Allowed

Brij Bali Singh v. State of U.P. and Others

Allahabad HC20 May 2019SPLA/792/2010

Case brief

AI extract

What is this about?

Both special appeals challenging a Single Judge's order in a promotion dispute were allowed. The Court held that the lower judge violated natural justice by deciding without notice to the appellant. The impugned orders were set aside and the matter remanded for a fresh hearing.

What did the court decide?

Orders dated 19.2.2010 and 19.4.2010 set aside. Writ Petition remanded to Single Judge to re-hear after giving opportunity to all concerned parties.

Brij Bali Singh Vs State of U.P. and Others — Service and Employment | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL No. - 792 of 2010

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Appellant :- Brij Bali Singh Respondent :- State Of U.P. And Others Counsel for Appellant :- Arvind Srivastava Counsel for Respondent :- C.S.C.,Rahul Sripat,Siddharth Khare

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And

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Case :- SPECIAL APPEAL No. - 1021 of 2010

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Appellant :- Brij Bali Singh Respondent :- State Of U.P. Through Secretary Secondary Edu. And Others Counsel for Appellant :- Arvind Srivastava Counsel for Respondent :- C.S.C.,Siddharth Khare

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Hon'ble Sudhir Agarwal,J. Hon'ble Virendra Kumar Srivastava,J.

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Both these appeals are inter-connected and therefore, have been heard together and are being decided by this common judgment, as requested by learned counsel for both parties.

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Heard Sri Arvind Srivastava, learned counsel for the appellant, Sri Pratik Chandra, Advocate holding brief of Sri Siddharth Khare, learned counsel for petitioner-respondent, Suresh Kumar and learned Standing counsel for respondent nos.1 to 4.

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Petitioner-respondent, Suresh Kumar preferred Writ Petition No.7349 of 2010 and filed the same in registry on 8.2.2010. It came up before Single Judge on 19.2.2010 and on that very day, after hearing learned counsel for petitioner-respondent, Suresh Kumar and learned Standing counsel, Single Judge decided writ petition and the order reads as under:-

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"Heard Sri Ashok Khare, learned Senior Counsel, assisted by Sri Siddhartha Khare, learned counsel for the petitioner and learned Standing Counsel.

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The grievance raised by the petitioner in the present writ petition is that he is entitled to be promoted on the post of Lecturer in Mathematics, as petitioner's name is at Serial No.16

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in the seniority list, being a Scheduled Caste candidate. In spite of repeated representations submitted by the petitioner regarding recommending his name for the purposes of consideration, Committee of Management has not forwarded the name of the petitioner and name of one Sri Mahendra Singh, who is at Serial No.18 in O.B.C. category as well as one Brij Bali Singh, who is at Srial No.20 of the seniority list in general category, have been recommended for the purposes of promotion on the post of Lecturer Hindi as well as on the post of Lecturer Biology. Petitioner by way of filing an amendment application has brought on record the order of approval by Regional Level Committee who has approved the promotion of Sri Brij Bali Singh, who is junior to the petitioner, a copy of the same has been filed as Annexure-1 to the amendment application dated 17.02.2010.

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Sri Khare, learned Senior Counsel appearing for the petitioner submits that the claim of the petitioner has yet not been considered by the competent authority due to the inaction of the Committee of Management, who has not recommended the name of the petitioner, though petitioner being a Scheduled Caste candidate is entitled to be promoted according to the seniority list which is in existence. This fact has also been ignored while considering the claim of the petitioner by the Regional Level Committee. As such, the petitioner may be permitted to approach the Regional Joint Director of Education to this effect by making a comprehensive and detailed representation regarding his promotion. Further submission has been made that if the order impugned annexed to the amendment application is permitted to stand the effect will be that in case the petitioner is found eligible for the post of Lecturer and order to that effect is passed, the petitioner will be junior to Brij Bali Singh though he was entitled to be promoted earlier to the person who is junior to the petitioner.

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In the facts and circumstances of the present case, petitioner may approach the respondent No.2 by making a fresh representation annexing all the relevant documents within a period of three weeks, and if such representation is filed the same may be considered and decided strictly in accordance with law by a reasoned order after affording full opportunity to the petitioner regarding consideration of his promotion on the post of Lecturer. It is further directed that Regional Level Committee will also consider the fact that whether in view of the seniority list petitioner being a senior was entitled to be promoted first on the post of Lecturer to the persons who are junior to him in the seniority list. If the Regional Level Committee comes to that conclusion then a specific order to this effect be passed fixing the seniority of the petitioner. Till the decision taken by the Regional Joint Director of Education regarding consideration of promotion of petitioner, Brij Bali Singh, who is admittedly junior to the petitioner, may not be taken into consideration. The order of this Court may be complied with within period of two months from the date of production of certified copy of the order.

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The writ petition is disposed of accordingly."

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From record of writ petition, it is evident that no notices were issued to respondent nos.5 and 6, who are private respondents including appellant, who was arrayed as respondent no.7 in writ petition.

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Judgment of Hon'ble Single Judge clearly shows that it contains directions adverse to the interest of appellant. This order was challenged in Special Appeal No.1021 of 2010 (filed as Special Appeal (Defective) No.343 of 2010).

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Appellant when came to know about judgment dated 19.2.2010, filed a recall application, copy whereof is on page 94 of Special Appeal No.792 of 2010 as Annexure-10 to the affidavit filed in support of Stay Application and prayer made therein, reads as under:-

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"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and recall the order dated 19.2.2010 (Annexure No.01 to this Application) passed by Hon'ble Mr. Justice Shishir Kumar J. in the instant Civil Misc. Writ Petition No.7349 of 2010 (Suresh Kumar Vs. State of U.P. & others), else the applicant will suffer grave an irreparable loss and injury."

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This application was disposed of by order dated 19.4.2010 by Single Judge and said order reads as under:-

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"The final order dated 19.2.2010 passed by this Court is very clear in the fact that claim of petitioner has to be considered regarding promotion on the post of Lecturer but as respondents submits that Brij Bali Singh has been promoted on the post of Biology, his promotion has been stayed. It is provided that respondents while considering the claim of petitioner will also give an opporuntity to respondents.

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The application for modification is disposed of accordingly."

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Special Appeal No.792 of 2010 has been filed challenging order dated 19.4.2010.

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In substance, basic contention of learned counsel for appellant is that appellant was already promoted. He was also a party in the writ petition. However, without issuing notice and giving opportunity to

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appellant, judgment has been given and writ petition has been decided by Single Judge and therefore, judgment is in utter violation of principle of natural justice. He further contended that he moved a recall application which was treated to be a modification application and therefore, even subsequent order is clearly illegal and contrary to what was pleaded by appellant in recall application.

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Sri Pratik Chandra, learned counsel for petitioner-respondent, could not dispute, when questioned, that writ petition was decided on the very first day on 19.2.2010 without issuing any notice to private respondent nos.5 to 7. Admittedly, appellant was not given any opportunity, and therefore, judgment in question passed by Single Judge is clearly in violation of principle of natural justice.

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Both appeals are allowed and orders dated 19.2.2010 and 19.4.2010 passed by Single Judge in Writ Petition No.7349 of 2010 and on the aforesaid recall application, are hereby set aside. Writ petition is restored to its original number and remanded to Single Judge to re-hear the matter, after giving opportunity to all concerned parties and pass fresh order in accordance with law.

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Order Date :- 20.5.2019 Vivek Kr.

Brij Bali Singh v. State of U.P. and Others

Case brief

What is this about?

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Brij Bali Singh v. State of U.P. and Others

Case brief

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