Allahabad High Court
Smt. Anita Devi Gupta vs State Of U.P. And Others on 28 August, 2017
Bench: Arun Tandon, Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 10 1. Case :- SPECIAL APPEAL No. - 162 of 2013 Appellant :- Smt. Anita Devi Gupta Respondent :- State Of U.P. And Others Counsel for Appellant :- V.K. Singh,G.K. Singh Counsel for Respondent :- C.S.C. 2. Case :- SPECIAL APPEAL DEFECTIVE No. - 121 of 2014 Appellant :- Bhartendu Chaube Respondent :- State Of U.P. And 8 Ors. Counsel for Appellant :- P.C. Pandey Counsel for Respondent :- C.S.C.,S.P. Sharma 3. Case :- SPECIAL APPEAL No. - 196 of 2013 Appellant :- Smt. Madhvi Rai Respondent :- State Of U.P. And Others Counsel for Appellant :- V.K. Singh,G.K. Singh Counsel for Respondent :- C.S.C. Hon'ble Arun Tandon,J.
Hon'ble Mrs. Sangeeta Chandra,J.
1. Shri P.N. Saxena, Senior Advocate and Shri V.K. Singh, Advocate on behalf of appellant stated before us that the findings returned by the learned Single Judge in respect of the interpolation in the original records pertaining to awarding of marks by individual members of the Selection Committee is not disputed. It is their case that such interpolation has been done subsequent to the declaration of the result only to cause harm to the selected candidates.
2. Shri Ravi Kant, Senior Advocate, on behalf of other appellants contended that there is no challenge to the finding of the learned Single Judge that there has been interpolation in the tabulation sheets regarding to the marks awarded by the individual members of the Selection Committee and that such interpolation had taken place; even if the marks as disclosed prior to the interpolation are taken into consideration the client of Shri Ravi Kant, Senior Advocate, would be selected.
3. At this stage, when the hearing of appeal was fairly nearing completion, a supplementary affidavit was filed in the Special Appeal No. 196 of 2013 for bringing on record the documents which did not form part of the writ petition.
4. The facts relevant for deciding the present Special Appeal are as under:-
5. The dispute giving rise to the present Special Appeals pertains to the appointment on the posts of Principals of Sanskrit Pathshalayein situated within Azamgarh Region, Azamgarh as well as in respect of the Institutions situate within Gorakhpur Region, Gorakhpur.
6. It is not in dispute that the appointment on the posts of Principals of such Sanskrit Pathshalayein is regulated by the U.P. Board of Secondary Sanskrit Education (Appointment and conditions of Service of Head of Institution, Teacher and Other Employees of the Institution) Regulation 2009 (hereinafter referred to as "Regulation 2009"). According to the appellants selections for appointment on the posts of Principals had taken place in response to the advertisement published on 12.12.2011 and that a Selection Committee in terms of the Regulation 2009 was constituted comprising of 12 members. The Selection Committee is stated to have held interviews and thereafter the select list was prepared. Acting on the select list so prepared, the Director of Education made a recommendation on 12.12.2011 which was acted upon by the Committee of Management of respective institutions. Appointment letters were issued in favour of the petitioners in the month of December, 2011. All the petitioners are stated to have joined and to have been functioning as Principals in their respective Colleges. The signatures of the petitioners-appellants are also stated to have been attested by the District Inspector of Schools.
7. At this stage, complaints were received in respect of the selections being not fair and proper. On 31st of March, 2012 the District Inspector of Schools made an order for stopping the salary of the petitioners-appellants and on 25th of June, 2012 the Director of Education cancelled the entire selection proceedings with reference to the advertisement mentioned above. This resulted in consequential order of the Joint Director of Education dated 31st of July, 2012 whereby the appointment of the petitioners-appellants was declared as void.
8. Aggrieved with the orders so passed, two writ petitions were filed before the Hon'ble High Court being Writ Petition No. 45441 of 2012 Bhartendu Chaubey Vs. State of U.P. and others and Writ Petition No. 47323 of 2012: Smt. Madhvi Rai Vs. State of U.P. and others. Both the writ petitions were clubbed together and decided by learned Single Judge under the order dated 18.01.2013. The writ petitions were dismissed. It is against this order of learned Single Judge dated 18.01.2013 these intra-court appeals under Chapter - VIII Rule - V of Allahabad High Court Rules have been filed.
9. In order to keep the record straight we must notice that these appeals were dismissed vide an order of Division Bench of this Court dated 05.02.2013. Two of the petitioners approached the Apex Court by means of Civil Appeal No. 9651 of 2013 and Civil Appeal No. 9652 of 2013. The names of two persons who approached the Hon'ble Supreme Court are Smt. Madhvi Rai and Smt. Anita Devi Gupta.
10. The Apex Court vide order dated 25.10.2013 set aside the order of the Division bench and remitted the matter and required the Division Bench to hear the Special Appeals afresh. It would be worthwhile to reproduce the relevant part of the judgment of the Apex Court which reads as follows:-
"Shri Irshad Ahmad, learned counsel appearing for the respondents says that the original record of selection is not available with the Director of Education (Madhyamik), Uttar Pradesh. He gave out that the record was lost after the matter had been decided by the learned Single Judge of the High Court.
Shri P.S. Patwalia, learned senior counsel for the appellants invited the Court's attention to the reply received in response to the application made by one Rama Shankar Singh under the Right to Information Act, 2005 to show that there was no interpolation in the record of selection and submitted that someone in the Directorate of Education appears to have tampered with the record after completion of the process of selection.
We do not consider it necessary to go into the issue of tampering of the record because having carefully perused the orders under challenge, we are convinced that the Division Bench of the High Court was not at all justified in dismissing the Special Appeals without considering important contentions raised by the appellants in support of their challenge to the order of the learned Single Judge. One of the pleas taken by the appellants was that their selection could not have been cancelled without complying with the basics of natural justice. Another plea taken by the appellants was that interpolation has been made in the record of selection after preparation of the final select list and their appointments. These and other issues merited detailed examination, which the Division Bench of the High Court failed to do and dismissed their appeals by cryptic orders.
In the premise aforesaid, the appeals are allowed, the impugned orders are set aside and the matters are remitted to the High Court for fresh disposal of the Special Appeals.
Keeping in view the fact that the appellants' appointments were nullified without holding an enquiry consistent with the rules of natural justice and, prima facie, we find substance in their plea that the record of selection appears to have been tampered after finalization of the select list, we direct the respondents to provisionally reinstate the appellants and allow them to continue in service till the disposal of the Special Appeals and pay their monthly salary without any interruption."
11. Accordingly, we have heard Shri Ravi Kant, Senior Advocate on behalf of Smt. Madhvi Rai, assisted by Shri V.K. Singh, Shri P.N. Saxena, Senior Advocate assisted by Shri P.C. Pandey on behalf of Bhartendu Chaube and Shri V.K. Singh, Advocate, has appeared on behalf of Smt. Anita Devi Gupta.
12. From the order passed by the learned Single Judge giving rise to the instant Special Appeals, it is apparent that the original records pertaining to the selection on the post of Principal/Headmaster, subject matter of controversy before us, was examined in original and the learned Single Judge after considering the original records specifically noticed the interpolation which had been made in the marks awarded to the individual candidates by the respective Members of the Selection Committee. The same was reproduced in the form of a chart which we need also record. The finding of the learned Single Judge in that regard is as under:-
"This Court also, in order to verify the genuinity of finding of fact recorded by the Director of Education, summoned the original record and found in reference of all these three petitioner who are before this Court that qua them increase of marks has been made in respect of post of Principal and various experts have altered marks. Chart in question gives brief reference of the same as it contains the name of Member of Selection Committee, the Roll Number of candidate, name of candidate, marks obtained before alteration, Marks obtained after alteration and within bracket the respective marks which have been changed.
For the post of Principal
1. Sri Pramod Kumar (Secretary) page 25-26 Roll No. NAME BEFORE AFTER 3 Anita Devi Gupta 11 21(1-2) 19 Ravindra Nath Sharma 10 19 (0-9) 25 Suman Tiwari 18 48 (1-4) 30 Rajwant Pandey 21 24 (1-4) 32 Surendra Nath Rai 24 44(2-4) 45 Satya Prakash 20 26 (0-6)
2. Balram Prasad (Member) page 13-14 Roll No. NAME BEFORE AFTER 3 Anita Devi Gupta 10 20 (1-2)
3. Smt. Shushila Das (SC) page 37-38 Roll No. NAME BEFORE AFTER 1 Rajana Srivastava 15 25 (1-2)
4. Harish Chandra Nath (Member) page 49-50 Roll No. NAME BEFORE AFTER 9 Madhavi Rai 4 34 (by adding 3)
5. Rajendra Pandey(Specialist member of Sanskrit) page 61-62 Roll No. NAME BEFORE AFTER 20 Bhartendu Chaubey 31 39 (1-9) 39 Shayam Narain Yadav 40 48(0-8) 41 Gayendra Mani Pathak 40 48(0-8) 51 Devchand Singh 21 22(1-2)
6. Dr. Shiv Sahai Pandey (Specialist member of Sanskrit) page 73-74 Roll No. NAME BEFORE AFTER 30 Rajwant Pandey 31 37(1-7) 33 Ved Prakash Mishra 30 36(0-6) 39 Shyam Narain Yadav 41 47(1-7)
7. Smt. Anwar Jahan (member of minority) page 85-86 Roll No. NAME BEFORE AFTER 11 Brijesh Kumar 10 17(0-7) 12 Sadhana Srivastava A 19 (no initial) 30 Rajwant Pandey 11 17(1-7) 32 Surendra Nath Rai 31 39(1-9)
8. Radhey Shyam Gupta (Member) page 97-98 Roll No. NAME BEFORE AFTER 38 Devnarain Pathak 31 39(1-9)
9. Rakesh Kumar (Member) page 109-110 Roll No. NAME BEFORE AFTER 7 Anita Upadhyay 20 7 26(0-6) 16 Rakesh Kumar Pandey 21 27(1-7) The Chart in question clearly reflects that as far as Bhartendu Chaubey, petitioner of Civil Misc. Writ Petition 45441 of 2012 is concerned initially he has been awarded 31 marks and thereafter same has been changed to 39 by altering 1 to 9 in the marks awarded by Rajendra Pandey (Specialist member of Sanskrit) at page 61-62 and similarly in respect of Madhavi Rai in the marks awarded by Harish Chandra Nath (Member) page 49-50, initially she had got 4 marks and same has been shown 34 marks by adding 3 before 4. In respect of Anita Devi Gupta, in the marks awarded by Sri Pramod Kumar (Secretary) page 25-26, she had received 11 marks and subsequently same has been increased to 21 and 1 has been converted into 2. In the marks awarded by Balram Prasad Member to Anita Devi Gupta, initially 10 marks have been awarded and same has been converted into 20 marks by altering 1 into 2. All these changes have been made with no initial and is clearly visible with naked eyes. Once such is the factual situation which has emerged that petitioners who have been so selected qua them Director of Education(Secondary) U.P. at Allahabad has found that over writing and cutting has been made in the marks and in this background has found the selection process to be vitiated and accordingly has taken conscious decision to cancel the selection then decision taken by Director of Education (Secondary) cannot be faulted in any count whatsoever.
Coupled with this in the present case procedural lapses are also there as Director of Education(Secondary) U.P. at Allahabad has special role to play in the matter of selection and appointment and record in question reflects that no correspondence has been made with the Director of Education rather correspondence has been made with the State Government who otherwise has no role to play in such matters and at no point of time after selection process has been over same has been ratified by the Director of Education and based on the letter dated 01.12.2011 result in question has been declared. Once such is the factual situation that Director of Education has got ample supervisory authority to look after the process of selection and authority conferred upon him has been by passed and on the strength of letter dated 01.12.2011 of the State Government result in question has been declared. In the facts of the case once selection process is tainted by large scale manipulation and manoeuvring, this Court refuses to interfere in the matter.
Consequently, both the writ petitions are dismissed accordingly."
13. Shri Ravi Kant, Shri V.K. Singh and Shri P.N. Saxena, learned counsel appearing for the petitioner-appellants stated before us that interpolation in the original tabulation sheets as noticed by the learned Single Judge in his order dated 18.01.2013 is not in dispute and this Court may not go behind the finding so returned by the learned Single Judge. However, it is their case that such interpolation in the tabulation sheets has been affected subsequent to the declaration of the result only to somehow or the other create a dispute in the matter of selection of the appellants. In support of the said contention heavy reliance has been placed upon the documents which the petitioner-appellants are stated to have obtained in the shape of photostat copy of the tabulation sheets along with the chart of the computation of marks on 20.12.2011. It is with reference to the said photostat copies that an attempt has been made before us to suggest that the petitioners-appellants have been made to suffer because of the interpolation which has been done subsequent to the declaration of the result.
14. The other contention raised before us on behalf of the petitioner-appellants is that the Director of Education had not afforded any opportunity of hearing to the petitioners before cancelling the entire selection and on that ground also the order of the Director of Education (Madhyamik), Uttar Pradesh as well as the order of the learned Single Judge, which has not taken note of the aforesaid plea, cannot be sustained.
15. We will first deal with the issue pertaining to the opportunity of hearing being not afforded by the Director of Education before passing of the order impugned.
16. The Regulations of 2009 admittedly apply for making of selection on the post of Head of Institution and Teachers by direct recruitment in a recognized institution, Regulation 15 confers a power upon the Director of Education (Secondary), Uttar Pradesh to cancel the selection if it is found that there have been irregularities and the process of selection is vitiated, and to issue a direction for fresh selection. The order of Director of Education has been declared final and is binding on all concerned.
17. The Director in his order dated 25.06.2012 has returned the following two findings of fact:-
That there has been interpolation in the marks recorded in the tabulation sheet of individual Members; and That the final tabulation chart prepared on the basis of marks obtained under various heads by the candidates had not been signed by the District Inspector of Schools and the Finance and Accounts Officer in his office, who were Members to the Selection Committee in terms of the Regulation - 9 sub clause (1) (v) of Regulations, 2009.
18. The Director of Education (Secondary), Uttar Pradesh has thereafter come to the conclusion that there have been irregularities in the process of selection which had vitiated the selection; and has, therefore, cancelled the entire selection. The finding recorded by the Director of Education in the matter of interpolation of the marks in the tabulation sheets is admitted to the appellants before us also and therefore, the finding in that regard cannot be said to be bad.
19. Similarly, from a simple reading of the documents enclosed by the appellants with the Appeal No. 162 of 2013 said to be the final computation of marks of candidates under various heads, we find from page No. 204 of the Paper Book that it has not been signed by the District Inspector of Schools as well as by the Finance and Accounts Officer in the office of the District Inspector of Schools despite the fact that they have been shown to have awarded marks in their individual capacity as Members of the Selection Committee in the tabulation sheet in respect of the interviews held.
20. We are of the opinion that if there is an apparent and mass irregularity like interpolation of marks in the relevant Broad Sheets of the individual Members and that the final result prepared being not signed by two of the Members of the Selection Committee, namely, District Inspector of Schools and Finance and Accounts Officer in his office, then, no error has been committed by the Director of Education (Secondary), Uttar Pradesh in cancelling such selections. It is settled law that if there are mass irregularities, then, the question of affording opportunity of hearing to an individual person does not arise. Reference in this regard may be had to the judgment of the Apex Court in the case of Nidhi Kaim Vs. State of Madhya Pradesh decided on 12th of May, 2016 in Civil Appeal No. 1727 of 2016 and to various other binding precedents viz. Union of India Vs. O. Chakradhar, 2002 (3) SCC 146; and Union Territory of Chandigarh Vs. Dilbagh Singh, 1993 (1) SCC 154.
21. From the order of the Apex Court dated 25.10.2013 quoted above, it is apparent that the original records of selection have gone missing and that there cannot be any further examination of the original record by this Court or by any other Authority. Therefore also the question of any opportunity of hearing being afforded to the appellants before passing the order of cancellation of selection does not arise. In the background that the learned Single Judge had examined the original record and had recorded a categorical finding of interpolation in the original records pertaining to the awarding of marks during the interview, we see no reason to take any different view of the matter nor do we find any good ground to direct that any opportunity of hearing be afforded by Authority concerned or by any other officer in view of the findings returned by the learned Single Judge after examining the original records which were available there.
22. We may record that the findings recorded in the judgment of the Court are to be taken as correct. In A.P. Khadi and Village Industries Board. Vs. R. Radha Krishnamurthy, 1997 (3) SCC 230 the Supreme Court has observed in para 5 and 6 thus :
"In this appeal, it is submitted by the learned counsel for the appellant-Board that the Division Bench ought to have accepted the statement of the learned Single Judge contained in his judgement and that there was no reason for doubting the correctness of the said statement. The Board had handed over the file to the Court and since it was not returned, they were not in a position to produce the same before the Division Bench. The Board cannot be punished for the same, it is submitted.
We are to the opinion that the learned counsel for the appellant is justified in his submission. The learned Single Judge has specifically and clearly recorded in his Judgment that he has perused the records and that all the proceedings "commencing from the order of suspension to the date of the impugned order" were taken with the approval of the Chairman and that the 'note file' does contain the signature of the Chairman showing that the impugned order of dismissal was issued by the Chairman. We see no reason why the said statement should be doubted. The statement found in the Judgment should be accepted as correct. The contention of the respondent to the contrary could not have been countenanced in the face of the said statement in the Judgment. We are, therefore, of the said statement in the Judgment. We are, therefore, of the opinion that the respondent must be deemed to have been dismissed by the Competent Authority viz., Chairman."
23. We are also of the view that absolutely no ground is made out for accepting the theory propounded by the petitioners-appellants before this Court for the first time, which was not pleaded before the writ court that interpolation has been done subsequent to the selection of the petitioners-appellants. Such a plea which is clearly an after-thought, as the appellants have come to know that the original records have gone missing.
24. For the aforesaid reasons, we do not find any infirmity or illegality in the order of the learned Single Judge. The appeal lacks merit and is dismissed.
Order Date :- 28.8.2017 LBY