Allahabad High Court
Smt. Arpana Tiwari (Mishra) And 2 Others vs The State Of U.P. And 3 Others on 4 April, 2022
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 17553 of 2021 Petitioner :- Smt. Arpana Tiwari (Mishra) And 2 Others Respondent :- The State Of U.P. And 3 Others Counsel for Petitioner :- Shivendu Ojha,Sr. Advocate Counsel for Respondent :- C.S.C. Hon'ble Ashutosh Srivastava,J.
The writ petitioners by means of the instant writ petition seek to challenge the order dated 23.10.2021 (Annexure-6 to the writ petition) passed by the Zila Basic Shiksha Adhikari, Deoria (respondent no. 3) whereby and whereunder their selection and approval as Assistant Teachers in Krishak Laghu Madhyamik Vidyalaya, Madarsan, Gauri Bazar, Deoria, a recognized and aided institution under the U.P. Basic Education Act, 1972, have been found to be void and consequently cancelled and directions have been issued to the Manager of the Committee of Management of the Institution to take action as per the provisions of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. A further challenge to the termination orders dated 30.10.2019 (Annexures 7, 8 & 9 to the writ petition respectively) issued by the Manager of the Committee of Management (respondent no. 4) has also been sought.
It is contended on behalf of the petitioners that Krishak Laghu Madhyamik Vidyalaya, Madarsan, Gauri Bazar, Deoria is a recognized and aided institution, under the U.P. Basic Education Act, 1972. The service conditions of the teachers are governed under the provisions of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Vacancy of three posts of Assistant Teachers in the institution arose and were duly advertised in the Newspapers and also placed on the Notice Board by the Committee of Management of the Institution. Pursuant to the advertisement, the petitioners who possessed the requisite qualifications prescribed applied in the year 2016, faced selection by a duly constituted Selection Committee under the 1978 Rules and were selected. The selection was placed before the Zila Basic Shiksha Adhikari, Deoria and approval was accordingly, accorded vide order dated 16.5.2016. After the approval of the selection, appointment letters dated 22.5.2016 were issued to each of the petitioners and they joined their services on 1.7.2016. The petitioners were also paid their salary, arrears of salary barring a few months.
In furtherance of some enquiry into the appointments of the petitioners as Assistant Teachers being conducted by the office of the STF Field Unit, Gorakhpur a notice dated 19.8.2021 was issued to the Manager of the Institution requiring him to appear before the Zila Basic Shiksha Adhikari, Deoria with all requisite papers, explanation etc. under 16 Heads failing which orders would be passed under the provisions of the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978. In response to a subsequent Notice dated 27.8.2021, though the Manager and the Principal of the Institution appeared on 1.9.2021 before the District Basic Shiksha Adhikari, Deoria, but did not file any written submissions or documents. The petitioners appeared on 1.9.2021 and also filed their replies.
The learned counsel for the petitioners submits that the reply of the petitioners did not find favour with the Zila Basic Shiksha Adhikari, Deoria and he proceeded to pass the impugned order dated 23.10.2021. Consequently, the Manager also passed the termination orders dated 30.10.2021. He further submits that the impugned orders dated 23.10.2021 and 30.10.2021 are patently erroneous, illegal, arbitrary and unjust inter alia on the following grounds:
i) The impugned orders are vitiated on account of non compliance of the provisions of the U. P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and U.P. Basic Educational Staff Rules, 1973.
ii) As per the procedure prescribed under the Rules, the petitioners were required to be served with a charge-sheet thereafter given opportunity of hearing and cross examination before cancelling their appointments.
iii) The impugned orders are clearly in violation of the elementary principles of natural justice and cannot be sustained.
iv) The respondents were not justified in drawing an adverse inference against the petitioners inasmuch as the Dispatch Register stood duly verified by order dated 1.11.2019.
v) The issue regarding following the procedure laid down under Rule 16 of the 1978 Rules before the services of the confirmed employees can be terminated has already been settled by this Court in Writ Petition (A) No. 13527 of 2021 (Dilip Kumar Upadhyay and 3 others versus State of U.P. and 3 others) vide decision dated 28.10.2021 and as such, the petitioners are also entitled to the same relief.
A counter affidavit, in response to the writ petition, has been field on behalf of respondent nos. 1 to 3. Learned counsel for the petitioners submits that he does not wish to file any rejoinder affidavit in view of the stand taken by the respondent nos. 1 to 3 in their counter affidavit.
Learned Standing Counsel, in opposition of the writ petition, submits that the relevant documents with regard to the selection and appointment were not submitted before the Zila Basic Shiksha Adhikari, Deoria and the sanction / approval order relied upon by the petitioner is a forged and fabricated document. The State Exchequer cannot be saddled with financial burden in respect of the petitioners whose appointment and approval have been found to be forged and fabricated. Ample opportunity had been given to the Management of the Institution and to the petitioners but they failed to produce documents and in such circumstances, no fault can be found in the impugned orders dated 23.10.2021 and 30.10.2021.
I have heard the learned counsel for the petitioners as also the learned Standing Counsel for the State-respondents and have perused the record.
From the perusal of the counter affidavit of the respondent nos. 1 to 3 as also the arguments advanced by the learned Standing Counsel, it is borne out that the stand of the respondent nos. 1 to 3 is that the petitioners have obtained appointment on the basis of forged and fabricated approval order of the Zila Basic Shiksha Adhikari, Deoria. However, the factum that the petitioners are confirmed Assistant Teachers and were also paid regular salary, is not in dispute. This being the position, the Court is of the view that the petitioner being the confirmed employees, the procedure contemplated under Rule 16 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 is required to be followed before imposing major punishment. Admittedly, in the case at hand Rule 16 of the 1978 Rules provides that the Disciplinary proceedings shall be governed by the Rules applicable to a Headmaster and Assistant Teacher of a Basic School established or maintained by the Board. Thus, the procedure would be governed by the U.P. Basic Education Staff Rules, 1973 which, in turn, provides that the procedure laid down in Civil Services (Classification, Control and Appeal) Rules, as applicable to the servants of the U.P. Government shall be followed. The procedure for imposing major penalties under the U.P. Government Servant (Discipline and Appeal Rules) 1999 provides for appointing an Enquiry Officer, serving of charge-sheet, filing of written statement, filing of documentary evidence, cross examination of witnesses, submission of enquiry report, etc. Admittedly, the procedure in the case at hand has not been followed. The counter affidavit on behalf of the State-respondents is also silent in this regard.
In such circumstances, the orders impugned cannot be sustained. Accordingly, the order dated 23.10.2021 (Annexure 6 to the writ petition) passed by the Zila Basic Shiksha Adhikari, Deoria as also the consequential orders dated 30.10.2021 passed by the Manager of the Committee of Management, respondent no. 4 (Annexures 7, 8 and 9 to the writ petition) are set aside. However, liberty is granted to the respondents to pass fresh orders, strictly, in accordance with law.
The writ petition is allowed, subject to observation made above.
Order Date :- 4.4.2022 Ravi Prakash (Ashutosh Srivastava, J.)