R.A.SINGH J. - (1.) THIS writ petition has been moved by petitioner Sharad Kumar Agrawal against State of U.P. and three others under Article 226 of the Constitution of India with a prayer to grant following reliefs: "1. Issue a Writ, Order or direction in the nature of Certiorari quashing the impugned order/letter No. D- 92/Sat-Nyaya-3-09-1(74)/01 TC, - Nyaya Anubhag- 3 (Niyuktiyan), Lucknow, dated 26th/27th February, 2009 (Annexure No. 20 to the writ petition), issued by Acharya Suresh Babu, Up Sachiv, Uttar Pradesh Shashan respondent no. 1 to District Magistrate, Maha Maya Nagar (Hathras), respondent no. 3 whereby the petitioner has been removed from the post of District Government Counsel (Civil), Maha Maya Nagar (Hathras) (hereinafter referred to as "DGC (Civil)". 2. Issue Writ, Order or Direction in the nature of Mandamus commanding the respondent nos. 1 to 3 to consider petitioner's name, for extension of his term or retainership as DGC (Civil) Maha Maya Nagar (Hathras), for a further period of 3 years i.e. from 30.9.2006 to 30.9.2009 on the basis of the renewal application dated 1.6.2006 which is already pending before respondents. 3. Issue writ, Order or Direction in the nature of Mandamus commanding the Respondents no. 1 to 3 to disburse the entire outstanding arrears of petitioner's bills pertaining to the periods since March, 2006 to December 2008 and outstanding dues since January, 2009 to February, 2009 with interest along with damages as decided by this Hon'ble Court. 4. Issue any other Writ, Order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case to meet the ends of justice. 5. Award costs to the petitioner."
(2.) BRIEF facts giving rise to this writ petition are that the petitioner was engaged as District Government Counsel (Civil) as retainer in District Hathras by Government of U.P. through order/letter No.- D- 353/Sat-Nyaya-3-09-1 (74)/99 dated 11th March, 1999 (Annexure 1) for a period of one year from the date of taking over charge and the petitioner after completing necessary formalities took over as DGC (Civil) Hathras on 18.3.1999 (Annexure 3). Government of U.P. enhanced retainer's fees etc. with effect from 26.4.1999, 1.4.2005 and 9.1.2007 for DGC (Civil) posted in Districts of U.P. The petitioner's appointment as DGC (Civil) Hathras was extended with effect from 30.9.2000 to 30.9.2003 vide Government's order dated 30.9.2000 (Annexure 5). District Government Counsels were also granted telephone allowances at the rate of Rs. 400/- per month for official calls. Petitioner submitted his application dated 20.8.2003 through District Magistrate, Maha Maya Nagar (Hathras) for extension/renewal of his retainership for another three years, but the same remained under consideration. Petitioner further submitted a fresh application dated 1.6.2006 for his renewal for a further period of three years with effect from 30.9.2006 to 30.9.2009. Suddenly the petitioner received a letter dated 15.12.2007 from Additional District Magistrate Hathras to this effect that Sri Arvind Kumar Sharma, President, District Bar Association, Hathras had sent written complaint against the petitioner on 4.8.2007 levelling twelve allegations including that the petitioner had wrongly drawn Rs. 20 lacs from Government Treasury. The petitioner was asked to submit his point wise reply latest by 26.12.2007. Another letter dated 15.12.2007 was also served upon the petitioner asking him to submit his explanation with regard to complaint of Shri Manohar Singh Arya. The petitioner submitted his written reply to this letter on 25.12.2007 and he also submitted his reply to above mentioned letter. The enquiry into the allegations made in the complaint of President District Bar Association was conducted by the Additional District Magistrate (F and R), Maha Maya Nagar and he further asked the petitioner to submit his clarification in respect of three points vide his letter dated 7.8.2008 and the petitioner submitted his clarification as desired by Enquiry Officer on 11.8.2008. The State Government vide order/letter No. D- 92/Sat-Nyaya-3-09-1(74)/01 TC, dated 26th/27th February, 2009, removed the petitioner from the post of DGC (Civil), which was received by the petitioner on 5.3.2009. The petitioner challenged the order dated 26th/27th February, 2009 (Annexure 20) through this writ petition on various grounds including that of false and frivolous complaint. The petitioner also submitted that no new appointment of DGC (Civil) for Maha Maya Nagar (Hathras) was made till date by Government of U.P. but the petitioner was stopped from performing his duties since 1.3.2009. The petitioner also challenged the findings of Enquiry Officer on the ground that he did not apply his mind as the allegations made in the complaint were not supported by any affidavit or any other oral or documentary evidence and the petitioner was not afforded adequate opportunity of being heard as well as the fair procedure in conducting the enquiry was not followed in the petitioner's case. Moreover Additional District Magistrate (F and R) mentioned in his order dated 7.8.2008 that payment of bills would depend upon the enquiry report and such observation was wholly illegal, arbitrary and unfair. The District Magistrate and other officers were not authorised to refuse or stop payment of petitioner's arrears of bills in view of principles of Promissory Estoppel. In the matter of extension of petitioner's term of retainership as DGC (Civil), the State Government was bound to follow the directive issued by this Court in Civil Misc. Writ Petition no. 13550 of 2003, but the State Government failed to follow the same.
(3.) THE respondents no. 1 and 2 as well as respondent no. 3 filed their separate counter affidavits controverting the allegations made in the petition. It was further alleged that petitioner was engaged as DGC (Civil) vide order dated 11.3.1999 with specific terms and conditions that his engagement could be cancelled at any time without giving any reason as indicated in Paragraph 2 of engagement order. Moreover the engagement of petitioner as DGC (Civil) was a professional engagement and not an appointment to the post under Government and being a counsel he was required to create trust and confidence but due to his own act he lost his trust and confidence. Sri Arvind Sharma and Sri Pramod Kumar Sharma submitted a complaint against the petitioner about withdrawal of heavy amount from Treasury in a forged manner and the District Magistrate was directed to make enquiry into the same. The District Magistrate got the matter enquired by Additional District Magistrate, who submitted his report on 9.1.2009, to State Government with a recommendation to remove the petitioner from his post. The matter was then scrutinized at the level of Government and ultimately State Government took a decision to relieve the petitioner from the post of DGC (Civil) and accordingly order was passed on 27.2.2009 and the petitioner was relieved from the post by cancelling his engagement, against which the petitioner filed this writ petition on false and frivolous grounds, which are not sustainable in the eye of law. The copy of enquiry report has been filed along with counter affidavit as Annexure CA-3 and prayer has been made to dismiss the petition. Sri Manohar Singh Arya also submitted a complaint against the petitioner to the effect that in Original Suit No. 543 Manohar Singh Versus Committee of Management the petitioner demanded Rs. 15, 000/- as bribe for getting an order passed in his favour and this complaint was also enquired. During inquiry it was also found that the petitioner had withdrawn excess amount of Rs. 6, 21, 367/- against the relevant Government orders which amounted to embezzlement of Government fund. Thus the petitioner was found guilty of the charges levelled against him and as such he was rightly and legally removed from his post. The petitioner was also given full opportunity of hearing during enquiry. New DGC (Civil) has already been appointed vide letter dated 16.3.2009 and Sri Ram Das has been nominated in view of paragraph 7 (10) (2) of Legal Remembrancer's Manual.;