VAIDIALINGAM - (1.) THIS appeal by the State of Haryana, the Chief Minister of the State and the Registrar Co-operative Societies, on Certificate is directed against the judgment and order of the High Court of Delhi dated 18/09/1969 allowing Civil Writ No. 851 of 1968 and quashing the order of the State Government dated 31/10/1968 terminating the services of the respondent.
(2.) BEFORE we proceed to set out the facts leading up to the filing of the writ petition by the respondent, it is necessary to deal with a preliminary objection to the maintainability of the appeal that has been raised by Mr. M. K. Ramamurthy, learned counsel for the respondent. The objection is that the order dated 31/10/1968 terminating the services of the respondent, which was queashed by the High Court and which order again is sought to be canvassed in the appeal has been cancelled by the State on 5/12/1969. In consequence if the latter order, the counsel pointed out, respondent has been reinstated in service. It is the contention of Mr. M. K. Ramamurthy that in view of the fact that the officer has now been reinstated in service, the question of the validity of the original order passed on 31/10/1968 terminating the services of the respondent no longer survives for consideration in this appeal. This preliminary objection has been contested by Mr. V. N. Tarkunde, learned counsel for the appellants. We are satisfied that the preliminary objection, raised on behalf of the respondent, to the maintainability of the appeal, cannot be sustained for the reasons stated below. The order of termination was passed on 31/10/1968. The respondent filed Civil Writ No. 851 of 1968, before the High Court, challenging the said order. The judgment of the High Court setting aside the said order and allowing the writ petition was rendered on 18/09/1969. It is no doubt true that on 5/12/1969, the State Government passed an order cancelling the previons order of termination deted 31/10/1968 and posted the respondent as Deputy Director (Publicity) at Narnaul. The said order further directed the payment to the respondent full pay and allowances that he would have been entitled. if his services had not been terminated. But there is a very significant recital in the order to the effect that the State is cancelling the previous order deted 31/10/1968, in view of the acceptance by the High Court of the writ petition filed by the respondent. A copy of the order dated 5/12/1969, was also forwarded by the Government to the Assistant Registrar of the High Court of Delhi.
(3.) THE State filed on 19/12/1969 an application S. C. A. No. 1 of 1970 in the High Court praying for grant of certificate to enable the State to file an appeal in this Court against the decision in Civil Writ No. 851 of 1968. On the next day, i.e. 20/12/1959 the State filed a petition C. M. No. 15 of 1970 in S. C. A. No. 1 of 1970 praying for restraining the respondent from claiming arrears of salary and allowances for the period he was out of service 31/10/1968 or in the alternative to direct the respondent to furnish sufficient bank guarantee before recovering those amounts from the State. This request was made to enure till the disposal of the application filed by the State for grant of certificate. Both in the petition C. M. No. 15 of 1970 as well as in the affidavit filed in support thereof, it was specifically mentioned that the copy of the judgment of the High Court was received by the Chief Secretary to the Government on 25/11/1969 and that in compliance with the judgment of the High Court, the respondent had been posted as Deputy Director (Publicity) at Narnaul by order dated 5/12/1969. A copy of this order was also annexed to the petition. it was further stated that the amount payable to the respondent being very large, there will be considerable difficulty in obtaining restitution in case the judgment of the High Court is set aside by this Court. After setting out the above facts, the State prayed for a stay of payment of the amounts or the respondent being asked to draw the amounts on furnishing bank guarantee pending the disposal of S. C. A No. 1 of 1970. The respondent filed counter-affidavits both to the main application S. C. A No. 1 of 1970 as well as to stay petition No. 1 of 1970 In his counter-affidavit to the stay petition he had referred to the decision of the High Court in his favour and to the order dated 5/12/1969 passed by the State reinstating him in service. No doubt, he has averred that this order was passed without any reservation or qualification. He also opposed the said application on merits. In his counter-affidavit opposing S. C. A. No. 1 of 1970, the respondent had again Stated that the previous order of termination, which was set aside by the High Court, was cancelled on 5/12/1969 by the State without any reservation or qualification. In view of this the respondent averred that the position in law is that the order dated 31/10/1969 should be considered to have never existed at any time and therefore there was nothing further for the State to agitate in this Court.;