Amitendra Shekhar Mishra vs State Of U.P. And 3 Others
2018 Latest Caselaw 2132 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 20.08.2018
 
Delivered on 24.08.2018
 

 
Court No. - 7
 

 
Case :- WRIT - A No. - 17617 of 2018
 
Petitioner :- Amitendra Shekhar Mishra
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Manoj Kumar Tiwari, Sri Radha Kant Ojha, Senior Advocate
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Singh
 
Hon'ble Dinesh Kumar Singh,J.

1. The present petition under Article 226 of the Constitution of India has been filed, impugning the order dated 9th May, 2018 (Annexure No.8 to the writ petition) passed by the District Magistrate, Siddharth Nagar whereby he has constituted a Three Members Committee under the Chairmanship of Chief Development Officer, Siddharth Nagar to investigate irregularities committed in appointment of 16448 Assistant Teachers in the Primary Schools of the District. Two other members of the Committee are Sub-Divisional Magistrate, Naugarh, Siddharth Nagar and District Inspector of Schools, Siddharth Nagar.

2. The case of the petitioner is that in pursuance of Advertisement dated 27th June, 2016 for appointment of 16448 Assistant Teachers in District Siddharth Nagar, he was selected and his name found place at Serial No.110 in the select list of the general category candidates. After selection, he was issued appointment letter dated 29th August, 2016 and he has been working as Assistant Teacher since 16th September, 2016 in Primary School, Gaurdih, Block Koniyawa, District Siddharth Nagar.

3. Pursuant to a complaint regarding irregularities in appointment of teachers in primary schools against the Advertisement dated 27th June, 2016, the District Basic Education Officer, Siddharth Nagar had constituted a Three Members Committee vide order dated 9th October, 2017 consisting of Block Development Officer, Dumariyaganj, Siddharth Nagar, District Coordinator (Construction), Sarva Shiksha Abhiyan, Siddharth Nagar and Block Development Officer, Naugarh, Siddharth Nagar.

4. It is said that while the aforesaid Committee was enquiring the matter, the District Magistrate vide impugned order dated 9th May, 2018 has constituted another Committee with the direction to the District Basic Education Officer to submit a report to the Committee which he constituted to investigate the matter.

5. Heard Mr. R.K. Ojha, learned Senior Counsel, assisted by Mr. M.K. Tiwari, Advocate appearing for the petitioner, learned Standing Counsel appearing for the respondent nos. 1 to 3 and Mr. Ashok Kumar Singh appearing for the respondent no. 4.

6. On behalf of the petitioner, learned Senior Counsel submits that since the matter pertains to the appointment of teachers in the primary schools, the field is governed by the U.P. Basic Education Act, 1972 (hereinafter referred to as "the Act, 1972") and Rules made thereunder. Under the Act, 1972 and Rules made thereunder the District Magistrate does not have any power to constitute a committee to get the matter investigated regarding appointment of teachers etc. In support of his contention, learned Senior Counsel appearing for the petitioner submits that U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "the Rules, 1981") govern the service conditions of the teachers in primary schools. The Rules, 1981 nowhere assign any role to the District Magistrate to have any say with respect to appointment of teachers etc.

7. The learned Senior Counsel has placed reliance on the U.P. Basic Educational Staff Rules, 1973 (hereinafter referred to as 'the Rules, 1973') to submit that under the Schedule of the Rules, 1973 if disciplinary proceedings are initiated against the teachers etc., against the order of an authority appeal is provided under the Act and Rules. From the perusal of the aforesaid Rules and Schedule, it is clear that the District Magistrate is not a competent authority or appellate authority for appointing the teachers or taking disciplinary action or entertaining the appeal. He, therefore, submits that since under the Act and Rules made thereunder no role has been assigned to the District Magistrate and even if irregularities have been pointed out to the District Magistrate in respect of recruitment and appointment of teachers, the District Magistrate has no power to pass/issue impugned order. He, therefore, submits that the impugned order passed by the District Magistrate, constituting the Three Members Committee, is beyond his authority and jurisdiction and is liable to be quashed.

8. In support of the aforesaid submissions, learned Senior Counsel has placed reliance on the judgment of this Court rendered in Writ - A No.17261 of 2018 'Mridula Sharma Vs. State of U.P. and others'. It has taken note of judgment of the Supreme Court in Joint Action Committee of Air Line Pilots' Association of India (ALPAI Vs. Director General of Civil Aviation, (2011) 5 SCC 435. In paragraphs 26 and 28 of this judgment the Supreme Court has observed:-

"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."

9. The learned Senior Counsel has cited the next judgment rendered by this Court in Writ - A No. 39180 of 1998 'Vinod Kumar Singh and another Vs. District Basic Shiksha Adhikari and others', the following paragraph of which has been pressed by the learned Senior Counsel to support his contention:-

"However, so far as the impugned order dated 24.10.1998 is concerned the said order has been passed by the District Magistrate directing the District Inspector of Schools not to release the salary of the petitioner. The said order has been assailed by the petitioner on the ground that the District Magistrate had no jurisdiction to pass any such order as it was only the educational authorities who were the competent authorities to pass any order if at all. This controversy has already been settled by this Court that the District Magistrate has no power or authority to pass any orders with regard to matters which are exclusively within the domain of the educational authorities."

10. The other judgments have also been relied on by the learned Senior Counsel passed by this Court in Writ - A No. 57376 of 2010 'Smt. Rajeshwari Vs. State of U.P and others' as well as in 'Madan Kumar and others Vs. District Magistrate, Auraiya, [2013(10)ADJ 606].

11. On the basis of the aforesaid judgments, the learned Senior Counsel appearing for the petitioner vehemently submits that the District Magistrate is a foreign authority under the scheme of the Act and Rules made thereunder so far as it relates to the recruitment of teachers in the primary schools, disciplinary proceedings and appeal are concerned. The learned Senior Counsel submits that in view of the above the impugned order passed by the District Magistrate being without jurisdiction is liable to be set-aside.

12. Mr. Ashok Kumar Singh, learned counsel appearing for the respondent no. 4, submits that the District Basic Education Officer has already submitted his report in respect of the recruitment of teachers to the District Magistrate and this matter is not related with the disciplinary proceedings or the appeal, but the issue involved is irregularities having been committed in securing public employment by fraudulent manner/means. He further submits that the District Magistrate is not initiating any disciplinary proceedings, but on the basis of report of the inquiry committee, while forwarding the report to the concerned authorities, he can ask for taking appropriate action on the basis of the report. The District Magistrate himself is not taking any final action on the inquiry report. He further submits that constituting the inquiry committee to investigate the allegations in the recruitment of teachers in the primary schools does not in any manner run counter to any provision of the Act and Rules made thereunder.

13. I have considered the arguments of the learned Senior Counsel appearing for the petitioner as well as learned counsel appearing for the respondents.

14. There are serious allegations in respect to the recruitment of teachers in District Siddharth Nagar. To maintain faith in public employment and to maintain purity in the process of recruitment, the District Magistrate has constituted a Three Members Committee to investigate the illegality/irregularity in making appointment of the assistant teachers pursuant to Advertisement dated 27th June, 2016 in District Siddharth Nagar. The District Magistrate is not exercising any power with respect to disciplinary proceedings or appeal etc. but he has only constituted a fact-finding-committee to investigate the matter and submit its report which he can forward to the concerned authorities for taking action on the basis of the report. A report submitted by the District Basic Education Officer has pointed out serious irregularities in the appointment of assistant teachers made in District Siddharth Nagar pursuant to Advertisement dated 27th June, 2016.

15. Constituting of a fact-finding-committee by the District Magistrate regarding irregularities in the recruitment of teachers in District Siddharth Nagar pursuant to Advertisement dated 27th the June, 2016 is neither in violation of any provision of the Act, 1972 nor any rule made thereunder.

16. In view of the discussions made in the foregoing paras, I do not find any illegality in constituting a committee to submit a report in respect of serious allegations in recruitment and appointment of Assistant Teachers in District Siddharth Nagar pursuant to the Advertisement dated 27th June, 2016. The District Magistrate has constituted a fact-finding Three Members Committee to investigate the allegations and submit its report which he can forward to appropriate authorities to take necessary action as per the law. The petitioner is only one candidate and this Court fails to understand that how he is prejudiced by such a committee having been constituted by the District Magistrate. If the petitioner's appointment is valid and in accordance with the Rules, he has nothing to fear of. I, therefore, do not find any merit and substance in the writ petition.

17. The writ petition is, thus, dismissed without costs.

Order Date :- 24th August, 2018

MVS Chauhan/-