Dismissed

Raj Kumar Gupta v. State of U.P. and Others

Allahabad HC11 Feb 2020WRIA/26858/2003

Case brief

AI extract

What is this about?

The court held that it was not expedient to interfere with an illegal termination order under Article 226 as setting aside the order would perpetuate illegality by reviving a prior void appointment.

What did the court decide?

Writ petition dismissed; interim order, if any, vacated.

What the court decided

Raj Kumar Gupta Vs State of U.P. and… — Constitutional and Fundamental Rights | Allahabad HC (2020)

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Court No. - 34

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Case :- WRIT - A No. - 26858 of 2003

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Petitioner :- Raj Kumar Gupta Respondent :- State of U.P. and Others Counsel for Petitioner :- H.P. Mishra Counsel for Respondent :- C.S.C.,R.P. Srivastava,Shailendra Sharma,Vinit Pandey

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Hon'ble Sudhir Agarwal,J.

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Heard Sri H. P. Mishra, learned counsel for petitioner and learned Standing Counsel for State-respondents.

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Petitioner claims to have been engaged on daily wage basis as 'Revenue Superintendent' which engagement was subject to approval/sanction by State Government, but admittedly no such sanction was accorded. Thereafter, Chairman, Zila Panchayat passed another order dated 27.02.1997 appointing petitioner on ad hoc basis as 'Revenue Superintendent' in the scale of Rs.1200-Rs.1800/- and also mentioned in para 2 of order dated 27.02.1997 that earlier appointment of petitioner on the said post as daily wager shall stand terminated from the date of such appointment.

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Aforesaid appointment was wholly void ab initio as no direct appointment was permissible on the post of “Revenue Superintendent”, therefore, Chief Secretary, Panchayat Raj directed respondents-2 and 3 to terminate petitioner's appointment as the same was not made after following the procedure. District Magistrate exercising power under Section 230(2) of U. P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as “Adhiniyam, 1961”) passed impugned order dated 16.06.2003 and cancelled appointment of petitioner terminating him.

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Learned counsel for petitioner submitted that District Magistrate had no power to pass such an order, but when questioned he could not show that appointment of petitioner as 'Revenue Superintendent' by

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Chairman, Zila Panchayat, Sonebhadra was in any manner legal, valid or in accordance with law. Patently it was an illegal appointment and hence setting aside the impugned order of termination will amount to revival of another illegal order.

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A principle well established in law is when a Court is required to exercise its extraordinary jurisdiction under Article 226 of Constitution, it would be justified in declining to interfere in an order which has been passed in violation of principles of natural justice, if setting aside of such an order would result in revival of another illegal order. In other words, Court will not set aside an order merely on the ground that opportunity was not given or principles of natural justice were not followed, if as a result of setting aside such an order would revive in favour of petitioner concerned, another illegal order for the reason that this Court will not perpetuate illegality and no person can be allowed to enjoy benefit of an illegal order, by taking recourse to Institution of justice under Article 226 of Constitution.

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A Division Bench of this Court (of which I was also a member) in Amarendra Singh Vs. State of U.P. 2008(1) ADJ 397 (DB)=2008(1)ESC 734 has held that since the petitioner has invoked extraordinary jurisdiction under Article 226 of the Constitution, the remedy is not as a matter of right and this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. There are certain exceptions which are well recognised and one of such exceptions is where setting aside of an order will result in revival of another illegal order.

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In Champalal Binani v. The Commissioner of Income Tax west Bengal and others AIR 1970 SC 645 , Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."

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In Durga Prasad v. The Chief Controller of Imports and Exports and others AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay v. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para 13), it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.

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It would be appropriate to refer the view expressed in Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and 1982(3) SCC 331, which reads as under:

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"...this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136."

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What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in my view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the facts and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival lot another illegal order, the Court would be justified in refusing to interfere.

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In Employees' State Insurance Corporation and others vs. Jardine Henderson Staff Association and others AIR 2006 SC 2767 , Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment Court held that High Court under Article 226 and Supreme Court under Article 136 read with 142 of the Constitution has the power to mould relief in the facts of the case.

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In Ramnik Lal N. Bhutta and Anr. v. State of Maharashtra, AIR 1997 SC 1236 , Court observed:

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"The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point."

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In State of H.P. v. Raja Mahendra Pal and Ors. (1999) 4 SCC 43 , in para 6 of the judgment, Court held:

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"...It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article...."

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Similarly, in Director of Settlement v. M.R. Apparao (2002) SCC

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638 in para 17 Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.

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Following the principle laid down in the aforesaid decisions, this Court has reiterated the same view in a number of cases, including R.K. Shukla VS. Chairman Town Area Committee & Another (Writ A No. - 19889 of 1991 decided on 17.1.2013). Suffice it to say that this Court is

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not bound to interfere even if technically or otherwise, order impugned, is found to be illegal or erroneous.

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In Amrendra Singh Vs. State of U.P. & Ors., 2008 (2) UPLBEC 60, this Court has declined to interfere in intra Court appeal with an order of Single Judge even though legally it was not sustainable since substantial justice had been done therein and setting aside order may have resulted in revival of another pernicious order.

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In these circumstances, I do not find it expedient to exercise my jurisdiction under Article 226 of the Constitution of India by interfering in the impugned order of termination of petitioner.

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Writ petition lacks merit and it is dismissed accordingly.

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Interim order, if any, stands vacated.

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Order Date : 11.02.2020 Manish Himwan

Raj Kumar Gupta v. State of U.P. and Others

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Raj Kumar Gupta v. State of U.P. and Others

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