"That only four years remain for the retirement of the petitioner and after such long time cancellation of the confirmation of the petitioner in the Medical Health Department and the absorption is wholly illegal, arbitrary and malafide. More�over such order cannot be passed without affording any opportunity to the petitioner."

In paragraph 15 of the writ petition also it has been asserted that without informing the petitioner and without affording him any opport�unity the Secretarys Medical & Health, U.P.Govt. passed an order on 11889 cancelling the absorption of the petitioner in the Medical and Health Department and also the confirmation of the petitioner on the post of Junior Engineer in the Medical Department (through Annex are1). Alle�gations of paragraph 15 of the writ petition have been replied in paragrph 13 of the counteraffidavit but there is no denial of the allegations which has been made in the writ petition to the effect that the order dated 11889 has been passed without affording any opportunity to the petitioner. Learned counsel for the petitioner submitted that arbitrary action and action in breach of principles of natural justice is negation of doctrine of equality before law and equal protection of laws and any order that has been in violation of principles of natural justice, parti�cularly, when it is penal in nature as well as is void. Learned counsel for the petitioner in this connection has made a reference to the case of State of Orissa v. Dr. (Miss) Binapani & others reperted in (1967 (2) SCR 625) i. e. (AIR 1967 SC 1269). Shri Shukla has also placed before me the decision of their Lordships of the Supreme Court in the case of S. L. Kapoor v. Jagmohan and others reported in (AIR 1981 SC 136) in support of his contention and submitted that by this order not only absorption and confirmation but his seniority in the seniority list has been cancelled and the said order has got penal consequence and when the order has got penal or civil consequence and is passed in breach of law and principles of Natural Justice Shri Shukla submitted that the order is illegal, null and void and requires to be quashed.

On behalf of oppositeparies, learned Standing Counsel Shri R. S. Tripathi submitted that a person placed on deputation in any department has no right to continue in the borrowing department, he can be repatriated at any time. He further submitted that order dated 11889 has got not civil consequences and in this connection he made a reference to the decision of the Supreme Court in the case of Rati Lai B. Soni v. State of Gujarat (MR 1990 SC 1132). Elaborating his contention Shri Tripathi submitted that when the petitioner had been sent on deputation then it was open to the department, in which he was working as a deputationist, to send him back to the parent department and he could only te retained after consultation and confirmation from the parent department, so he had no right and by order dated 11889 no right of the petitioner has been adversely affected. He further submitted that the petitioner could not claim seniority in the department where he has been sent on deputation, his seniority has to be determined in the parent department, so Shri Tripathi submitted that there is no question of violation of principles of natural justice.

I have considered the contentions of the learned counsel for the parties i. e. counsel for the petitioner as well as learned Standing Counsel. Before I proceed further I may indicate that no argument had been advanced on the question of malafide. Shri Shukla did not press argument on the question of malafide, I am not going to discuss the question of malafide on the part of oppositeparty no. 1 one way or the other.

The order dated 11889 has got the effect of disturbing and adver�sely effecting the petitioner''s status and position as a confirmed employee in the Medical and Health Department where he has been working since September, 1962 by setting aside the order dated 5580. In service law certainty of term is an essential ingredient for making service effective and efficient. In this case, firstly, the order dated 5580 had been passed and thereby the petitioner had been given regularisation and permanency with effect from 1475, by the decision taken on 30787, it had been taken note of that the petitioner had been made permanent in the Medical Department and in order to give effect to the absorption in the department communication had been sent to Public Works Department for cancelling his lien in the Public Works Department as he had been working since 1962. The decision of 30787 had been taken to the effect that that the petitioner would be treated as permanently absorbed in the Medi�cal and Health Department as Junior Engineer and he will be given seniority with effect from 1962. Now this order giving seniority, to the petitioner from 1962 has also been declared illegal and had been cancelled as an effect of order dated 11889. In the service career permanency in a department, the seniority and fixation thereof are very important matter affecting the service of an employee. They confer certain rights on the employee. By confirmation in a department a person acquires the position and right to serve full term of office with expectations of promotion etc , seniority also gives him right of promotion or for being considered for promotion earlier to the persons junior to him as in the matters of promotion at times the principle of senioritycumrejection of unfit is applied, so the disturbance of that right or position or status by order dated 11889 has got a civil consequence. The loss of status or office or right or opportunity of promotion and depriving a person by cer�tain order definitely is an act that has got a civil consequence, and, as such, in my opinion, there is great force in the contention of the learned counsel for the petitioner that order dated 11889 had civil consequence. In my opinion, learned Standing Counsel was not justified in submitting that order dated 11889 had no civil consequence so far this petition is concerned. When orders ought to be passed against a person having civil consequence the law is that such orders have got to be passed in accor�dance with the rule of law and keeping pace with the principles of natural justice. In the famous case of Dr. (.Miss) Binapani Dei (Supra) their Lord�ships of the Supreme Court have been pleased to lay down that the adminis�trative orders which have civil consequences must be made consistently with the rules of natural justice. What is meaning of civil consequence has well been considered and defined by the Supreme Court in the case of Mohinder Singh Gill & another v. The Chief Election Commissioner, New Delhi and others reported in (AIR 1978 SC 651). Dealing with civil con�sequence Mr. Justice Krishna Iyer speaking for the Constitution Bench had been pleased to observe as under :

"But what is a civil consequence, let us ask ourselves, by passing verbal boobytraps ? ''Civil consequence'' undoubtedly cover infraction of not merely property or .personal rights but of civil liberties, material deprivations and nonpecuniary dama�ges; In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence."

The seniority., chance of being considered for promotion is also something which can be said to be a legal right or opportunity of ones to improve its status. Order dated 11889, in my opinion, has got the effect of depriving the petitioner of his chance. Even if the order is administra�tive but it has got civil consequence on the petitioner''s rights and his life when it had been passed and the petitioner had been made to suffer on the basis thereof. Every order, as I have mentioned earier which has got the effect of effecting the civil consequence it has got to be passed after the person to be affected or likely to be affected by that order is given an opportunity to show cause. Dealing with the question of requirement of natural justice in this regard in case of S L. Kapoor v. Jagmohan (supra) their Lordships of the Supreme Court have been pleased to observe as under :

"In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose."

Their Lordships quoted with approval the observations of Lord Widgery, C. J. made in the case of R. v. Thames Magistrates'' Court, which read as under :

"In our view the principles of natural justice know of no exclusi�onary rule dependent on whether it would have made any difference if natural justice had been observed. The nonobservance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has been denied justice is not prejudiced.

In the present case it has not been denied on behalf of the State that allegations made in the petition to the effect that order dated 11889 has been passed without giving any opportunity to the petitioner nor the State has alleged or shown any positive thing that petitioner was afforded opportunity to show cause and he did not avail before passing the order impugned dated 11889. The order passed in violation of principles of natural justice, it is well settled principle of law, is nothing but arbitrary order. An action arbitrary in nature is nothing but a negation of rule of law and action in negation of rule of law is nothing but negation of doc�trine of equality and fairplay enshrined in Articles 14 and 16 of the Cons�titution of India. In this view of the matter, in my opinion, such orders which are in violation of principles of natural justice and rule of fairplay can be said to be null, void and inoperative order which is void and inope�rative from the very beginning. Any way, the order being illegal, null and void and the order in question has got civil consequence adversely affect�ing the petitioner, deserves to be quashed.

Having thus considered the matter, I am of opinion that the writ petition deserves to be allowed. The writ petition is being allowed here�with by holding the order dated 11889 passed by Shri K. K. Bakshi, Secretary, Medical and Health Department, No. 1876/573718/86, contai�ned in annexure2, is hereby declared illegal, null, void and inoperative and is quashed. I may further mention one thing that Secretary, Medical and Health Department has directed the Director of Medical Health Ser�vices to repatriate and send the petitioner to the parent department. There is no specific averment in the counteraffidavit to the effect that by any letter of any specified date issued by the Director, Medical and Health subsequent to 11889 (annexure2), the petitioner has been repatriated When no repatriation order has been passed the petitioner always continued to be in the Medical Health department. I am informed that the petitioner is at the verge of retirement and as per the petitioner''s counsel the petitioner is likely to retire on 31194, it is expected that the opposite parties will not pass any order repatriating him at the verge of retirement. On retirement, petitioner''s pensionary benefits and all other due benefits shall be made available to the petitioner on his retirement at the earliest possible by the Medical and Health Department withput any delay and within a reasonable time. Thus the petition is allowed. Order contained in Annexure2, dated 11889 having been quashed the petitioner''s services shall be counted in this department for all purposes.