Allahabad High Court
Pratima Bhardwaj vs State Of U.P. & Others on 13 February, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 33 Case :- WRIT - A No. - 4568 of 2012 Petitioner :- Pratima Bhardwaj Respondent :- State Of U.P. & Others Petitioner Counsel :- Ashish Kumar Ojha Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal, J.
1. Pursuant to this Court's order dated 3.2.2012, Sri Jitendra Kumar, Secretary, Secondary Education, U.P., Sri Manoj Kumar Dwivedi, Joint Director of Education, Jhansi Region, Jhansi, Sri Brijesh Kumar, District Inspector of Schools, Hamirpur (hereinafter referred to as "DIOS") and Smt. Kusumlata Shakyawar, Principal, Government Girls Inter College, Rath, Hamirpur are present. All of them admit that there is no restriction imposed by Code of Conduct issued by Election Commission regarding the joining of candidate already selected and therefore petitioner could not have been denied joining for this reason and the instructions given to learned Standing Counsel, as stated before this Court on 3.2.2012 were not correct. It is also pointed out that now petitioner has been permitted to join and he has submitted joining report on 11.2.2012. Admittedly, there is delay of one month and ten days in permitting the petitioner to join. Petitioner submitted her joining report on 30.12.2011 but when this Court passed a stern order on 3.2.2012 requiring the respondents to show the provision or order, if any, issued by Election Commission whereby during election proceedings newly selected candidate shall not be allowed to join, they have come with a specific case that there is no such provision or order and denying joining to petitioner it was clearly unauthorized and illegal.
2. Now the moot question is who is the person responsible for this wholly arbitrary and illegal action of denying the petitioner her lawful right, i.e. joining on the post in question despite her appointment on the post of Assistant Teacher (Home Science) and in what manner the glaring injustice caused to petitioner be met.
3. Respondent no. 4, i.e. Smt. Kusumlata Shakyawar, presently working as Principal, Government Girls Inter College, Rath, District Hamirpur, before whom the joining report was submitted by petitioner on 30.12.2011 has filed her personal affidavit. She has admitted that petitioner submitted joining report on 30.12.2011 along with appointment letter dated 8.12.2011 issued by Joint Director of Education, Jhansi, posting the petitioner at Government Girls Inter College, Rath, District Hamirpur. However, she declined to accept the said joining alleging that she was under the impression that election proceedings having commenced, during this period no appointment and joining can be made. On what basis the said impression she could gathered or formed no material has been placed. It appears, it was her sheer conjecture and surmises. There was no substantial reason for respondent no. 4 to form such an opinion. She, however, said that a letter was written by her to DIOS on 2.1.2012 that she has already sent details of teaching and non-teaching staff in the College to District Election Officer, Hamirpur and, therefore, permitting the petitioner to join whether would amount to violation of directions of Election Commission or not, be considered, and guidelines be issued by special messenger or speed-post. The said letter appears to have been received in the Office of DIOS on 4.1.2012. Thereafter, she received some fax message on 3.2.2012, obviously after this Court's order dated 3.2.2012. She claims that fax letter dated 3.2.2012 was not legible and therefore by letter dated 8.2.2012 she requested DIOS to send a clear copy of fax message. This letter was also claimed to have been served in the Office of DIOS on 9.2.2012. Copy of letter dated 9.2.2012 sent by DIOS addressed to respondent no. 4 is Annexure 3 to the affidavit of respondent no. 4 and it says that petitioner be allowed to join immediately else respondent no. 4 would be personally responsible. Consequently, respondent no. 4 issued letter on 9.2.2012 directing petitioner to join forthwith. This letter is said to have been received by petitioner on 11.2.2012 pursuant whereto she joined the institution on the same date.
4. Respondent no. 3, i.e. Sri Brijesh Kumar, holding the Office of DIOS has filed his personal affidavit stating that he did not receive any information from respondent no. 4 regarding joining of petitioner in the institution though he directed respondent no. 4 to allow petitioner to join vide letter dated 3.2.2012. He has not said anything about the guidance sought by respondent no. 4 vide letter dated 2.1.2012. The affidavit filed by respondent no. 3 is completely silent on this aspect. However, from his letter dated 3.2.2011 (a copy whereof has been filed as Annexure 1 to affidavit of respondent no. 3), it is evident that a letter was received by him from respondent no. 4 referring to the Code of Conduct imposed by Election Commission inasmuch in second paragraph of letter dated 3.2.2012, respondent no.3 has required the respondent no. 4 to clarify by which provision of Code of Conduct of Election Commission, a newly appointed Teacher cannot be allowed to join her duties. Obviously, this part must have referred to query made by respondent no. 4 vide her letter dated 2.1.2012 which obviously remained unattended by respondent no. 3 for almost more than a month.
5. The respondent no. 2, i.e. Sri Manoj Kumar Dwivedi, holding the Office of Joint Director of Education, Jhansi, in his affidavit has said that after Court's order dated 3.2.2012, he received instructions from Secretary, Secondary Education, U.P., Lucknow to look into the matter of inaction on the part of respondent no. 4 and to ensure joining of petitioner pursuant to appointment letter dated 8.12.2011. he received letter dated 9.2.2012 from DIOS who also recommended disciplinary proceedings against respondent no. 4 for inaction on her part. Thereafter, respondent no. 2 also recommended for disciplinary action against respondent no. 4 vide letter dated 9.2.2012 sent to Addl. Director of Education, Secondary, U.P., Allahabad.
6. Sri Jitendra Kuamr, Secretary, Secondary Education, himself is present and stated that none of the Officers ever sought any clarification from the Government and never approached the State Government or him seeking guidance in any manner. He admits that there is no provision which deny joining to newly appointed person during elections and inaction on the part of respondents no. 3 and 4 was clearly unjust and illegal. He also assured that in view of recommendation made by respondent no. 2, he would look into the matter against the erring officials. He, however, could not dispute that as a result of inaction on the part of respondents no. 3 and 4 in not accepting joining of petitioner till 11.2.2012, she (petitioner) would suffer towards salary which is admissible to her from the date of joining and since the actual joining allowed by respondent no. 4 is from 11.2.2012, she (petitioner) may not be able to claim salary from the date of her initial joining report i. e. 30.12.2011 and for about one month and 12 days, she would stand deprived of salary without there being any fault on her part.
7. Now here lies the real injustice caused to petitioner on account of admitted illegal and arbitrary action on the part of respondent no. 4 at the first instance added by inaction on the part of respondent no. 3 at the second instance. Both, in my view, have acted in a strange illegal manner and have failed to discharge their duties in a legal and bona fide manner. Without there being any substance, on a fanciful presumption or misimpression on the part of respondent no. 4, she did not accept joining report of petitioner on 30.12.2011 and sent a letter on 2.1.2012 to respondent no. 3 seeking his guidance in a matter where there was no reason at all to justify any scope of confusion in the mind of respondent no. 4. This illegality and arbitrariness on the part of respondent no. 4 got exaggerated due to inaction on the part of respondent no. 3 who received the letter on 4.1.2012 but did not respond thereto for almost a month and more and it is only when this Court passed order on 3.2.2012, he woke up from slumber and issued letter on the same date directing respondent no. 4 to immediately ensure joining of petitioner.
8. In my view, the ends of justice would meet only if the loss caused to petitioner is compensated in a lawful, just and legal manner and simultaneously for illegality on the part of respondents no. 3 and 4, the public exchequer is not made to suffer.
9. It is well established in a catena of decisions of the Apex Court that right to earn livelihood and live a decent life is an integral part of fundamental right of life and liberty enshrined under Article 21 of the Constitution. It is true that no one has a fundamental right of appointment but right conferred by Constitution is consideration for employment, i.e. equal opportunity. However, once this right is exercised as conferred by Constitution and resulted in selection and appointment of an incumbent, then right to joint so as to earn livelihood is imminent and cannot be deferred, delayed or prolonged or denied in any other manner unless justified by some statutory provisions or otherwise in law. Any action contrary thereto would be illegal and unconstitutional travelling in the realm of arbitrariness prohibited by Article 14 of the Constitution. The State and its instrumentalities hold the public office in trust. They are supposed to function for the widest possible welfare of the public at large and in the interest of State. The State includes the public at large since ultimate power of State vests therein.
10. The respondents being "State" under Article 12 of the Constitution of India, its officers are public functionaries. Under our Constitution, sovereignty vest in the people. Every limb of constitutional machinery therefore is obliged to be people oriented. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour. It is high time that this Court should remind respondents that they are expected to perform in a straight responsible and reasonable manner which may not cause undue and avoidable harassment and hardship to the public and in particular and the employees. The respondents have the support of entire machinery and possess huge powers of statute. An ordinary citizen or a common man is hardly equipped to match such might of State and its instrumentalities. Harassment of a common man by public authorities is socially abhorring and legally impressible. This may harm the common man personally but the injury to society is far more grievous. Crime and corruption, thrive and prosper in society due to lack of public resistance. An ordinary citizen instead of complaining and fighting mostly succumbs to the pressure of undesirable functioning in offices instead of standing against it. It is on account of, sometimes, lack of resources or unmatched status which give the feeling of helplessness. Nothing is more damaging than the feeling of helplessness. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match inaction in public oriented departments gets frustrated. It also erodes the credibility in the system. This is unfortunate that matters which require immediate attention are allowed to linger on and remain unattended. No authority can allow itself to act in a manner which is arbitrary. Public administration no doubt involves a vast amount of administrative discretion which shields action (including inaction) of administrative authority but where it is found that exercise of power is capricious or other than bona fide, it is the duty of this Court to take effective steps and rise to occasion otherwise the confidence of common man would shake. It is the responsibility of Court in such matters to immediately rescue such common man so that he may have the confidence that he is not helpless but a bigger authority is there to take care of him and to restrain arbitrary and arrogant, unlawful inaction or illegal exercise of power on the part of the public functionaries.
11. As said above, in our system, the Constitution is supreme, but the real power vest in the people of India. The Constitution has been enacted "for the people, by the people and of the people". A public functionary cannot be permitted to act like a dictator causing harassment to a common man and in particular when the person subject to harassment is his own employee/subject.
12. Regarding harassment of a common man, referring to observations of Lord Hailsham in Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027 and Lord Devlin in Rooks Vs. Barnard and others 1964 AC 1129, the Apex Court in Lucknow Development Authority Vs. M.K. Gupta JT 1993 (6) SC 307 held as under:
"An Ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law....... A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it...........Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous." (para 10)
13. The above observations as such have been reiterated in Ghaziabad Development Authorities Vs. Balbir Singh JT 2004 (5) SC 17.
14. In a democratic system governed by rule of law, the Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Whenever it comes to the notice of this Court that the Government or its officials have acted with gross negligence and unmindful action causing harassment of a common and helpless man, this Court has never been a silent spectator but always reacted to bring the authorities to law.
15. In Registered Society Vs. Union of India and Others (1996) 6 SCC 530 the Apex court said:
"No public servant can say "you may set aside an order on the ground of mala fide but you can not hold me personally liable" No public servant can arrogate in himself the power to act in a manner which is arbitrary".
16. In Shivsagar Tiwari Vs. Union of India (1996) 6 SCC 558 the Apex Court has held:
"An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will who did not soon find that he had no end but his own profit."
17. In Delhi Development Authority Vs. Skipper Construction and Another AIR 1996 SC 715 has held as follows:
"A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not mean to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."
18. There being no obstruction, legal or otherwise, in my view about petitioner's joining in the institution it should relate back to the date when she submitted her joining report initially i.e. 30.12.2011 with all consequential benefits i.e. salary, seniority etc. This Court order accordingly.
19. However, the amount of salary paid to petitioner under this order treating her joining from 30.12.2011 for the period 30.12.2011 to 10.2.2012, i.e. the period during which she actually did not perform duties on account of illegal denial of joining by respondents 3 and 4, may be recovered from respondents 3 and 4 in such proportion as may be determined by respondent no.1 after making such enquiry as permitted in law.
20. Writ petition is accordingly disposed of with the above directions.
21. Petitioner shall also be entitled to cost which I quantify to Rs. 5,000/-, which, at the first instance shall be paid by respondent no. 1 but it shall be at liberty to recover the amount of cost also in such proportion as it may decide, from the erring officials.
Dt. 13.2.2012 PS