Allahabad High Court
Deepak Kumar Agarwal vs State Of U.P.Through Secretary ... on 29 August, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 1332 of 2022 Petitioner :- Deepak Kumar Agarwal Respondent :- State Of U.P.Through Secretary (Secondary Education) U.P.Luc Counsel for Petitioner :- Pankaj Agarwal,Tarun Agarwal Counsel for Respondent :- C.S.C.,A.K.S.Parihar,Atul Srivastava,Lokesh Kumar Dwivedi,Ratnesh Kumar Pathak Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Pankaj Agarwal, learned counsel for the petitioner; Sri Shailendra, learned Senior Advocate, alongwith Sri A.K.S. Parihar, learned counsel appearing for the Selection Board; Sri Lokesh Kumar, learned counsel appearing for the Committee of Management; Sri J.N. Maurya, learned counsel appearing for State-respondent nos. 1, 5 and 6. Also, pursuant to the last order, Sri J.N. Maurya has produced duly sworn affidavit of Smt. Aradhana Shukla, Additional Chief Secretary, Department of Education (Secondary), Government of U.P. Also, the officer is present in Court.
2. Since proceedings are on an e-file, Sri J.N. Maurya is permitted to upload the document by tomorrow. The original affidavit/hard copy is being returned to Sri Maurya after perusal of the same.
3. Present writ petition has been filed for the following relief:
"(i) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 29.11.2021 Annexure-32 (passed by Respondent No.2) and order dated 07.09.2021 Annexure-31 to the petition (passed by Respondent No.3) in view of the fact that the same is against the provision as contained under sub section-vii of Section-16 G of the Act."
4. In short, the petitioner was working as a Principal at Public Inter College, Manauri, Prayagraj. He was suspended by the Committee of Management. He alleges repeated suspensions. Last, upon suspension order dated 07.09.2021, the matter appears to have been enquired in a disciplinary proceedings which is also described as completed at this stage. The matter has thus been forwarded to the U.P. Secondary Education Service Selection Board, Prayagraj (hereinafter referred to as the 'Board') for its approval. That is stated to be pending since 25.08.2021. Pursuant to the notice dispatched, the petitioner submitted his reply dated 07.03.2022. The matter also appears to have been date fixed for hearing by the Board on 08.04.2022. In the meanwhile, five members of the Board completed their term and demitted office. At present, only Chairman of the Board is available.
5. In such circumstances, an order came to be passed on 27.05.2022 in the instant proceedings requiring the Secretary, Department of Education (Secondary), Government of U.P. to be present in Court to inform apparently with respect to reconstitution of the Board.
6. By means of the personal affidavit of Smt. Aradhana Shukla, Additional Chief Secretary, Department of Education (Secondary), Government of U.P., it has been stated as below:
"18. That so far as issue of filling of vacant post of members of the Board, it is submitted that vide notification dated 15.04.2022 application were invited form the eligible candidates. In response to the said advertisement No. 433/Purna/15-05-2022-1604(27)/2017, dated 15-04-2022, 850 applications were received in the Department. All received applications were scrutinized and thereafter segregating the application category wise broad sheet has been prepared. The matter regarding selection and appointment of members have been placed for decision before the competent authority and in this manner the selection process of the members is underway.
19. That to complete the process of selection of the members of the Board, will take six weeks more time is estimated to be required which may kindly be granted to complete the process of selection of members of the Board.
20. That in view of the aforesaid facts and circumstances, it is humbly prayed that the Hon'ble Court may kindly be pleased to grant at least six weeks more time to complete the process of selection of the members of the Board."
7. In view of the statement made, no further observation is required to be made by this Court in the context of relief sought in the present writ petition, at this stage. Her appearance is discharged.
8. Further, submission of learned counsel for the petitioner is, amongst others, the petitioner has challenged the approval to the suspension on the ground that the DIOS never granted any opportunity of hearing to the petitioner and has not considered the objections, therefore, the entire edifice of the proceedings must fall through, though attractive cannot be accepted. The principle being invoked by learned counsel for the petitioner as was applied in Neelam Vs. State of U.P. & 3 Ors. (Writ - A No. 1193 of 2021), decided on 28.06.2021 had to be seen with reference to the stage of the proceedings.
9. Insofar as the surviving relief sought by the petitioner is concerned, the parties are at variance. The petitioner claims, the matter is fixed for hearing before the Board but the same is not being heard by the Chairman in absence of other members required to constitute the Board. Sri Shailendra, learned Senior Advocate appearing for the Board would submit, establishment and composition of the Board is governed by the provisions of Sections 3 and 4 of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the 'Act'). Referring specifically to Section 4 of the Act, he would submit, the Board may be constituted of the Chairman and ten other members. Referring to Section 9 of the Act, he would further submit, the powers of the Board may be exercised by way of a collective decision of that body i.e. by the Chairman alongwith members of the Board and not individually by the Chairman.
10. Again, referring to Section 26 of the Act, he would submit, though the Act contemplates and provides for curing for certain inadequacies in the constitution of a Board inasmuch as a simple vacancy of say 1 or 2 members may remain curable, at present, there is piquant situation where no Board can be constituted as besides the Chairman there is not a single member available. Specific to the grievance of the petitioner, reference has been made to Regulation 8 of the U.P. Secondary Education Services and Commission (Procedure for Approval of Punishment) Regulations, 1985.
11. Also, he would submit, since the matter had been earlier heard by the Board comprising of six members (including the Chairman), a single member/Chairman cannot hear the matter, at present.
12. On the other hand, Sri Maurya has referred to an earlier resolution dated 08.04.2022 passed by the then existing Board which comprised of five members besides the Chairman. Referring to that document, it has been submitted, in absence of other members, the Board has authorised the Chairman to act on its behalf. He may proceed accordingly.
13. Having heard learned counsel for the parties and having perused the record, it is true, normally the Board must be constituted in accordance with law. Also, in face of a fully constituted Board, no member or Chairman may draw power or jurisdiction to act on behalf of the Board, in his individual capacity or sitting singly. At the same time, that question is not involved in the present case. Here, it is undisputed, rather it is admitted between the parties - consequent to five members demitting the office on 08.04.2022, at present, there is only the Chairman Sri Viresh Kumar available.
14. Having heard learned counsel for the parties, I am not inclined to adopt the reasoning relied by Sri Maurya. A statutory authority may draw powers from the statute or from a well recognised principle in law but not on the basis of self serving resolution, not based on a statutory provision.
15. The provisions of the Act are fairly clear, as to the composition of the Board. It includes its Chairman and ten members. Also, it cannot be doubted, in face of availability of such Board, the Board may only act as a collective body and not otherwise. That position in law arises from a plain reading of Sections 9 and 26 of the Act. Consistent thereto Regulation 8 of the U.P. Secondary Education Services and Commission (Procedure for Approval of Punishment) Regulations, 1985 exists. However, what requires examination at present is if the entire functioning of the Board would remain stalled in absence of availability of members.
16. As noted above, the State Government is already making efforts to constitute the Board. It is expected that the same would be constituted at the earliest possible, within the time frame indicated in the affidavit of Smt. Aradhana Shukla, Additional Chief Secretary, Department of Education (Secondary), Government of U.P., noted above.
17. In the meanwhile, clearly doctrine of necessity is attracted. In Election Commission of India & Anr. Vs. Dr. Subramaniam Swamy & Anr., (1996) 4 SCC 104, dealing with the doctrine of necessity which works as an exception of rule against bias, it was observed as under:
"16. We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked."
18. Then, in Lalit Kumar Modi Vs. Board of Control for Cricket in India, (2011) 10 SCC106, the matter was to be heard by a disciplinary committee headed by the President of the BCCI. In that case, the President recused himself in view of the objection raised by the petitioner. In such circumstance, the doctrine of necessity was invoked to rule that the law did not contemplate a vacuum. A solution had to be found rather than allowing the problem to boil over. Accordingly, disciplinary proceedings pertaining to membership of the petitioner was allowed to be proceeded in absence of President as a member of the disciplinary committee. It was observed as under:
"38. The doctrine of necessity is a common law doctrine, and is applied to tide over the situations where there are difficulties. Law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over. Otherwise, as proposed by Shri Jethmalani one will have to wait for one more year for a new President to be elected, which submission cannot be accepted."
19. In State of U.P. Vs. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276, it was again recognised that the true principle of natural justice is twin fold being (i) nobody shall be condemned without hearing and; (ii) nobody shall be a judge in his own case. At the same time, it was again recognised that the rule of natural justice can be excluded by a statute and may also be waived or be excluded in case of necessity. In doing that, the Court took note of the opinion of Sir William Wade who had observed:
"But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down."
It was further stated:
"In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament."
20. In the present case, there exists no provision under the statute or the regulation containing a negative clause as may prevent the Chairman to act as the Board when there exists no other member appointed to the Board. Since there is no dispute to the valid appointment and continuance of the term of the Chairman of the Board, a vacuum neither exists nor may be allowed to arise. The Chairman is compelled by the rule of necessity to act for and as the Board under the Act.
21. A statutory body cannot remain defunct as may allow its vital functioning to lie in a state of paralysis. Since there is no doubt or dispute as to the valid appointment of the Chairman and his availability, the essential functions of the Board may continue to be performed by the Chairman on his own till appointment of other members of the Board.
22. As to the challenge to the approval to the suspension, no interference is warranted. Had the enquiry proceedings been pending, the principle being invoked would have required serious consideration. However, in the present facts, it remains undisputed that the enquiry, for whatever it may be worth, has been concluded and termination of the petitioner has been recommended, which matter is engaging the attention of the Board. All substantive rights of the petitioner would be governed by the decision of the Board. The matter pertaining to suspension was interlocutory. The stage to deal with the same has been crossed. It is too far down in time to interfere with the same in the context of the jurisdiction of this Court under Article 226 of the Constitution of India. Therefore, to that extent, interference is declined.
23. Thus, it is expected that the proceedings of approval concerning the present petitioner will be fixed for hearing by the Board acting through its Chairman within a period of four weeks from today, whereupon parties may be heard and a proper reasoned order may be passed.
24. In the meanwhile, it will be ensured that arrears of subsistence allowance and future subsistence allowance be paid out to the petitioner on month-to-month basis as and when it becomes due.
25. With the observation made above, present writ petition is disposed of.
Order Date :- 29.8.2022 Abhilash