Smt. Anjali Soni vs State Of U.P. And 4 Others
2017 Latest Caselaw 8063 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case:- WRIT - A No. - 32728 of 2017
 
Petitioner:- Smt. Anjali Soni
 
Respondent:- State Of U.P. And 4 Others
 
Counsel for Petitioner:- Raj Kumar Singh
 
Counsel for Respondent:- C.S.C., Arjun Prasad Yadav, Rajesh Khare
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner is a Headmistress in a Primary School run by the Uttar Pradesh Board of Basic Education1. She has instituted this writ petition challenging the order passed by the District Basic Education Officer, Chitrakoot, the second respondent, dated 12th July, 2017, whereby her salary has been stopped by him.

The essential facts of the case are that the petitioner is a Headmistress in Primary School Rajapur-3 in District Chitrakoot2. The school is run and conducted by the Board. The fourth respondent is also working as a Cook in the school. It appears that the fourth respondent moved an application before the second respondent which was endorsed by the third respondent, who is District President of Bhartiya Janta Party, Chitrakoot, complaining against the petitioner regarding her misbehaviour vis-a-vis the fourth respondent. On the said application, promptly within a week from the date of said application, the District Basic Education Officer passed the impugned order dated 12th July, 2017 stopping the salary of the petitioner and calling her explanation. In the impugned order, the second respondent has referred the complaint of the third respondent. Feeling aggrieved by the said order, the petitioner has preferred this writ petition.

It is stated in the writ petition that the fourth respondent has made a false complaint against the petitioner and her husband, who is a teacher in another institution, namely, Purva Madhyamik Vidyalaya, Bihrawan, Pahari, whereas he was on duty in the said institution on the date of occurrence of the alleged incident. On the said complaint the District President of a political party has made endorsement and in fact, on his direction the impugned order came to be passed by the District Basic Education Officer in an arbitrary and illegal manner. It is averred in the writ petition that due to the political pressure the second respondent has passed the impugned order.

At the time of moving of the present writ petition, on 28th July, 2017 this Court had directed the District Basic Education Officer, Chitrakoot to file his personal affidavit specifying the provision in the law under which he has stopped the salary of the petitioner without affording any opportunity or taking recourse to the statutory rules.

In compliance with the said order, the District Basic Education Officer has filed his personal affidavit, wherein he has stated that inadvertently he has referred the name of Sri Ashok Kumar Jatav, District President, Bhartiya Janta Party, District Chitrakoot. It is also stated in the affidavit that having regard to serious nature of the complaint against the petitioner he has taken a lenient view and issued only a show cause notice, whereas there was sufficient ground to initiate disciplinary proceedings under the law against the petitioner. It is further stated in the affidavit that on 29th July, 2017 the second respondent has passed an order releasing the salary of the petitioner with a direction that she will not repeat the incident of misbehaviour.

I have heard learned counsel for the petitioner, learned Standing Counsel and learned counsel for the District Basic Education Officer. In view of the admitted facts, since no useful purpose was to serve by calling response from the respondents, with the consent of learned counsel for the parties the writ petition was taken on board and was heard for final disposal in terms of the Rules of the Court.

The petitioner is a Headmistress in the school, which is run by the Board. The provisions of the Uttar Pradesh Basic Education Act, 19723 are applicable to the school. The State Government exercising its powers under Section 19 of the Act, 1972 has framed the Uttar Pradesh Basic Education (Teachers) Service Rules, 19814, which governs qualification, recruitment, process of selection, and disciplinary proceedings in respect of Headmasters/Headmistress and teachers of the institutions, which are recognised under the Act, 1972 and managed by the Board. The parties are not in conflict of the fact on the following issues:

(i) The service conditions of the Headmasters and teachers are governed under the Rules, 1981.

(ii) The District Basic Education Officer has issued the impugned show cause notice and in the said notice itself he has passed the order for withholding the salary of the petitioner.

(iii) The impugned order has been passed at the behest of a political person.

The aforesaid undisputed facts emerge from the writ petition and the personal affidavit filed by the District Basic Education Officer. It would be apposite to extract the entire impugned order, which is as under:

 
	"dk;kZy; ftyk csfld f'k{kk vf/kdkjh] fp=dwV
 
[email protected]&[email protected] 2017&18    			fnukaad% 12&7&17
 
Jherh vatyh lksuh]iz0v0]
 
izk0fo0 jktkiqj&3] {ks=& jkeuxj
 
tuin& fp=dwV
 

Jh v'kksd dqekj tkVo] ftyk/;{k] Hkk0t0ik0] tuin& fp=dwV }kjk fnukad 07-07-2017 ,oa fnukad 10-07-2017 dks v/kksgLrk{kjh ds lh0;w0th0 eksckby uEcj ij f'kdk;r dj voxr djk;k x;k gS fd iz0v0 }kjk fo|ky; esa dk;Zjr jlksb;ka ds lkFk vHknz vi'kCnksa dk iz;ksx fd;k x;k gS] tks in dh xfjek ds vuqdwy ugha gS] ds vkjksi esa lEcfU/kr iz0v0 dk osru jksdrs gq;s funsZf'kr fd;k tkrk gS fd mDr lEcU/k esa viuk Li"Vhdj.k rRdky v/kksgLrk{kjh dk;kZy; dks miyC/k djkuk lqfuf'pr djsaA"

In order to give opportunity to the District Basic Education Officer, he was granted time to file his personal affidavit. In his personal affidavit he has admitted the fact that the order has been passed at the behest of the third respondent. Paragraph-10 of the personal affidavit reads as under:

"10. That while passing the impugned order, deponent had inadvertently referred the inquiry made by the Ashok Kumar Jatav for which the deponent tenders its unconditional apology and with folded hand begs for pardon with undertaking that no such incident will ever be repeated in future."

The aforesaid averment made by the District Basic Education Officer is not correct. He has wrongly stated that in the impugned order he has inadvertently mentioned the inquiry made by Sri Ashok Kumar Jatav, the third respondent. The second respondent has taken cognizance of the complaint of the fourth respondent by the impugned order. The said complaint is on the record which has not been denied by the second respondent. A perusal of the said complaint, which is part of annexure-1 to the writ petition, shows that it bears the endorsement of the President of a political party, which is in power. The Court in its order dated 28th July, 2017 has specifically asked the District Basic Education Officer to mention the provision of law under which he has authority to stop salary of a teacher. In his affidavit he has not mentioned any such provision. The District Basic Education Officer has made the matter worst by mentioning the following statement in paragraph-9 of his personal affidavit, which reads as under:

"9. That it is also submitted that the provisions of U.P. Basic Education Staff Rules, 1973, deals with procedure for penalties to be imposed by the appointing authority for good and sufficient reasons upon the officers, teaching and non-teaching staffs of the Board (U.P. Board of Basic Education Allahabad). However the deponent in the interest of institution as well as students had taken lenient view and had issued show cause notice, whereas there was sufficient ground to initiate disciplinary proceedings under the law against the petitioner."

The stand taken by the District Basic Education Officer in paragraph-9 of his personal affidavit is contrary to the provisions of the Uttar Pradesh Basic Education Staff Rules, 19735. The said Rule provides that appointing authority may impose punishment provided under Rule-3. The Rules, 1973 does not give any discretion upon the District Basic Education Officer to take a lenient view regarding punishment even before initiating the disciplinary proceedings.

The District Basic Education Officer as well as learned Standing Counsel have failed to point out any provision under the law which empowers the District Basic Education Officer to stop the salary even before initiating the disciplinary proceedings.

From the personal affidavit it is not clear that what is the intention of the District Basic Education Officer in issuing the show cause notice when he has already taken lenient view not to initiate the disciplinary proceedings.

The District Basic Education Officer holds an important office. He exercises statutory powers under the Act, 1972 and various rules framed thereunder. A statutory authority has to act within the four corners of the law and a statutory power conferred on any officer should be exercised by him strictly in terms of the law, Act and Rules. There is no discretion upon the District Basic Education Officer to ignore the statutory rules and pass the whimsical orders. The District Basic Education Officer in his personal affidavit has stated that although the allegation was very serious yet he has taken a lenient view. The said view of the District Basic Education Officer is totally arbitrary and against the law. If there was serious allegation against a Headmistress or a teacher, the detailed procedure has been laid down under the law to take action against the Headmaster/ teacher. The law does not confer any authority upon the District Basic Education Officer to pass an order which is not provided in the relevant rules. The Rules enjoin that in case there are serious allegations, in that event a teacher can be placed under suspension, but it does not even permit the District Basic Education Officer to stop the salary without giving any opportunity. The reference of the wrong provision in the affidavit also indicates that the District Basic Education Officer has acted in most casual manner.

As regards the order passed at the behest of a political person, the District Basic Education Officer has tried to mislead this Court that he has inadvertently referred the name of the third respondent. From his order itself it is clear that the matter has been initiated on the complaint of the fourth respondent dated 05th July, 2017, which bears endorsement of the third respondent. In his affidavit the second respondent has not denied this fact. Thus, there is no question of inadvertent reference of the third respondent.

It is well settled law that if any order is passed at the behest of a political person or a third person, such order is vitiated. The Supreme Court in the case of Nedurimilli Janardhana Reddy v. Progressive Democratic Students' Union and others6, wherein an order was passed at the behest of a Minister, has considered this issue elaborately.

Sir William Wade and Christopher Forsyth in their book on Administrative Law, Eighth Edition, and Professor De Smith, Woolf and Jeffrey Jowell in their book on Principles of Judicial Review, 1999 Edition, have referred when an order is vitiated on account of diktat of a third person. The relevant passage, which is at page 326 of the Administrative Law, is extracted below:

"Power in the wrong hands

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..."

In De Smith, Woolf & Jowell's Principles of Judicial Remedy, at page 241, it is referred as under:

"An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person.... 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,..."

This Court in Madan Kumar and others v. District Magistrate, Auraiya and others7 has considered this aspect. In the said case the order was passed by the District Inspector of Schools at the behest of the District Magistrate. The Court observed as under:

"26. The principle which can be discerned from the above mentioned judgments of the Supreme Court is that if a statute impose a duty on an authority he must exercise that power independently and personally without any supervisory control of some other authority. Even a superior authority cannot interfere in his decision which he has to take personally. And he should not be guided by any other person/authority."

Having due regard to the facts of the present case, I am of the view that the District Basic Education Officer has not applied his mind and has abdicated his statutory power at the dictation of the political person. He has realized his mistake and released the salary of the petitioner after this Court has directed him to file personal affidavit.

After careful consideration of the matter, I find that the impugned notice issued by the District Basic Education Officer is without jurisdiction. He has already issued another order for releasing of the salary.

For the reasons stated above, the impugned order dated 12th July, 2017 is liable to be set aside. It is, accordingly, set aside. It will be open to the District Basic Education Officer to take a fresh decision in accordance with law expeditiously, preferably within two months from the date of communication of this order.

In view of the above, the writ petition is allowed.

No order as to costs.

Considering the above facts of the case, the Court desists from directing any serious action against the concerned District Basic Education Officer, Chitrakoot, but he is put on caution to be careful in future. A direction is issued to the Director of Education (Basic), U.P. to place this warning on the service record of the concerned District Basic Education Officer.

Date :- 18th December, 2017

SKT/-