Chief Municipal Officer vs Suneeta Kaushik And Ors.

I.A. No. 3506/2019, an application u/S. 5 of Limitation Act for condonation of delay is taken up, considered and allowed for the reasons mentioned therein.

Delay of 416 days in filing this writ appeal stands condoned. Present Intra-Court Appeal filed u/S. 2 (A) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 assails the final order dated 09.03.2018 passed in W.P. No. 23561 by learned Single Judge by exercising writ jurisdiction under Article 226 of the Constitution disposing of the petition by quashing the impugned order dated 13.12.2017 (cancelling the promotion of petitioner to the post of Varistha Adhyapak granted vide order dated 25.11.2017) after recording following findings:-

"We are not commended to any order by the Supreme Court or by State Government as would establish that even consideration for promotion of General candidates against the vacant post earmarked for them has been stayed. It is also not the case of the respondents that the petitioner was not within the zone of consideration. The petitioner being within zone of consideration and being found suitable by the duly constituted committee, and there being no policy decision of the State Government of staying all normal promotion, the impugned order cannot be upheld.

Consequently, the impugned order is set aside. The petitioner is restored to her post of Varistha Adhyapak.

The petitioner shall be entitled for the arrears of wages and other consequential benefits.

Petition is disposed of finally in above terms.

However, the parties are left to bear their respective costs."

Learned counsel for the appellant/employer raises singular contention that on the date of promotion of the petitioner as Varistha Adhyapak, no vacancy in the cadre of Varistha Adhyapak was available and therefore, the order impugned in the writ petition cancelling the promotion of petitioner was rightly passed by the employer/appellant. For this purpose, a letter written by employer to the Principal of Government Girls Higher Secondary School Mungaoli District Ashoknagar (Annexure AW-3) and a letter of Principal of Government Girls Higher Secondary School Mungaoli District Ashoknagar dated 24.05.2019 (Annexure AW-4) are relied upon.

From bare perusal of impugned order Annexure P/1 dated 13.12.2017, it is evident as day light that cancellation of promotion of petitioner was solely based on the ground of pending SLP filed by the State before the Apex Court where interim order of status-quo is granted and the legality and validity of the order passed by the Division Bench of this court on 30.04.2016 in W.P. No. 4568/2016 (Praveen Raghuwanshi Vs. State of M.P.) qua the Madhya Pradesh Public Service (Promotion) Rules, 2002 is pending adjudication. Except the pendency of SLP and subsistence of interim order of status-quo in the Apex Court, no other reason has been assigned in the impugned order dated 13.12.2017 vide P/1 for cancelling the promotion of petitioner.

Pertinently, the impugned order of cancellation of promotion does not even whisper about the fact of absence of vacancy on the day of promotion.

It is trite that while testing the legality and validity of an executive order on the anvil of judicial review, the field of inquiry is restricted to the reason assigned in the impugned order. This inquiry of judicial review can not look into additional grounds made available by affidavit by the respondents. The decision of the Apex Court in the celebrated case of Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405 is relied upon, the relevant extract of which is reproduced below for ready reference and convenience:-

"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji :

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older:"

Moreso, the employer in its return before the learned single Judge did not raise this issue of absence of vacancy and thus the employer cannot be allowed to raise this issue now.

At best, liberty can be granted to the employer to satisfy the learned single Judge about the tenability of this new ground provided it satisfies the prerequisites for exercise review jurisdiction.

Consequently, this court declines interference and dismisses this writ appeal sans cost with the aforesaid liberty.