Hon'ble S.C. Chaurasia,J.
1.Short counter affidavit filed today on behalf of O.P. No.4, is taken on record.
2.Heard learned counsel for the petitioner, Sri Sanjai Bhasin learned Additional Chief Standing Counsel and Sri K.K. Pandey, learned counsel for the O.P. No.4 and Sri Rajneesh Kumar, learned counsel for the O.P. No.3. With the consent of parties counsel, the writ petition is finally decided at admission stage.
3.Short question involved in the writ petition, relates to the validity of the interim order passed by the U.P. State Public Service Tribunal by preponment of date already fixed. We have perused the record produced in compliance of earlier order.
4.The Claim Petition No.88/2011 was filed by the claimant respondent before the U.P. State Public Service Tribunal, Lucknow, with the prayer that the name of the claimant respondent may be included in the final seniority list dated 24.2.2010 in terms of the order dated 23.6.2009 and consider the case for promotion on the post of District Social Welfare Officer from the date juniors were promoted.
5.In the claim petition, a specific pleading has been made in para 26 that the meeting of Departmental Promotion Committee (DPC), has been convened for 28.1.2011 and the claimant respondent is likely to be superseded. Though, it has been pleaded in the present writ petition that the petitioner appeared before the Tribunal on 25.1.2011 and obtained time for filing of application for impleadment but it seems to have not been incorporated in the ordersheet. However, from the ordersheet it appears that on 25.1.2011, the claim petition was admitted inviting counter affidavit/written statement and the application for interim relief was fixed for order for 14.2.2011. The claim petition itself was fixed for 28.3.2011.
6.From the perusal of the original record, it further transpires that a fresh application for interim relief was moved on 27.1.2011 which was directed by the Acting Chairman to come up on 28.1.2011. While moving fresh application for interim relief again, it has been reiterated that the meeting of DPC is convened for 28.1.2011. Thus, so far as the pleading on record is concerned, there is no difference in the original pleading contained in the claim petition as well as in the subsequent application moved on 27.1.2011 indicating urgency in the matter. The application was taken up on 28.1.2011 and the impugned interim order was passed.
7.While assailing the impugned order, it has been submitted by the petitioner's counsel that the date was preponed by the Tribunal arbitrarily and though, the petitioner put in appearance, no notice was served on him. So far as the service of notice is concerned, since the ordersheet does not indicate that the petitioner filed Vakalatnama on 25.1.2011, no finding may be recorded with regard to petitioner's appearance on 25.1.2011. However, keeping in view the fact that the pleading with regard to DPC, was already on record, then again on the same ground another application was moved showing urgency in the matter, no order should have been passed hurriedly by the Tribunal.
8.The attention has been invited by the petitioner's counsel to another order dated 27.1.2011 passed by this Court in Writ Petition No.113 (S/B) of 2011, of which one of us (Hon'ble Devi Prasad Singh) was a member. The order is reproduced as under:
Case :- SERVICE BENCH No. - 113 of 2011 Petitioner :- Kamal Deep Kaur Respondent :- Sttae Of U.P.Through Prin. Secy. Deptt. OfSocial Welfare Petitioner Counsel :- Bulbul Godiyal Respondent Counsel :- C.S.C.,Rajnish Kumar Hon'ble Devi Prasad Singh,J.
Hon'ble Dr. Satish Chandra,J.
Learned Chief Standing counsel has accepted notice on behalf of opposite parties no. 1,2 and 7. Shri Yogesh Chandra Srivastava learned counsel has filed Vakalatnama on behalf of opposite party no. 4. Shri Rajneesh Kumar learned counsel appeared on behalf of the opposite party no. 3.
Let a notice be issued to opposite parties no. 5 and 6 returnable at an early date.
In a pending Claim Petition No.1592 of 2009 the date was fixed for further proceeding on 11.2.2011 as evident from the order sheet dated 24.12.2010. An application was moved to take up the case on 17.1.2011. The Chairman fixed the matter at 3.00 p.m. and later on deferred the matter for 18.1.2011. Thereafter, order was reserved and impugned order was passed on 20.1.2011 directing the respondents State to proceed with the Departmental Promotion Committee but result be kept in a sealed cover.
The submission of the learned counsel for the petitioner is that neither any notice was served upon the petitioner nor any opportunity of hearing was given to the petitioner counsel while preponing the date.
Learned counsel for the respondents submits that he had tried to serve the notice but same could not be served. But it is admitted fact that neither any notice for preponing of the date was served on the petitioner nor petitioner's counsel was called on to participate in hearing on 18.1.2011.
Smt. Bulbul Godial learned counsel for the petitioner submits that she was not informed by the tribunal or the counsel for the claimant respondents with regard to preponing of the date. Such action on the part of tribunal erodes the people confidence in the judicial process.
Learned counsel for the respondents while defending the action of the tribunal submits that writ petition is not maintainable being filed against the interim order. The submission made by the learned counsel for the respondents seem to be mis conceived. Power of superintendence vested in this court is wide enough to do justice wherever illegality, arbitrariness is reflected from the orders passed by the court or subordinate authorities vide (2010) 8 SCC 329,Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil and (2006) 8 SCC 294 Jasbeer Singh vs. State of Punjab.
In view of above, preliminary objection raised by the learned counsel for the respondents is rejected. Justice should not only be done but seems to be done.
Such action on the part of tribunal while preponing the date and passing an interim order without affecting the service of notice on the counsel for the petitioner, respondents prima facie can not be defended. The tribunal should discharge its obligation in a just and fair manner to maintain the peoples confidence in the administration of justice. It is not the question whether the order passed by the Tribunal is correct or not but the manner in which the tribunal had proceeded to pass the impugned order seems to be neither just nor proper and fair.
Accordingly, we admit the writ petition and stay the interim order passed by the U.P. Public Service Tribunal as contained in Annexure-1 to the writ petition till the next date of listing.
Let counter affidavit be filed within four weeks, rejoinder affidavit within two weeks. List immediately after six weeks for peremptorily hearing. Tribunal is directed to proceed with the case and decide the same on merit after providing due opportunity of hearing to the parties expeditiously and preferably within a period of two months from the date of receipt of a certified copy of this order."
9.From the facts and circumstances discussed hereinabove, it appears that the preponment of date in the Tribunal is ordinarily, a common feature.
10.Sri Sanjai Bhasin, learned Additional Chief Standing Counsel submits that under Rule, the Tribunal has got power to prepone the date. Further submission is that under Rule 17 of the U.P. State Public Services Tribunal Rules of Practice, 1997, if any application showing urgency is moved then that has necessarily to come up on the next date. Rule 17 of the Rules, is reproduced as under:
"17. Posting of application.--(a) All applications in pending claim petitions received before 3 p.m. in which interim urgent orders are sought shall ordinarily be listed with the relevant record before the Bench on the following second working day, if a copy thereof has already been served on the counsel of the other side.
(b) Applications other than applications for urgent interim orders will be listed for hearing along with the record as early as possible according to the orders of the Chairman.
(c) All applications in the pending contempt petitions will be listed along with the record before the contempt bench on the following second working day."
11.The powers conferred on the Tribunal to take up the urgent application on the very next date, does not confer power to pass an order ex parte or arbitrarily. The power should be exercised in just and fair manner after due service of notice on the counsel. Of course, in case respondent has not put in appearance or no application for impleadment is being moved, the Tribunal may take up the matter and pass appropriate order keeping in view the urgency but it shall depend upon the facts and circumstances of each case. Even otherwise also, while doing so, the Tribunal should take note of the fact that pleadings which are already on record, and argument advanced by the claimant on earlier date, ordinarily should not be the ground to pass an order for the preponment of date.
12.Once the Tribunal does not pass an interim order on the date of filing of application, on the basis of facts and pleadings on record, then subsequently passing of an order on the same very facts,, raises reasonable doubt over the functioning of the Presiding Officer, even if the Officer discharged the duty fairly, honestly while passing the interim order after preponing the date. In the eyes of people, his conduct may be unjust and unfair.
13.It has repeatedly been held by their lordships of Hon'ble Supreme Court and this Court in number of cases reiterating that justice should not only be done but it should seem to have been done. Accordingly, while discharging statutory duty and passing judgment, or an order the Tribunal should be cautious to ensure to proceed in such a manner which may not create doubt in people's mind. There must be transparency and due compliance of natural justice while discharging obligations in a pending matter. While deciding a case a Division Bench of this Court of which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member, has proceeded to observe as under:
"64. In the case of R.Viswanathan (supra) Hon'ble Supreme Court held that rule of law about judicial conduct is strict and old but the judicial proceeding should be conducted in such a manner so no litigant should leave the court with a feeling that he has not been considered on merit.
Relevant portion from the Apex Court judgement in R.Viswanathan (supra) is reproduced as under :-
"The rule of law about judicial conduct is as strict, as it is old. No judge can be considered to be competent to hear a case in which he is directly or indirectly interested. A proved interest in a judge not disqualifies him but renders his judgement a nullity. There is yet another rule of judicial conduct, which bears upon the hearing of case. In that, the Judge is expected to be serene and even handed, even though his patience may be sorely tried and the time of the Court appear to be wasted. This is based on the maxim which is often repeated that justice should not only be done but should be seen to be done. No litigant should leave the Court feeling reasonable that his case was not heard or considered on its merit. If he does, then justice, even though done in the case, fails in the doing of it."
In other cases referred by the appellants counsel like Kamalammal and others (supra), Smt. Kausalya Devi Bogra (supra),State of U.P. Vs. C.L.Agarwal (supra), State of Tripura (supra) and Harjeet Singh alias Seeta (supra) their Lordship of Apex court had reiterated the principle referred hereinabove and observed that highest standard should be maintained by members of higher judiciary while discharging their duties.
65. ...In the case reported in (1998) 1 SCC 1, State of Rajasthan Vs. Prakash Chand and others their Lordship of Hon'ble Supreme Court held that it is the public confidence oriented mechanism and self discipline in the discharge of function maintain the public faith in our judicial system. Their Lordship of Hon'ble Supreme Court further held that the judicial proceeding should be held in such a manner so that our system of administration of justice may not receive any setback consciously or unconsciously.
Relevant portion from the judgement of State of Rajasthan (supra) is reproduced as under: -
"Judicial authoritarianism is what the proceedings in the instant case smack of. It cannot be permitted under any guise. Judges must be circumspect and self-disciplined in the discharge of their judicial functions. The virtue of humility in the Judges and a constant awareness that investment of power in them is meant for use in public interest and to uphold the majesty of rule of law, would to a large extent ensure self restraint in discharge of all judicial functions and preserve the independence of judiciary. It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we "suffer from self-inflicted mortal wounds". We must remember that the constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices."
66. Accepted standards of right conduct, higher traditions, logic and history, customs, utility, confidence of peoples in the administration of justice are the force, which individually or collectively shape the progress of law. It is the well-accepted principle of law that it should be uniform and impartial not only in action but also in appearance."
14.In view of the above, we are of the view that the manner and ground on which the Tribunal has preponed the date and proceeded to pass the impugned order on the same set of facts and pleading which was on record on the date of filing of claim petition does not create a ground of urgency and to pass an order for the preponement of date, already fixed. Ordinarily, the urgency under Rule 17 of the Rules (supra), should be based on new facts, making out a case for urgency and preponment of date. While passing an interim order, Court should record finding with regard to fulfilment of three ingredients namely, prima facie case, irreparable loss and injury and balance of convenience. The power conferred by Rule 17 is extraordinary power given to the Tribunals to take up a matter by preponment of date only in the event of urgency. The urgency should be specifically pleaded while moving an application indicating therein as to why on earlier date, the facts were not brought to the knowledge of the Court and why date should be preponed indicating injury which may be caused in the event of inaction on the part of the Court. The finding must be recorded by the Tribunal while preponing the date with regard to urgency and the facts and circumstances necessitated to pass an order for the preponement of the date.
15.Accordingly, we allow the writ petition and set aside the impugned order dated 28.1.2011 passed by the Tribunal and remand the matter to decide the application for interim relief afresh after providing due opportunity of hearing to parties. Let parties appear before the Tribunal on 24.2.2011. It is clarified that we have not entered into the merit of controversy and it shall be open to the Tribunal to pass a fresh order after hearing learned counsel for parties, and after providing due opportunity to them.
Let a copy of this judgment be sent to the Chairman, U.P. State Public Services Tribunal, Lucknow, who is directed to circulate the copy of the present judgment to all its members and keep on record.