(Court’s order whether the case is or not approved for reporting.) v. District Magistrate

HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1594 of 2004 (SS) Jageshwar Prasad s/o Sri Daya Ram R/o village Bahadurpur Khadar, Tehsil Laksar, District Hardwar ………Petitioner Versus District Magistrate, Haridwar

1. 2. Officer Incharge, Nazarat, Haridwar…….. Respondents Sri Manoj Tiwari, Advocate for the petitioner Standing Counsel for the respondents. Dated: 22.3.2006 Hon’ble Rajesh Tandon, J. Heard Sri Manoj Tiwari, Advocate for the petitioner and Standing Counsel for the respondents. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 5.4.2004 passed by the respondent No.1 Further of a writ of mandamus has been prayed directing the respondents to regularize the petitioner on a class IV post. Briefly stated the petitioner was initially appointed as Mali on daily wages in Collectorate, Haridwar w.ef. 27.9.1989 on the wages of Rs.25/-per day. He worked up to 31st August

1992. However on 24.8.1992, District Magistrate directed the authority to terminate the service of daily wager employees 3 w.e.f. 21.8.1992. The petitioner preferred a writ petition No. 4015 of 1992 and on 23.11.1992 Allahabad High Court has directed that the petitioner shall continue till the post is filled up by the selected candidates, however it was further directed that the respondent no. 2 shall also consider the claim of the petitioner for regularization against the sustentative vacancy. The petitioner thereafter continued to serve as class IV employee in the Collector, Haridwar. The petitioner has preferred a representation claiming his pay scale as admissible to other regular employees however when no reply was received the petitioner was compelled to file writ petition No. 30820 of

1995. On 8.11.1995, Allahabad High Court has passed order that the petitioner who is working till date will be entitled to continue pending regularization of his service. Writ petition No. 43105 of 1992 which was filed earlier against the termination order was initially dismissed on 26.5.1999 but later on said order was recalled. The counsel for the petitioner has submitted that the said writ petition is still pending before the Allahabad High Court. The petitioner has filed another writ petition No. 30820 of 1995, which was disposed of by this Court on 31.12.2003 and has passed the following order: “In case the order for regularization is passed, the petitioner will be entitled for the minimum pay scale in accordance with the judgment of the Apex Court as stated above. The respondents are directed to decide the claim of the petitioner within a period of 6 weeks of the filing of the certified copy of the order. 4 Subject to the aforesaid observations, the writ petition is disposed of. There will be no order as to costs.” The petitioner preferred a representation to the authority concerned along with a copy of the order dated 31.12.2003 passed by this Court. However, the respondents terminated the service of the petitioner vide order dated 5.4.2004. The petitioner has alleged that the order dated 5.4.2004 is the outcome of the malafide against the petitioner as the petitioner filed writ petitions from time to time and has succeeded in getting interim orders. The grievance of the petitioner is that after the orders passed by Allahabad High Court from time to time, present order of termination has been passed with mala fide intention and no opportunity has been given to the petitioner for hearing. The Apex Court in the case D.K. Yadav vs. J.M.A. Industries Ltd; (1993)3SCC 259 has held as under: “ It is fundamental rule of law that no decision just be taken which will affect the right of any person without fist being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill vs. Chief Election Commissioner (1978) 1 SCC 405 the Constitution Bench held that civil consequences covers infraction of not merely property or personal right but of civil liberties, material deprivations non-pecuniary damages. In comprehension connotation every thing that affects a citizen in his civil inflicts a civil consequence. Black’s Law Dictionary, 4th Edn. Page 1487 defined civil rights are such as belong to every citizen of the state of country…… they 5 include…. rights capable of being enforced or redressed in a civil action….In State of Orissa vs. (Miss) Binapani Dei (1967) 2 SCR 625 this Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence is support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principle of natural justice. In State of W.B. vs. Anwar Ali Sarkar 1952 SCR 284: AIR 1952 SC 75 per majority, a seven Judges Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi vs. Union of India (1978) 1 SCC 248 another Bench of seven Judges held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority, which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent 6 fundamental rights of citizens, must taken care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way, which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.” The order-dated 5.4.2004 has been passed by the respondent no.1 without any authority and without giving opportunity to the petitioner for hearing. The termination of the petitioner does not arise as admittedly the petitioner was working on daily wages and from time to time he was praying for regularization. In view of above, a writ of certiorari is issued quashing the order dated 5.4.2004 passed by the respondent no. 1 and the petitioner is reinstated. The matter is sent to the District Magistrate, Haridwar for considering the petitioner regularization in Collectorate establishment within three months after obtaining the certified copy of this order. Accordingly, the writ petition is allowed. No order as to costs. Dated:22.3.2006 *Dhyani Rajesh Tandon, J.