Allahabad High Court
Basu Dev Singh vs State Of U.P. And 4 Others on 7 March, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2024:AHC:41908 Court No. - 34 Case :- WRIT - A No. - 4071 of 2020 Petitioner :- Basu Dev Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Girja Shanker Mishra,Govind Kumar Singh (Senior Adv.),Sankalp Narain Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard Shri H.N. Singh, learned Senior Counsel assisted by Shri G.S. Mishra, learned counsel for the petitioner and Shri Neeraj Tripathi, learned Additional Advocate General for the State-respondents.
2. The petitioner before this Court has been working as a lecturer in the institution and his services were regularized way back on 25.04.2006. He is aggrieved now by the order passed by the Regional Joint Director of Education dated 19.03.2020, holding the appointment of the petitioner to be bad for being result of fraud and forgery and thus directed for stoppage of payment of salary of the petitioner, and also the consequential order passed by the District Inspector of Schools on 20.03.2020 withholding the payment of salary of the petitioner and further directing the authorized controller to take appropriate action under the Intermediate Education Act, 1921 against illegal and fraudulent appointment of petitioner.
3. Briefly stated facts of the case are that petitioner was initially appointed on ad-hoc basis as a lecturer against a substantive vacancy on 20.01.1991. His appointment came to be approved on 07.03.1991 and thus petitioner started functioning in the institution and was paid salary accordingly. In view of the section 33C of the U.P. Secondary Education (Services Selection Board) Act, 1982, the Regional Joint Director of Education passed an order with the condition that if any fact was found to have been concealed, his regularization shall automatically stands cancelled. This order was passed on 25.04.2006 and thereafter nothing happened until a dispute arose of seniority amongst three teachers namely the petitioner, one Uday Narayan Dwivedi and Chandbhan yadav so as to be appointed as officiating principal of the institution. It transpires that the Regional Joint Director of Education who was seized with the matter, called for some report and on the basis of report, he questioned the order of the District Inspector of Schools giving charge to one Sri Uday Narayan Dwivedi as officiating principal of the institution and directed that the order be immediately recalled. It is in that process that he held, since one Ramujagir Shukla was recommended to be appointed with the formal approval granted by the District Inspector of Schools on 07.03.1991 and since Ramujagir Shukla did not turn up to join then his appointment must have been cancelled and then only any financial approval could have been granted to another teacher Basu Dev Singh (petitioner) as lecturer in Geography but the despatch register did not demonstrate the approval order to have been issued to either Ramujagir Shukla or Basu Dev Singh and thus concluded that appointment of petitioner Basu Dev Singh to be prima facie bad and directed that the payment of salary of Basu Dev Singh be stopped. It is as a sequential to the order passed by the Regional Joint Director of Education that District Inspector of Schools passed order on 20.03.2020.
4. Two fold argument has been advanced:
(i) Once the regularization order had been passed, taking recourse to the provisions contained under the U.P. Secondary Education (Services Selection Board) Act, 1982, until and unless that order was recalled or reviewed by putting petitioner to prior notice and giving him reasonable opportunity of hearing, the Regional Joint Director of Education was not justified in ordering for stoppage of payment of salary of the petitioner and,
(ii) On a mere apprehension and doubt being raised regarding the despatch letter of the year 1991, the Regional Joint Director of Education could not have returned a finding that the approval order to the appointment of the petitioner was forged/fraudulent.
5. Yet another argument has been advanced that the Regional Joint Director of Education does not act as court to issue an interim direction that since prima facie the approval order appeared to be doubtful, so the payment of salary be stopped despite the fact that petitioner's regularization had already taken place.
6. Meeting the arguments, learned Standing Counsel appearing for the State-respondent has sought to urge that the very regularization order contained a condition that if any fact was concealed in obtaining the regularization, it would stand automatically cancelled, so there was no question of passing any order for recalling the order of regularization. He has further sought to urge that both the despatch letters of financial approval in favour of one Ramujagir Shukla and that of the petitioner were bearing same despatch number and, therefore, there was no question of any doubt. According to him the despatch number was in respect of some requisition sent to the Manager of Janta Inter College, Ranipur as per entry and wherein neither the name of the petitioner, nor Ramujagir Shukla has been mentioned.
7. Having heard learned counsel for the parties and perused the record, I proceed first to examine the order passed by the Regional Joint Director of Education impugned herein this petition. Closely examining the order passed by the Regional Joint Director of Education dated 19.03.2020, I find that the Regional Joint Director of Education has not doubted the existence of the vacancy. All that he has doubted is the financial approval accorded to the petitioner's appointment on 07.03.1991, bearing letter No.6272 but this, as per records, was meant for Janta Inter College, Ranipur, Mau for some requisition and not in relation to the approval of petitioner's appointment. This finding is based upon a discussion held qua report of District Inspector of Schools dated 12.03.2020, that was regarding despatch number entered in his office despatch register. This finding if compared with the document brought on record in the counter affidavit at page No.34, then it is seen to be in reference to some requisition being sent in respect of a vacancy and not in relation to approval order of Ramujagir Shukla. This extract of the despatch register, typed copy of which has been filed, has no head and tail in terms of date and year.
8. The report that was filed by the District Inspector of Schools dated 12.03.2020 upon which the finding has come to be returned is verbatim as mentioned in the order of the Regional Joint Director of Education. Thus the Regional Joint Director of Education has not applied his independent mind and just mechanically acted upon report and virtually reproduced the same in passing the order. He did not even care to examine as to whether petitioner was guilty of any misrepresentation or fraud in getting appointment and financial approval. This, of course, could have been done, had the petitioner been put to notice but the order clearly shows that the petitioner was never put to notice, nor the order proceeds to hold any inquiry in the matter.
9. Looking to the regularization order which has been brought on record as annexure No.2 to the writ petition, carries a condition that if any fraud was committed by management or principal then the order would automatically stand cancelled. In order to find answer to the question as to whether there was any fraud committed by the management or the principal in the matter of approval to the appointment of petitioner, in my considered view a notice ought to have been given to the management and the principal in the first instance but surprisingly Joint Director of Education while determining the question of seniority travelled beyond the scope of dispute pending before him in holding that the appointment of the petitioner was bad that too without issuing any prior notice to the petitioner, principal and the Manager of the institution. There is no finding that the petitioner committed any fraud or misrepresentation, nor any finding has been returned regarding fraud or misrepresentation at the end of Principal or Manager of the institution. Thus, on this ground alone, the impugned order passed by the Regional Joint Director of Education is liable to be quashed and so the order passed by the Regional Joint Director of Education and consequential order of District Inspector of Schools cannot be sustained in law. Very recently, in the case of Radhey Shyam Yadav and another Etc. Vs. State of U.P. and others (AIR 2024 SC 260) decided on 03.01.2024, Supreme Court relied upon its earlier authority in the case of Chief Engineer, M.S.E.B and Another Vs. Suresh Raghunath Bhokare (2005) 10 SCC 465 (AIR 2005 SC 1622), and vide paragraph 5, held thus:
"5. The entire basis of the dismissal of the appellant depends upon the factum of the alleged misrepresentation attributed to the respondent. The Industrial Court in its impugned order has noticed the fact that the respondent was appointed in April 1994 pursuant to the selection procedure followed by the competent authority and that he was selected by the panel of Selection Committee consisting of 6 members which included the very same Social Welfare Officer who had sent the proposal including the name of the respondent for appointment. It also noticed the fact that the selection in question was made after an oral interview and the required test as also the medical examination. The Industrial Court also noticed the fact that the appointment of the respondent was confirmed after one-year period and thereafter the respondent has been working without any complaint. The said Industrial Court also noticed the fact that the termination of the respondent was based on a showcause notice issued on 5-7-1999 which was replied to by the respondent on 17-7-1999 and the termination was made in a summary procedure permissible under Rule 90(b) of the Service Regulations.The Industrial Court after perusing the pleadings and the notice issued to the respondent came to the conclusion that the alleged misrepresentation which is now said to be a fraud was not specifically pleaded or proved. In the show-cause notice, no basis was laid to show what is the nature of fraud that was being attributed to the appellant. No particulars of the alleged fraud were given and the said pleadings did not even contain any allegation as to how the appellant was responsible for sending the so-called fraudulent proposal or what role he had to play in such proposal being sent. It also noticed from the evidence of Mr Waghmare, Social Welfare Officer who sent the proposal before the Labour Court that he did not utter a single word as to whether the said supplementary list was ever called for by the department concerned or not. Thus applying the basic principle of rule of evidence which requires a party alleging fraud to give particulars of the fraud and having found no such particulars, the Industrial Court came to the conclusion that the respondent could not be held guilty of fraud. The said finding of the Industrial Court has been accepted by the High Court. Mr. Bhasme though contended that the fraud in question was played in collusion with the Social Welfare Officer and 2 other employees of the Board and action against the said 2 employees of the Board has been taken, but by that itself we are unable to accept the argument of Mr. Bhasme that there is material to support the contention of the Board that the appellant had also contributed to making the misrepresentation at the time of applying for the job with the Board. In the absence of any such particulars being mentioned in the showcause notice or at the trial, attributing some overt act to the respondent, we do not think the Board can infer that the respondent had a role to play in sending a fraudulent list solely on the basis of the presumption that since the respondent got a job by the said proposal, the said list is a fraudulent one. It was the duty of the Board to have specifically produced the material to prove that the respondent himself had the knowledge of such a fraud and he knowingly or in collusion with other officials indulged in this fraud. Since there is no such material on record, on the facts of the instant case, the Industrial Court and the High Court have come to the right conclusion that the alleged fraud has not been established by the appellants, hence, this is not a fit case in which interference is called for. This appeal, therefore, fails and the same is dismissed."
(emphasis added)
10. Thus, the Court took a view that if the beneficiary is not liable to be charged with any misrepresentation or any kind of involvement in any conspiracy for securing such appointment, such a teacher cannot be dismissed from service for such irregularity in appointment. Once, the appointment has been made and a teacher has been made to continue for a very long time like two decades or more, now to fire such a teacher by one stroke of pen only on the ground that some despatch register did not show to be addressed to the institution granting approval to the petitioner, is not justifiable. Further, it has been held in the said judgment that if there is no cancellation of appointment order or cancellation of approval order, then such teacher is liable to be treated in the service. The Court in that case has also held vide paragraph No.34 which reads thus:
"34. We feel that the appellants were not at fault and the State could not have abruptly stopped their salaries. Accordingly, we set aside the judgments of the High Court dated 15.09.2021 in Special Appeal Nos. 1435/2013 and 1445/2013 and direct that the State shall pay the salaries of the appellants for the period from 25.06.1999 till January, 2002 in full. We also direct that insofar as the period from October, 2005 till today is concerned, the State shall pay the appellants 50% of the backwages. Since the appointment order and the approval order are still in force, we declare that the appellants have always been and are deemed to be in service. Apart from 50% backwages, as ordered above, we direct that all consequential benefits, including seniority, notional promotion, if any, and fitment of salary and other service benefits due, be granted to the appellants. We direct the State to comply with these directions within four weeks from today. We also direct that the appellants be allowed to commence work within the said period of four weeks."
11. Thus, there being no finding of fraud or misrepresentation at the end of the petitioner or the Manager of the Committee of Management under the order impugned, the earlier order of regularization cannot be said to have stood cancelled automatically and in such circumstances, therefore, the order passed by the Regional Joint Director of Education dated 19.03.2020 and the consequential order passed by the District Inspector of Schools dated 20.03.2020, are held to be bad for want of authority of law.
12. Besides the above, it is also worth noticing that the matter of legality of the appointment is sought to be inquired into in a seniority dispute. The law is well settled that in the matters of the seniority dispute, the legality and validity of an appointment neither can be questioned, nor can even be gone into, instead it is only to be seen as to who was appointed when and whether under the relevant regulations of the Intermediate Education Act 'A' is senior to 'B' or 'B' is senior to 'A'. Questioning the legality of appointment in the matter of seniority is going too far to adjudicate upon an issue which is never raised. A Full Bench judgment of this Court in the case of Asha Saxena Vs. S.K. Chaudhari and others reported in 1991(2) UPLBEC 1202 held that while deciding the matter of seniority even the power under Section 16E(10) ought not to have been exercised at a very belated stage. Referring to a judgment of the Supreme Court in the case of Ram Sarup Vs. State of Haryana (AIR 1978 SC 1536), the Full Bench has observed thus:
"That the three teachers should be deemed to have been appointed from the date on which they would acquire qualifications for being promoted to the post of lecturers. At the very outset it may be mentioned that the earlier writ petition of Dr. Asha Saxena had been allowed inasmuch as complete material had not come before the Full Bench regarding the fact that Dr. Asha Saxena had filed objections immediately after her promotion which had been rejected and had become final. It has also not been brought to the notice of the Full bench that seniority list grade-wise was prepared every year after the incorporation of Chapter III in the year 1976. It may also be noted that Dr. Asha Saxena has not challenged the validity of the appointment and had only made a challenge to the seniority list. One fails to understand that after a lapse of nearly 17 years the Regional Inspectress of Girls Schools referred the matter to the Director of Education for adjudicating the question as to whether the appointments were valid or not. In our opinion, the exercise of power by the Regional Inspectress of Girls Schools on the facts and circumstances of the case is wholly arbitrary as that power could not be exercised after lapse of 17 years. The objections filed by Dr. Asha Saxena in the year 1986 which are contained in Annexure "3" to the writ petition are liable to be rejected inasmuch as the ground that she did not know the provision of Clause 3(1)(bb) in Chapter II was of no avail to her. The seniority lists were being prepared year after year after 1975-76 and the objection filed by Dr. Asha Saxena after the lapse of nearly 11 years was not liable to be entertained as has been held by the Supreme Court in the case of Malcom Lawrence Cecil D'Sousa (1975 L.I.C. 816) (supra). In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16E(10) of the Act we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the /apse of 17 year by the Director of Education under Section 16E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time. In our opinion, the order of the Regional Inspec-tress of Girls Schools referring the matter to the Director of Education under Section 16E(10) is thus liable to be quashed."
(emphasis added)
13. I have also gone through each paragraphs of the counter affidavit filed on behalf of the State-respondents and sworn by the District Inspector of Schools, Mau and I do not find there to be any pleadings qua fraud or misrepresentation committed by the petitioner or the Manager of the Committee of the Management. If any fraud was committed in the office of the District Inspector of Schools, it cannot be presumed that it was at the instance of the manager or the assistant teacher, the petitioner in this case. All these facts should have been brought to the notice of the Regional Joint Director of Education when the regularization of the petitioner's service was being considered. Having not done so, on mere apprehension or prima facie view, such impugned orders cannot be passed.
14. In view of the above writ petition succeeds and is allowed. The impugned orders, passed by the Regional Joint Director of Education dated 19.03.2020 and the consequential order passed by the District Inspector of Schools dated 20.03.2020, are hereby quashed. No order as to cost.
Order Date :- 7.3.2024 K.K.Tiwari