Dismissed

Chandra Vijay Singh v. the District Judge and Anr.

Allahabad HC22 May 2018SPLA/475/2018

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed this special appeal. The court held that since the underlying order terminating the appellant's services was never assailed and the prior writ petition was dismissed on merits, the current petition was misconceived. The court directed an inquiry into the appellant's current service status and awarded costs.

What did the court decide?

Special appeal dismissed with costs of Rs. 10,000/-; interlocutory order directing District Judge to report on appellant's current service status passed.

Chandra Vijay Singh Vs the District Judge… — Public Procurement and Tenders | Allahabad HC (2018)

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Court No. - 39

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Case :- SPECIAL APPEAL No. - 475 of 2018

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Appellant :- Chandra Vijay Singh Respondent :- The District Judge And Anr Counsel for Appellant :- Pawan Singh Pundir Counsel for Respondent :- Manish Goyal

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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This Special Appeal has been filed by Chandra Vijay Singh to assail the judgement and order dated 26 April 2018 by which a learned Judge of this Court has dismissed the writ petition as being thoroughly misconceived with costs of Rs. 5,000/-.

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The judgement is reproduced below;

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“1. Heard Sri P.S. Pundir, learned counsel for petitioners and learned Standing Counsel for State.

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Petitioners have sought following reliefs :-

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"(a) to issue a writ, order or direction in the nature of mandamus commanding the respondents to absorb and reinstate the petitioners against the existing 2 vacancies of Class-IV employees in the Judge-ship of Siddharth Nagar forthwith;

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(b) to issue a writ, order or direction in the nature of mandamus commanding the respondents to pay salary regularly to the petitioners as and when falls due;

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(c) to issue a writ, order or direction in the nature of mandamus commanding the respondents not to fill 2 class-IV vacancies out of 18 vacancies notified for the purposes of appointment by direct recruitment as per publication published in newspaper (Annexure-10 to the writ petition."

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Record shows that petitioners along with some other persons by order dated 25.04.1995 passed by District Judge, Siddharth Nagar were terminated from service on the ground that their appointments were temporary.

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Order of termination is not under challenge, hence, no relief, in absence of any order of termination, can be granted to petitioners by way of mandamus.

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In view of above, writ petition is thoroughly misconceived and is accordingly dismissed with cost of Rs. 5000/-.”

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During the course of hearing of the Special Appeal, learned counsel for the appellant stated that the termination order dated 25 April 1995 had been assailed by the petitioner with some other employees in Writ A No. 24297 of 1995 and that is still pending disposal. According to him, the status of the case is not known. Learned counsel for the appellant also placed before the Court the judgement and order dated 7 January 2013 passed in Writ A No. 24297 of 1995 (Sri Chandra Shekhar and others Vs. District Judge and others) .

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In paragraph 11 of the writ petition, it has been stated that the present appellant was a party in Writ A No. 24297 of 1995. Paragraphs 9 and 11 of the writ petition are reproduced below;

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“9. That thereafter the District Judge, Siddharth Nagar mis-interpreting the communication letter terminating the services of all the 7 employees vide its order dated 25.4.1995. A copy of the order dated 25.4.1995 is being filed herewith and is marked as Annexure '6' to this writ petition.

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That thereafter the petitioners being aggrieved filed a Civil Misc. Writ Petition No. 24297 of 1994 alongwith others and this Hon'ble High Court was pleased to pass an order dated 5.9.1995 in the aforesaid writ petition. A copy of the order dated 5.9.1995 is being filed herewith and is marked as Annexure '9' to this writ petition.”

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Learned counsel for the appellant also informed the Court that

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though Writ A No. 24297 of 1995 was initially dismissed by the judgement and order dated 7 January 2013 but the said order was recalled and the said petition is pending.

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Sri Samir Sharma, learned counsel appearing for the respondents has, however, pointed out that what was recalled by order dated 7 January 2013 was the order dated 21 February 2011 by which the writ petition had earlier been dismissed in default and after recalling the order dated 21 February 2011, the Court proceeded to hear the petition on merits and ultimately dismissed it by order dated 7 January 2013.

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Both the orders dated 7 January 2013, one dismissing the writ petition on merit and the other recalling the order dated 21 February 2011 are reproduced below;

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“Petitioners, who are seven in number, seek quashing of the order of the District Judge dated 25.04.1995 whereby the services of the petitioners had been put to an end.

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Before adverting to the facts stated in the petition it may be recorded that a new judgeship in the name of Siddhartha Nagar was constituted sometime in the year 1989 along with four other new districts. For these judgeships, post of Junior Officer and other staff necessary to run the judgeships were created under the Government Order dated 31.10.1989. Under the said Government Order, 20 posts of Sweeper cum Farrash on part-time basis on a fixed pay of Rs.785/- were created under Clause 6, Item No. 20. These 20 posts were in respect of five newly created districts namely Mau, Siddhartha Nagar, Firozabad and Siddhartha Nagar. Meaning thereby that for each newly created district, four posts of Sweeper cum Farrash were created on fixed pay.

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Petitioners claim to have been appointed in the said

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judgeship as Sweeper cum Farrash on various dates on a fixed pay of Rs.785/- per month. It is their case that along with the petitioners Mohd. Aslam and Lal Singh were also similarly appointed. Services of Mohd. Aslam and Lal Singh were terminated under order dated 26.10.1993. According to the petitioners orders were issued by the District Judge for promotion from the post of Sweeper cum Farrash to that of Chaukidar from time to time and in the resultant vacancies the petitioners were appointed. An order was issued by the High Court on 18.04.1995 directing that Mohd. Aslam and Lal Singh be reinstated and services of the persons appointed at later point of time be dispensed with. It is in compliance to the said order of the High Court that the order impugned dated 25.04.1995 was issued. According to the petitioners the order terminating their appointment was illegal.

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This Court had asked the District Judge to explain the factual position with regard to the number of post which were created in the judgeship. From the affidavit filed by the District Judge it is now apparent that only four posts of Sweeper cum Farrash on the fixed pay of Rs.785/- were created, therefore, at best only four persons could have been appointed to work on the said post. The District Judge by making promotion and then cancelling the same cannot created a situation whereby more than four persons can claim salary against the posts of Sweeper cum Farrash in the judgeship. Even otherwise this Court may record that it is not the case of any of the petitioners that they have been appointed after following any procedure known to law or after any advertisement having been published. The Apex Court as well as the High Court have repeatedly held that even in respect of ad hoc vacancies no appointment can be made without the vacancy being advertised in newspapers. Such appointment would be null and void being violative of Article 14 of the Constitution of India.

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In view of the aforesaid no relief can be granted to the petitioners.

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Writ petition is dismissed.

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Interim order, if any, stands discharged.

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Dated : 07.01.2013

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Hon'ble Arun Tandon, J.

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Heard learned counsel for the parties.

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Cause shown for the absence of the counsel on 21.02.2011 has been explained to the satisfaction of the Court. The order dated 21.02.2011 is, therefore, recalled.

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Writ petition is restored to its original number. Application No. 179832 of 2011 is allowed.”

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It transpires that the writ petition that was filed by the petitioner along with other employees to assail the judgement and order dated 25 April 1995 passed by District Judge, Siddharth Nagar had been dismissed on merits. This order should have been brought to the notice of the learned Judge by learned counsel for writ petitioner but it appears that it was not. The Court noticed that the order dated 25 April 1995 had not been assailed and therefore none of the reliefs claimed in the writ petition could have been granted.

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Writ A No. 37459 of 1995 was apparently filed after Writ A No. 24297 of 1995 . The advertisement which is sought to be assailed during the course of the arguments was also assailed in the writ petition. Even otherwise when the writ petition assailing the judgement and order dated 25 April 1995 passed by District Judge was dismissed by order dated 7 January 2013, no relief claimed in the writ petition out of which this Special Appeal arises could have been given.

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The statement of the appellant that the appellant is still continuing to work in District Judgship, Siddharth Nagar needs to be enquired as once the

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petition challenging the order dated 25 April 1995 terminating the services had been dismissed on 7 January 2013, the appellant could not have been continued in the Judgeship. We, therefore, call upon the District Judge, Siddharth Nagar to inform the Court as to whether the appellant is still continuing in service and if so, under what circumstances. This information should be sent to the Registrar General of the Court, who shall seek appropriate directions after receiving the communication.

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The Special Appeal is, accordingly, dismissed with costs of Rs. 10,000/-, which the appellant shall deposit before the Registrar General of the Court within a period of one month from today. On deposit of such cost, it shall be transmitted to the account of Allahabad High Court Mediation and Conciliation Centre. If the appellant fails to deposit the cost, the Registrar General of the Court shall inform the District Judge, Siddharth Nagar for recovery of the said amount as arrears of land revenue and after recovering the said amount, it shall be transmitted to the Registrar General of the Court for depositing in the account of Allahabad High Court Mediation and Conciliation Centre.

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Order Date :- 22.5.2018 Arvind

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(Dilip Gupta, J.)

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(Neeraj Tiwari, J.)

Chandra Vijay Singh v. the District Judge and Anr.

Case brief

What is this about?

What did the court decide?

Chandra Vijay Singh v. the District Judge and Anr.

Case brief

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