Allahabad High Court
Awadh Naresh Sharma S/O Kamla Kant ... vs State Of U.P. Through Secretary, ... on 22 November, 2007
Equivalent citations: 2008(1)AWC673, AIR 2008 (NOC) 1265 (ALL.), 2008 (2) ALJ 242
Bench: H.L. Gokhale, Pankaj Mithal
JUDGMENT
1. Heard Sri Ashok Khare, Senior Advocate appearing with Sri P.N. Ojha for appellant., Sri G.C. Upadhyay, Standing Counsel for the State appearing for respondents No. 1, 3 and 4, Sri R.P. Dubey appearing for respondent No. 2 are Sri P.K. Ganguli appearing for respondent No. 6.
2. Mr. Ashok Khare seeks to delete respondent No. 5, Committee of Management, Rani Murar Kumari Balika Inter College, Bhojubir, Varansi as no relief is sought against it. He is permitted to do so during the course of the day.
3. The appellant herein is the Joint Director of Education (Basic). He was earlier working as the Secretary of respondent No. 2, U.P. Secondary Education So. vice Selection Board, Allahabad.
4. Respondent No. 6 herein had applied for the post of Assistant Teacher in L.T. Grade in pursuance of an advertisement No. 1 of 2001 of U.P. Secondary Education Service Selection Board. She was amongst the successful candidates and her name was recommended for appointment at tin intermediate college at Lucknow after a selection examination. On approaching that college she was informed that there was no vacancy. She was, therefore, asked by the Board to approach another intermediate college at Varanasi. She was not absorbed there also. She then filed Civil Misc. Writ Petition No. 40684 of 2006. The prayer in this petition was to direct the Board to consider the claim of the petitioner for allocation of another institution for the post of L.T. Grade Teacher (Social Science).
5. The prayer in the petition was thus very clear and it was directed against the second respondent, Board. The Authorities of the State and the intermediate college of Varanasi also joined as respondents in that petition.
6. When the petition reached; before the learned single Judge, he had the jurisdiction to look in the matter as per the roster as it stood at that point or time. The grievance of the appellant is that the learned single Judge has gone outside the frame of the petition. He has passed various orders and seven of these are affection the appellant. As a result of these orders passed by the learned single Judge the appellant was suspended at one point of time. He has challenged that suspension by filing an independent petition and suspension has been stayed. A C.B.I. inquiry has also been directed by the Court in general against which the Board filed an appeal and that order has been stayed by another Division Bench and now a disciplinary proceeding is going on the appellant. The impugned orders are:
(i) 28th September, 2006;
(ii) 14th September, 2006;
(iii) 19th July, 2007;
(iv) 26th July, 2007;
(v) 2nd August, 2007;
(vi) 17th Sekptember, 2007 and
(vii) 12th October, 2007.
7. This appeal was admitted on 19.11.2007. The appellant was not a party to the original petition and, therefore, he had applied for leave to appeal, as he was the person. The leave was granted and the appeal was adjourned to today's date consent of the counsel for all the parties, the appeal is taken up for hearing and is being disposed of finally.
8. The principal grounds raised in this appeal are two. One, the court is rebuked itself to the frame of the petition, he to the pleadings and the prayer. This is ground (b) of the memo of appeal. Ground (e) of the appeal is that the learned single Judge took up the matter when he was having the particular jurisdiction but subsequent thereto there has been change of jurisdiction of learned single Judge of account of rotation but despite that this petition continues to be treated as part heard/tied up. Another ground (g) is that this petition has erroneously been treated as part heard. Ground (h) is that various direction have been issued by the learned single Judge which could have only been issued at the stage of final disposal.
9. If we peruse the orders that have been passed, we find the first order is dated 7th August, 2006 asking the District Inspector of Schools to file his affidavit as to why the petitioner was not offered appointment at the institution for which she was selected. The order passed thereafter is dated 28th August, 2006, which is the first impugned order in this appeal. It questions the directions of absorption which have not been implemented. The second impugned order is dated 14th September, 2006, which refers to 180 orders, which have not been implemented and the Chief, Standing Counsel was directed to take appropriate action against all responsible for the deliberate non-compliance of the directions issued. The third impugned order dated 19th July, 2007 records that an enquiry was conducted by die Secretary, Education Department of the State and the Additional Advocate General had to inform as to why the regular Secretary was not appointed in the Secondary Education Department. The fourth impugned order challenged in this appeal is dated 20th July, 2007. This order directs impleadment of a private firm and its proprietor, one Mr. Ravi Prakash having his office at Noida as respondent No. 6. This firm is supposed to have conducted the evaluation at the selection examination. The respondent No. 6 was directed to file affidavit disclosing all the documents including the letter authorizing him to evaluate the answer sheet and the amount of payment actually received by him etc. The fifth order under challenge is dated 2nd August, 2007, which alleges that the Government is not holding the enquiry purposely and is not passing proper orders, so that the persons charge-sheeted may get benefit. The next impugned order dated 17th September, 2007, amongst others, records that the Board had made payment of Rs. 5,38,600/- to the respondent No. 6 for the evaluation of the answer sheets and that too without deducting the income tax at source. The Secretary was directed to examine whether such payment, without deducting the income tax at source, is legally justified or not. Last order is dated 12th October, 2007 which defers the matter to 16th November, 2007. This appeal was filed at that stage to challenge these orders.
10. Having seen the orders it is very clear that these orders have been passed going beyond the frame of the petition. Mr. Ganguli appearing for original petitioner, who is respondent No. 6 does not dispute that these orders have gone beyond the prayer in the petition and states that the prayer in the petition has remained unattended. The respondent No. 6 wanted a job. She had applied for the post of Assistant Teacher in L.T. Grade in pursuance of an advertisement of U.P. Secondary Education Service Selection Board. She was amongst the successful candidates and her name was recommended for appointment at an intermediate college at Lucknow after a selection examination. The Board is expected to have verified the vacancy before it was advertised. It was the duty of the Board to see that the respondent No. 6 is appointed in it particular institution. If the Board had directed the respondent No. 6 to approach Other institution at Varanasi, then it should have been ensured that she joins there. Respondent No. 6 has nothing against various other officers of the Board or the appellant, who is Joint Director of Education (Basic).
11. Thus, from the orders passed by the learned Single Judge it is clear that when the respondent No. 6 wanted a job the learned Single Judge had gone into the question as to how the 180 appointment orders which were passed, have not been implemented and directed an enquiry to be made. He has further gone into the question as to how the examination for selection was made, how much payment was made to the organisation which conducted the evaluation and whether the tax was deducted at source. None of these questions were raised in the petition. The learned Single Judge had no occasion to go into all these questions. All these orders are clearly beyond the frame of the petition and not sought by the petitioner whose prayer has remained unattended in the meanwhile. The learned Single Judge was not taking any public-interest litigation. He was looking into a specific petition of an individual petitioner that despite selection she was not given the job. Due to this approach, the matter which was filed in July, 2006 continued with the learned Single Judge beyond October, 2007. There is much merit in the argument of Mr. Khare that the petitioner had come with a limited prayer when the appellant and other officers are being framed by the learned Judge by throwing a wider net.
12. The second ground is that the petition has erroneously been treated to be part heard for which there exists no justification. We have looked into the orders passed by the learned Single Judge. All throughout the learned Single Judge passed orders that the matter may be put up or listed on a subsequent date for further orders. Even if he was to treat the matter as part heard, it is not permissible under the Rules of the Court. The relevant rules from the Allahabad High Court Rules, 1952 are Rule 14 of Chapter V on tied up cases and Rule 7 of Chapter VI on part-heard cases, which read as follows:
14. Tied up cases.- (1) A case partly heard by a Bench shall ordinarily be laid before the same Bench for disposal. A case in which a Bench has merely directed notice to issue to the opposite party or passed an ex parte order shall not be deemed to be a case partly heard by such Bench.
(2) When a criminal revision has been admitted on the question of severity of sentence only, it shall ordinarily be heard by the Bench admitting.
7. Part-heard cases.- A case which remains part-heard at the end of the day shall, unless otherwise ordered by the Judge or Judges concerned, be taken up first after miscellaneous cases, if any, in the Cause List for the day on which such Judge or Judges next sit. Every part-heard case entered in the list may, unless the Bench orders otherwise, be proceeded with whether any Advocate appearing in the case is present or not.
13. As far as the question with respect to pre-admission matters being part heard or tied up matters is concerned, the question is no longer res-integra and is answered in Sanjay Kumar Srivastava v. Acting Chief Justice and Ors. 1996 A.W.C. 644. In that matter a writ petition was pending in this Court for admission. The matter was adjourned for about seven dates and an interim order was passed. On The application to vacate the interim order the prayer was rejected by the Division Bench. On application being moved by the State Government the then Acting Chief Justice withdrew the matter and referred it to the Full Bench. This order of the Acting Chief Justice was challenged by filing another writ petition. It was stated that the writ petition was part heard before the earlier Bench and it was not permissible to the Acting Chief Justice to withdraw the same and refer to Full Bench. The Full Bench in para 36 has laid down law (Per Sagir Ahmed, J., as His Lordship then was in this Court) on above referred Rule 14 as follows:
36. The other part of Sub-rule (1) lays down in clear terms that the case in which the Bench has merely issued notice to the opposite party or had passed an ex parte order shall not be deemed to be a case partly-heard by that Bench. This provision has been made to specify that a case does not become part-heard merely by passing of interim order. It also lays down that if notices are directed to be issued to the opposite party, the case does not become part-heard case of that Bench. The consequences are obvious. If the Division Bench which has merely passed an ex parte order or directed notice to be issued to foe opposite party locate it as a part heard case or passes an order that it will come up before that Bench for "further hearing" or as a part-heard" or as a "tied-up" case, the order would be in violation of the Rules of Court and, therefore, a nullify. Such an order would be without jurisdiction and would not confer any jurisdiction ok the Bench concerned to proceed with that case unless the case is listed before them again under the orders of the Chief Justice. In a situation where any order has been passed indicating such a case on the order-sheet or on the main writ petition to be part heard or tied up case, the Chief Justice inspite of that order would retain his jurisdiction to list it before the appropriate Bench for hearing as the order limiting the case to be a part-heard or tied up would be in violation of the Rules of Court and would not bind the hands of the Chief Justice from listing that case as a "seen" case before any other Bench rather than as a "tied up" case before that very Bench.
(Underling supplied)
14. Thus, the Full Bench of this Court has clearly laid down that if a Bench has issued only notice to the opposite party and passed an order that the matter will come up before that Bench for further hearing or as a part-heard or as a tied-up case, the order would be in violation of the Rules of Court and, therefore, a nullity. Such an order would be without jurisdiction and would not confer any jurisdiction on the Bench concerned to proceed with that case, unless the case is listed before that Bench under the orders of the Chief Justice.
15. In paragraphs 34 and 35 the Bull Bench went into the question about the matters which are being heard finally and are part-heard. After referring Rule 14 of Chapter V of the Rules of the Court the Full Bench held in paragraph 34 that the provision of Sub-rule (1) would indicate that even a case which is partly heard by a Division Bench is not necessarily to be laid before that Bench. The use of word "ordinarily" itself indicates that there can be a departure from the normal practice of listing a part-heard case before the same Bench.
16. Identical rules of Rajasthan High Court came up for consideration before the Apex Court in State of Rajasthan v. Prakash Chand . A Bench of three Judges of the Apex Court (Per Dr. Anand, J. prior to His Lordship becoming, C.J.I.) affirming the judgment of the Full Bench in paragraph 23, specifically held that "the above opinion appeals to us and we agree with it." Paragraph 23 reads as follows:
23. The above opinion appeals to us and we agree with it. Therefore, from a review of the statutory provisions and the case on the subject as rightly decided by various High Courts, to which reference has been made by us, it follows that no Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from it can be permitted. If every Judge of a High Court starts picking and choosing cases for disposal by him, the discipline in the High Court would be the .casualty and the administration of justice would suffer. No legal system can permit machinery of the Court to collapse. The Chief Justice has the authority and the jurisdiction to refer even a part-heard case to a Division Bench for its disposal in accordance with law where the Rules so demand. It b complete fallacy to assume that a part-heard case can under no circumstances be withdrawn from the Bench and referred to a larger Bench, even where the Rules make it essential for such a case to be heard by a larger Bench.
17. In this paragraph the Apex Court has clearly held that no Judge or Bench can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from it can be permitted.
18. Recently, in another judgment the Apex Court has held in para 19 of Jasbir Singh v. State of Punjab that it is not within the competence of any Single or Division Bench of the High Court to give any direction to the Registry in that behalf which will run contrary to the directions of the Chief Justice. The judgment (Per Balakrishnan, J. prior to His Lordship becoming C.J.I.) specifically referred to the earlier judgment in State of Rajasthatn v. Prakash Chandra (Supra) and reiterated the legal position.
19. The law laid down in these judgments clearly establishes that the learned Single Judge could not have directed the Registry to continue the matter to be placed was before him as the roster had been changed. Even if he was to say that the matter was part heard, in view of the law laid down by the Full Bench which is affirmed by the Apex Court: such a direction or order would be in violation of the Rules of Court and, therefore, nullity. Any case at pre admission stage cannot be treated as part heard or tied up and such a direction contrary to the roster is not within the competence of the any Single or Division Bench of the High Court as has also been held in the case of Jasbir Singh (supra).
20. In the circumstances, we accept the contentions of the appellant that the orders passed passed by the learned Single Judge after change of roster were without jurisdiction and are liable to be treated as null and void.
Accordingly, we allow this appeal and set aside the orders dated 28th August 2006, 14th September 2006, 19th July 2007, 26th July 2007, 2nd August 2007, 17th September 2007 and 12th October, 2007 passed by the learned Single Judge.
21. The relief sought by respondent No. 6, the original petitioner remained unattended all this time. The writ petition will now be sent to the learned Single Judge, who is taking the work of educational service matters as per the present roster. The respondent No. 2 must file affidavit stating as to what was the material before it on the basis of which the vacancy was noted at Lucknow and if there was a vacancy then why she could not be absorbed at Lucknow. The Board will also place the material which was before it to arrive at the conclusion that there was a vacancy at Lucknow or later at, Varanasi and A hat action they are proposing to take against these in nations. All these institutions are receiving grant-in-aid from the Government and are duty bound to follow the orders of the Government. It is within the jurisdiction of the State Government to take necessary action against these institutions. The State Government must also state on the affidavit as to what action will be taken against these intuitions if the directions given by the U.P. Secondary Education Service Selection Board are not honoured by these institutions. They will see to it that the petitioner is absorbed. It is for this purpose that the matter will be listed before the learned Single Judge. The matter will be listed on 17th December, 2007. By that date these affidavits must be filed.
22. The appeal is allowed in aforesaid terms. There will be no order as to costs.