Allahabad High Court
Smt. Reeta Yadav vs The State Of U P And 4 Others on 1 August, 2022
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 37 Case :- WRIT - A No. - 11046 of 2022 Petitioner :- Smt. Reeta Yadav Respondent :- The State Of U P And 4 Others Counsel for Petitioner :- Devesh Mishra,Atipriya Gautam,Sr. Advocate Counsel for Respondent :- CSC,Shyam Krishna Gupta Hon'ble Manish Mathur,J.
Heard Mr. Vijay Gautam learned Senior Counsel assisted by Ms. Atipriya Gautam learned counsel for petitioner, learned State Counsel for respondents 1,2 and 4 and Mr. Anand Prakash Pandey learned counsel holding brief for Mr. Shyam Krishana learned counsel for respondents 3 and 5.
In view of the undisputed facts in the prevalent dispute, the petition is being adjudicated upon at the admission stage itself without calling for counter affidavit since only question of law is involved.
Petition has been filed assailing the order dated 15th June, 2022 passed by respondent District Basic Education Officer dismissing petitioner from service on the ground of petitioner having submitted forged documents in order to procure employment with the department.
Learned counsel for petitioner submits that a perusal of impugned order will make it apparent that the same has been passed only on the basis of report submitted by special investigation team of the police department and no separate departmental proceedings were ever held by the department itself to substantiate the charges levelled against her. It is submitted that the petitioner was earlier appointed as Assistant Teacher on 12th August, 2010 after selection in terms of U.P. Basic Education Staff Rules, 1973 and was thereafter also promoted on the post of Head Mistress in the year 2014. It is submitted that the service conditions of petitioner is governed by the aforesaid Staff Rules of 1973 which have subsequently been superseded by U.P. Government Servants (Discipline and Appeal) Rules, 1999 which prescribes a specific procedure in case services of petitioner were required to be dispensed with. It is submitted that the aforesaid procedure has not been followed by the respondents while passing the impugned order only on the basis of allegations levelled against her in the report submitted by S.I.T. It is submitted that as such impugned order has been passed behind the back of petitioner in an ex parte manner without affording opportunity of hearing.
Learned counsel for petitioner submits that petitioner's service conditions are regulated by the U.P. Basic Educational Staff Rules 1973 as well as the U.P. Basic Education (Teachers) Service Rules 1981. Although the Service Rules of 1981 do not prescribe any mode for termination of services or holding of enquiry, the same is regulated by the Rules of 1973 whereunder Rule 5(iii) prescribes that the procedure laid down in Civil Service (Classification, Control and Appeal) Rules, as applicable to service of U.P. Government shall as far as possible be followed in disciplinary proceedings under these rules.
It is submitted that aforesaid Rules are applicable upon the petitioner. It is also submitted that the aforesaid civil services rules have subsequently been superseded by the U.P. Government Servants (Discipline and Appeal) Rules 1999 whereunder Rule 7 clearly prescribes procedure for termination of services and includes the procedure of providing a charge sheet and holding of proper departmental inquiry prior to dispensing with the services. It is submitted that despite the aforesaid statutory provisions, the petitioner's services have been dispensed with without adhering to same. It is submitted that Rules of 1999 do not prescribe any exemption under Rule 7 from holding any departmental inquiry in case of such charges as levelled against petitioner.
Learned counsel for respondents have refuted submissions advanced by learned counsel for petitioner and have drawn attention to the impugned order to submit that ample opportunity was granted to petitioner to submit her reply, which she failed to take benefit of and therefore there was no occasion for the respondents to keep waiting for the petitioner to submit her reply due to which the impugned order has been passed. It is thus submitted that since the appointment letter itself clearly indicated that petitioner's services would automatically come to an end in case anything adverse is found with regard to educational documents submitted by petitioner, there was no requirement to follow the rules for full fledged departmental inquiry.
Upon consideration of submissions advanced by learned counsel for parties and upon perusal of material on record, it is evident and undisputed that petitioner was initially appointed in the year 2010 and has continuously rendered her services as such for 11 years. It is also admitted that her service conditions would be govern by the U.P. Basic Educational Staff Rules, 1973 which prescribe for imposition of punishment in Rule 3 with dismissal from service disqualifying the delinquent from future employment. It is also undisputed that the aforesaid rules specifically pertaining to discipline and appeal stand superseded by the advent of Rules of 1999 in which under Rule 7, a specific procedure has been indicated with regard to dispensation of services of substantively appointed government employee such as petitioner. Further aspect which is undisputed is that petitioner would come within definition of government of employee in terms of Rules, 1999. A perusal of impugned order makes it evident that the same has been passed only on the basis of report submitted by S.I.T. of police department. Although the order specifically states that ample opportunity had been provided to petitioner to submit her reply but she failed to do so and as such the respondents did not have any option except to treat the allegations as correct and dispensed with her services but learned counsel for petitioner has drawn attention to the reply submitted by petitioner on 7th February, 2022 which has been sent through registered post on 7th February, 2022 itself. The impugned order does not make any mention with regard to the said reply submitted by petitioner.
Section 27 of the General Clauses Act specifically provides that any correspondence sent through registered post shall be deemed to have been served in ordinary course upon the person to whom it has been sent at the correct address until and unless such a presumption is rebutted by the receiving person through evidence.
Clearly the provisions of Section 27 of the General Clauses Act would have complete applicability in the present case and as such it can be deemed under the said provision that petitioner had sent her reply well before passing of the impugned order, which however has not been adverted to by the respondents in the impugned order.
Furthermore once it is admitted that the Rules of 1999 would be applicable upon petitioner, it was incumbent upon the respondents to have followed due procedure in terms of Rule 7 of the said Rules prior to dispensing with her services since the petitioner was substantively appointed employee of the board. Such a mandatory procedure having not been followed by the respondents renders impugned order vitiated.
Considering the aforesaid facts particularly the fact that the impugned order has been passed only on the basis of report submitted by S.I.T. without following the proper course of inquiry under the Rules of 1999, the impugned order dated 15th June, 2022 is quashed by issuance of writ in the nature of Certiorari granting liberty to respondents to pass fresh orders pertaining to allegations levelled against petitioner but only in accordance with law as indicated herein above.
Resultantly, the petition succeeds and is allowed. Parties to bear their own costs.
Order Date :- 1.8.2022 Prabhat