Abhay Kumar Singh vs State Of U.P. & Others
2014 Latest Caselaw 760 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserve
 
Court No. - 59
 
AFR
 
Case :- WRIT - A No. - 11519 of 2012
 
Petitioner :- Abhay Kumar Singh
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- B.C. Rai,Deepak Kumar
 
Pandey,J.K. Pandey,Prakash Padia
 
Counsel for Respondent :- C.S.C.,G.K.
 
Singh,Irshad Ali,J.N. Maurya,V.K. Singh
 
Hon'ble B. Amit Sthalekar,J.

The petitioner in this writ petition is aggrieved

by the Notification dated 7.12.2009 issued by the,

Secretary, U.P. Secondary Education Services

Selection Board, Allahabad in so far as it pertains to

Sri Shiv Mangal Singh Inter College, Beruabari,

Ballia as also the order of the District Inspector of

Schools, Ballia (hereinafter referred to as the DIOS)

dated 2.1.2010 and the joining report dated

4.1.2010 in respect of the respondent no.5, Dr.

Shatrughan Singh on the post of Principal of Sri

Shiv Mangal Singh Inter College, Beruabari, Ballia.

The facts of the case, in brief, are that there is

an Institution known as Sri Shiv Mangal Singh Inter

College, Beruabari, Ballia (hereinafter referred to as

the College), which is a duly recognized and aided

Educational Institution governed by the provisions of

the U.P. Intermediate Education Act, 1921 and the

U.P. High Schools and Intermediate Colleges

(Payment of Salaries Of Teachers and Other

Employees) Act, 1971. The case of the petitioner is

that he was appointed as Lecturer in the College on

15.1.1981 and at present he is the senior most

Lecturer in the Institution. On 30.6.2008 one

Shyama Singh, who was the senior most Lecturer

and Officiating Ad hoc Principal of the Institution,

retired from service. As a result, the post of

Principal fell vacant. A requisition was made to the

U.P. Secondary Eduction Service Selection Board,

Allahabad for filling up the post of Principal in the

said College. The Board issued Advertisement

no.1/2008 for making appointments on the post of

Principal in several Colleges including the college in

question. One Rajendra Singh and the petitioner

were called for interview by the U.P. Secondary

Eduction Service Selection Board, Allahabad. The

result of the selection was notified on 7.12.2009 and

the following candidates were recommended for

appointment:-

(I) Dr. Shatrughan Singh (Respondent no.5),

Lecturer, Paramhansh Inter College, Majhwali,

Ballia.

(ii) Dr. Hare Ram Pandey, son of Shri Triveni

Pandey, Mohalla Misra Mewari, District Ballia.

(iii) Shri Shyam Jeet Singh Yadav, Lecturer, Yugal

Bihari Inter College, Rameshwar, Varanasi.

In the College in question the respondent

no.5, Dr. Shatrughan Singh was recommended as a

selected candidate as he was working as Lecturer

in the Paramhansh Inter College, Majhwali, Ballia,

but a serious question arose with regard to the very

appointment of respondent no.5 on the post of

Lecturer in the Paramhansh Inter College, Majhwali,

Ballia on the ground that the approval to the

appointment of the respondent no.5 in the

Paramhansh Inter College was issued by one Sri

Lakhan Singh, who at the relevant point of time,

was the Finance and Accounts Officer in the office

of the District Inspector of Schools, Ballia.

In para 13 of the writ petition it is also stated

that in respect of the appointments made and

approval granted by Sri Lakhan Singh in District,

Ballia disciplinary proceedings were also initiated

against him. In the disciplinary proceedings Sri

Lakhan Singh gave a reply denying having granted

any approval to the appointment of the respondent

no.5. The reply of Sri Lakhan Singh dated

22.2.1991 has been filed as Annexure-2 to the writ

petition in which, Lakhan Singh has clearly stated

that the charge of the office of District Inspector of

Schools was with him for 20 days during the period

the then DIOS was on medical leave but during his

tenure he never made any appointment of any

teacher or staff in any Institution in District-Ballia nor

did he issue any approval in favour of any teacher

or staff and that if any such approval is being used

in his name the same is forged.

In pursuance of the statement given by Sri

Lakhan Singh, he was placed under suspension by

order dated 20.4.1993 passed by the Additional

Director of Education (Secondary) Allahabad.

Subsequently by an order dated 12.12.1997 also

passed by the Additional Director of Education

(Secondary), Allahabad the said Lakhan Singh was

reinstated in service.

In the meantime a Writ Petition No.49460 of

2009, Kaushal Kumar Rai Vs. State of U.P. &

Others has been filed in the High Court, in which the

learned Single Judge by his order dated 16.9.2009

directed setting up of an enquiry regarding all the

appointments made and approval granted by the

said Lakhan Singh in his capacity as DIOS, Ballia.

In pursuance of the order of the High Court, the

DIOS passed an order on 13.11.2009 stopping the

payment of salary of respondent no.5 including

some other persons. The result was that a serious

dispute arose with regard to the initial appointment

of the respondent no.5 as Lecturer in the

Paramhansh Inter College, Majhwali, Ballia.

However, in pursuance to the selection notification

dated 07.12.2009 issued by the Selection Board,

the DIOS issued a letter of appointment dated

02.01.2010 appointing the respondent no.5 as

Principal in the College in question and in

pursuance of the order dated 02.01.2010 the

respondent no.5 has also given his joining in the

College on 04.01.2010. Hence the present writ

petition.

The delay in filing the writ petition has been

explained by the petitioner by stating that one

Rajendra Singh had earlier filed Writ Petition

No.921 of 2010 questioning the selection of the

respondent no.5 as Principal in view of the selection

notification dated 07.12.2009 but subsequently for

reasons best known to Shri Rajendra Singh, he

made a request to the Court for dismissing the writ

petition as withdrawn and the said writ petition was

dismissed as withdrawn and the petitioner had no

knowledge of the dismissal of the writ petition on

22.2.2010. However, it is submitted that the

appointment of the respondent no.5 has been

obtained by practising fraud and on the facts stated

in this writ petition, the petitioner herein has

questioned the selection notification dated

7.12.2009 as well as the appointment order and

joining report of the respondent no.5 dated 2.1.2010

and 4.1.2010 respectively. When the case came up

for admission, it was directed to be put up on

12.3.2012 alongwith connected Writ Petition

no.49460 of 2009, 49750 of 2009, 49748 of 2009,

49600 of 2009.

On 12.3.2012 the learned Single Judge has

noted that the DIOS in pursuance of the order of the

Court dated 16.9.2009 passed in Writ Petition

No.49460 of 2009 had directed the respondent no.5

to produce all the relevant records to establish the

legality and validity of his appointment as Teacher in

the Paramhansh Inter College, Majhwali, Ballia and

it was further directed that till then salary would not

be paid to the respondent no.5. It has also been

noted that in spite of the order of the DIOS, the

DIOS on 02.01.2010 approved the appointment of

the respondent no.5 as Principal in the College in

question. Thereupon the Court taking cognizance

of the facts issued notices to the authorities and till

then directed that payment of salary shall not be

made to the respondent no.5 on the post of

Principal.

On 5.9.2013 the Court framed three questions

for determining the legality or otherwise of the

appointment of the respondent no.5, one of the

questions being "as to how could Lakhan Singh act

as the DIOS and who had authorised him to

discharge the duties and responsibilities of District

Inspector of Schools, Ballia for the relevant period

and under which statutory provision." When no

response was filed on behalf of State to the queries

made by the Court, the Court by its order dated

14.11.2013 directed the respondent no.1, Secretary,

Department of Secondary Education, U.P. Lucknow

to file his personal affidavit. In response thereto an

affidavit has been filed by Sri Jitendra Kumar,

Secretary, Secondary Education, U.P. Lucknow on

12.12.2013 and a counter affidavit has also been

filed on behalf of respondent no.5. During this

period aggrieved by the order of the Court dated

12.3.2012 by which the payment of salary of the

respondent no.5 has been stopped, the respondent

no.5 filed Special Appeal No.660 of 2012 which was

dismissed by a Division Bench of this Court by order

dated 20.12.2012. Aggrieved by the aforesaid

order, the respondent no.5 filed SLP (Civil)

No.34732 of 2012 and the said SLP was disposed

of with a request to the learned Single Judge to

consider the application of respondent no.5 dated

8.5.2012 for vacation of the interim order dated

12.3.2012.

I have heard Sri Prakash Padia, learned

counsel for the petitioner, Sri V.K. Singh, learned

counsel for the respondent no.5, Sri J.N. Maurya,

learned counsel for the respondent no.2 and the

learned Standing Counsel for the respondents no.1

& 3.

Sri Prakash Padia, learned counsel for the

petitioner has referred to an application dated

22.2.1991, copy of which has been filed as

Annexure-2 to the writ petition submitted by Sri

Lakhan before the Senior Finance and Accounts

Officer (Secondary) Directorate of Education, U.P.,

Allahabad, in which he has categorically admitted

that he was given the charge of the post of DIOS

for 20 days during the period when the DIOS, Ballia

was on medical leave but during this period he has

never made any appointment or granted approval to

the appointment of any teacher or staff of any

College in District, Ballia and if any person is using

any document showing his signature as approval

the same is a fraudulent document and the payment

of salary of such person should be stopped.

Sri Padia further submits that the case of Dr.

Shatrughan Singh, respondent no.5 was that he

was appointed as Lecturer in the Paramhansh Inter

College, Majhwali, Ballia under the authority of Sri

Lakhan Singh and therefore, the very appointment

of the respondent no.5 was fraudulent, illegal and

an invalid appointment, therefore, his subsequent

appointment as Principal in the College in question

was also an illegal and invalid appointment.

In the counter affidavit Sri V.K. Singh, learned

counsel appearing on behalf of respondent no.5, on

the other hand, referred to Annexure-1 to the

counter affidavit, which is a letter dated 20.12.1990

which is the recommendation of names of

candidates selected as Lecturer and Assistant

Teacher, L.T. Grade was forwarded by the

Paramhansh Inter College, Majhwali, Ballia

regarding selection of the respondent no.5 as

Lecturer Sanskrit by Sri Lakhan Singh, as

Authorised Controller of the Paramhansh Inter

College has been approved by the same Lakhan

Singh as DIOS, Ballia and thereafter another letter

filed as Annexure-2 to the counter affidavit also

dated 20.12.1990 also issued by Lakhan Singh as

Authorised Controller appointing the respondent

no.5 as ad hoc Lecturer with a further direction to

report for joining within 7 days. A perusal of these

letters would show that they have all been issued

under the name of the one and same Lakhan Singh.

The first letter approving the selection of respondent

no.5 as Lecturer Sanskrit has been signed by

Lakhan Singh in his capacity as DIOS, Ballia the

second letter also dated 20.12.1990, Annexure-2 to

the counter affidavit has been issued by Sri Lakhan

Singh in his capacity as the Authorised Controller of

the Paramhansh Inter College, Majhwali, Ballia.

Thus, it appears that during this period he was the

Authorised Controller in the control of the

management of the Paramhansh Inter College,

Majhwali, Ballia and that Lakhan Singh was the

Authorised Controller of the Paramhansh Inter

College, Majhwali, Ballia who had prepared the

select list which was forwarded by him to the DIOS

for grant of approval to the selection of Dr.

Shatrughan Singh, respondent no.5 as Lecturer

Sanskrit and at the same time it was Lakhan Singh,

who in his capacity as DIOS also granted approval

to the said select list. This approval granted on

20.12.1990 by Sri Lakhan Singh, as DIOS to the

selection of the respondent no.5 as Lecturer

Sanskrit in the Paramhansh Inter College,

Majhwali, Ballia on the face of it appears to be an

act of fraud in view of the own admission of Lakhan

Singh dated 22.2.1991, filed as Annxure-2 to the

writ petition, wherein, Lakhan Singh has admitted

that he had the charge of the post of DIOS for 20

days during the period when the then DIOS was on

medical leave but during this period of 20 days he

had never made any appointment or granted

approval to any appointment of any teacher or staff

of any College in the District-Ballia and that, if any

person is using his name for such appointment or

approval the same is a forged and fabricated

document and no salary should be paid to such

person.

Thus, in view of the specific denial letter of Sri

Lakhan Singh dated 22.2.1991 the claim of

respondent no. 5 having been appointed as

Lecturer Sanskrit in the Paramhansh Inter College,

Majhwali, Ballia and approval granted by Sri Lakhan

Singh in his capacity as DIOS on the face of it is a

fraudulent claim and does not stand the test of

scrutiny by this Court.

In pursuance of the directions of this Court, a

personal affidavit has also been filed by Sri Jitendra

Kumar, Secretary, Secondary Education,

respondent no.1 on the question as to how Lakhan

Singh was allowed to function as DIOS and whether

a Finance and Accounts Officer in the Office of

DIOS can function as DIOS. In para 3 of the

affidavit filed by the Secretary, Secondary

Education, U.P. it has been stated that there is no

document available on record to show that Sri

Lakhan Singh was given officiating charge of DIOS.

It is also stated that there is no document on record

to show that Sri Lakhan Singh was given charge of

DIOS and it is not clear as to how, when, whether

and from whom Lakhan Singh took over the charge

of DIOS, Ballia.

In para 4 of the affidavit it is stated that

sometimes in a case of urgency officiating charge is

handed over but there is no provision in the Act nor

is there any Government Order giving officiating

charge of the Post of DIOS and there is no order on

record to show that Lakhan Singh was given such

officiating charge. In para 5 of the affidavit, it is

stated that an enquiry was made from the

Directorate and it was informed that Sri Lakhan

Singh was working as 'Jyest Lekha Parikshak' but

thereafter in the office of the DIOS he was working

as ad hoc Assistant Accounts Officer under the

Niyukti (Raj)/282/23-2 (16)/89-90 dated 17/20th

March, 1990 and the name of Lakhan Singh is at Sl.

No.22 of the select list. So far as the question of

giving officiating charge of the office of DIOS to

Lakhan Singh is concerned, it is stated that there is

no documentary evidence available in the office of

the DIOS with regard to the queries raised in the

order dated 14.11.2013. A question and answer

chart has been given in para 6 of the affidavit. With

regard to the question no.1, as to whether the

charge of the post of DIOS can be given to anyone

and if so, under which rule or Government Order,

the reply is that under the U.P. Shaishik Samanya

Shiksha Samwarg, Niyamawali, 1992, para -1 Item-

25 it is mentioned that appointment of the DIOS in

the Education Department is made by way of

promotion on the basis of eligibility. It is specifically

stated that the charge of DIOS cannot be given to

Accounts Officer in that office. In reply to question

no.2 it is specifically stated that Accounts Officer

cannot be given the charge of the Office of DIOS

under any Rule or any Government Order. With

regard to question no.3 in respect of Sri Lakhan

Singh, the answer is that the Additional Director of

Education in his letter dated 21.10.2013 has stated

that there is no document on record with regard to

the giving of charge of office of DIOS to Sri Lakhan

Singh.

Paragraphs 3, 4, 5 & 6 of the affidavit filed on

behalf of respondent no.1, Secretary, Secondary

Education, Lucknow are quoted below:

"3. That in pursuance of the order of this

Hon'ble Court dated the report was sought from

District Inspector of Schools, Ballia. Vide Letter

No.4365/2013-14 dated 17.10.2013 the District

Inspector of Schools, Ballia in his report has

submitted that Mr. Lakhan Singh was given the

officiating charge of District Inspector of Schools.

There is no document available which states that

Lakhan Singh was given charge of District Inspector

of Schools hence the status is not clear as ho,

when, where and through whom Mr. Lakhan Singh

took the charge of District Inspector of Schools.

4. That so far the queries of this Hon'ble

Court are concerned It is relevant to state here that

in view of the urgency and vacancy of posts it is

some times customary for handing over the

officiating charge but there is no provision in the Act

or through Government Order regarding giving of

officiating charge nor there is record available

regarding giving the officiating charge to Mr. Lakhan

Singh as well.

5. That from the Directorate it was affirmed

that Mr. Lakhan Singh was working as 'Jyest Lekha

Parikshak' but thereafter in the office of District

Inspector of Schools, Ballia he was placed as adhoc

Assistant Account Office vide order Niyukti

(Raj)/282/23-2 (16)/89-90 Dated 17/20th March 1990

and name of Mr. Lakhan Singh is at serial no.22 of

the list. So far the question of officiating charge of

District Inspector of Schools given to Mr. Lakhan

Singh there is no documentary evidence available in

the office of District Inspector of Schools, Ballia.

Photos tate copy of Niyamawali 1992 are annexed

herewith and marked as Annexure-1 to this affidavit.

6. That the Hon'ble Court vide order dated

14.11.2013 has directed the deponent to file

affidavit by 5.2.2013 on the points stated aforesaid.

On the basis of the report of District Inspector of

Schools dated 17.10.2013, report of Additional

Director dated 21.10.2013 and U.P. Shashik

Samanya Shiksha Samwarg, Niyamawali, 1992, the

details of the quarries and reply thereto are as

hereinafter mentioned:

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There is a supplementary counter affidavit

sworn on 4.7.2012 and another supplementary

counter affidavit filed on behalf of respondent no.5

sworn on 9.7.2013. So far as the counter affidavit

and the supplementary counter affidavit filed by Dr.

Shatrughan Singh, respondent no.5 are concerned,

Sri Prakash Padia, learned counsel for the petitioner

submitted that both the affidavits have been sworn

by one Ranjeet Singh, who is shown to be a

resident at Holland Hall, Allahabad and the affidavit

has been filed as pairokar of respondent no.5

without disclosing his relationship with the

respondent no.5. The submission is that the

allegations against the respondent no.5 being of a

personal nature relating to fraud having been

committed in the matter of appointment of

respondent no.5, therefore, the affidavit ought to

have been filed by the respondent no.5 himself

meeting the allegations and not through some

Ranjeet Singh without disclosing the relationship

with Shatrughan Singh, respondent no.5 and in

what capacity he is the pairokar of the respondent

no.5. Since the allegation made in the writ petition

as also the facts emerging from the various queries

made by the Court relating to the appointment of the

respondent no.5 as being an act of fraud, it was

expected that the counter affidavit and the

supplementary counter affidavit would be filed by

the respondent no.5 himself denying the allegations

and thereafter the allegations of fraud by Sri Lakhan

Singh in the matter of appointment of the

respondent no.5 remains uncontroverted and

undenied but that is not the case here.

However, there is another supplementary

counter affidavit dated 9.7.2013, which, however,

admits the facts stated in the counter affidavit of the

respondent no.5 admitting that the DIOS, who was

also working as the Authorised Controller of the

Institution, namely, Paramhansh Inter College,

Majhwali, Ballia had advertised the vacancy in the

newspaper but in this affidavit it has not been

disputed that Lakhan Singh had officiated as DIOS

for 20 days and the select list of the post of Lecturer

in the Paramhansh Inter College, Majhwali, Ballia

selecting the respondent no.5 as Lecturer was also

prepared by him and forwarded to the DIOS for

approval. Thus it is not at all difficult for the Court to

come to the uninhibited conclusion as demonstrated

from the documents filed as Annexure CA-1 and

CA-2 to the counter affidavit that it was Lakhan

Singh who in the capacity of Authorised Controller

of the Paramhansh Inter College, Majhwali, Ballia

had prepared the list recommending the name of Dr.

Shatrughan Singh, respondent no.5 for the post of

Lecturer Sanskrit and the same Lakhan Singh in his

capacity as DIOS, Ballia had also approved the said

select list and thereafter again in his capacity as the

Authorised Controller of the Paramhansh Inter

College, Majhwali, Ballia had also issued the

appointment letter to the respondent no.5 as

Lecturer-Sanskrit in the Paramhansh Inter College,

Majhwali, Ballia on 20.12.1990. Thus, from the

documents on record the fraud played by Lakhan

Singh in the selection and appointment of the

respondent no.5 as Lecturer Sanskrit in the

Paramhansh Inter College, Majhwali, Ballia is

established beyond doubt and it also could not be

refuted that it was a collusive fraud between the

said Lakhan Singh and the respondent no.5.

The Supreme Court in the case of Ram

Chandra Singh Vs. Savitri Devi and Others

reported in (2003) 8 SCC 319 in paragraphs 23

and 26 has held as under:

"23. An act of fraud on court is always viewed

seriously. A collusion or conspiracy with a view to

deprive the rights of the others in relation to a

property would render the transaction void ab initio.

Fraud and deception are synonymous.

26. In the case of Shrisht Dhawan Vs. Shaw

Bros reported in (1992) 1 SCC 534, the Supreme

Court in paragraph 20 has held as under:

"20. Fraud and collusion vitiate even the most

solemn proceedings in any civilized system of

jurisprudence. It is a concept descriptive of

human conduct."

The Supreme Court in the case of State of

Manipur and Others Vs. Y. Token Singh and

Others reported in (2007) 5 SCC 65 in paragraph

17 has held as under:

"17. If the offers of appointments issued in

favour of the respondents herein were forged

documents, the State could not have been

compelled to pay salaries to them from the State

exchequer. Any action, which had not been taken

by an authority competent therefor and in complete

violation of the constitutional and legal framework,

would not be binding on the State. In any event,

having regard to the fact that the said authority

himself had denied to have issued a letter, there

was no reason for the State not to act pursuant

thereto or in furtherance thereof. The action of the

State did not, thus, lack bona fide."

In Tanna & Modi Vs. CIT, Mumbai XXV and

Others reported in (2007) 7 SCC 434 the Supreme

Court in paragraph 19, has held as under:

"19. It is, however, also well settled that fraud

vitiates all solemn acts. Fraudulent actions shall

render the act a nullity. It would be non est in the

eye of the law. ....................................."

The Supreme Court in the Case of State of

Chhattisgarh and Others Vs. Dhirjo Kumar

Sengar reported in (2009) 13 SCC 600 in

paragraphs 17 18 and 19 has observed as follows:

"17. It is in the aforementioned premise, the

contention in regard to the breach of audi alteram

partem doctrine must be considered. The principle

of natural justice although is required to be complied

with, it, as is well-known, has exceptions. [ Banaras

Hindu University V. Shrikant reported in (2006) 11

SCC 42 ]. One of the exceptions has also been laid

down in S.L. Kapoor v. Jagmohan and others

[(1980) 4 SCC 379 : AIR 1981 SC 136] wherein it

was held:

"In our view the principles of natural justice

know of no exclusionary rule dependent on

whether it would have made any difference if

natural justice had been observed. The

non-observance of natural justice is itself

prejudice to any man and proof of

prejudice independently of proof of denial of

natural justice is unnecessary. It ill comes from

a person who has denied justice that the

person who has been denied justice is

not prejudiced. As we said earlier where

on the admitted or indisputable facts

only one conclusion is possible and under the

law only one penalty is permissible, the court

may not issue its writ to compel the

observance of natural justice, not

because it is not necessary to observe

natural justice but because courts do not

issue futile writs."

18. Legality of grant of a valid appointment

was dependant upon the proof that the respondent

was the adopted son of Chittaranjan Singh Sengar.

He not only failed to do so, the materials brought on

record by the parties would clearly suggest

otherwise. His application for grant of appointment

on compassionate ground was rejected by the Joint

Director of Education. He did not question the

legality or validity thereof. He, it can safely be said,

by suppressing the said fact obtained the offer of

appointment from an authority which was lower in

rank than the Joint Director, viz., the Deputy

Director. When such a fact was brought to the

notice of the Deputy Director that the offer of

appointment had been obtained as a result of fraud

practiced on the Department, he could, in our

opinion, cancel the same.

19. The respondent keeping in view the

constitutional scheme has not only committed a

fraud on the Department but also committed a fraud

on the Constitution. As commission of fraud by him

has categorically been proved, in our opinion, the

principles of natural justice were not required to be

complied with."

Having said that if the appointment of the

respondent no.5 on the post of Lecturer Sanskrit

was itself based upon fraud and collusion, the same

is completely invalid and illegal and his subsequent

appointment on the post of Principal by order dated

2.1.2010 is also absolutely illegal and compounded

by fraud and therefore, the selection notification

dated 7.12.2009 in so far as it relates to the

selection of the respondent no.5 on the post of

Principal in the College in question is quashed and

the appointment of the respondent no.5 by order

dated 2.1.2010 and his joining report dated

4.1.2010 is also quashed.

The writ petition is allowed.

Order Date :- 10.4.2014

N Tiwari