In this second appeal, the High Court dismissed the challenge to the lower appellate court's decision against the appellant, holding that suing against a show-cause notice was premature as no final order had been passed by the authority.
The second appeal was dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.5011 of 2010 (O & M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.5011 of 2010 (O & M) Date of Decision: 21.01.2011.
Indraj Singh
.....Appellant
Versus
State of Haryana and others
……Respondents
Coram:HON’BLE MR. JUSTICE L. N. MITTAL.
Present: Mr. Vijay Singh Kajla, Advocate for the appellant.
L. N. MITTAL, J (ORAL)
CM No.862-C of 2010
Allowed as prayed for.
CM No.863-C of 2010
The application is allowed and Annexure A-1 is taken on record, subject to all just exceptions.
Main Appeal.
Plaintiff Indraj Singh, who succeeded in the trial Court, but has been non-suited by the lower appellate Court, is in second appeal.
Plaintiff's case is that he joined Government High School, Baizalpur on daily wages in the year 1985. His services were regularized on 05.12.2003 in accordance with notification dated 01.10.2003. However, defendants have served show cause notice dated 06.05.2008 on the plaintiff requiring him to show cause regarding his illegal appointment. The said notice has been
RSA No.5011 of 2010 (O & M)
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challenged in the suit being illegal, null and void.
Defendants inter alia pleaded that appointment of plaintiff to the post of Sweeper was found illegal on inquiry by State Vigilance Department and, therefore, show cause notice has been issued to the plaintiff. Defendants alleged that they have adopted due course of law to remove the plaintiff from service. Various other pleas were also raised.
Learned Civil Judge (Senior Division), Fatehabad vide judgment and decree dated 10.11.2009 decreed the plaintiff's suit and restrained the defendants from terminating the services of palintiff. However, first appeal preferred by defendants has been allowed by learned Additional District Judge, Fatehabad vide judgement and decree dated 29.10.2010 and thereby suit filed by the plaintiff stands dismissed. However, lower appellate Court has also clarified that its judgment and decree shall not be construed as reflection of opinion about the matter concerning propriety and legality of plaintiff's appointment and regularization in service and in case his services are ultimately terminated, the plaintiff would be at liberty to file fresh suit to challenge the termination order. Feeling aggrieved, plaintiff has preferred the instant second appeal.
I have heard learned counsel for the appellant and perused the case file.
Learned counsel for the appellant vehemently contended that defendants have made up their mind to terminate the services of the plaintiff and, therefore, the plaintiff had to approach the Court by filing suit. The contention cannot be accepted. Defendants have
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RSA No.5011 of 2010 (O & M)
served notice on the plaintiff to show cause as to why he should not be removed from service because his appointment and regularization in service was illegal as per inquiry conducted by State Vigilance Department. Accordingly, the plaintiff had to show cause as required by defendants through the impugned notice. However, instead of responding to the notice, the plaintiff rushed to the Court. The suit is manfiestly premature and ill advised. The purpose of issuing show cause notice is to grant opportunity to the effected person to plead his case before the concerned authority. It is for the concerned authority to take appropriate decision in accordance with law after considering the reply to the show cause notice. If a person is aggrieved by the final order, he can avail of remedy available to him in accordance with law. However, filing of suit to simply challenge the show cause notice is misconceived. Lower appellate Court has rightly observed that the defendants are scrutinizing the propriety and legality of plaintiff's initial appointment and subsequent regularization of service. Even before the defendants have arrived at their final determination, it would be futile exercise on the part of the Court to determine the issue. It may be added that the the lower appellate Court has already granted liberty to the plaintiff to file fresh suit if his services are ultimately terminated by the defendants. At this stage, the plaintiff had no cause of action to file the instant suit merely against show cause notice.
For the reasons aforesaid, I find no infirmity much less illegality or perversity in the impugned judgment of the lower
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appellate Court. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine.
21.01.2011. ( L. N. MITTAL ) A. Kaundal JUDGE
3 issues framed by the court
Whether the second appeal was maintainable against the lower appellate court's order dismissing the suit.
Whether the court has jurisdiction to decide on the propriety of appointment before the authority has passed a final order on the show-cause notice.
Whether the show-cause notice issued against the appellant for illegal employment was legally sustainable.
Indraj Singh
State of Haryana
L. N. Mittal
A. Kaundal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
