The C/M Buddha P.G. College And ... vs State Of U.P. And Others
2015 Latest Caselaw 769 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					Judgement Reserved on  24.04.2015
 
					Judgement Delivered on  29.05.2015
 

 
			 SPECIAL APPEAL No. - 2433 of 2011
 
Appellant :- The C/M Buddha P.G. College And Another
 
Respondent :- State Of U.P. And Others
 
Counsel for Appellant :- Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,S. Shekhar
 
Hon'ble Rajes Kumar,J.

Hon'ble Shamsher Bahadur Singh,J.

(Delivered by Hon'ble Rajes Kumar, J.)

1. The present special appeal is directed against the order of learned Single Judge dated 30.11.2011 passed in Civil Misc. Writ Petition No. 22711 of 2011, Committee of Management Buddha Post Graduate College, Kushinagar Vs. State of U.P. and others whereby the above writ petition filed by the appellant has been rejected.

2. The appellant is the Committee of Management, Buddha Post Graduate College, Kushinagar affiliated to the Gorakhpur University and is governed by the State Universities Act and Statutes framed thereunder.

3. The dispute relates to the appointment of respondent no. 4 -Indra Deo Pandit, who has claimed to have been appointed on the post of Assistant Accountants in pursuance of the advertisement made in Daily Newspaper "Dainik Jagran" on 06.02.1990.

4. It is the contention of the respondent no. 4 that one post of Assistant Accountant in the said institution was vacant and for filling up the aforesaid post by way of direct recruitment as per the provision of the university's statute, it was advertised in Daily Newspapers "Dainik Jagran" on 06.02.1990. The respondent no. 4 applied for the said post as he was duly qualified and eligible for the said post. He participated in the meeting of the Selection Committee consisting of Manager of Committee of Management, Principal of the Institution and the District Inspector of Schools, Deoria. However, for some unavoidable reasons the employment Officer could not attend the meeting held on 07.04.1990.

5. It is contended that nine candidates applied for the said post only and out of nine, only six candidates appeared before the Selection Committee and the respondent no. 4 was found most suitable candidate by the Selection Committee and subsequent thereto he was recommended for being appointed on the post of Assistant Accountant vide letter dated 09.04.1990. The Principal of the Institution sent the entire document relating to selection of the respondent no. 4 for approval to the Regional Higher Education Officer, Gorakhpur Region, Gorakhpur, as it was required under the provision of the Statute 25.04 of the Gorakhpur University but the Regional Higher Education Officer has not passed any order in spite of reminder sent by the Principal of the Institution on 25.11.1990. However, on the basis of order dated 25.07.1990, respondent no. 4 joined the post of Assistant Accountant but the salary was not paid for quite long time. However, after conducting a detail inquiry from the institution, the approval to the appointment of respondent no. 4 was given vide letter dated 11.09.1996 on the post of Assistant Accountant. In pursuance of the approval given by the Regional Higher Education Officer, the salary bill of the respondent no. 4 was passed by the District Inspector of Schools, Padrauna and the respondent no. 4 was being paid his salary since September 1996 and was discharging his duties on the aforesaid post since 27.07.1990. But, all of sudden payment of salary of respondent no. 4 was stopped in the Month of January, 1997 on the basis of orders dated 01.12.1996/ 16.01.1997 of the Director Higher Education, U. P., Allahabad. Feeling aggrieved by the aforesaid action, respondent no. 4-Indra Deo Pandey has approached this Court by filing Civil Misc. Writ Petition No. 6871 of 1997, Indra Deo Pandit Vs. The Director of Higher Education U.P. at Allahabad and others.

6. Vide order dated 06.03.1997, the learned Single Judge of this Court had stayed the effect and operation of the order dated 01.12.1996/16.01.1997 passed by the Director of Higher Education,U.P., Allahabad.

7. After exchange of counter and rejoinder affidavits, the learned Single Judge of this Court had decided the aforesaid writ petition vide judgment and order dated 15.03.2005. The learned single had allowed the writ petition and set aside the order dated 01.12.1996/16.01.1997 and remitted the matter back to the the Director of Higher Education Officer, U.P., Allahabad with a direction to pass an appropriate order regarding the approval to the appointment of the petitioner/respondent no. 4 after taking into consideration the various letters dated 21.06.1997, 28.05.1997, 13.08.1996 and 16.11.1997 (Annexures 1 to 4 to the supplementary affidavit filed in that writ petition) and shall pass a detailed and reasoned order according to law after giving full opportunity to the petitioner/respondent no. 4, if possible giving the petitioner/respondent no. 4 a personal hearing.

8. In pursuance of the aforesaid directions, the Director of Higher Education, U.P., Allahabad, passed an order dated 02.09.2005 whereby, the order the appointment of respondent no. 4 w.e.f. 27.07.1990 on the post of Assistant Accountant was treated to be approved and his salary was directed to be paid on the said post.

9. In pursuance of the aforesaid order dated 02.09.2005 passed by the Director of Higher Education, U.P., Allahabad, the Regional Higher Education Officer, Gorakhpur Region, Gorakhpur vide order dated 19.04.2006 has directed the Manager of the Institution to comply with the order passed by Director of Higher Education and make payment of salary to the respondent no. 4. Those two orders have been challenged by the appellant by filing Civil Misc. Writ Petition No. 22711 of 2006 mainly on the ground that the aforesaid orders dated 02.09.2005 and 19.04.2006 have been passed without giving any opportunity of hearing to the petitioner/appellant apart from the other grounds. The learned Single Judge has rejected the plea of the appellant on the ground that the order dated 15.03.2005 has been passed in Writ Petition No. 6871 of 1997 filed by respondent no. 4, in which a direction was given to Director of Education of Higher Education, Allahabad, U.P. to pass an appropriate order regarding the approval to the appointment of the respondent no.4 after giving full opportunity of hearing to respondent no. 4 only. There was no direction for giving opportunity to the Committee of Management. The aforesaid order dated 15.03.2005 has not been challenged by any of the parties and has attained finality. The learned Single Judge further observed that the Director of Higher Education has approved the appointment of respondent no. 4 after making necessary enquiry and as such, the opportunity to the appellant was only futile.

10. We have heard Sri R. K. Ojha, learned Senior Advocate appearing on behalf of appellant, Sri V. K. Singh, learned Senior Advocate appearing on behalf of respondent no. 4 and the learned standing counsel who appears on behalf of respondents no. 1, 2 and 3.

11.Learned counsel for the appellant submitted that under the provision of Statute the Committee of Management is the Appointing Authority of the Assistant Accountant being Class-III post. The Committee of Management all along disputed the alleged appointment of respondent no. 4. He submits that due to the dispute amongst the members of Committee of Management, it may be that some of the office bearer's employee supported the case of respondent no. 4 but the fact of the matter is that the respondent no. 4 has never been appointed on the post of the Assistant Accountant in the year 1990 as claimed by him. Although the Committee of Management being the appointing authority is the necessary party of the dispute but there is no specific direction to provide opportunity of hearing to the Committee of Management and the only direction was given to decide the matter afresh and to pass an appropriate detailed and reasoned order in accordance to law, it means after giving opportunity of hearing to all concerned parties. As such, the Committee of Management being one of the concerned parties, the opportunity of hearing ought to have been given. He submits that the respondent no. 4 had filed a Writ Petition no. 16591 of 1994 wherein he had challenged the order dated 17.01.1994 passed by the Principal of College whereby the claim of respondent no. 4 for regularization of his services has been declined and further the principal has dispensed with from service to him. In paragraph 3 of the above writ petition, it was pleaded that he was appointed as a Class-III employee temporarily on daily wage on 29.th February, 1987. In paragraph 6 of the writ petition, it was pleaded that the post of clerk in Account Section was advertised in the Daily Newspaper "Dainik Jagran" on 06.02.1990 and the petitioner also applied against the said post. In paragraph 7 of the writ petition, it is stated that in pursuance of the advertisement, an interview was taken place and the petitioner was selected by the Selection Committee and thus, he was given appointment on the post of clerk in Account Section as Ad-hoc on 10.02.1990 by the Committee of Management.

12.In addition to the above, it was also stated in the above Writ Petition No. 16591 of 1994 that in pursuance of the recommendation of the Selection Committee, appointment letter was issued to the petitioner by the Principal of the College on 14.02.1990. It was contended that the service of the petitioner was liable to be regularized and the payment of salary be made but instead of regularization in service, the petitioner's services have been dispensed with. In the said writ petition, no where it is stated that his selection has been approved by the Higher Education Officer. The said writ petition was dismissed as not pressed on 12.08.1999. It means that the order dated 17.01.1994 passed by the Principal of College refusing the regularization and dismissing the respondent no. 4 from service stands in existence.

13. Learned counsel for the appellant submits that in Civil Misc. Writ Petition No. 6871 of 1997, the committee of Management has filed a counter affidavit through pairokar Ganesh Shukla, wherein it was categorically stated in paragraph 6 that no interview was held on 07.04.1990 inasmuch as the Employment Officer could not attend the same and no member of the Committee of Management has ever been participated in the said forge and fictitious process of Selection Committee. In paragraph 7 of the said counter affidavit, it is stated that neither any letter has been sent by the Committee of Management regarding selection nor the petitioner therein has ever been issued appointment letter by the committee of Management. It is further stated that the Committee of Management was the Competent Authority to issue letter of appointment and the Principal of College was not authorized to issue letter of appointment. In this way, the appointment of respondent no. 4 has been emphatically challenged. He also submits that in the said writ petition, one counter affidavit has been filed by Prof. Govind Ballabh Upreti, Joint Director (Higher Education) U.P., Allahabad, wherein the genuineness of the appointment of respondent no. 4 has been doubted. It was stated that there were two claimants, one was the respondent no. 4 and another was Roshan Prasad Yadav for the said post and both have filed writ petition. He further stated that the papers relating to the selection of respondent no. 4 for approval were not received in the office of Regional Higher Education Officer, Gorakhpur and for the first time, copy of the relevant papers were received vide letter dated 12.04.1996. He submitted that the learned Single Judge without going into the merit of the claim of the respondent no. 4 and the averments made in the counter affidavit filed by the Committee of Management and the Joint Director (Higher Education), Prof. Govind Ballabh Upreti and remitted the matter back to the Director of Higher Education on the ground that the opportunity of hearing has not been provided before passing the impugned order therein with the direction to pass afresh order after giving appropriate opportunity of hearing to the petitioner therein in accordance to law. He submits that in the judgment dated 15.03.2005, the averments made in the counter affidavit filed by Prof. Govind Ballabh Upreti, Joint Director (Higher Education) U.P. Allahabad and one Ganesh Shukla, Senior Lecturer of the institution, Kushinagar have not been rejected.

14.Learned counsel for the appellant submitted that the Principal of the College, Dr. Pradhumn Singh in collusion with the respondent no. 4 had embezzled a huge amount, for which a first information report had been lodged and the charge sheet in this regard has been submitted. Subsequently, Dr. Pradhumn Singh had been dismissed from service. The Director of Education in the proceedings undertaken in pursuance of the order of the learned Single Judge has made the query from the Principal of the College and not from the Committee of Management and in the absence of necessary documents being provided, the impugned order dated 02.09.2005 has been passed. It is submitted that if the opportunity of hearing would have been given to the appellant, the appellant would be in position to establish from the record that the respondent no. 4 has not been legally selected and appointed as claimed by him.

15.Sri V. K. Singh, learned Senior Advocate appearing on behalf of the respondents reiterated the submissions made before the learned Single Judge. He further submitted that after making the necessary inquiry, approval for the appointment of Respondent no. 4 has been granted. He further submitted that in the order dated 15th March, 2005, the learned Single Judge has only directed the Director of Higher Education to pass an appropriate order after giving opportunity of hearing to the respondent no. 4. No direction has been given for providing opportunity to the appellant. The said order has not been challenged and itself attained finality. He further submitted that the order of the Director of Higher Education has been passed on the basis of material available on record and therefore, providing opportunity of hearing to the appellant was only futile. He further submitted that in case, if the matter would be relegated to the Director of Higher Education for providing opportunity to the appellant, it would amount to harassment of respondent no. 4.

16.We have perused the counter affidavit filed by Dr. Sadan Ram, Regional Higher Education Officer, Gorakhpur on behalf of respondents no. 2 and 3. It is stated in it that vacancy for the post of Assistant Accountant was advertised on 06.02.1990 as per First Statute of the Gorakhpur University framed under the Act, in two widely circulated Newspapers. In pursuant to the same, the selection process was initiated and the date 07.04.1990 was fixed for interview for the post of Assistant Accountant for which requisition/Anugya was accorded vide letter dated 23.07.1990. Due to an emergent situation the date of interview was postponed on account of non-participation of a member of the Selection Committee, i.e., the District Employment Officer, Padraune. The District Employment Officer in view of the letter of Principal dated 07.03.1990 sent a letter on 28.03.1990 and had given consent for the participation in the Selection which was scheduled to take place on 08.01.1991 and due to an emergent situation the interview could not take place. Since the selection process was stopped, therefore, there was no question at all arises for selection of respondent no. 4 for the post of Assistant Accountant. The Principal Sri Pradhumn Singh on the basis of forged and fictitious documents is claiming his selection and on the basis of forged and fictitious documents, he had taken approval for the appointment of respondent no. 4 by the Regional Higher Education Officer, Gorakhpur. The post of Assistant Accountant was again advertised in two Daily Newspapers on 28.06.1991 and 27.03.1991, respectively but due to inadvertent reason again no interview could be taken place. On the aforesaid discussion, it is clear that vide advertisement dated 23.07.1990 the Anugya for the post of Assistant Accountant was granted and on the basis of forged documents created by the then Principal of the College, the approval for appointment of respondent no. 4 was granted vide letter dated 11.09.1996. Therefore, the selection of the respondent no. 4 was manifestly illegal and whatever the claim and right made by the respondent no. 4 is totally based on forged and fabricated documents.

17.We have considered the rival submissions made on behalf of both the parties and perused the record.

18.The short question arises for consideration is that whether on the facts and circumstances of the case, the opportunity of hearing to the appellant should be given by the Director of Higher Education before passing the order dated 02.09.2005 and giving the opportunity of hearing to the appellant was exercised in futile.

19. It is settled principles of law that if an order has a civil consequence and effects the right of a party, the opportunity must be provided. There is no dispute that under Statute 24.01, the competent authority to appoint the Class-III employee is the Committee of Management. Therefore, in a dispute relating to the appointment of Class-III employee, the Committee of Management is the concerned party. As such, in view of the above aspect, we are of the view that in such cases like present one before passing any order relating to the appointment of Class-III employee, the Committee of Management must be heard as in the present case, the Committee of Management all along has been contesting and disputing the appointment of respondent no. 4 in the year 1990 in pursuance of alleged advertisement dated 06.02.1990.

20.It was all along contended that the Meeting of valid Committee of Management has never been held and the respondent no. 4 has not been selected. It was contended that after the advertisement dated 06.02.1990, two more advertisement have been made. However, the selection and the appointment on the post of Assistant Accountant were not made. It was also contended by the appellant that the principal has no power to issue the appointment letter and the respondent no. 4 as well as the Principal of the College were colluded with each other. It was also contended that the necessary query has been made by the Director of Higher Education before passing the impugned order from the Principle of the College and not from the Committee of Management. The averments made in the counter affidavit filed in Writ Petition No. 6871 of 1997 has neither been adjudicated nor been rejected. Therefore, it requires consideration and adjudication. Pleas taken by the respondent no.4 in the Writ Petition No. 16591 of 1994, raises serious doubt about the claim of respondent no. 4, which also requires consideration and adjudication. Moreover, the Writ Petition No. 6871 of 1997 has been filed by the respondent no. 4 and the order dated 01.12.1996 had been challenged on the ground that it was exparte order without giving opportunity of hearing to the petitioner therein. In the said order neither there is an observation nor there is a direction for not providing opportunity to the appellant/Committee of Management. Moreso, the direction was to pass a detailed and reasoned order in accordance to law.

21.The law requires for providing opportunity of hearing to all the concerned parties. Therefore, even if there was no specific direction for providing opportunity of hearing to the Committee of Management being the necessary concerned party deserves to be given opportunity of hearing before passing the order.

22.In this view of the matter, we are of the view that the order of the learned Single Judge is not sustainable in the eyes of law. We do not agree with the view taken by the learned Single Judge that on the facts and circumstances, the providing opportunity to the Committee of Management was futile. The Committee of Management all along disputed the appointment of respondent no. 4. Even Prof. Govind Ballabh Upreti, Joint Director (Higher Education) U.P., Allahabad, in his counter affidavit filed in Writ Petition No. 6871 of 1997 has raised the objection by disputing the appointment of respondent no. 4. We further find that the Director of Higher Education while passing the impugned order has only made the query from the Principal of the College and not from the Committee of Management. The appellant all along contended that the Committee of Management who is the Appointing Authority has not issued any appointment letter to the respondent no. 4. Respondent no. 4 is not able to show any appointment letter issued by the Committee of Management who was the competent authority to issue appointment letter.

23.In view of the matter, we are of the view that the Committee of management being the necessary concerned party, being the Competent Appointing Authority is entitled to be heard and the opportunity of hearing relating to the appointment of respondent no.4, is to be provided.

24.For the reasons stated above, the present special appeal is allowed. The order dated 30.11.2011 passed by the learned Single Judge and the order dated 02.09.1995 passed by the Director of Higher Education, U.P., Allahabad as well as the order dated 19.04.2006 passed by Regional Higher Education Officer, Gorakhpur are hereby set aside. The matter is remitted back to the Director of Higher Education, U.P., Allahabad to pass afresh order after affording opportunity of hearing to the appellant and respondent no. 4 and to all concerned parties. The Director of Higher Education shall pass a detailed and reasoned order after making necessary inquiry and consideration of the pleas of the concerned parties.

25.The appellant is directed to file a certified copy of this order before the Director of Higher Education, U.P. , Allahabad, respondent no. 1, within a period of two weeks from today and the respondent no. 1 is directed to pass an appropriate order preferably within a period of two months from the date of production of a certified copy of this order, as directed above.

Order Date :- 29.05.2015

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