Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.804 of 2008 (S/S) Bhupendra Prasad Maithani, S/o Sri Sureshanand Maithani Officer Superintendent, Sri Kedarnath Temple, Kedarnath District Rudraprayag. …….Petitioner Versus State of Uttarakhand and three others .….Respondents Mr. Paresh Tripathi, learned counsel for the petitioner. Mr. N.P. Sah, learned Standing counsel for respondent no.1. Mr. S.N. Babulkar, Senior Advocate assisted by Mr. Ravi Babulkar, learned counsel for respondent nos.2, 3 & 4. Dated :15th January, 2009 Hon’ble V.K. Bist, J. 1. Present petition has been filed by the petitioner challenging the order dated 22.07.2008 passed by Karya Adhikari Sri Badrinath-Kedarnath, Mandir Samiti and order dated 08.07.2008 passed by Secretary, Uttarakhand Government by which the petitioner was reverted on the post of Junior Clerk and recovery of excess payment which he received as Temple Supervisor. 2 2. Brief facts of the case are that the father of the petitioner was working under the respondents’ and died-in- harness on 03.09.1976. The petitioner applied for appointment under Dying-in-Harness Rules, 1974. After long pursuance for about 16 years the petitioner was appointed on 24.03.1992 for a period of six months on monthly salary at the rate of Rs.600/- and after completion of six months the petitioner was appointed as Junior Clerk in the sanctioned pay scale of Junior Clerk. On 04.12.1992 the petitioner submitted a representation before respondent no.2 for considering his promotion on the post of Temple Supervisor. Thereafter, vide order dated 20.12.1992 the petitioner was posted on the post of Temple Supervisor in the pay scale of Rs.975-1660. Again vide order dated 19.05.1997 petitioner’s promotion was made in Kedarnath Temple establishment on the post of Subordinate Temple Supervisor in anticipation of permission of government. On 20.09.1997 the respondent no.4 also wrote to the Commissioner for sanctioning the post of Subordinate Temple Supervisor in the pay scale of Rs.1400-2300. Thereafter, the State Government issued order on 17.08.1997 creating an additional post of Temple Supervisor and granting higher personal pay scale of Rs.1400-2300 to the petitioner with effect from 19.05.1997. The petitioner continued to work on the post of Subordinate Temple Supervisor. But on 28.08.2000 the State Government issued another order cancelling the earlier order dated 17.08.1997 and reverting the petitioner to the 3 original post of Junior Clerk and also for recovery of salary which the petitioner received as Subordinate Temple Supervisor. In pursuance of the Government order dated 28.08.2000 respondent no.4 also passed an order on 09.09.2000 reverting the petitioner on the post of Senior Clerk and also for the recovery. Inspite of aforesaid orders dated 28.08.2000 and 09.09.2000, the respondent no.2 passed an order in the month of December, 2001 (Annexure 9 to the writ petition) for making payment to the petitioner on the basis of government order dated 17th August, 1997. Due to this reason the petitioner did not challenge the orders dated 28.08.2000 and 09.09.2000. In the meantime due to the death of P.S. Puspwan, Temple Supervisor, Kedarnath the petitioner was given charge on the post of Temple Supervisor, Kedarnath vide order dated 14th March, 2002. On 10.01.2006 the petitioner represented before respondent nos.2, 3 and 4 for granting promotion to the post of Office Superintendent. Thereafter, vide order dated 11.02.2006 the petitioner was promoted on the post of Office Superintendent and subsequently was confirmed on the said post on 08.02.2008. Thereafter, the State Government issued an order on 08.07.2008 directing for posting the petitioner to the post of Junior Clerk from that of Temple Supervisor. In pursuance of government order dated 08.07.2008 respondent no.4 passed an order on 22.07.2008 reverting the petitioner from the post of Temple Supervisor to the post of Senior Clerk. By this order the petitioner was further directed to deposit the difference of 4 salary in Temple fund. Aggrieved by these orders present petition has been filed by the petitioner. 3. Heard learned counsel for the parties. 4. It appears that orders impugned in the present writ petition have been passed in compliance of the order dated 09.05.2007 passed by this Court in writ petition no.307 of 2002. Writ petition no.307 of 2002 was filed by one Mohan Singh challenging the order dated December, 2001 by which respondent no.2 directed for payment of salary to the petitioner on the basis of government order dated 17.08.1997. This petition was disposed of finally on 05.09.2007 directing the Secretary, Dharamsav Karya and Tirthatan to take decision in the matter after affording opportunity of hearing to Mohan Singh (petitioner of that petition), Shri Badrinath and Kedarnath Mandir Samiti and the petitioner. 5. Learned counsel for the petitioner Shri Paresh Tripathi argued that at no point of time the petitioner was called by respondent no.1 before passing the order against the petitioner and the order was passed without affording opportunity of hearing to the petitioner. Same has been passed in violation of natural justice and deserves to be set aside. He further argued that even the petitioner was not associated, in any manner, in the alleged enquiry which was conducted by the respondents before passing the order and which infact does not contain anything against the 5 petitioner and rather supports the petitioner. He also argued that the respondents have lost sight of the fact that the petitioner stood promoted to the post of Office Superintendent and was confirmed as Office Superintendent, hence the post regarding Temple Superintendent was not at all in question. According to Shri Paresh Tripathi the post held by the petitioner initially lost efficacy when the petitioner joined the post of Temple Supervisor. He further argued that the orders passed by the respondents are not only illegal and arbitrary but are violative of the fundamental rights guaranteed to the petitioner under Article 14, 16 and 311(2) of the Constitution of India. 6. Shri N.P. Sah, learned Standing Counsel argued that section 15 (4) & 26 of Badrinath and Kedarnath Temple Act gives total control to the State Government over the functions of the temple Committee. According to him government created an additional post of Temple Supervisor purely on temporary basis vide order dated 17.08.1997 but said post was abolished vide order dated 28.08.2000. Shri N.P. Sah argued that President of the Temple Committee acted illegally by passing order in December, 2001 permitting the petitioner to continue as Temple Supervisor. On the point of opportunity of hearing Shri N.P. Sah said that in compliance of order dated 09.05.2007 passed in writ petition no.307 of 2002 the petitioner was directed to put his case before the 6 government within 6 weeks, which he did not comply. But he could not show any document in support of his version. Shri S.N. Babulkar, Senior Advocate has argued that in view of administrative exigency and also in the interest of excess temple work the President of Temple Committee vide order dated December, 2001 allowed the petitioner to function on the post of Subordinate Temple Supervisor in anticipation of creation of post of Subordinate Temple Supervisor. Subsequently, after the death of Pushkar Singh Puspwan, Temple Supervisor at Shri Kedarnath Temple, the petitioner was allowed to discharge the duties of Temple Supervisor. Shri S.N. Babulkar, Senior Advocate further submitted that after the order of State government dated 08.07.2008, Shri Badrinath and Kedarnath Temple Committee is bound to follow the same. 7. After hearing learned counsel for the parties and after looking into the documents filed by the parties, it is clear that no opportunity of hearing was provided to the petitioner before passing the order dated 08.07.2008. By the order dated 08.07.2008 the petitioner has not only been reverted from the post of Temple Supervisor but in fact the respondents have reverted the petitioner from the post of Office Superintendent on which the petitioner was confirmed on 08.02.2008. 8. In view of the fact that the principles of natural justice were violated in the present case, this Court allows 7 the writ petition and set asides the orders dated 08.07.2008 and 22.07.2008. Respondent no.1 is directed to pass fresh order after affording proper opportunity of hearing to the petitioner. No order as to costs. (V.K. Bist, J.) 15.01.2009 Arti