Rambha Singh vs State Of U.P. And 4 Others
2018 Latest Caselaw 4187 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								         Reserved
 
A.F.R.           
 

 
Case :- WRIT - A No. - 12781 of 2018
 
Petitioner :- Rambha Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Gyanendra Kumar Singh,R.K. Ojha,Sri. Radha Kant Ojha, Sr. Counsel
 
Counsel for Respondent :- C.S.C.,Parmatma Nand Ojha,Sanjay Chaturvedi,Satendra Tirpathi
 

 
Hon'ble Dinesh Kumar Singh,J.

1. This petition has been filed, impugning the order dated 19th May, 2018 passed by respondent no.4-District Basic Education Officer, Ballia (hereafter referred to as "BSA") whereby appointment of the petitioner on the post of Headmistress has been declared as 'invalid'.

2. The briefly stated facts of the case are that the post of Headmaster in Gautam Purva Madhyamik Vidyalaya, Basti Mundera, District Ballia (hereinafter referred to as "the School"), a recognized and aided School dunder the Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as "the Act, 1972") fell vacant on 30th June, 2014 due to retirement of incumbent Headmaster. It is said that the Manager of the Committee of Management of the School, Shri Sanjay Singh resigned on 24th April, 2015 and Deputy Manager, Shri Hridya Nand Singh assumed charge of Manager of Committee of Management of the School for remaining term as per resolution of the Committee dated 31st May, 2015.

3. The necessary papers were sent for attestation of the signatures of Shri Hridya Nand Singh as Manager of Committee of Management of the School on 31st May, 2015. However, the BSA on 6th June, 2015 approved the Signatures of Shri Hridya Nand Singh as Manager of Committee of Management of the School and, thus, recognized him as the Manager with effect from 6th June, 2015.

4. Before Shri Hridya Nand Singh was recognized as Manager of Committee of Management of the School and his signatures could be approved by the BSA on 6th June, 2015, Shri Hridya Nand Singh had already sent a letter dated 1st June, 2015 to BSA, seeking permission to advertise the post of Headmaster in the School, which fell vacant due to retirement of the regular Headmaster. It is said that the BSA had accorded permission on 6th June, 2015 itself. On 7th June, 2015, the vacancy of Headmaster was advertised in two daily newspapers, namely, 'Swatantra Chetna' and 'Anchalik Swar'.

5. It is averred in the petition that after completion of due selection process on 26th June, 2015, the petitioner was selected and appointed on the post of Headmistress. On 27th June, 2015, the Manager of Committee of Management of the School sent the papers relating to selection and appointment of the petitioner to BSA for his approval. The BSA approved the selection of the petitioner for her appointment as Headmistress of the School on 29th June, 2015.

6. Pursuant to her appointment to the post of Headmistress, the petitioner assumed the charge on 10th July, 2015 and since then she has been working as Headmistress of the School.

7. A Civil Misc. Writ Petition No.41687 of 2015 (Madhubala Singh Versus State of U.P. and others) was filed, challenging the selection and appointment of the petitioner on the post of Headmistress of the School. One Ashutosh Prasad Singh also challenged the selection and appointment of the petitioner by means of Civil Misc. Writ Petition No. 61437 of 2015.

8. On 14th December, 2015, this Court had passed the following order in Writ - A No.61437 of 2015:-

"Sri Sanjay Chaturvedi, learned Advocate appears for the fourth respondent, he has produced the original record. Sri Ghanendra Kumar Singh, learned Advocate has filed memo of appearance on behalf of the fifth respondent. The learned Standing Counsel has put in appearance on behalf of Respondent no. 1, 2 and 3.

All the respondents may file counter affidavit within six weeks. Rejoinder, if any, may be filed within a week thereafter.

List this case on 9th February, 2016.

The original record is returned to the learned counsel for the B.S.A.

The appointment of the sixth respondent shall abide by the result of the writ petition."

9. The BSA issued notice dated 29th April, 2017 to the Manager of the School, calling for an explanation on several points, including one that the advertisement for filling up the post of Headmaster of the School was improper and that the whole selection process was carried out with a predetermined decision to appoint the petitioner as Headmistress in the School. The Committee of Management had submitted its reply on 22nd May, 2017 to the said show-cause-notice.

10. After submission of reply by the Committee of Management of the School to the show-cause-notice dated 29th April, 2017, the BSA had passed the order dated 3rd May, 2017 whereby the approval dated 29th June, 2015 accorded for the appointment of the petitioner as Headmistress of the School has been cancelled.

11. The petitioner had challenged the aforesaid order dated 3rd May, 2017 passed by the BSA by filing Writ - A No.25292 of 2017. The Hon'ble Single Judge vide interim order dated 4th July, 2017 stayed the order dated 3rd May, 2017 passed by the BSA.

12. Being aggrieved by the interim order dated 4th July, 2017, the petitioners ( Madhubala Singh and Ashutosh Prasad Singh) in Writ - A Nos. 41687 of 2015 and 61437 of 2015 respectively challenged the interim order in Special Appeal No. 372 of 2017. The Division Bench disposed of the Special Appeal No. 372 of 2017 and three writ petition i.e. Writ-A Nos. 25292 of 2017, 61437 of 2015 and 41687 of 2015 vide judgment and order dated 31st July, 2017. The Division Bench set-aside the order dated 3rd May, 2017 passed by the BSA and remitted the matter back to the BSA for passing a fresh order after complying the principles of natural justice and examining the origiinal record. The operative part of the judgment dated 31sty July, 2017 is reproduced herein below:-

"We are of the opinion that the order passed by Basic Shiksha Adhikari dated 3.5.2017 can not be sustained being in violation of principles of natural justice whatever may be the basis for passing such an order. Smt. Rambha Singh was at least entitled to be informed of the grounds on which it was proposed to cancel the approval and to have her say in the matter.

This leads the court to issue as to what should be the next step once the order is found to be in violation of principles of natural justice. In our opinion having regard to the allegations made and the enquiry report received qua Smt. Rambha Singh being a relative of Sri Rakesh Singh, BSA as well as in respect of the mode and manner of the selection of Smt. Rambha Singh being illegal as contended before us by the counsel for the appellant, we are of the opinion that the interest of substantial justice would be served by requiring the Basic Shiksha Adhikari to pass a fresh order in the matter of selection and appointment of Smt. Rambha Singh after affording opportunity of hearing to the Committee of Management of the institution, Smt. Rambha Singh and after examining the original records as may be available in the office of Basic Shiksha Adhikari or may made available qua the selection in question. The appellants are also at liberty to file their representation disclosing the grounds on which they propose to challenge the selection within two weeks from today along with certified copy of this order. The Basic Shiksha Adhikari shall complete the exercise as indicated above within four weeks thereafter by means of a reasoned and speaking order.

We are not expressing any opinion on any of the issues which have been raised by the parties inasmuch all such issues needs examination of records and a finding of fact is to be returned. It is for this purpose that the matter is being asked to be examined by the Basic Shiksha Adhikari.

The writ petitions i.e. Writ-A Nos.25292 of 2017, 61437 of 2015 and Writ-A No. 41687 of 2015 and the special appeal stand disposed of. All consequential actions shall be taken accordingly."

13. The BSA, after affording opportunities to the parties, as directed in the judgment and order dated 31st July, 2017, has passed the impugned order dated 19th May, 2018, Annexure No. 27 to the writ petition.

14. Heard Mr. R.K. Ojha, learned Senior Advocate assisted by Shri Gyanendra Kumar Singh, Advocate appearing for the petitioner and Mr. Sanjay Chaturvedi, learned Standing Counsel appearing for respondent nos. 1 to 3.

15. The BSA in the impugned order has observed that Shri Hridya Nand Singh was recognized as Manager of Committee of Management of the School only on 6th June, 2015 by BSA inasmuch as his signatures were approved from the said date, but before his signatures could have been approved, he sent a letter seeking approval for filling up the post of Headmaster/Headmistress of the School. Therefore, this request letter was not valid as he could have sent the request only after his signatures were approved and he was recognized as Manager of the School. However, the approval was sought even before his signatures were approved by the BSA. The BSA has further observed that from the perusal of the Advertisement, it is clear that the minimum qualification and age limit etc. were not mentioned in the advertisement which is a mandate under Rule-7 (2), Part-1 of the U.P. Recognized Basic High Schools (Junior High School) (Recruitment and Conditions of Service Of Teachers and other Conditions) Rules, 1978 (hereafter referred to as "the Rules, 1978"). It has further been observed that in the meeting of the General Body of the School held on 13th August, 2017 the selection and appointment of the petitioner has been declared illegal after criticizing the whole selection process undertaken by the Committee of Management.

16. Thus, vide the impugned order BSA has held that the approval for selection and appointment of the petitioner to the post of Headmistress was not in accordance with Rule-7 (2) Part-1 of the Rules, 1978 and, therefore, the same has been cancelled.

17. Some other facts, which are relevant and important in this case, are to be noted. The then BSA had made several appointments in 32 Schools/Institutions which were under his jurisdiction during his tenure between 2014-2017 as BSA. He had approved appointments of 200 Headmasters/Assistant Teachers and Clerks in different recognized and aided Junior High Schools. One public spirited person namely Sri Kamlesh Singh, and other members of the civil society made complaints with the State Government in respect of the approval granted by Sri Rakesh Singh to the appointments of Headmasters/Assistant Teachers and Clerks in different recognized and aided Junior High Schools in district Ballia. Sri Kamlesh Singh also filed Writ Petition C-No.25115 of 2016. In pursuance of the order dated 25.5.2016, in the aforesaid writ petition, the State Government had constituted a Three Members Committee to examine the validity of approval granted to the appointments made during the tenure of Sri Rakesh Singh as BSA. The said Enquiry Committee issued notices to 32 Institutions where these appointments were made. It had completed the inquiry in respect of four Institutions including the present School where the petitioner is working as Headmistress. The State Government had appointed the Additional Director of Education (Basic), Directorate of Education U.P. Allahabad as the Enquiry Officer in respect of the serious allegations against Sri Rakesh Singh. The three members of the Committee constituted for enquiring the allegations against Sri Rakesh Singh are Additional Director of Education (Basic), Azamgarh Region Azamgarh, BSA, Ballia and Finance and Accounts Officer in the office of BSA, Ballia.

18. A Public Interest Litigation being Public Interest Litigation (PIL) No.4022 of 2018 has been filed for a direction to the three members Committee to complete the inquiry in respect of serious allegations in the appointments on the posts of Headmasters/Assistant Teachers and Clerks in other twenty eight Institutions during the tenure of Sri Rakesh Singh as BSA, Ballia and take appropriate action including civil and criminal against the guilty persons, who are found involved in the fraud committing in making appointments on public posts.

19. The inquiry report in respect of four Institutions including the present School in which the petitioner was appointed and is working as Headmistress was submitted on 3.5.2017. In this inquiry report, it has been clearly observed that the appointment of the petitioner to the post of Headmistress in the School was illegal. On the basis of the aforesaid inquiry report a charge-sheet was issued to Sri Rakesh Singh and in the inquiry report, the Enquiry Officer has concluded that all the ten charges levelled against Sri Rakesh Singh in the charge-sheet were fully proved and corroborated by evidence on record. Charge No.5 of the charge-sheet issued against Sri Rakesh Singh was with respect to appointment of his relatives including the petitioner. The Enquiry Officer had found the aforesaid charge completely proved against Sri Rakesh Singh

20. Despite the submission of the inquiry report in which the Enquiry Officer had concluded that all the ten charges levelled against Sri Rakesh Singh were fully proved, no action was being taken by the Competent Authority against Shri Rakesh Singh, hence a Contempt Application No.4729 of 2016 was filed in this Court.

21 Despite all charges having been proved against Rakesh Singh, the State Government has been very lenient for reasons best known to it to award punishment of stopping two increments with cumulative effect vide its order dated 29.05.2017.

22. The allegations against Shri Rakesh Singh are that he has amassed wealth of more than Rs.500/- crores by his corrupt and illegal actions while discharging his duties and responsibilities as public servant and in breach of trust of public office of the BSA. It is alleged that he has very close relations/contacts with influential peoples, politicians and high-ups in the bureaucracy. He has been able to secure appointment of his close relatives including the petitioner in different Institutions.

23. In the punishment order dated 29.5.2015 passed against Shri Rakesh Singh, in respect of Charge No.5, which is in respect of appointments of his relatives in different institutions, a specific finding has been recorded that Alok Kumar Singh, Ankit Singh, Hariom Singh, Deepak Singh and Rambha Singh (present petitioner) are the relatives of Shri Rakesh Singh. In respect of this charge, the only explanation which has been given by Shri Rakesh Singh is that the selection was not made by him but the Selection Committee had selected these persons and he did not participate in the selection process but Shri A.K. Jha, BSA was nominated by him. It is also relevant to mention that Shri A.K. Jha has been nominated for most of the Institutions as nominee of the BSA by Shri Rakesh Singh to participate in selection process.

24. It is not in dispute that the approval of these appointments was granted by Shri Rakesh Singh and this charge has been held to be completely proved against Shri Rakesh Singh. Appointment on a public post has to be made on merit alone. If it is found that the appointment has been made by practicing bias or for other considerations, such an appointment on a public post cannot be held to be valid. A person appointed on a public post holds the office in public trust. The public trust cannot be discharged if his appointment is tainted in any manner. A country which does not respect merit can not secure its place in the comity of great nations. When an appointment on a public post is tainted, it means that merit has been ignored and overlooked for considerations other than legal and valid.

25. Articles 14 and 16 of the Constitution of India guarantee fair, reasonable and undiscriminatory method of selection. Public functionaries are trustees of the powers vested in them and custodian of the public interest. The appointing authority is required to be impassionate while making selection to a public post by selecting the most meritorious person. The merit alone should be the consideration. If the merit is ignored then the appointing authority has not discharged and exercised the powers as a Trustee but he/she has exercised the powers for oblique purposes.

26. The supreme court in the case of State of Punjab v. Brijeshwar Singh Chahal : (2016) 6 SCC 1 in para 19 has held as under:-

"19. It is by now, fairly well settled that not only the Government but all public bodies are trustees of the power vested in them and custodians of public interest. Discharge of that trust in the best possible manner is the primary duty of those in charge of the affairs of the State or public body. This necessarily implies that the nature of functions and duties including the power to engage, employ or recruit servants, agents, advisors and representatives must be exercised in a fair, reasonable, non-discriminatory and objective manner. It is also fairly well settled that duty to act fairly and reasonably is a facet of "Rule of Law" in a constitutional democracy like ours. A long line of decisions of this Court over the past five decades or so have ruled that arbitrariness has no place in a polity governed by Rule of Law and that Article 14 of the Constitution of India strikes at arbitrariness in every State action. We may gainfully refer to some of these decisions, not so much to add to their content as to remind ourselves that we have come a long way in the matter of settling the contours of the doctrine of Rule of Law of which equality is one significant feature."

27. The State functionary is said to have discharged powers vested in it as Trustee only if the power is exercised in the public interest and not in arbitrary manner. A fair, reasonable and undiscriminatory method of selection should be adopted. The constitution guarantees equality in public employment under Articles 14 and 16 of the Constitution of India. If appointment to a public post is tainted, it means that the appointing authority has exercised power not in public interest but for consideration which are unreasonable unjust and improper in arbitrary manner.

28. The supreme court in para 39 of the aforesaid judgment of State of Punjab versus Brijeshwar Singh Chahal (supra) has held as under:-

"39. The development of law in this country has taken strides when it comes to interpreting Articles 14 and 16 and their sweep. Recognition of power exercisable by the functionaries of the State as a trust which will stand discharged only if the power is exercised in public interest is an important milestone just as recognition of the Court's power of judicial review to be wide enough to strike at and annul any State action that is arbitrary, unguided, whimsical, unfair or discriminatory. Seen as important dimensions of the Rule of Law by which we swear, the law as it stands today has banished from our system unguided and uncanalised or arbitrary discretion even in matters that were till recently considered to be within the legitimate sphere of a public functionary as a repository of executive power. Those exercising power for public good are now accountable for their action, which must survive scrutiny or be annulled on the first principle that the exercise was not for public good in that the same was either mala fide, unfair, unreasonable or discriminatory. Extension of the principle even to contractual matters or matters like engagement of Law Officers is symbolic of the lowering of the threshold of tolerance for what is unfair, unreasonable or arbitrary. The expanding horizons of the jurisprudence on the subject both in terms of interpretation of Article 14 of the Constitution as also the Court's willingness to entertain pleas for judicial review is a heartening development on the judicial landscape that will disentitle exercise of power by those vested with it as also empower those affected by such power to have it reversed if such reversal is otherwise merited."

29. Favouritism in appointment to public post amounts to denial of equality of opportunity under Articles 14 and 16 of the Constitution of India. It is the constitutional duty of the appointing authority to ensure fair selection process. If the selection process is found to be tainted for reasons of bias, unreasonable or discriminatory it has to be struck down being violatory of Articles 14 and 16 of the Constitution of India.

30. Rule of fairness is essential feature of government action. It is the obligation of the State to select the best candidate for a public post. If merit is ignored then the State has abdicated the powers and defied its duty to select the best candidate.

31. If the court finds that the selection and consequent appointment are not objective and fair, the Court should not be hesitant in quashing such appointment on public post. It is in public interest that selection for appointment to public post is made objectively and fairly.

Decision of the select committee to select the candidate on appointment on the public post should be reasonable and not to be based on extraneous or irrelevant consideration.

32. From the facts disclosed, it is clear that the advertisement was not in accordance with the provisions of Rule 7(2) of 1978 Rules inasmuch as it did not mention the qualifications, age limit, experience etc. and, therefore, when the advertisement itself was not in accordance with the statutory prescription, any further action for selection/recruitment has to be held illegal. When the advertisement was not in accordance with the Rules, it has to be held that the selection and appointment to the post of Headmasters/Headmistress in the Institution in pursuance of such an advertisement was not in accordance with the Rules.

33. This Court in Ram Asrey Singh Vs. District Basic Shiksha Adhikari, Mirzapur, reported in Laws (ALL) 1995 (3) 79, in some of the similar circumstances, has held as under:-

"It is not disputed that the vacancy against which the third respondent has been appointed was not advertised. Rule 7 of the Uttar Pradesh Recognised Basic Schools (Junior High School) (Recruitment and Condition of Service of Teacher) Rules, 1978 inhibits any appointment against a vacancy except after its advertisement in at least one newspaper having wide circulation in the locality and the intimation of such vacancy to the District Basic Education Officer. The appointment of the 3rd respondent having admittedly been made without advertisement cannot be sustained in view of the same being against the inhibition contained in Rule 7 of the statutory services Rules. Such an appointment is also hit by Article 14 of the Constitution of India. It may be observed that not only the petitioner is aggrieved but aggrieved are also all those qualified persons who could have applied for the post had it been advertised in accordance with the provisions of Rule 7 of the Rules aforestated. That apart the allegation that third respondent happens to be son of the brother-in-law of the then District Basic Shiksha Adhikari as made in paragraphs 8/9 of the writ petition is not disputed in the counter affidavit. In the facts and circumstances of the case, therefore, I have no hesitation in saying that the appointment of the third respondent was made in flagrant violation of statutory rules and on extraneous consideration, it is for the reasons aforestated that I am of the view that the appointment insofar as the respondent no.3 is concerned cannot be sustained in law.

It is true, that the petitioner as well as the third respondent participated in the selection proceedings held pursuant to an advertisement dated 18-1-1994 but the selection pursuant to said advertisement was admittedly in respect of one post of Headmaster and one post of Assistant Teacher other than the post against which the 3rd respondent has been appointed.

Accordingly, the petition succeeds and is allowed. The impugned order dated 29-1-1994 insofar as it relates to the 3rd respondent is quashed. The respondents are directed to hold fresh selection to the post in question in accordance with law.

Petition allowed."

34. The manner in which the then Manager had proceeded to advertise the post and make selection clearly establishes that the whole exercise was carried out in a predetermined and bias manner to appoint the petitioner on the post of Headmistress. The then Committee of Management sent the signatures for approval to the BSA only on 02.06.2015 but before that, a request for carrying out the advertisement for filling up the post of Headmaster/Headmistress was sent. The approval was granted on 06.06.2015. The advertisement was sent for publication before that and it was published on 06.06.2015 in two newspapers. It has also come on records that the petitioner happens to be relative of Rakesh Singh which is the clear finding in the punishment order dated 29.05.2017 of Shri Rakesh Singh. This Court, therefore, cannot and should not come in the way when the corrective steps have been taken for declaring the appointment of the petitioner as invalid and not in accordance with law. The appointment of the petitioner is tainted and against the statutory Rules and the allegation of bias of the then BSA is also not without substance. The petitioner is holding a public office, but her appointment is tainted and, therefore, this Court does not find any illegality or irregularity in the impugned order whereby the petitioner's appointment has been held to be invalid.

35. As a result of foregoing discussions, the writ petition fails and is hereby dismissed.

Order Date :-

MVS Chauhan/-

Judgment pronounced today under Chapter VII Rule 1(3) of the Allahabad High Court Rules, 1952.

(Ajit Kumar, J.)

07.12.2018