Allahabad High Court
Anand Vardhan Mishra And Others vs State Of U.P. And Others on 21 January, 2013
Bench: Sushil Harkauli, Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 33 Case :- SPECIAL APPEAL No. - 84 of 2013 Petitioner :- Anand Vardhan Mishra And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Uma Nath Pandey,Ashok Khare Respondent Counsel :- C.S.C.,P.N. Tripathi Hon'ble Sushil Harkauli,J.
Hon'ble Amreshwar Pratap Sahi,J.
This intra-court appeal has been filed with a grievance that the learned Single Judge while entertaining the writ petition filed by the appellant-petitioners has not granted the entire interim relief as prayed for in the writ petition that is likely to cause, not only prejudice to the appellants, but also to some of the institutions that would be left with no teachers thereby affecting the educational career of the students of such institutions where the appellant petitioners had been selected and appointed.
The appellants herein filed the writ petition challenging the orders dated 4.12.2012 passed by the Director of Education whereby the selection and appointment of the petitioner appellants has been annulled on the ground that the selections were de-hors the relevant rules and that the advertisement against which such selections and appointments were made being contrary to the rules were invalid. Accordingly, the entire selection process was nullified on the ground of violation of the provisions of the Uttar Pradesh Madhyamik Sanskrit Shiksha Parishad Service Rules, 2009.
A consequential order passed by the Joint Director of Education, Basti dated 12.12.2012 in pursuance of the order of Director of Education was also questioned whereby recovery of salary from the appellants was directed. The respondents were called upon to file their counter affidavit within one month with a direction to list the writ petition on 8th of February, 2013. The interim order dated 3rd of January, 2013 protected the petitioner appellants only from recovery of any salary that was sought to be made under the order dated 12.12.2012.
The background in which this dispute arose appears to be that the Director of Education by a D.O. Letter dated 18th of May, 2011 issued instructions to the Regional Directors of Education for taking steps under the 2009 Rules for selection and appointment. It appears that the posts in Basti Region were advertised in Hindi Daily Rashtriya Sahara on 16.6.2011 and The Times of India on 18.6.2011. Applications were invited against the vacancies of 10 posts of Principal/Head Master and 28 posts of Assistant Teachers in this region. The selection proceedings were held on 4.8.2011 and the outcome thereof was intimated to the concerned institutions and the District Inspector of Schools on 11.8.2011.
The Director of Education issued a Circular on 15th of September, 2011 to all the Regional Joint Directors of Education throughout the State informing that certain writ petitions had been filed before the Lucknow Bench where a challenge had been raised to the process of selection, and therefore keeping in view the orders passed in those pending writ petitions, the results of the selections shall not be declared without the prior approval of the Director of Education. Accordingly, the District Inspector of Schools sought further instructions on which clarifications were sought through various communications thereafter. The Regional Joint Director of Education, Basti was also called upon to submit his explanation and directions were issued not to make any further payment of salary. The Joint Director of Education, Basti Region thereafter sent his clarifications intimating the outcome of the selections and also the manner of the process of selection. The Regional Joint Director of Education further informed that the selections were held in accordance with the 2009 Rules. The District Inspector of Schools, Basti through his letter dated 19th of May, 2012 informed the Directorate that in view of the directions issued by the Regional Joint Director of Education, Basti, salary was being paid under the orders dated 21.10.2011.
It appears that certain complaints were again received whereupon the Regional Joint Director of Education, Basti was called upon to submit his further explanation and for taking action in the matter. This explanation was called for by the Director in view of the powers conferred under the 2009 Rules contained in Chapter II Para 15 where the Director of Secondary Education has been empowered to nullify any selection proceedings if they are found to be in violation of the prescribed rules.
A three member committee is stated to have been constituted for carrying out the enquiry whereupon the documents pertaining to the selections of Basti Region were called upon that were submitted for enquiry.
Several members of the State Legislative Council appear to have raised this question in respect of selections throughout the State in Sanskrit institutions which were also taken notice of and reports were called for. Reflections were also cast on the functioning and the selections held during the regime of the previous elected government in office. The Director of Education further found that action had been taken even in violation of the model code of conduct that was promulgated for the Assembly elections and then in the ultimate analysis the Director of Secondary Education upon a consideration of the said complaints and the alleged violations passed the impugned order on 4th of December, 2012. The order was also founded on the joint enquiry of the team that had been constituted and had submitted a report.
The petitioners, out of whom some had been elected as head of an institution, and the majority of them as assistant teachers, had received salary who were called upon to refund the amount of salary received by them by the impugned order dated 12.12.2012 whereafter they challenged the order of cancellation dated 4.12.2012 and 12.12.2012 in the writ petition giving rise to the present special appeal.
As noted above the learned Single Judge granted a partial interim order staying the recovery against the appellants and called upon the respondents to file a counter affidavit. It is in this background that the appellants have come forward in this appeal to contend that the learned Single Judge ought to have granted an interim relief of allowing the appellants to continue on their post and receive salary as the impugned order dated 4.12.2012 cancelling the selection and appointment was in violation of principles of natural justice, inasmuch as, no notice or opportunity was given either to the institutions where the appellants were appointed or to the appellants in person. It was thus alleged that this amounts violation of Article 14 of the Constitution of India. While narrating their cause the petitioner appellants in paragraph 37 of their writ petition have enumerated the grounds on which the impugned orders were passed and raised a challenge to the said grounds contending that none of them were legally sustainable.
Sri Ashok Khare, learned Senior Counsel assisted by Sri Uma Nath Pandey for the appellants has reiterated those submissions and has urged that none of the said grounds could have been made the basis for passing of the impugned orders as they are factually non-existent and legally unsustainable and further that the impugned orders having been passed in violation of principles of natural justice the orders deserve to be quashed.
Replying to the aforesaid submissions leaned Standing Counsel urges that the matter is still engaging the attention of the learned Single Judge and that the selections having been vitiated for non compliance of the 2009 Rules the impugned order will be subject to any scrutiny by the learned Single Judge. Sri Shukla learned Standing Counsel who represents the State including the respondents 1 to 12 contends that no counter affidavit has been filed till date in the said writ petition but on the basis of the records he has no objection to the matter being disposed of finally at this stage itself. Learned counsel for the parties therefore agree that this appeal be disposed of together with the pending writ petition no. 68458 of 2012.
The respondent Nos. 13 to 30 are the respective managements of those institutions where the appellants had been appointed and appear to be supporting the cause of the appellants. We therefore do not propose to issue any notice to those respondents at this stage keeping in view the nature of the order this is proposed to be passed.
Sri Ashok Khare contends that the order being in violation of principles of natural justice, the Director of Education can be commanded to hear the appellants and then pass appropriate orders after giving an opportunity of hearing. To this proposal of Sri Ashok Khare, the learned Standing Counsel contends that the matter can be disposed of finally but the appellants cannot be permitted to continue on their post or receive salary till such enquiry is finalised and orders are passed.
In view of the aforesaid position that emerges and with the consent of the parties the court finds that the impugned orders dated 4.12.2012 and 12.12.2012 have been passed without complying with the principles of natural justice. The appellants had admittedly undergone the selection process after having applied against the post in question and had been appointed. It is also stated that they had received salary for some time but the same was stopped and ultimately the impugned orders have been passed for even recovering the said salary that had been paid to the appellants. This in our opinion could not have been done without following the elementary rules of natural justice, inasmuch as, once the Director of Education had undertaken an enquiry and had relied upon an enquiry report then the appellants were entitled entitled to an opportunity of hearing prior to the cancellation of their selection and appointment. The order of cancellation and appointment therefore suffers from the violation of principles of natural justice. From a perusal of the orders impugned in the writ petition we do not find any recital that opportunity had been given to the appellants or to their institutions prior to the passing of the impugned order by the Director. This being the position, we hold that the petitioners were entitled for an opportunity of hearing before determining their rights to continue and receive salary on the post in question.
The appellants have urged that the advertisement was in consonance with the 2009 Regulations and had been issued after identifying the vacancies and selections were held after following the process in accordance with law. They also urged that the rule of reservation as indicated in the impugned orders were not applicable and the same have been wrongly applied while passing the impugned order. We find that the Director of Education has not taken notice of the relevant Government Orders as also the pronouncements of this court including the judgment of the Full Bench in the case of Heera Lal Vs. State of U.P. & Ors., reported in 2010 (6) ADJ Pg. 1 (F.B.) to determine the extent of applicability of reservation institution-wise. The contentions therefore made by the appellants in paragraph 38 to 56 of the writ petition raise grounds that require an objective determination after giving an opportunity of hearing to the appellants. Apart from this the question of recovery of salary would be dependent upon such a decision being taken in accordance with law and therefore the court also finds that the order passed by the Regional Joint Director of Education for recovering salary cannot be implemented so long as appropriate orders are not passed as observed hereinabove.
However keeping in view the nature of the alleged irregularities that have been referred to in the impugned order it would be appropriate that all the appellants are given a post decisional hearing by the Director of Secondary Education who shall now grant an opportunity to all the appellants which they shall avail of by filing their written representations within a period of three weeks from today. The magnitude of the alleged irregularities impels us to allow this procedure to be accepted as observed by the apex court in Canara Bank Vs. Debasis Das, 2003 (4) SCC Pg. 557 Para 23 and 24. Nonetheless it is the obligation of the authority to objectively deal with such matters by separating "the grain from the chaff" as observed by the apex court in the case of Union of India Vs. Rajesh P.U., Puthuvalnikathu and another, (2003) 7 SCC Pg. 285 and in the division bench judgment of our court in the case of State of U.P. & Ors. Vs. Pawan Kumar Singh & Ors., 2009 (3) ADJ Pg. 166.
The Director thereafter shall proceed to examine the grievance of the appellants in the light of the observations made hereinabove and after giving an opportunity of hearing to them and proceed to pass an appropriate order without being influenced by the conclusions drawn by him in the order dated 4.12.2012. We further direct that till such orders are passed as observed hereinabove, the Regional Joint Director of Education shall not proceed to implement the order dated 12.12.2012 for recovery of salary from the appellants which had been stayed by the learned Single Judge under the interim order dated 3.1.2013.
The Director of Secondary Education shall proceed to pass appropriate orders within three months of the date of production of a certified copy of this order before him. This appeal and writ petition no. 68458 of 2012 stand disposed of finally with the consent of the parties. A copy of this order shall be placed on the records of writ petition no. 68458 of 2012 by the office as the said petition has also been disposed of by us today.
Order Date :- 21.1.2013
Sahu
(A.P. Sahi,J.) (Sushil Harkauli,J.)