1 S.B. Civil Writ Petition No.4518/1997 K.C. Mathur. vs. Rajasthan State Electricity Board and another. Date : 18.3.2010 HON'BLE MR. PRAKASH TATIA, J. Mr.Vikas Seoul for Mr.VK Mathur, for petitioner. Mr.Manoj Bhandari, for the respondents. - - - - - Heard learned counsel for the parties. The petitioner was working on the post of Assistant Engineer & T.A. To Executive Engineer City-I, Rajasthan State Electricity Board (RSEB) in 1993. According to the petitioner, in 1993, he suffered serious illness which was later discovered as Chronic Gastritis Cervical L.N. Tuberculosis. Due to that reason, the petitioner was bedridden and was taken to Mumbai also. According to the petitioner, he applied for leave on medical grounds from 17.12.1992 to 21.7.1993. Copy of leave application has been placed on record as Annex.1. Said leave application of the petitioner was processed by the RSEB and was sent to the Accounts Officer (EA) and the leave 2 application was duly recommended by the Executive Engineer, City-I vide letter dated 18.6.1994. According to the petitioner, the Superintending Engineer was the competent authority to sanction the leave and he passed the order sanctioning leave of the petitioner and copy of that order dated 11.7.1994 is Annex.5. In that way, ex-post facto sanction of leave for 177 days as PL w.e.f. 17.12.1992 to 11.6.1993 and 40 days half pay leave w.e.f. 12.6.1993 to 21.7.1993 was granted by order dated 11.7.1994. However, the order dated 11.7.1994 was all of sudden cancelled vide order dated 20.11.1997 (Annex.6) and it was cancelled without opportunity of hearing to the petitioner and in gross violation to the principles of natural justice. It is submitted that the petitioner was granted all monetary benefits for which he was entitled to in view of sanction of 217 days referred above. In the writ petition, the petitioner prayed for quashing of the order dated 20.11.1997 (Annex.6) by which he has been conveyed that the sanction of leave by the Superintending Engineer for 217 days has been cancelled. The petitioner also prayed for quashing of any recovery order if passed in view of the cancellation of sanctioned leave of 217 days. However, the petitioner's prayer for interim order was dismissed by the order dated 25.4.1998. 3 The respondents submitted that the departmental enquiry was pending against the petitioner for remaining absent from duty for the period referred above and charge-sheet dated 26.2.1994 was served upon the petitioner and copy of which is Annex.R/3. During pendency of this enquiry, the Superintending Engineer unauthorisedly and illegally passed the order dated 11.7.1994 sanctioning the leave to the petitioner. It is also submitted that if the order dated 20.11.1997 is set aside, then an illegal order dated 11.7.1994 will come into force and that cannot be permitted in view of the fact that by setting aside an illegal order, if another illegal order comes into force and perpetuity is given to illegality, then that is not permissible in law. It is also submitted that since by virtue of illegal order, the petitioner could get the leave sanctioned, therefore, the competent authority passed the order to keep the enquiry against the petitioner pending as that enquiry could not have been proceeded because of fall of ground on the basis of which enquiry was initiated. Learned counsel for the petitioner relied on the judgment delivered by this Court in the case of Ganpat Lal Mathur & Ors. vs. MREC reported in RLW 2005(1) Raj. 160, and the judgments delivered 4 by the Hon'ble Apex Court in the cases of (1) Syed Abdul Qadir and others vs. State of Bihar and others reported in (2009) 3 SCC 475 and (2) Shyam Babu Verma and others vs. Union of India and others reported in (1994) 2 SCC 521, in support of the plea that once an order has been passed by the authority and there is some illegality in that for which the petitioner cannot be blamed, then that order cannot be withdrawn. With the help of judgment of the Hon'ble Apex Court referred above, it has been contended that the benefit once given to the employee for which the employee has not played fraud, then that benefit cannot be withdrawn. Learned counsel for the respondents relied upon the judgment delivered by the Hon'ble Apex Court in the case of Pramod Kumar vs. U.P. Secondary Education Services Commission and others reported in (2008) 7 SCC 153, wherein it has been held that the illegality cannot be cured and it is a case of total illegality as the Superintending Engineer has no competence to sanction leave. I considered the submissions of learned counsel for the parties and perused the facts of the case. So far as the order dated 20.11.1997 is 5 concerned, certainly, it was passed without giving any opportunity of hearing to the petitioner and this order can be set aside only on this ground but the difficulty is that by setting aside the order dated 20.11.1997, the order dated 11.7.1994 comes into operation for which even the petitioner could not show that that order was passed by any competent authority. It is true that if a person is not guilty for obtaining a wrong order and the authority itself has committed irregularity in passing the order, the person in whose favour the order was passed, cannot be made to suffer for wrong committed by the authority. At this stage, it is required to be noticed that there is difference between illegality and irregularity, even more is the difference between the illegal order and order passed wholly without jurisdiction. It is also settled law that writ cannot be issued to set aside an illegal order so as to bring into operation any illegal order resulting in perpetuating the illegality. Be it as it may be, in the present case, since the petitioner submitted an application for sanction of leave, which was submitted in the year 1994 itself, after remaining absent from duty on the ground of his own sickness, then it was the duty of the respondents to process that application and pass appropriate order. Since the petitioner could not show that the Superintending Engineer was competent to pass the order to sanction leave of 6 217 days, then certainly, the matter is required to be considered by the competent authority who is competent to sanction/reject the petitioner's prayer for grant of leave of 217 days post facto because of the reason that after submitting the application for sanction of leave, no role of the petitioner was there and it was the responsibility of the respondent department to process the application in accordance with law and obtain appropriate and legal order from the competent authority. In view of the reasons mentioned above, this writ petition is allowed, the order dated 20.11.1997 passed in pursuance of the order dated 29.10.1997 is set aside and the order dated 11.7.1994 sanctioning the leave of the petitioner by the Superintending Engineer is also set aside. The respondents are now directed to decide the petitioner's leave application through the competent authority within a period of two months from today. (PRAKASH TATIA), J. S.Phophaliya