Smt. Anita Tomar vs Regional Assistant Director Of ...
2013 Latest Caselaw 4786 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 24 
 
Case :- WRIT - A No. - 29559 of 2003 
 
Petitioner :- Smt. Anita Tomar 
 
Respondent :- Regional Assistant Director Of Education (Basic) & Ors. 
 
Counsel for Petitioner :- Ratnesh Kumar Pandey 
 
Counsel for Respondent :- Mahendra Pratap,S.C.,V.K. Sharma 
 
....................
 

 
Hon'ble Pradeep Kumar Singh Baghel,J. 

1. Petitioner is an assistant teacher in a Junior High School. She preferred this writ petition seeking a writ or certiorari to quash the order dated 24.1.2003 passed by Regional Assistant Director of Eduction (Basic) Ist, Region, Meerut and consequential order dated 17.2.2003 passed by the District Basic Education Officer, Bulandshahar and the order dated 22.2.2003 issued by the Management of the institution.

2. Briefly stated, the facts of the case are that Adarsh Sheo Kanya High Schools, Shyana, district Bulandshahar is a recognized institution. The education is imparted up to the VIII standard. It is stated that it is administered by the Committee of Management and receives aid out of State fund. The provisions of The Uttar Pradesh Basic Education Act, 1972 and U.P. Recognized Junior High Schools (Payment of salaries of Teachers and other Employees) Act, 1978 are applicable to the institution.

3. It is stated that in the said institution a vacancy of an assistant teacher arose on account of retirement of a regular teacher Smt. Radha Rastogi, as assistant teacher on 30.6.2002. The Committee of Management sought a permission from the Basic Education Officer to allow the management to make a selection against the said vacancy. It is stated that the respondent no. 2 by order dated 4.7.2002 permitted the the management to fill up the said vacancy. A copy of the order dated 4.7.2002 has been brought on record by the petitioner as annexure-2 to the writ petition.

4. Pursuant thereto, the Committee of Management had issued an advertisement in the Newspaper namely 'Deeksha' on 29.9.2002. The petitioner made an application against the said vacancy and duly constituted committee considered the candidature of the petitioner.

5. It is stated that in the Selection Committee Sri Bharat Vashishtha was as a member on behalf of Basic Education Officer. In pursuance of the said advertisement only 11 candidates made applications however, only 8 candidates turned up at the time of interview. It is averred by the petitioner that none of the candidates were from the Scheduled Castes. A copy of the Minutes of the selection Committee is enclosed as annexure-6 to the writ petition. A perusal of the said minutes of the Selection Committee indicates that the members of the Selection Committee have made their signatures on the said minutes. The Committee of management forwarded the papers of selection to the office of Basic Education Officer for his approval. The basic Education Officer on 28.10.2002 accorded approval for the appointment of the petitioner. A copy of the said approval has been brought on record as annexure -11 to the writ petition.

6. It is stated that thereafter the appointment letter was issued and the petitioner joined his duty. In the meantime, respondent no. 1 passed the order dated 24.1.2003 whereby he issued a direction to the Basic Education Officer to cancell the approval granted to the petitioner on the ground that in the institution no scheduled castes candidate is working and as such there is violation of Government Order dated 7.2.1990.

7. Consequent upon, the Basic Education Officer has cancelled his approval granted earlier to the petitioner vide order dated 17.2.2003 and the management has terminated his services. A counter affidavit has been filed on behalf of respondent no. 2. The stand taken therein is that there are various Government orders issued from time to time which were circulated by the Director of education (Basic) to all the Assistant Directors of education (Basic) and the District Basic Education Officers wherein it is provided that against the reserved post no general candidate can be appointed. It is also stated in the Government Order dated 5.6.1999 that if the institution is brought on grant in aid list and reservation quota is not complete, the first vacancy which will occur shall be exhausted by the reserve candidate.

8. I have heard Sri Sidharth Varma, learned counsel for the petitioner and learned Standing Counsel Sri J.K.Tiwari.

9. Learned counsel for the petitioner submits that the approval granted to the petitioner has been cancelled in utter disregard to the principles of natural justice as before cancelling the approval granted to the petitioner, no notice or opportunity has been given to him. He has drawn attention of the Court to the paragraph no. 13 of the writ petition wherein a statement has been made that without giving any notice or opportunity the Basic Education Officer has cancelled the approval of the petitioner. He further urges that respondent no. 1 is not a competent authority to pass the order for cancellation under the provision of Basic Education Act. The Regional Assistant Director of Education (Basic) has no power to issue any such direction. He lastly urges that the advertisement was made in consonance of the Government order which was mention in the advertisement that if the candidate of the reserve category is not available in that event it would be filled up by the general candidate. Since no scheduled castes candidate was available, there is no error in the selection of the petitioner.

10. Sri J.K.Tiwari, learned Standing Counsel submits that the Assistant Director (Basic) has rightly exercised its power as various Government Order which is referred in his order provides that the provisions of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes ) Act, 1994, must be complied with.

11. In the present case as there was no Scheduled Caste candidate working in the institution and the Basic Education Officer has erroneously approved the appointment of the petitioner therefore the Assistant Director of Education was justified in issuing the said direction.

12. I have considered the rival submissions of the respective counsels.

13. It is not disputed that a vacancy in Assistant Teacher arose on account of retirement of a regular teacher Smt. Radha Rastogi. The Basic Education Officer on the request of committee of management had accorded his permission to fill the post. In the advertisement also the post was advertised for Scheduled Caste candidate. However, a note was appended that in case Scheduled Caste candidate will not be available then the post can be filled by the general candidate. The Basic Education Officer nominated his nominee in the Selection Committee. From the minutes of the Selection Committee which has been signed by all the members including the nominee of the Basic Education Officer, it is evident that no Scheduled Caste candidate was available and for the said reason the petitioner was selected on the basis of his merit and the Basic Education Officer accorded his approval.

14. After the approval was accorded the Assistant Director (Basic) vide communication dated 24.1.2003 directed the Basic Education Officer to cancel the approval of the petitioner on the ground that the selection was made contrary to the various Government Orders referred in his communication. The Basic Education Officer in compliance of the direction issued by the Assistant Director of Education (Basic) without issuing any notice to the petitioner has cancelled the approval of the petitioner.

15. Under the Uttar Pradesh recognized Basic Schools (Junior High Schools) (recruitment and Conditions of Services of Teachers) Rules, 1978, the Basic Education Officer is the competent authority to accord approval, if he had accorded approval contrary to the provisions of law, it was obligatory on him to give opportunity to petitioner and the management before cancelling the order.

16. Pertinently the Basic Education Act, 1978 Rules do not give any power of review to the Basic Shiksha Adhikari. He has very limited power to recall/review his order on the ground of fraud or misrepresentation of facts.

17. There is no allegation in the impugned order that order was obtained by misrepresentation of fact or fraud in as much as the nominee of the Basic Education Officer was present in the Selection Committee.

18. The order of the Basic Education Officer is vitiated on another ground also that he has passed the order at the dictate of the superior authority. It is well settled law that if an officer has been authorities by the Statute to exercise power he alone can exercise that power and if he passed the order at the behest of the superior officer then the order is vitiated.

19. Professor De Smith, in his Principles of Judicial Review 1999 Edition, page 240 has aptly said :-

"an authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure."

20. Professor Wade in his Administrative Law, 7th Edition has dealt with "Surrender, Abdication, Dictation" and "Power in the wrong hands" in the following words :-

"Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them....

Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise...."

21. This paragraph of Professor Wade has been applied by the Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302. The said judgment has been followed by the Supreme Court in the case of Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260 in following terms:-

"16.............No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd are instructive and apposite. Executive Officers may in exercise of their statutory discretion take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated, we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave it at that and say no more on this issue."

22. The Supreme Court recently again had occasion to deal with the same issue in the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) v. Director General of Civil Aviation, (2011) 5 SCC 435. The Supreme Court held in paragraph 26 and paragraph 28:-

"26................It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal."

28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner."

23. In the case case on hand from perusal of the order of the Basic Education Officer it is demonstrably established that the order has been passed at the dictate of the Assistant Direction of Education (Basic) and that too without giving any opportunity to the petitioner. Thus the order is hopelessly illegal on both the grounds, it was passed in flagrant violation of natural justice and at the dictate of superior officer.

24. Having regard to the facts and circumstances of the case the order 17.2.2003 passed by the Basic Education officer is liable to be set aside. It is , accordingly set aside.

25. The matter is remitted to the Basic Education Officer, Bulandshahar to give opportunity of hearing to the petitioner and pass a fresh order. As regards the question that whether the post should be filled by Scheduled Caste candidate the petitioner is at liberty to raise this point before the Basic Education Officer. The Basic Education Officer shall complete the said exercise within three months from the date of communication of this order.

26. Writ petition is allowed.

27. No order as to costs.

28. Till the decision is taken by the Basic Education Officer, Bulandshahar, status quo as on today shall be maintained.

Order Date :- 31.7.2013

Gss/SSM