Allahabad High Court
Rajesh Kumar Singh vs District Basic Education Officer And 3 ... on 22 March, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 33 Case :- WRIT - A No. - 18646 of 2021 Petitioner :- Rajesh Kumar Singh Respondent :- District Basic Education Officer And 3 Others Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- C.S.C.,Durga Singh,Shyam Krishna Gupta Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Indra Raj Singh, learned counsel for the petitioner, Mr.Shyam Krishna Gupta, learned counsel for the respondent no.1 and Mr. J.S. Bundela, learned Standing Counsel for the State-respondent no.2 &4 and Mr. Durga Singh, learned counsel for the respondent no.3.
2. This writ petition has been filed interalia for the following relief:-
"I. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 03.12.2021 passed by the respondent no.1 District Basic Education Officer, Deoria (Annexure no.10 to the writ petition).
II. Issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the peaceful functioning of the petitioner in pursuance to the impugned order dated 03.12.2021 passed by the respondent no.1, District Basic Education Officer, Deoria (Annexure no.10 to the writ petition)."
3. Learned counsel for the petitioner submits that the petitioner was initially appointed on the post of District Coordinator (Civil) on contractual basis, however, his services were not extended vide order dated 30.07.2009 passed by respondent no.2, i.e. District Magistrate, Deoria. The aforesaid order dated 30.07.2009 was assailed by the petitioner before this Court by means of filing a petition bearing Writ-A No.41726 of 2009 (Rajesh Kumar Singh vs. State of U.P. and another), which was dismissed by the Co-ordinate Bench of this Court vide order dated 01.12.2009 against which Special Appeal as well as review application was also dismissed.Thereafter, the petitioner was appointed on the post of Guest Lecturer in Government Polytechnic, Deoria, where he worked till he was re-engaged on the post of District Coordinator (Civil), Deoria by an order dated 16.04.2015 passed by District Basic Education Officer, Deoria (respondent no.1). The petitioner, on the basis of letter dated 16.04.2015, after completing the requisite formalities, joined the post of District Coordinator (Civil) on 16.04.2015 and started performing his duties with sincerity and devotion.
4. He further submits that the respondent no.1 issued a charge sheet dated 26.09.2020 containing 11 charges against the petitioner and the petitioner was required to submit reply to the aforesaid charge sheet up till 30.06.2020. The petitioner submitted a reply dated 30.06.2020 denying all the charges levelled against him. Considering the petitioner's reply dated 30.06.2020, the respondent no.1 did not proceed further and, therefore, neither any inquiry has been conducted by the respondent no.1 nor any inquiry officer was appointed to conduct inquiry with respect to the charges levelled against the petitioner. Thereafter the petitioner continued to perform duties entrusted upon him as District Coordinator (Civil), Deoria.
5. Subsequently, another charge sheet was issued by respondent no.1 dated 27.1.2020 containing 12 charges, reply of which has been submitted by the petitioner on 26.12.2020 denying all the charges levelled against him. Again nothing was done with respect to the aforesaid charge sheet and the petitioner continued to perform his duties as District Coordinator (Civil), Deoria. Thereafter another charge sheet dated 16.03.2021 containing 5 charges was issued against the petitioner to which he submitted a reply dated 20.03.2021 denying the charges levelled against him, considering which no inquiry was conducted against the petitioner.
6. He further submits that the petitioner's work is supervisory in nature i.e. of looking into work assigned to the Gram Pradhan with respect to requirement of Primary School regarding infrastructure as well as facilities required in the educational institutions. The petitioner had no role either to arrange materials of infrastructures or labours or make arrangement of fund for carrying out of his supervisory work, rather all the things were under the control of Gram Pradhan and other authorities.
7. Surprisingly, without giving any notice or affording any opportunity of hearing and without serving copy of letter of State Project Director dated 12.07.2021 and decision of District Magistrate, Deoria dated 06.08.2021, the order dated 07.08.2020 has been passed restraining the petitioner from functioning on the post of District Coordinator (Civil), Deoria with immediate effect.
8. The aforesaid order dated 07.08.2021 was challenged by means of filing a petition bearing Writ-A No.11196 of 2021 (Rajesh Kumar Singh vs. District Basic Education Officer, Deoria and 3 Ors.), which was disposed off vide judgement and order dated 16.09.2021 and the Court was pleased to set aside the order dated 07.08.2021 with liberty to respondent no.1/District Basic Education Officer, Deoria to pass a fresh order after giving due notice and opportunity of hearing to the petitioner.
9. He further submits that inspite of the order dated 16.09.2021 of this Court, the petitioner was not reinstated on his post and was not permitted to join his duties, without any lawful excuse. However, a notice dated 23.10.2021 was issued to the petitioner directing him to appear in the office of respondent no.1/District Basic Education Officer, Deoria on 01.11.2021 and submitted his reply on 16 points as mentioned in the said letter. In compliance of the aforesaid notice, the petitioner appeared before the office of respondent no.1 and submitted his reply on 01.11.2021 denying all allegations supported by such documents proving him innocent.
10. He further submits that after submission of reply dated 01.11.2021, the respondent no.1 has neither conducted any inquiry nor has directed any other authority to make any inquiry so as to look into the allegations made against the petitioner. Surprisingly, without giving opportunity of hearing and without considering the aforesaid reply, the order dated 03.12.2021 has been passed by the respondent no.1 vide which earlier order dated 07.08.2021 has been revived, which was set aside by this Court. The impugned order is non speaking order and has been passed without considering the petitioner's reply dated 01.11.2021.
11. He further submits that once the order dated 07.08.2021 has been set aside by order of this Court dated 16.09.2021, it would mean that such order has become nonexistence, therefore, there was no question of affirming or reviving the same by the order impugned while looking into the case of the petitioner. In support of his submission, he has relied upon the judgment in the case of Pranjal Das vs. State of Assam reported in LAWS(GAU) 2016 8 37. Relevant para no.47 of the aforesaid judgment reds as under:-
"46. Besides procedural flaws and violation of the principles of natural justice which have been discussed above, there is a fundamental error afflicting the impugned order dated 23.08.2006. The discharge order dated 06.08.1999 was set aside and quashed by this Court vide the judgment and order dated 20.06.2002. The effect of setting aside or quashing of an administrative order or a quasi-judicial order by a Court of law, in this case by a superior Court of record, would mean that such an order ceases to exist. Its existence is erased from the record book. When the High Court had set aside the discharge order, meaning thereby that it has been erased from the record book, question of upholding the same does not arise. After it was quashed, the order dated 06.08.1999 became non est; therefore there was no question of affirming or upholding the same. An order which is quashed by the superior Court of record cannot be revived by an administrative order or by a quasi-judicial order. That apart, in the judgment and order dated 20.06.2002, this Court after setting aside the discharge order gave liberty to the disciplinary authority to recommence the departmental proceeding from the stage of submission of reply by the petitioner. Therefore the view taken by the disciplinary authority that the petitioner failed to produce relevant materials to warrant review of the discharge order dated 06.08.1999 and the consequential decision to uphold the said discharge order is therefore absolutely untenable in law."
12. Learned counsel for the petitioner, therefore, submits that the order impugned dated 03.12.2021 is illegal and the same cannot be sustainable in the eye of law.
13. Per contra, learned Standing Counsel as well as learned counsel for the respondents do not dispute the fact that the earlier order dated 07.08.2021, which was set aside by this Court cannot be revived, however, the relief of reinstatement cannot be granted as the appointment of the petitioner is on a contractual basis and his services can be dispensed with at any stage without notice. In support of their submission, they relied upon the judgement of the Apex Court in the case of Rajasthan State Roadways Transport Corporation Vs. Paramjeet Singh reported in (2019) 6 SCC 250 wherein it has been held as under:-
"8 Learned counsel appearing on behalf of the appellant submits that the High Court was in error, having regard to the fact that the nature of the appointment was purely contractual for a period of one year or until the shortage of drivers was met, whichever was earlier. Moreover, the contract stipulates that the services of the respondent could be dispensed with without any notice.
9. We find merit in the submission. The terms of the appointment indicate that the respondent was on a purely contractual appointment and that the services could be dispensed with without notice at any stage.
11. Having regard to the terms of the contractual engagement, we are of the view that the action of the appellant cannot be faulted. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court. In consequence, the writ petition filed by the respondent shall stand dismissed. However, there shall be no order as to costs."
14. They also relied upon the judgment of Division Bench of this Court in the case on Rajesh Bhardwaj vs. Union of India reported in 2019 (2) ADJ 830 (DB) wherein it was held:-
"30. Now we come to Questions-(2), (3) and (4), which, in our view, can be dealt with together. In the present case, terms and conditions of employment, applicable to petitioner are not challenged that such terms and conditions are arbitrary and violative of Article 14 of Constitution read with Section 23 of Indian Contract Act, 1872 (hereinafter referred to as "Act, 1872") being unfair, unreasonable or unconscionable, and against public policy. The order of termination is challenged on the ground that petitioner has not been given adequate opportunity of defence and termination is in violation of principles of natural justice. It is not in dispute that terms and conditions are not governed by any Statute or statutory provision or by any provision made under any authority of Statute. Petitioner being in the Cadre of Manager, his terms and conditions are also not governed by Standing Orders made by Employer with respect to employees governed by provisions of Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as "Act, 1946"). In these circumstances, in the cases like petitioner, consistently it has been laid down that employment is simply a part of contract. If employment is terminated or contract of service is terminated, Court shall not grant relief of reinstatement, i.e. specific performance of contract of personal service, as it is barred by the provisions of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963") and, therefore, no remedy under Article 226 shall be available since employee, if complains about wrongful termination of service, then must avail remedy in common law by claiming damages.
31. As we have already said that CUPGL even if taken to be a 'State' within the meaning of Article 12 of Constitution, this by itself would not mean that petitioner can claim status of a Government Servant or holding a post governed by 'status'. Nature of engagement/ appointment of petitioner is not to be governed by 'status' but by a 'contract of service' entered into between master and servant. A distinction between an appointment under a contract and status was noticed and explained by Supreme Court in Roshan Lal Tandon Vs. Union of India AIR 1967 SC 1889. Court held that when a matter is governed by status, the employee has no vested contractual rights in regard to the terms of service but where employment is purely in the realm of a simple contract of employment, it is strictly governed by terms and conditions of employment settled between the parties. To remind the difference between 'status' and 'contractual appointment', we may take up case of a Government Servant. Origin of employment in a Government department is contractual. There is an offer and acceptance in every case but once appointed to the post or office, the person appointed, i.e., Government Servant, acquires a status and his rights and obligations are no longer determined by consent of both the parties but same are governed by Statute or statutory rules which may be framed and altered unilaterally by employer, i.e., the Government. Legal position of a Government Servant, thus, is more one of 'status' than of a 'contract'. The hallmark of 'status' is that attachment to a legal relationship of rights and duties must be by public law and not by mere agreement of parties. Relationship between Government (employer) and Government Servant (employee) is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. In the language of jurisprudence, 'status' is a condition of membership of a group, whereof powers and duties are exclusively determined by law and not by agreement between the parties concerned. Thus, where appointment and conditions of service are governed by Statute, relationship of 'employer' and 'employee' is that of 'status' and not a mere contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant."
15. The Division Bench in taking the above view in Rajesh Bhardwaj (supra) case has relied on recent judgment of Apex Court in Kailash Singh Vs. The Managing Committee, Mayo College, Ajmer and others reported in (2018) 10 SCALE 638, where in respect of dispute related to termination of an employee of Mayo College, Court held that employment was governed by simple contract of employment and, hence, no relief of reinstatement can be granted, but employee, if wrongfully terminated, may claim damages.
16. So far as the relief with respect to reinstatement of the petitioner is concerned, if employee is terminated or contract of service is terminated, Court shall not grant relief of reinstatement, i.e. specific performance of contract of personal service, as it is barred by the provisions of Specific Relief Act, 1963, therefore, the relief as prayed cannot be granted.
17. In view of the aforesaid, this Court finds that once the earlier order dated 07.08.2021 was set aside by the Court's order dated 16.09.2021, the same becomes nonexistence, therefore, there was no question of reviving, affirming or upholding the same while passing the impugned order.
18. Accordingly, the impugned order dated 03.12.2021 passed by respondent no.1/District Basic Education Officer, Deoria is set aside. The matter shall stand remitted to the respondent no.1-District Basic Education Officer, Deoria, who shall fix a date for hearing the petitioner and after considering the reply dated 01.11.2021 submitted by the petitioner, the respondent no.1 shall pass a fresh order, in accordance with law, by reasoned and speaking order.
19. With the aforesaid observations, this writ petition is partly allowed.
Order Date :- 22.3.2022 Jitendra/-