Allahabad High Court

Mritunjay Pratap Singh vs State Of U.P. Thru ... on 23 August, 2016

Bench: Pradeep Kumar Baghel




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR 
 
Court No. - 4
 

 
Case :- SERVICE SINGLE No. - 4838 of 2016
 

 
Petitioner :- Mritunjay Pratap Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt.& Others
 
Counsel for Petitioner :- Sharad Pathak
 
Counsel for Respondent :- C.S.C.,Anu Pratap Singh,Durgesh Mishra,Manushreshth Mishra,Pradeep Kumar Singh
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner has preferred this writ petition under Article 226 of the Constitution for issuance of a writ of certiorari to quash the order dated 15th February, 2016 passed by District Basic Education Officer i.e. the third respondent whereby he has rejected the approval of the petitioner for the payment of his salary to a class-III post.

The essential facts of the case are; Adarsh Intermediate College, Rajgarh, Pratapgarh (for short, the "Institution") is a recognized Intermediate college. It was a Junior High School. Later, it was upgraded to intermediate level on 05.02.2013. But, it receives grant-in-aid out of the State funds only up to Junior High School. It is governed under the provisions of the U.P. Intermediate Education Act, 1921 and the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978.

It is stated that a vacancy occurred in the post of clerk in the Institution due to retirement of one Vijay Pratap Mishra on 31.01.2011. The State Government had put a ban on the recruitment of non-teaching staff. In May, 2015 the ban was lifted. The Committee of Management sent a communication to the third respondent seeking his permission for appointment to said vacancy. Pursuant thereto the permission was granted by the third respondent on 07.07.2015. Consequent upon, the Committee of Management of the Institution issued an advertisement under the intimation to the third respondent, in two newspapers, namely, Hindustan and Amar Ujala. It appears that the third respondent nominated an official (Block Education Officer) as an observer in the selection committee. The interview was held on 14th August, 2015. It is stated that the petitioner applied in pursuance of the advertisement and appeared before the selection committee on 14th August, 2015 and was found suitable. The committee of management sent the papers to the third respondent for his approval. By the impugned order dated 15th February, 2016 the third respondent has rejected the approval on the ground that the Block Education Officer, who was nominated by him, has submitted two contradictory reports on 15.08.2015 and 18.08.2015.

Having regard to the aforesaid conflicting reports, the third respondent directed another official to make a preliminary enquiry who had also submitted a report. On the basis of the aforesaid three reports, the impugned order came to be passed.

A counter affidavit has been filed on behalf of the District Basic Education Officer. The stand taken in the counter affidavit is that the official, who was nominated for the selection committee, had submitted two contradictory reports. In the counter affidavit the details of conflicting reports have been highlighted and it is stated that in view of those facts the impugned order has been passed by the third respondent.

I have heard Sri Sharad Pathak, learned counsel for the petitioner, learned Standing Counsel, Sri D.P. Singh Somvanshi, learned counsel on behalf of Surya Pratap Singh who has filed an application for intervention, and Sri Anu Pratap Singh, learned counsel appearing for the applicant-Mahesh Narain Tiwari who has filed impleadment application.

Learned counsel for the petitioner submits that the impugned order has been passed in utter violation of the principles of natural justice as no opportunity was given to the petitioner prior to passing the said order. He has drawn the attention of the Court to the averments made in paragraph nos. 4 & 26 of the writ petition, wherein the petitioner has averred regarding breach of the principles of natural justice.

Lastly, learned counsel for the petitioner submits that the papers relating to the recruitment were sent to the office of the third respondent on 18.8.2015 and since the third respondent has not taken the decision within stipulated period in terms of Rule-15 of the U.P. Recognised Basic School (Junior High School) Clerical Cadre Employees and Group-D Employees Recruitment and Service Rules 1984 it would be deemed approval and after the said period the Committee of Management has issued appointment letter to the petitioner.

Learned counsel for the intervenor has tried to satisfy the Court that the entire process of selection is vitiated on various grounds.

The first question which needs to be considered is whether the petitioner and the Committee of Management were given opportunity before cancelling permission to initiate recruitment process. The petitioner has pleaded that it was a case of no notice or opportunity. In that regard the petitioner has averred in paragraphs 4 and 26 of the writ petition which have not been specifically denied. Paragraph nos. 4 & 26 of the writ petition are extracted herein below:

"4. That the petitioner is aggrieved against the impugned order dated 15.02.2016 passed by the Opp-party No.3 by means of which the Opp-party No. 3 has rejected the application sent by the Opp-party No. 4 for grant of approval of selection and appointment of the petitioner on the post of Clerk in Junior High School of Adarsh Intermediate College, Rajgarh, District Pratapgarh, which College is receiving grant-in-aid from the State Government up to the level of Junior High School. The aforesaid impugned order dated 15.02.2016 apart from having been passed wholly illegally and arbitrarily, has been passed without providing any opportunity of hearing to the petitioner in utter violation to the principles of natural justice. The true copy of the aforesaid impugned order dated 15.02.2016 passed by the Opp-party No. 3 is being annexed herewith as Annexure No. 1 to this writ petition.

26. That despite there being nothing adverse against the petitioner, the impugned order dated 15.02.2016 has been passed by the Opp-party No.3 without affording any opportunity in the matter either to the Opp-party No. 4 or to the petitioner in gross violation to the principles of natural justice and in that view of the matter the impugned order dated 15.02.2016 passed by the Opp-party No. 3 is liable to be set at naught by this Hon'ble Court."

A perusal of the reply, which has been extracted herein below, indicates that there is no specific denial on behalf of the third respondent in regard to affording opportunity to the petitioner. Paragraph No. 14 of the counter is extracted herein below:

"14. That the contents of para No. 24 to 32 of the writ petition filed by the petitioner as stated are not admitted hence denied. In reply thereto, the averments made in preceding paras of the instant are reiterated."

It is a trite law that if a statutory authority has power to do any act which will prejudicially affect a person, a duty is cast upon him to conform to norms of the principles of natural justice. An administrative order which involves civil consequences must be made consistently with the principle of audi alteram partem. It needs no elaboration that the decision maker must afford opportunity to a party who is likely to suffer from the order. It is not necessary to multiply the authorities on the aspect. Suffice would it be to refer some of the judgements of the Supreme Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei and Ors., (1967) 2 SCR 625; A.K. Kraipak & others v. Union of India & others, AIR 1970 SC 150; Msr. Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248; Swadeshi Cotton Mills etc. v. Union of India etc., AIR 1981 SC 818; S.L. Kapoor v. Jagmohan and others, (1980) 4 SCC 379; and D.K. Yadav v. M/s J.M.A. Industries Ltd., JT 1993(3) SC 61.

On a careful consideration of the submissions of the learned counsel on either side and relevant rules to which my attention was drawn, I am of the view that the impugned order dated 15.02.2016 has been passed in total breach of the principles of natural justice. It stands vitiated. It is, accordingly, set aside. The matter is remitted to the third respondent to consider the matter afresh after furnishing opportunity to the petitioner, Committee of Management of the Institution and the applicants who have filed impleadment application and application for intervention, in case they move any application. The said exercise shall be completed expeditiously preferably within four months.

In case the petitioner is working and is being paid his salary, he shall continue, his continuance shall abide by the fresh order to be passed by the third respondent.

With the aforesaid observations the writ petition stands allowed.

No order as to costs.

Order Date :- 23.8.2016

DS/-

Civil Misc. Application (for Intervention) No. NIL of 2016

Case :- SERVICE SINGLE No. - 4838 of 2016

Petitioner :- Mritunjay Pratap Singh

Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt.& Others

Counsel for Petitioner :- Sharad Pathak

Counsel for Respondent :- C.S.C.,Anu Pratap Singh,Durgesh Mishra,Manushreshth Mishra,Pradeep Kumar Singh

Hon'ble Pradeep Kumar Singh Baghel,J.

Heard.