P N SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) By means of this writ petition, the petitioner challenges the order of his reversion dated 18.10.1997 (Annexure- 1A) and consequential posting order dated 20.10.1997 (Annexure-1B) on the reverted post. The case of the petitioner is that he joined the service with the opposite parties as Garden Superintendent in, the year 1963. He was promoted as Executive Officer of Class II Municipal Board with effect from 1.12.1964 and thereafter he was promoted to the post of Sahayak Nagar Adhikari with effect from 1.7.1979. In the year 1989, he was superseded. He filed a writ petition challenging his supersession and on 29.1.1991, this Court directed the opposite parties to decide the representation of the petitioner. However, the opposite parties passed an order stating that since earlier promotion of the petitioner on the post of Sahayak Nagar Adhikari was on ad hoc basis, the petitioner cannot be promoted to the next higher post of Up Nagar Adhikari. The petitioner challenged the said decision by means of Writ Petition No. 4203 of 1991. This Court passed an interim order directing the opposite parties to consider the case of the petitioner for promotion not treating him as ad hoc promotee and thereafter on 15.10.1992. this Court directed the opposite parties to promote the petitioner forthwith on the post of Up Nagar Adhikari provisionally or on ad hoc basis and to hold regular selection in two months in which the case of the petitioner shall also be considered. This order was further clarified directing the opposite parties to promote the petitioner within a week's time. This order was challenged by the opposite parties before the Apex Court. However, the order of this Court was not stayed. Instead of complying with the order of this Court, the opposite parties suspended the petitioner and served a charge-sheet on him on 17.11.1992. The petitioner filed petition under the Contempt of Courts Act against the opposite parlies for non-compliance of the order dated 30.10.1992 passed by this Court by which the opposite parties were directed to promote the petitioner on the post of Up Nagar Adhikari. Thereafter, the opposite parties referred the case of the petitioner for consideration to the Departmental Promotion Committee and consequently, the petitioner was promoted on regular basis by order dated 17.12.1992 as Up Nagar Adhikari. Since the petitioner was promoted, the contempt petition was finally disposed of on 24.2.1993. The opposite parties on the heels of the aforesaid order of this Court passed an order dated 26.2.1993 reverting the petitioner to the post of Sahayak Nagar Adhikari stating that the petitioner was not found fit for promotion by the Departmental Promotion Committee. This order of reversion was challenged by the petitioner in Writ Petition No. 1975 (S/B) of 1993 and his reversion was stayed by an interim order dated 15.3.1993. The opposite parties summoned the petitioner by registered post on 29.4.1993 to appear before the enquiry officer on 30.4.1993. The petitioner was suspended again on 28.5.1994. The petitioner again approached this Court by another writ petition (Writ Petition No. 610 (S/B) of 1994] and by order dated 3.6.1994, operation of the suspension order dated 28.5.1994 was stayed.

(2.) All the aforesaid facts pleaded in paras 4 to 17 of the writ petition have not been refuted by opposite parties 1 and 2 in their counter-affidavit. In para 7 of their counter-affidavit, it was stated that paras 4 to 17 to the writ petition need no comments, since the contents are contrary to the subject matter.

(3.) The petitioner thereafter was dismissed from service vide order dated 6.10.1996. The petitioner filed Writ Petition No. 182 (S/B) of 1996 impugning the dismissal order and this writ petition was allowed by this Court by order dated 27.8.1996. copy of which is Annexure-12. While allowing the writ petition, this Court directed the opposite parties to hold and complete the revived enquiry within a period of four months from the date of submission of a certified copy and pay the petitioner his regular salary along with arrears of salary. The petitioner served a copy of the judgment of this Court on the opposite parties on 5.9. J996. The opposite parties vide order dated 7.10.1996 (Annexure-38) reinstated the petitioner in service but, however, posted him on a lower post of Sahayak Nagar Adhtkari. Nagar Nigam, Agra. However, this order was served on the petitioner on 1.11.1996. The petitioner immediately submitted representation on 2.11.1996 requesting the opposite parties to correct and modify the order dated 7.10.1996 which was against the spirit of the order of this Court allowing his writ petition against the dismissal order and he was required to be posted as Up Nagar Adhikari. The petitioner also indicated that he is awaiting corrigendum of the order dated 7.10.1996 and till that time, he will not be joining at Agra. The opposite parties neither issued any corrigendum nor complied with the order of this Court in respect of payment of salary and arrears of salary to the petitioner. The petitioner had no alternative but to file a contempt petition (Crl. Misc. Case No. 19 (C) of 1997) before this Court. This Court took cognizance and issued show cause notice on 14.1.1997, copy of which is Annexure 16. It was thereafter that the opposite parties issued order dated 7.2.1997 (Annexure-17) by which the earlier order of his reinstatement was modified and the petitioner was directed to be reinstated and posted as Up Nagar Adhikari at Agra. The modified posting order dated 7.2.1997 was served on the petitioner on 12.2.1997 and he joined at Agra on 13.2.1997 and he was also paid his 35 months salary. The opposite parties thereafter transferred the petitioner by order dated 26.2.1997 contained in Annexure-8A, i.e.. soon after his joining at Agra and he was attached with the Directorate of Local Bodies at Lucknow. The petitioner joined at Lucknow on 3.3.1997. He submitted replies to the charge-sheet on 4th and 6th March, 1997 respectively vide Annexures-20B and 21. He also protested the continuance of enquiry after expiry of four months as stipulated in the order of the High Court dated 27.8.1996. On the contrary, opposite parties enquired from the petitioner aide letter dated 11.3.1997 if any subsequent order was passed by the High Court to that effect. The petitioner specifically indicated in his reply that the opposite parties would be committing contempt of Court without obtaining extension of lime for completion of the enquiry. The petitioner was summoned to appear before the enquiry officer on 17.3.1997 by means of a letter served upon him on the same day. i.e., 17.3.1997 without affording any opportunity to prepare his case. However, on that date, no evidence was adduced nor any witness was examined and no papers were shown neither any enquiry was held. The enquiry officer without holding any regular or oral enquiry submitted the report on 19.4.1997 on the basis of which the petitioner was served with a show cause notice on 2.7.1997 asking him to show cause why an order of major punishment be not passed against him.