Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 656 of 2018 Appellant :- Tahsildar Ram And 78 Ors Respondent :- State Of U.P. And 6 Ors Counsel for Appellant :- Kailash Singh Kushwaha Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh,Jamil Ahamad Azmi
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Bachchoo Lal,J.
This appeal has been preferred by 79 appellants seeking leave to appeal against the judgement of the learned Single Judge dated 22.11.2016. By a separate order today have condoned the delay in filing of the appeal. Under the orders of the learned Single Judge, the District Basic Education Officer has now proceeded to dispose of the representations filed by the respondent nos. 4 to 7 after notices were issued in Contempt Application (Civil) No. 4045 of 2018. The District Basic Education Officer, Azamgarh has passed an order of reversion of the appellants. In such a situation and in the background aforesaid, they are aggrieved persons, therefore, they have preferred the special appeal before this Court. Consequently, we allow this application and grant leave to the appellants subject to the condition that appellant no. 1 Tahsildar Ram, appellant no. 24 Virendra Kumar Gautam and appellant no. 36 Durjan Ram have undertaken before this Court to withdraw the appeals already filed by them being Special Appeal (Defective) No. 530 of 2018. Accordingly, the Special Appeal (Defective) No. 530 of 2018 in respect of these appellants would stand dismissed as withdrawn.
All these appellants have been reverted in view of the compliance of the directions issued by the Apex Court in case of U.P. Power Corporation Ltd. vs. Rajesh Kumar & others, (2012) 7 SCC 1.
The principal and basic grievance raised and urged by Sri K.S. Kushwaha, learned counsel for the appellants is that the learned Single Judge while issuing the direction on 22.11.2016 called upon the District Basic Education Officer, Azamgarh to proceed to carry out the directions and decide the representations filed in this regard on behalf of the respondents-petitioners. Sri K.S. Kushwaha submits that the direction issued by the learned Single Judge was not in conformity with the directions issued by the Apex Court on 13.10.2015 as modified on 24.11.2015. Copy of the said orders have been filed as Annexures-2 and 3 respectively to the stay application. According to Sri K.S. Kushwaha, it is only the Principal Secretary of Basic Education Department or the Secretary In-charge, who was empowered to proceed to dispose of the matter including grievances in respect of reversions already carried out or in respect of reversions that ought to have been made. He submits that in such circumstances it is only the Principal Secretary or the concerned Secretary of the State Government to whom the direction could have been given by the learned Single Judge and not to the Basic Education Officer.
The second argument of Sri Kushwaha is that the learned Single Judge has committed manifest error by entertaining the writ petition in respect of such a grievance when there is a direct mandate by the Apex Court that no other court shall entertain a petition regarding any grievance of this nature. He, therefore, submits that the direction of the learned Single Judge and the compulsion initiated by the learned Contempt Judge to implement the said order resulting in passing of the order of reversion by BSA against the directions issued by the Apex Court referred to above are vitiated. He further submits that even otherwise there might be promotions which are not arising out of any benefit of reservation and consequently such a grievance also have to be allowed to be considered by the competent authority. Consequently, he prays that the judgment of the learned Single Judge as well as the order passed by the District Basic Education Officer in compliance thereof be set aside.
He has additionally relied upon the direction issued by Division Bench of this Court in Special Appeal (Defective) No. 476 of 2018 (Shyam Babu and others vs. State of U.P. and 4 others) dated 31.7.2018.
He, therefore, submits that this being a similar matter, this appeal also deserves to be entertained.
Sri Jamil Ahmad Azmi, learned Advocate, has been heard on behalf of respondent nos. 4 to 7, Sri Bhanu Pratap Singh for the respondent nos. 2 and 3 and learned Standing Counsel for the first respondent State.
The contention of the respondents is that the learned Single Judge has not issued any directions or entertained any grievance and it was only a direction to dispose of the matter by the District Basic Education Officer in terms of the Government Order dated 21.8.2015 in order to ensure compliance of the judgment of the Apex Court in the case of U.P. Power Corporation Ltd (supra).
It is further submitted that the order of the District Basic Education Officer is in conformity with the said judgment and, therefore, there is no grievance either on merits or even otherwise for the appellants to raise before this Court in this appeal. He therefore submits that it would be a futile exercise to entertain this appeal in order to set aside the orders which are otherwise in conformity with law.
We have considered the submissions raised. What we find is that the primary duty of this Court is to exercise the powers under Article 226 of the Constitution of India to ensure the protection of fundamental rights or issues arising out of legal rights. The violation as alleged before the Court, a writ can be issued by this Court. According to the provisions of the Constitution whenever such situations arise, Article 144 of the Constitution of India mandates that authorities civil and judicial in the territory of India shall act in the aid of the Supreme Court. In the instant case, the issue involved is the reversion of employees in accordance with the final judgment of the Apex Court in case of U.P Power Corporation Ltd. Vs. Rajesh Kumar (supra). Thus, it is the obligation of this Court to ensure that the said judgment is complied with and the authorities do not act in derogation thereof.
In the instant case, what has happened is that the State Government, in order to ensure compliance of the direction of the Supreme Court judgment, issued a Government Order on 21 August 2005 through the Chief Secretary, Government of U.P. calling upon all the Departments concerned to implement this judgment in order to ensure that the reversions are implemented within a time bound frame in order to ensure the compliance of the judgment of the Apex Court.
The authorities did proceed thereafter and upon an information sought by the Apex Court according to its earlier orders passed, the State of U.P. filed an affidavit before the Apex Court bringing on record the Government Order dated 21.8.2015 along with certain other averments in the affidavit for ensuring compliance and completion of the reversion process.
After taking notice of the same, the Apex Court vide order dated 13.10.2015 issued the following directions:
“Be it noted, it has been stated in the affidavit that if anyone is grieved by the order of reversion or in case of any grievance that a person ought to have been reverted, if raised, shall be decided on top priority by the State Government. We inquired from Mr. Mehrotra, learned counsel for the State that who would be the competent authority who will decide it, learned counsel has submitted that he has instructions to state that Principal Secretary, Department of Personnel, State of U.P., shall decide the same. If anyone is grieved by the decision taken by the said authority, the said person is entitled to file a interlocutory application before this Court in the disposed of Civil Appeal No. 2608 of 2011 and connected appeals, so that suitable order can be passed. The purpose of stating so is that no other court shall entertain the challenge to the grievance of any person”.
The aforesaid order of the Apex Court was further clarified by the order dated 24.11.2015 which is as follows:
“It is contended by Mr. Mehrotra that there are around one thousand representations/grievance petitions and a singular authority is not in a position to take the decision on the same. It is urged by him that instead of Principal Secretary, Department of Personnel, State of U.P., it may be substituted as Principal Secretary/Head of the Department in respect of employees of the State, and the Managing Director of the Corporations (Competent Authority/Appointing Authority) who shall decide the petitions in respect of the employees of the Corporation. The said prayer is accepted.
At this juncture, it is necessary to further add that anyone who shall make a representation mitigating its grievance, shall be afforded an opportunity of hearing and the concerned authority, as mentioned hereinabove, shall decide the same within a period of eight weeks from the date of receipt of the representation. The persons who have not submitted the representation mitigating their grievance, may submit the petitions/representations within four weeks hence. Anyone who is grieved by the decision of the competent authority, will be entitled to file an application in the disposed of Civil Appeal and other connected appeals, as has been mentioned in the earlier order.
We may hasten to add that the competent authority shall pass a reasoned order so that it can be appreciated by this Court.
Needless to emphasise that any representation which has to be decided, has to be in the light of the principles enshrined in U.P. Power Corporation Ltd. vs. Rajesh Kumar & others reported in (2012) 7 SCC 1. Needless to say, the competent authority shall be guided by the principles of objectivity while passing the order.
The order dated 13.10.2015 is modified to the above extent”.
These orders were passed prior to the issuance of the direction given by the learned Single Judge but after the Government Order dated 21.8.2015. In such circumstances, the authorities ought to have taken notice of the same but it appears that since the contempt petition was filed and the concerned Basic Education Officer had been called upon to answer the contempt petition, he proceeded to pass the order dated 27.8.2018 whereby according to the said Officer the compliance of the reversions, which had to be carried out, have been implemented. According to the said order, the all possible grievances have been considered and the reversion is in conformity with the law laid down by the Apex Court.
Having considered the said facts which are on record what we find is that the present appellants after almost two years of passing of the order passed by the learned Single Judge have approached this Court in order to raise their grievance about the authority of the District Basic Education Officer to proceed in the matter. They could have done this because the order has been passed by District Basic Education Officer on 27.8.2018. Consequently, their approach before this Court is not delayed as we have already indicated in the order on the delay condonation application and the order passed on leave to appeal, but the impact of the order of learned Single Judge dated 22.11.2016 is not a decision about the grievance of the appellants. It was only a direction to consider the representations for the implementation of the orders of Supreme Court. The District Basic Education Officer, however, should have taken notice of the orders of the Apex Court which does not appear to have been noticed by him. In the given circumstances, the appellants can raise all possible grievances that has to be considered by the Principal Secretary or the Secretary In-charge of the Department concerned.
The learned Single Judge was therefore not in error so as to issue the direction for deciding the representation. It was not a decision of adjudication of any of the grievances of either of the parties. In the given circumstances, it cannot be said that the learned Single Judge has issued directions in the teeth of the judgement of the Supreme Court. The Government Order dated 21.8.2015 continued to be in force and it has been noticed by the Apex Court in the order dated 13.10.2015. The District Basic Education Officer therefore may have proceeded keeping in view the directives issued by the Chief Secretary in the Government Order dated 21.8.2015 and possibly under the threat of the contempt proceedings. It cannot be therefore said that the District Basic Education Officer was acting completely without authority in law but at the same time once the Apex Court had defined the authority on the affidavit filed by the State of U.P. itself then the appropriate course for the District Basic Education Officer ought to have been to submit the entire matter before the Principal Secretary concerned for further implementation.
It is only to the aforesaid extent we find that the appellants are entitled to raise their grievance before the Principal Secretary of the Department concerned. We, therefore, dispose off this appeal keeping in mind the aforesaid facts and for due observance as directed by the Apex Court that the Principal Secretary of the Department or the Concerned Secretary dealing with the Basic Education Department or holding charge thereof shall proceed to entertain any such grievance which may be raised by the appellants and which shall be considered by him in accordance with the judgement of the Supreme Court and appropriate orders shall be passed thereon.
If the appellants are aggrieved by any such order of Principal Secretary concerned the same shall be subject to further scrutiny only of the Apex Court keeping in view the order dated 13.10.2015 and 24.11.2015 of the Apex Court referred to hereinabove.
The order of the District Basic Education Officer dated 27.8.2018 shall be subject to the outcome of any such exercise either by State Government or any orders that may be passed by the Apex Court.
With the aforesaid observations, the special appeal is finally disposed off.
Order Date :- 18.9.2018 Puspendra