Sunil Pathak vs State Of U.P. And Others
2011 Latest Caselaw 6192 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 26                                                          A.F.R.
 

 
Case :- WRIT - A No. - 56967 of 2006
 

 
Petitioner :- Sunil Pathak
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Amit Manohar
 
Respondent Counsel :- C.S.C.,Anil Tiwari,Rahul Sahai
 

 
Hon'ble Sabhajeet Yadav,J.

Heard Sri Ashok Khare, learned senior counsel assisted by Sri Amit Manohar for the petitioner, Sri Sandeep Agrawal holding brief of Sri Rahul Sahai for Committee of Management and learned standing counsel for State respondents.

2. By this petition, the petitioner has challenged the order dated 25.9.2006 passed by Manager of the institution as well as resolution No.1 dated 21.9.2006 mentioned in the order dated 25.9.2006 contained in Annexure-19 of the writ petition and order dated 28/29.8.2006 passed by the District Inspector of Schools, Badaun contained in Annexure 16 of the writ petition.

3. The brief facts leading to the case are that Ganga Deen Inter College, Gurnaviganj, Badaun (hereinafter referred to as 'the institution') is a recognized institution under the provisions of U.P. Intermediate Education Act, 1921 and the payment of salaries of teachers and other staffs of the institution is governed by the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971. The selection, appointment and other disciplinary matters of teachers of recognised institution are governed by the Uttar Pradesh Secondary Education Services Selection Boards Act, 1982.

4. It is stated that the petitioner was appointed as Assistant Teacher in L.T. grade on ad-hoc basis in the institution after obtaining approval from the District Inspector of Schools dated 8.8.1990 and since then he was continuously working as such and was receiving his salary from January, 1991. Subsequently vide letter dated 31.3.1995 issued by Deputy Director of Education 3rd Region, Bareilly the services of the petitioner on the post of Assistant Teacher in L.T. grade were regularised by the order dated 16/17.5.1995 passed by the District Inspector of Schools. It is stated that there was no complaint against the work and conduct of the petitioner for about 15 years. However, one Rajeev Kumar Pathak, Vice Chairman, City Congress, Badaun made a false complaint against the petitioner and another teacher to the District Inspector of Schools on 27.8.2005. The complaint against the petitioner was that his B.Ed. degree is fictious and an inquiry be made with regard to its correctness. A true copy of the complaint dated 27.8.2005 is on record as Annexure-6 of the writ petition.

5. It is stated that the District Inspector of Schools on 6.9.2005 informed the manager of the institution about the complaint made against the petitioner and the manager of the institution vide his letter dated 8.11.2005 sought an explanation from the petitioner about the correctness of B.Ed. Degree within three days. In pursuant thereto the petitioner vide letter dated 11.11.2005 requested the manager of the institution to provide copy of the letter of the District Inspector of Schools dated 6.9.2005 and complaint made by Shri Rajiv Pathak. But the copies were not provided to the petitioner. A true copy of the letter dated 8.11.2005 and copy of the letter dated 11.11.2005 are on record as annexures-7 and 8 of the writ petition.

6. It is stated that Shri Bhuvanesh Chandra Pathak the Manager of the Institution is closely related to Shri Rajiv Kumar Pathak. They were annoyed with the petitioner as the petitioner's mother had defeated the mother of Shri Rajiv Kumar Pathak in an election. Both of them colluded and manufactured a false B.Ed. Mark sheet of 1988 with a false roll number and forged service book to harm the petitioner made a false complaint to the District Inspector of Schools and in furtherance of their illegal design Shri Bhuvanesh Chandra Pathak the manager of the Institution sent the manufactured B.Ed. Mark sheet of 1988 examination with roll no. 415 to the registrar of Sampurnand Sanskrit Vishwavidyalaya, Varanasi for verification by his letter dated 7.9.2005. Thereupon Deputy Registrar ( Examinations) of the University by his letter dated 8.9.2005 informed the manager of the institution that the 1988 mark sheet of Shiksha Shastri with roll no. 415 is forged. It is surprising that entire inquiry was over in one day. A copy of the aforesaid letters dated 7.9.2005 and 8.9.2005 are on record as Annexure Nos.9 and 10 respectively to the writ petition.

7. It is stated that the District Inspector of Schools issued a show cause notice dated 5.4.2006 to the petitioner to appear before him on 24.4.2006 along with his B.Ed. Mark sheet etc. so that a decision in the matter may be taken. The petitioner appeared on 22.4.2006 before the District Inspector of Schools and prayed for copy of the complaint dated 27.8.2005 made by Rajiv Kumar Pathak, letter dated 7.9.2005 written by the Manager to the University for verification of B.Ed. 1988 mark sheet with roll no. 415 and letter dated 8.9.2005 written by Deputy Registrar ( Examination) of the University. A copy of the letter dated 22.4.2006 is on record as annexure no. 12 to the writ petition. It is stated that the District Inspector of Schools heard the matter on 2.5.2006. The petitioner was asked to submit his reply in writing. The petitioner submitted his reply before the District Inspector of Schools on 18.5.2006 that he has passed his B.Ed. Examination in the year 1989 with roll no. 665. The petitioner also submitted a detailed reply on 28.6.2006 along with supporting documents before the District Inspector of Schools to the effect that he has passed his B.Ed. Examination in 1989 with roll no. 665 but the manager did not give him any opportunity nor he was ready to see the correct mark sheet and certificate 1989 produced by the petitioner before him.

8. It is stated that since the manager of the institution was bent upon to see that the petitioner is dismissed from service either by hook or crook and neither he was ready to see the B.Ed. 1989 mark sheet of the petitioner nor he was willing to get it verified from the university, therefore, the petitioner met Sri Rajiv Prakash Raj, District General Secretary of U.P. Madhyamik Shikshak Sangh, Badaun who by his letter dated 15.3.2006 wrote to the Registrar, Sampurnand Sanskrit Vishwavidyalaya, Varanasi for getting verified the petitioner's mark sheet of Shiksha Shastri B.Ed. Examination 1989 roll no. 665. Thereupon the Deputy Registrar ( Examinations) of the University by his letter dated 6.7.2006 informed Sri Rajiv Prakash Raj, district General Secretary of U.P. Madhyamik Shikshak Sangh, Badaun that the 1989 mark sheet of Shiksha Shastri of petitioner with roll no. 665 is verified as correct. A copy of the letter of Rajiv Prakash Raj dated 15.3.2006 and a copy of letter of Deputy Registrar dated 6.7.2006 are on record as annexures-13 and 14 respectively to the writ petition. Thereafter Sri Rajiv Prakash Raj, District General Secretary of U.P. Madhyamik Shikshak Sangh, Badaun along with his letter dated 11.7.2006 attached the verification letter dated 6.7.2006 sent by the Deputy Registrar ( Examinations ) of the University and informed the District Inspector of Schools, Badaun that 1989 B.Ed. mark sheet of the petitioner is correct. The mark sheet of 1988 does not relate to the petitioner. A copy of the letter dated 11.7.2006 is on record as annexure no. 15 to the writ petition.

9. It is stated that despite thereof the District Inspector of Schools without considering the reply of the petitioner and without considering the letter dated 11.7.2006 written by Shri Rajiv Prakash Raj, District General Secretary of U.P. Madhyamkk Shikshak Sangh, Badaun and verification made by the University on 6.7.2006 of 1989 B. Ed. Mark sheet of the petitioner and without recording any reason for not accepting the verification made by the University on 6.7.2006 of mark sheet of B.Ed. Examination 1989 of the petitioner and without getting the B.Ed. mark sheet of 1989 of petitioner verified from the University himself, he has illegally held by his order dated 28/29.8.2006 that the appointment of the petitioner was based on forged mark sheet of 1988. A copy of the letter dated 28/29.8.2006 is on record as annexure no. 16 to the writ petition.

10. It is stated that in pursuance of the order dated 29.8.2006 passed by the District Inspector of Schools, the manager of the institution issued a show cause notice to the petitioner on 5.9.2006 for initiating disciplinary proceedings against him and reply was sought from the petitioner within three days. On receipt of the said letter on 8.9.2006, the petitioner made a representation to the manger on 11.9.2006 to get his B. Ed. Examination 1989 mark sheet verified from the University. A true copy of the letters dated 5.9.2006 and 11.9.2006 are on record as Anneuxres-17 and 18 respectively to the writ petition. It is further stated that without getting the mark sheet of B. Ed examination 1989 of the petitioner verified from the University the Manager in pursuance of resolution No.1 of the Committee of Management dated 21.9.2006 dismissed the petitioner from service by his order dated 25.9.2006 with immediate effect. The copy of the resolution has not been provided to the petitioner. A photostat copy of the order dated 25.9.2006 is on record as Annexure-19 of the writ petition.

11. At the strength of assertions made in the writ petition learned counsel for the petitioner submits that the Committee of Management or the manager has no power to dismiss the petitioner from service without prior approval of the Board and they can only make a recommendation to the Board constituted under the U.P. Secondary Education Services Selection Boards Act, 1982 and it is only the Board which is competent to accord approval for dismissal of the petitioner from service, therefore, the order of dismissal passed by the Manager of the institution straight way without prior approval of the Board is wholly illegal and without jurisdiction. It is submitted that under Section 21 of the Act the Management did not obtain any prior approval of the Board for dismissing the petitioner from service as such dismissal order is wholly illegal and void ab initio and is liable to be set aside by this Hon'ble Court.

12. It is further submitted that the petitioner was a permanent Assistant Teacher in L.T. Grade and he could not be dismissed from service without holding departmental disciplinary proceedings. Since no departmental disciplinary proceedings having been held against the petitioner, the resolution of the Committee of Management and the dismissal order passed by the Manager are in violation of principles of natural justice as well as violative of Articles 14 and 16 of the Constitution of India.

13. It is further submitted that the impugned order of dismissal has been passed in contravention of Regulations 35, 36 and 37 of Chapter III of the regulation framed under the Intermediate Education Act, 1921. It is submitted that the hearing before the District Inspector of Schools was concluded on 2.5.2006. However, the order impugned relies upon a report of the manager dated 5.5.2006. The reliance was placed on report of the Manager dated 5.5.2006 without confronting the petitioner with it and as such the order of the District Inspector of Schools is totally ex parte against the petitioner with no opportunity to him to file any objection against the said report dated 5.5.2006.

14. It is further submitted that the District Inspector of Schools without considering the reply of the petitioner and without considering the letter dated 11.7.2006 written by Sri Rajiv Prakash Raj, District General Secretary of U.P. Madhyamik Shikshak Sangh, Badaun and verification made by the University on 6.7.2006 of 1989 B. Ed mark sheet of the petitioner and without recording any reason for not accepting the verification made by the University on 6.7.2006 of mark sheet of B. Ed. Examination 1989 of the petitioner and without getting the B.Ed. mark sheet of 1989 of the petitioner verified from the University himself has erroneously held by his order dated 28/29.8.2006 that the appointment of the petitioner was based on forged mark sheet of Shiksha Shashtri/B.Ed. Examination1988.

15. It is further submitted that the petitioner had been urging before the District Inspector of Schools that the petitioner has passed his B. Ed. Examination in 1989 with Roll No.665 from the University and a forged mark sheet of 1988 and a forged service book has been manufactured by the Manager in collusion with Rajiv Kumar Pathak to settle election scores with the petitioner and to harm and harass him. Even 1988 mark sheet was got verified in one day. In such a situation it was a duty of the District Inspector of Schools to have got the petitioner's B. Ed. Examination 1989 mark sheet with Roll No.665 verified from the Sampurnanand Sanskrit Vishwavidyalay, Varanasi. But the District Inspector of Schools has committed manifest error of law in not performing his duty in accordance with law due to which the petitioner has seriously been prejudiced.

16. Contrary to it, learned Standing Counsel and counsel appearing on behalf of Committee of Management of the institution by placing their respective counter affidavits have submitted that while making application for appointment on the post of Assistant Teacher in L.T.Grade in the institution, the petitioner himself has mentioned that he has obtained degree of Shiksha Shashtri (B.Ed. 1988) from Baranas University and alongwith his said application he has also filed Shiksha Shashtri (B.Ed. degree of the year 1988) bearing Roll No. 415, which after verification was found to be forged, therefore, the petitioner cannot be permitted to contend that he has obtained Shiksha Shashtri (B.Ed. degree of the year 1989) with Roll no. 665 from Sampurnanand Vishvavidyalay, Varanasi.

17. In reply to the aforesaid submission, learned counsel for the petitioner further submitted that it is not in dispute that selection of the petitioner was held in the year 1990. It is also not the case of the respondents that on the basis of 1989 B.Ed. degree the petitioner was not eligible and qualified for the said post and on the basis of marks shown in the 1989 B.Ed. mark sheet, he could not be selected and appointed on the said post and on the basis of 1988 B.Ed. mark sheet he has obtained any undue advantage in the selection process. Contrary to it, marks shown in both the B.Ed. mark sheets of the years 1988 and 1989 do not make any difference in the selection for the post, therefore, there was no occasion for the petitioner to submit forged 1988 B.Ed. mark sheet during the process of selection when he had already obtained B.Ed. degree in the year 1989 prior to his selection and appointment.

18. Having considered the rival submissions of learned counsel for the parties and on perusal of record it transpires that the impugned order dismissing the petitioner from service has been passed by Manager of the institution vide order dated 25.9.2006 with immediate effect in pursuance of direction given by District Inspector of Schools vide order dated 29.8.2006 on the ground that the petitioner has obtained his appointment on the post in question on the basis of forged mark sheet of Shiksha Shashtri (B.Ed. 1988) with Roll No. 415. In the counter affidavits filed on behalf of the respondents it is not disputed that before dismissing the petitioner from service, the Manager did not obtain prior approval of the Board constituted under U.P. Secondary Service Selection Boards Act, 1982 in short 1982 Act, therefore, there can be no scope for doubt to hold that the Management has dismissed the petitioner from service without prior approval of the Board.

19. Now question arises for consideration is that what would be its effect?. In order to find out accurate answer to this question it would be useful to refer the provisions of Section-21 of the 1982 Act as under:-

"21. Restriction on dismissal etc. of teachers.- The Management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void."

20. From a plain reading of Section 21 of the 1982 Act it is to be noted that provisions contained under the said section clearly stipulate that management shall not dismiss or remove any teacher from service or reduce in rank or reduce his emoluments or withhold his increment except with prior approval of the Board. Not only this, but the Management is also prohibited even from service of notice of removal from service upon a teacher without prior approval of the Board and if any such thing is done without such prior approval, shall be void. Thus, in my considered opinion, the provisions are mandatory in nature and non compliance of which makes action of the Management void. While enacting the said provisions the legislature itself has provided the consequence or effect of non compliance of the aforesaid mandatory provisions of Section 21 of 1982 Act without leaving any discretion to the court, therefore, the court is left with no option except to give effect to the intention of legislature, while interpreting the said provisions. Thus, in view of aforesaid legal position if any teacher is dismissed from service by the Management of the institution without any prior approval of the Board constituted under 1982 Act, the order passed by the Management would be void, thus, without any legal consequence. Any such order which is void or nullity, need not be quashed by the Court rather can very well be ignored by the Court without quashing or setting aside such order.

21. Thus, in view of the legal position aforestated, in my considered opinion, the impugned order dated 25.9.2006 passed by the Management of the institution is void, accordingly the same is without any legal consequence and is liable to be ignored by this Court. The petitioner shall be treated to be in continuous service with all consequential benefits of service despite impugned order dated 25.9.2006 dismissing the petitioner from service is passed by the Management and further the petitioner is entitled to be paid his full salary as if such dismissal order has never been passed. Any other view in the matter, in my considered opinion, would be premium on unwarranted action of the respondents. The petitioner, though willing to do assigned teaching works, has been kept away therefrom. If his services were not terminated in arbitrary and illegal manner, he would have continued to work and would have been paid his full salary during the period he was out of employment on account of impugned order dated 25.9.2006 passed by the Management. Thus instant writ petition can succeed only on limited question referred herein before.

22. However, having regard to the facts and circumstances of the case, I think it appropriate to deal with another question involved in the case as to whether the petitioner has obtained aforesaid appointment on the basis of forged mark sheet of Shiksha Shashtri (B.Ed. degree) of 1988 or not?

23. In this connection it is to be noted that after completion of continuous 15 years' service one Sri Rajiv Kumar Pathak has made a complaint against the petitioner on 27.8.2005 to the District Inspector of Schools alleging that his Shiksha Shashtri ( B.Ed.) marks sheet is fictitious. It is stated in the writ petition that Raj Kumar Pathak is close relative of Sri Bhuvanesh Chandra Pathak, Manager of the institution and was annoyed with the petitioner as the petitioner's mother had defeated the mother of Shri Rajiv Kumar Pathak in an election. therefore, both of them colluded and manufactured a false B.Ed. Mark sheet of 1988 with a false roll number and also manufactured false service book of petitioner and in order to harm him said Rajiv Kumar Pathak has made a complaint dated 27.8.2005 to the District Inspector of Schools against the petitioner alleging that his Shiksha Shashtri (B.Ed. mark sheet) of 1988 is fictitious and inquiry be made with regard to its correctness. Thereupon the District Inspector of Schools on 6.9.2005 informed the management about the complaint made against the petitioner and the Manager of the institution vide his letter dated 8.11.2005 sought an explanation from the petitioner about the correctness of aforesaid B.Ed. marks sheet within three days. In pursuant thereto the petitioner vide letter dated 11.11.2005 requested the Manager of the institution to provide copy of the letter of the District Inspector of Schools dated 6.9.2005 and complaint made by Rajiv Kumar Pathak but the copies were not provided to him.

24. It is further stated in the writ petition that the Manager of the institution sent the aforesaid manufactured B. Ed. mark sheet of 1988 bearing Roll no. 415 to the Registrar of the Sampurnand Sanskrit Vishwavidyalaya, Varanasi for verification by his letter dated 7.9.2005 . In pursuant thereto the Dy. Registrar (Examinations) of the University by his letter dated 8.9.2005 ( next day) informed the manager of the institution that 1988 mark sheet of Shiksha Shastri with roll no. 415 is forged. Thereafter, the District Inspector of Schools issued a show cause notice dated 5.4.2006 to the petitioner to appear before him on 24.4.2006 along with his B.Ed. Mark sheet etc. In pursuant thereto the petitioner appeared and prayed for copy of the complaint dated 27.8.2005 made by Rajiv Kumar Pathak, letter dated 7.9.2005 written by the Manager of the institution to the University for verification of B.Ed. 1988 mark sheet with roll no. 415 and letter dated 8.9.2005 written by Deputy Registrar ( Examination) of the University. The District Inspector of Schools heard the matter on 2.5.2006 and asked the petitioner to submit his reply in writing. Thereupon the petitioner submitted his reply before the District Inspector of Schools on 18.5.2006 stating therein that he has passed his B.Ed. Examination in the year 1989 with roll no. 665. The petitioner also submitted a detailed reply on 28.6.2006 along with supporting documents before the District Inspector of Schools to the effect that he has passed his B.Ed. Examination in 1989 with roll no. 665 but the manager did not give him any opportunity nor he was ready to see his correct B.Ed. mark sheet of year 1989 produced by the petitioner before him and he was bent upon to see that the petitioner is dismissed from service either by hook or crook, therefore, the petitioner met Sri Rajiv Prakash Raj, District General Secretary of U.P. Madhyamik Shikshak Sangh, Badaun who by his letter dated 15.3.2006 wrote to the Registrar, Sampurnand Sanskrit Vishwavidyalaya, Varanasi for getting verified mark sheet of Shiksha Shastri (B.Ed.) Examination 1989 of the petitioner bearing roll no. 665. Thereupon the Deputy Registrar ( Examinations) of the University by his letter dated 6.7.2006 informed Sri Rajiv Prakash Raj, District General Secretary of U.P. Madhyamik Shikshak Sangh, Badaun that 1989 mark sheet of Shiksha Shastri of petitioner with roll no. 665 is verified as correct. Thereafter, Sri Rajiv Prakash Raj, along with his letter dated 11.7.2006 attached the verification letter dated 6.7.2006 sent by the Deputy Registrar (Examinations) of the University and informed the District Inspector of Schools, Badaun that 1989 B. Ed. mark sheet of the petitioner is correct. The mark sheet of 1988 does not relate to the petitioner.

25. It is further stated in the writ petition that the District Inspector of Schools without considering the reply of the petitioner and the letter dated 11.7.2006 written by Shri Rajiv Prakash Raj, District General Secretary of U.P. Madhyamkk Shikshak Sangh, Badaun and verification made by the University on 6.7.2006 of 1989 B. Ed. Mark sheet of petitioner and without recording any reason for not accepting the verification made by the University on 6.7.2006 of mark sheet of B.Ed. Examination 1989 of the petitioner and without getting 1989 B.Ed. mark sheet of petitioner verified himself from the University, he has passed the impugned order dated 28/29.8.2006 holding that the appointment of the petitioner was based on forged B.Ed. mark sheet of 1988.

26. In my considered opinion, in given facts and circumstances of the case, the District Inspector of Schools was not justified in coming to the said conclusion before verifying the B. Ed. mark sheet of petitioner of year 1989 with roll no.665. In the impugned order dated 28/29.8.2006 he did not record any reason as to why the petitioner's B. Ed. mark sheet of year 1989 bearing Roll No.665 could not be accepted, which was also sent by Rajiv Prakash Raj, District General Secretary of Madhyamik Shiksha Sangh, Badaun, after verification from the University along with his letter dated 11.7.2006. In my view, the District Inspector of Schools was required to get the Shiksha Shashtri (B.Ed. degree) of 1989 of the petitioner with Roll No. 665 either verified from the University or it was necessary for him to accept the version of Sri Rajiv Prakash Raj contained in his letter dated 11.7.2006 who along with his said letter has sent the verification made by the University on 6.7.2006 of 1989 B.Ed. mark sheet of the petitioner and without doing so it was not open for him to hold that the B.Ed. mark sheet of 1988 relates to the petitioner and it was a forged document. Thus, the District Inspector of Schools has failed to perform his duty in accordance with law due to which the petitioner has been seriously prejudiced.

27. Not only this, but as submitted by the learned counsel for the petitioner that it is not in dispute that the selection of the petitioner was held in the year 1990. It is not the case of respondent that on the basis of 1989 B.Ed. degree the petitioner was not eligible and qualified for the said post and on the basis of marks shown in 1988 B.Ed. mark sheet, he has taken advantage in said selection which he could not get on the basis of 1989 B.Ed. mark sheet. In the wake of these facts and circumstances of the case in my opinion, there could be no occasion for the petitioner to submit B. Ed. marks sheet of year 1988 bearing Roll No.415 when he could not get any advantage from said marks sheet. Therefore, in my view, the District Inspector of Schools was not justified in refusing to get the mark sheet of B. Ed. Examination, 1989 of petitioner bearing Roll No.665 verified from Sampurnanand Vishwavidyalaya, Varanasi before coming to the aforesaid conclusion. Thus, in given facts and circumstances of the case the impugned order dated 28/29.8.2006 passed by District Inspector of Schools cannot be sustained and the same is hereby quashed.

28. The petitioner is reinstated in service with all consequential benefits including payment of arrears of salary with liberty to the respondents to hold fresh inquiry in view of observations made herein before and pass appropriate order in accordance with law. The arrears of salary shall be paid to the petitioner within two months from the date of production of certified copy of this order before the authorities concerned and further current salary shall be paid to him regularly month to month unless any fresh order after holding fresh inquiry against him as indicated herein before is passed. However, it shall be open for the State Government to realise the amount paid towards arrears of salary to the petitioner equally from Sri Bhuvanesh Chandra Pathak, the then manager of the institution as well as from the then District Inspector of Schools, Badaun, who has passed the impugned order dated 28/29.8.2006, contained in Annexure no.16 to the writ petition.

29. With the aforesaid observation and direction, writ petition succeeds and is allowed to the extent indicated herein before.

Order Date :- 28.11.2011

SL/-