Smt.Vineeta Gupta (Objection ... vs State Of U P Thr.Its Secy Basic ...
2012 Latest Caselaw 1362 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 4
 

 
Case :- SERVICE SINGLE No. - 2273 of 2009
 

 
Petitioner :- Smt.Vineeta Gupta
 
Respondent :- State Of U P Thr.Its Secy Basic Education Govt.Of U P Lko.
 
Petitioner Counsel :- Alka Verma
 
Respondent Counsel :- C.S.C.,Vishal Verma
 

 
Hon'ble Sudhir Agarwal,J.

1. The writ petition is directed against the order dated 19th January, 2009 passed by District Basic Education Officer, Gonda declining to renew engagement of the petitioner as Shiksha Mitra on the ground that her very initial appointment in 2003 was illegal since only 14 applications were received which did not include application of the petitioner and yet the proposal was made by Village Education Committee on 6th January, 2003.

2. The case set up by the petitioner is that initially in the year 2002 applications were invited for appointment on two posts of Shiksha Mitra in Gram Panchayat Rani Jot though the petitioner had also submitted her application but the same was not forwarded by the Principal, Primary School, Maskanwa to District Selection Committee and other 14 applications were forwarded and entertained by the Village Selection Committee. The petitioner, in the circumstances, made a complaint on 26th April, 2002. The respondent No.2 i.e. the District Magistrate, Gonda, therefore, cancelled earlier selection proceedings by order dated 26th December, 2002 and directed for fresh selection. Pursuant thereto Assistant Basic Education Officer issued an order on 26.12.2002 directing Block Development Officer to take steps for receiving fresh applications forms on 6th January, 2002. It was made clear in the aforesaid order that applications would be received under the Chairmanship of Village Development Officer, Vikas Khand Chhapia on 6th January, 2003 between 10 to 12 a.m. The applications were required to be submitted by the candidates in person. It was also directed that due receipt shall be issued to all the applicants. A copy of the letter issued by Assistant Basic Education Officer on 26.12.2002 is on record as Annexure 2 to the writ petition.

3. The petitioner thereafter claimed to have submitted her application form on 6th January, 2003, a copy whereof has been filed as Annexure 3 to the writ petition. The respondent No.5, after scrutiny of application form, proposed the name of the petitioner and one Smt. Raj Kumari Gupta for appointment on the two posts of Shiksha Mitra. The aforesaid selection was finalized and the petitioner was appointed after giving training for 30 days. The petitioner's appointment made in 2004 continued to be renewed thereafter every year.

4. It appears that in 2008, a complaint was made against the appointment of the petitioner whereupon District Basic Education Officer sought report from Assistant Basic Education Officer, Chhapia, Gonda who submitted his report on 2nd June, 2008 stating that amongst 14 application forms, received in the proceedings held in July, 2002, there was no application form of the petitioner and she has obtained selection and appointment fraudulently. Based on the aforesaid report, Basic Education Officer issued notice to the petitioner and has passed the impugned order observing that since petitioner's application form was not one of the 14 applications, hence entire proceedings of selection of the petitioner are forged and therefore, she cannot be renewed for appointment on the post of Shiksha Mitra.

5. The respondents No.3 and 4 have also filed counter affidavit in which it is not disputed that initially when selection was made, 14 application forms were received which did not include that of the petitioner. However, in para 6 of counter affidavit it is not disputed that in selection proceedings held in July, 2002, Village Education Committee in its proposal dated 29th July, 2002 recommended the name of Sri Ramesh Kumar Shukla and Smt. Tapaswani for appointment to the post of Shiksha Mitra but the said selection was cancelled by the District Magistrate, Gonda by order dated 26th December, 2002 and directed for re-proposal on the said post of Shiksha Mitra. This Court found that there was no re-proposal but a direction for fresh receiving of applications. Para 6 of counter affidavit is deliberate mis-reading of the order of District Magistrate, inasmuch as, copy of letter dated 26.12.2002 of Assistant Basic Education Officer, Annexure 2 to the writ petition clearly mention that fresh application forms be obtained. It reads as under:

^^fnukad 26-12-02 dh dkmflafyax esa ftykvf/kdkjh egksn; ds funsZ'kkuqlkj xzke iapk;r jkuh tksr ds leLr Hkkoh f'k{kk fe=ksa ds iqu% vkosnu i= vki dh v/;{krk esa fnukad 6-1-2003 dks le; 10-00 cts ls 12-00 cts ds e/; tek fd;s tk;sxsaA**

"In the counselling of 26.12.2002, as per direction of District Magistrate, re-application forms of all prospective Shiksha Mitras of Gram Panchayat Ranijot will be deposited on 6.1.2003 between 10 am. to 12 noon under your Chairmanship"

(English Translation by the Court)

6. Once it is admitted that earlier proceedings, which resulted in proposal made on 20th July, 2002 wherein 14 applications forms were considered by Village Education Committee, were cancelled by District Magistrate on 26.12.2002 and he directed for fresh application, which were to be received by District Basic Education Officer himself on 6th January, 2003 between 10 to 12 a.m., there was no question of confining enquiry to earlier proceedings which stood nullified by District Magistrate's order dated 26.12.2003, referred to by Assistant Basic Education Officer on the said date i.e. Annexure 2 to the writ petition. The respondent No.3 evidently and deliberately it appears has made a wrong enquiry into the matter concealing or ignoring deliberately subsequent proceedings and has not at all referred to the fact, whether any application form was received actually by the Block Development Officer on 6th January, 2003 or not and whether the petitioner had submitted her application form on 6th January, 2003 or not and ignoring the aforesaid facts, had passed the impugned order, which shows that respondent No.3 has not applied its mind in considering the matter properly in the light of the admitted facts, as above. The exercise of power by respondent No.3, therefore, after such a long time and that too by ignoring relevant and material facts, amounts to nothing but a malicious exercise of power and comes within the term of "malice in law"

7. The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :

"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)

8. The Apex Court further in para 9 of the judgment in S.R.Venkatraman (supra) observed:

"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."

9. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :

"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction."

10. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law , the Apex Court in para 16 of the judgment observed as under:

"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment."

11. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:

"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."

"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."

12. In brief, malice in law is when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. (See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198).

13. Since from the impugned order it is evident that no record pertaining to fresh selection pursuant to District Magistrate's order dated 26.12.2002 has been considered and on the contrary in the counter affidavit, as it is evident, instead of reading the words "fresh application forms" he read it as "fresh proposal" and thereby has tried to mislead this Court, it is not only illegal but malicious also, therefore cannot sustain.

14. In the result, the writ petition is allowed. Impugned order dated 19.01.2009 (Annexure No.11 to the writ petition) passed by respondent No.3 is hereby quashed.

15. The petitioner shall be entitled to cost which I quantify to Rs.25,000/- against respondents No.1 and 3. The cost at first instance shall be paid by respondent No.1 but it shall have liberty to recover the same from respondent No.3 i.e. the officer concerned who passed the impugned order, after making such enquiry as permissible in law.

16. Besides, the respondent No.1 shall also look into the matter and conduct appropriate enquiry into the circumstances in which the impugned order has been passed by respondent No.3 in a particular manner with a particular objective having predetermined the issue, and take appropriate disciplinary action in accordance with law.

Order Date :- 4.5.2012

KA