Orooj vs State Of U.P. And 4 Others
2018 Latest Caselaw 4163 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
Court No. - 19
 

 
Case :- WRIT - A No. - 23094 of 2018
 
Petitioner :- Orooj
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Nisheeth Yadav,C.B. Yadav, Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Pradeep Kumar Dwivedi
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard Sri C.B. Yadav, learned senior counsel assisted by Sri Nisheeth Yadav for the petitioner, learned standing counsel for respondents no.1 to 4 and Sri P.K. Dwivedi, who has entered appearance by filing a caveat on behalf of one Mohd. Arif, the complainant as an intervenor. With their consent, the writ petition is being disposed of finally without inviting a formal counter affidavit.

National Inter College, Mohammadabad Gohna, Mau is a recognised minority institution. It is governed by the provisions of the U.P. Intermediate Education Act, 1921 (for short 'the Act'). It is not in dispute between the parties that the institution was accorded minority status by a specific order issued by Deputy Secretary, Government of U.P. dated 5.3.1995. The institution is receiving grant-in-aid from the State Government. The petitioner applied for selection as assistant teacher in the institution in pursuance of an advertisement dated 4.5.2016. The Selection Committee constituted for the said purpose interviewed eleven candidates and thereafter, declared the petitioner and one Madhubala as selected. The petitioner was issued an appointment letter dated 19.5.2016. The Management forwarded the entire record to District Inspector of Schools for obtaining approval under Section 16-FF of the Act. The District Inspector of Schools, by an order dated 24.5.2016, recommended for payment of salary from the date the petitioner starts functioning on the post. According to the petitioner, he was paid salary in pursuance of the said order till the month of April 2017. It seems that the intervenor herein filed a complaint dated 14.5.2017 before Principal Secretary, Department of Secondary Education, Lucknow alleging interalia, that father of the petitioner was member of the Committee of Management of the institution and consequently, his appointment was invalid. The Special Secretary, Government of U.P. by letter dated 19.5.2017 directed District Magistrate to get an enquiry made into the complaint made by Mohd. Arif. The order further directs that until the enquiry is completed, salary of the petitioner and Madhubala, the other candidate recruited, be not paid to them. The District Magistrate authorised City Magistrate to hold enquiry into the complaint. The City Magistrate held an enquiry, followed by a report dated 5.7.2017, in which he found that the father of the petitioner submitted his resignation on 14.4.2016 and which was accepted in the meeting of the Committee of Management. He opined that there does not appear any violation of Regulation 20 of Chapter II of the Regulations framed under the Act. The District Magistrate forwarded the report to the State Government by communication dated 13.7.2017. On 19.9.2017, the Deputy Secretary, Government of U.P. again sent a communication to District Inspector of Schools requiring him to furnish information/clarification on the points, viz, (I) whether proper notice was given to the members of the Committee of Management regarding holding of meeting of the Management for considering resignation of Khurshid Alam and whether the said notice or agenda was valid or not; (ii) the details of the newspapers in which the vacancies were advertised; and (iii) about the details of candidates who appeared for selection and the manner of awarding marks. On 14.7.2017, the District Inspector of Schools directed the Manager of the institution not to disburse salary to the petitioner and the other teacher, as enquiry was in progress. On 6.10.2017, the District Inspector of Schools submitted a detailed reply in response to the query made by the State Government. He specifically clarified in his report, after examining the original records, that Khurshid Alam, father of the petitioner submitted resignation on 14.4.2016 and on the same date, the Manager gave notice to the office bearers and on 17.4.2016, the Committee of Management in its meeting accepted the resignation. On the second aspect, the District Inspector of Schools clarified that one post had fallen vacant on account of promotion of an assistant teacher on 18.11.2014 and the other one on 29.4.2016 also on account of promotion of the incumbent working on the said post to the post of lecturer. The advertisement for selection against the two vacant posts was made in newspapers Pioneer (English) and Jan Morcha (Hindi) dated 4.5.2016. Eleven candidates applied and the Selection Committee, on basis of quality point marks and educational qualifications, selected Madhubala and the petitioner.

On 12.7.2018, the Secretary, Government of U.P. in a communication sent to Director of Education (Madhyamik) directed for initiating proceedings as per Rules for cancellation of the appointment of the petitioner and Smt. Madhubala. It was observed in the said communication that from the information obtained and the material placed before the State Government, it transpired that in the interview, the petitioner and Madhubala had been awarded considerably higher marks as compared to other candidates and it creates doubt about the genuineness of the selection process. Based on the aforesaid communication, the Additional Director of Education on 9.8.2018, without holding any enquiry himself, directed for cancellation of the appointment of the petitioner and Madhubala. It was followed by a similar direction by Joint Director of Education to District Inspector of Schools vide communication dated 24.8.2018. Aggrieved thereby, the instant writ petition has been filed challenging the orders dated 12.7.2018, 9.8.2018 and 24.8.2018 and a mandamus has also been sought directing the respondents to release the salary of the petitioner.

On 31.10.2018, this Court, while entertaining the writ petition, passed the following order:-

"Petitioner has been appointed as Assistant Teacher in National Inter College, Mohammadabad Gohna, Mau which is a recognised minority institution. The appointment has been approved and salary was released to him. It is at this stage that some complaint has been made nearly after a year of appointment stating that petitioner is closely related to the member of the Committee of Management of the institution and that the selection itself was a result of manipulation inasmuch as excessive marks during the interview were given to the petitioner. The State Government has directed holding of an enquiry in the matter. Awaiting such enquiry the payment of salary has been stopped to the petitioner.

Learned counsel for the petitioner submits that twice enquiry has been conducted in the matter and allegations have been found not to have any basis. Submission is that no opportunity has been given to the petitioner.

In the facts and circumstances of the case, it will be appropriate to permit learned Standing Counsel to obtain instructions from the concerned authorities of the State as to what is the basis of action against the petitioner and whether any opportunity of hearing has been given to him or not.

Put up on 14.11.2018 in the additional cause list along with records of Writ Petition No. 32291 of 2014, after obtaining nomination from Hon'ble the Chief Justice.

No interference would be made in the working of the petitioner till then but the question of payment of salary would be considered on the next date of listing."

Today, on matter being taken up, learned standing counsel states that he is in receipt of instructions from the State respondents and according to which, the petitioner and Madhubala had been awarded considerably higher marks as compared to other candidates and this creates a doubt regarding impartiality and fairness of the selection process. It is urged that the State Government, therefore, directed for cancellation of the appointment of the petitioner and Madhubala.

Sri C.B. Yadav, learned senior counsel submitted that the direction issued by the State Government to the Director of Education for initiating proceedings for cancellation of the appointment of the petitioner and Madhubala is based on an assumption drawn from the fact that they had been awarded higher marks as compared to other candidates. It is urged that the selected candidates always get higher marks as compared to other candidates, but merely from the said fact, the fairness and impartiality of the selection process could not be doubted. He further submitted that the petitioner was never associated with the enquiry held by the State Government. It is urged that even in the enquiry held behind the back of the petitioner, it is evident from the report of City Magistrate as well as the report of District Inspector of Schools referred to above that nothing adverse was found against the petitioner nor the selection process was found vitiated in any manner and in such circumstances, there was no justifiable reason on record to stop payment of salary of the petitioner which he had been drawing since his appointment was accorded approval by the District Inspector of Schools by order dated 24.5.2016. He further submitted that the Director of Education, without holding any enquiry, in a mechanical manner, directed the Joint Director of Education to take steps to get the appointment of the petitioner and Madhubala cancelled. He further submitted that the petitioner is still working and therefore, he is entitled to his salary.

Learned counsel for the complainant, who is heard as an intervenor, submitted that there is a serious dispute in the institution regarding number of vacancies. It is urged that the said aspect also needs consideration by the State Government and the educational authorities. He also tried to support the direction issued by the State Government in the impugned communication dated 12.7.2018.

Indisputably, the petitioner and Madhubala were selected after they faced the Selection Committee. The Management, before holding the selection, duly advertised the vacancies in two newspapers. The institution in question is a minority institution. Under Section 16-FF, the power of District Inspector of Schools, while granting approval, is confined to holding an enquiry into the issue as to whether the candidate possesses minimum qualification prescribed for the post or not and is otherwise eligible. The District Inspector of Schools, being satisfied in that regard, accorded formal approval to the appointment of the petitioner vide order dated 24.5.2016 and consequent whereupon, the petitioner started getting salary. Admittedly, after one year, on basis of a complaint made by the intervenor, the State Government held an enquiry behind the back of the petitioner and although noting adverse was found in the said enquiry, but it still directed the Director of Education to undertake proceedings for cancellation of the appointment of the petitioner and Madhubala by observing that they having obtained higher marks as compared to other candidates, the selection process appears to be impartial and doubtful.

Section 16-E (10) empowers Director of Education to cancel appointment of a head of the institution or teacher, if it has been made in contravention of the provisions of the Act. However, before passing such order, the Director is enjoined with the duty to afford opportunity of hearing to such person. Without examining, at this stage, as to whether State Government was justified in issuing direction to the Director of Education to initiate proceedings for cancellation of appointment of the petitioner and Madhubala, the Director of Education, in terms of Section 16-E (10) should have issued notice to the petitioner and Madhubala and after affording opportunity of hearing to them and holding enquiry, further order should have been passed. However, without undertaking any such exercise, the Director of Education, in a mechanical manner, issued direction to the Joint Director of Education, Azamgarh to ensure that the appointments of the petitioner and Madhubala are cancelled, as directed by the State Government. In the considered opinion of the Court, the Director of Education, while issuing the said direction, has completely abdicated the obligation cast upon him, while passing order cancelling an appointment. Consequently, the communication dated 9.8.2018 issued from his office cannot be sustained and is hereby quashed. Accordingly, consequential direction issued by the Joint Director of Education by letter dated 24.8.2018 is also quashed.

Concededly, there is no adverse order against the petitioner till date. The validity of his appointment is still to be examined. The petitioner is duly working on the post since his initial appointment and was getting salary consequent to the appointment having been approved by District Inspector of Schools by order dated 24.5.2016. In such circumstances, this Court also does not find any justifiable reason on record to withhold salary of the petitioner, while the enquiry is in progress.

At the same time, this Court is also of the opinion that the Director of Education, as directed by the State Government, should be permitted to hold enquiry into the validity of the appointment of the petitioner, after following the procedure prescribed under Section 16-E (10) of the Act. The Director of Education shall, for that purpose, issue notice to the petitioner and after calling for his explanation, take decision in the matter preferably within eight weeks from the date of receipt of certified copy of this order. The complainant shall be free to submit his version in shape of a representation before the Director of Education. The Director of Education, while taking decision in the matter, shall also take into consideration the version of the complainant. Until final decision is taken by the Director of Education, the petitioner shall be permitted to work on the post and shall be entitled to arrears of salary and current salary.

The writ petition stands allowed to the extent indicated above.

(Manoj Kumar Gupta, J)

Order Date :- 6.12.2018

SL