Allahabad High Court
Dharam Pal Singh vs State Of U.P. & Others on 2 February, 2012
Author: Sunil Hali
Bench: Sunil Hali
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 A.F.R. Case :- WRIT - A No. - 26014 of 1997 Petitioner :- Dharam Pal Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- V.S.Dwivedi Respondent Counsel :- N.L. Dwivedi,N.C.Srivastava,N.L. Srivastava,S.C. Hon'ble Sunil Hali,J.
The petitioner was appointed as an Assistant Teacher in C.T. grade in July, 1973 in Swargiya Haribans Singh Inter College, Rewari, Fatehpur. He obtained his B.Ed. degree from Magadh University and as as result of which, he was given full grade of the C.T. grade teacher and his appointment was approved in the L.T. grade in the year 1975 by the District Inspector of Schools, Fatehpur. He continued to work as Assistant Teacher in L.T. grade up to the year 1980.
A complaint was filed against the petitioner that he has obtained forged degree of B.Ed. course. As a result of which an FIR was lodged against him under sections 419, 420, 465 and 471 IPC. On account of registration of a criminal case against the petitioner, the District Inspector of Schools cancelled the appointment of the petitioner as Assistant Teacher in L.T. grade. As a consequence of which the petitioner was removed from the service in the year 1980. This order has not been questioned by the petitioner before any court of law.
The criminal case registered against the petitioner was subject matter of trial before the Chief Judicial Magistrate, who acquitted him of the charges on 19.10.1993. After his acquittal the petitioner filed an application before the respondent no. 3 for reinstating him in service. The respondent no. 3 rejected his application for reinstatement on the ground that his B.Ed. certificate was forged. On a reference being made to the Joint Director of Education, the matter was heard and decided in favour of the petitioner. The reasoning given by the Joint Director of Education is that the District Inspector of Schools respondent no. 3 could not order cancellation of the appointment of the petitioner without following the procedure prescribed under section 16-E (10) of U.P. Intermediate Education Act, 1921 (in short as the 'Act'). The order further contemplates that in case any appointment has been procured in contravention of the provisions of the Act, the Director of Education, in case of teacher, may after affording opportunity to hear to such person can cancel the appointment. However, while allowing the plea of the petitioner, respondent no. 2 directed that the appointment of the petitioner will take effect from 1996. This part of the order is subject matter of challenge in this writ petition.
It is trite in law that mere filing of an FIR or initiation of departmental proceedings, the respondents can not take recourse to termination of the services of a person or imposition of any penalty upon him. It is also well settled that initiation of the departmental proceedings or registration of the FIR, both will have different consequences after conclusion of the same. In criminal trial, a person is either acquitted or convicted and in the departmental proceedings, punishment as envisaged in the rules, can be imposed if a person is found guilty. Undoubtedly, in a criminal trial a person can be convicted for the misconduct and in consequences whereof the person may be deprived of his benefits on account of such conviction.
What is being seen in the present case is that on the basis of FIR registered against the petitioner, his appointment order was cancelled by respondent no. 3. As stated here-in-supra that the consequence of the FIR against the petitioner can lead to his conviction and not cancellation of his certificate which is said to have been forged by him. For cancellation of his appointment, there is a different procedure required to be adopted to nullify the effect of the document procured by fraud or manipulation. In this behalf, an enquiry is required to be conducted as contemplated under Section 16-E (10) of the Act before ordering cancellation of the appointment order. This was the only course available to respondent no. 3 before ordering cancellation of the appointment of the petitioner. It is not disputed by the learned counsel for the parties that at that relevant point of time, the provisions of the U.P. Intermediate Education Act, 1921 were applicable. The respondent no. 3 was required to have initiated steps for holding the inquiry as contemplated under section 16-E (10) of the Act. It is only the Director of Education who was competent to pass the order of termination in this behalf and not respondent no. 3. Respondent no. 3 was not competent to pass the order, which is clear from the provisions of the Act. On both counts, the order passed by respondent no. 3 was nullity in the eyes of law. The Joint Director of Education, respondent no. 2 was right in holding that the order of termination passed by respondent no. 3 was in contravention of the rules. Having said so, he has ordered that the petitioner shall be deemed to have been appointed w.e.f. 1996 when the order was passed. This in my view was not correct approach adopted by respondent no. 3. Once the order has been held to be without jurisdiction and nullity in the eyes of law, the consequence of such an action would be that the petitioner would be deemed to be in service w.e.f. 1980. I say so because the order of termination being nullity in eye of law, the deemed effect would be that the petitioner would continue to remain in service till his superannuation.
In view of the aforesaid discussion, I am of the view that after termination order of the petitioner was found to be illegal and nullity in the eyes of law, as the same was passed by the person who was not competent to do so under section 16-E (10) of the U.P. Intermediate Education Act, the petitioner shall be deemed to be in service w.e.f. 1973.
I accordingly allow the writ petition and set aside the part of the order impugned dated 30.5.1997 passed by respondent no. 2 which says that the petitioner shall be treated to be in service with effect from the date of his initial appointment w.e.f. 30.5.1997 and hold that the petitioner shall be deemed to have been in service from July, 1973.
(Sunil Hali, J.) Order Date :- 2.2.2012 SU.