Allahabad High Court
Pradeep Kumar And 9 Others vs State Of U.P. And 4 Others on 27 November, 2018
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 4 AFR
Case :- WRIT - A No. - 49746 of 2017
Petitioner :- Pradeep Kumar And 9 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Puneet Bhadauria
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. The petitioners were ten in number, have come up before this Court with the prayer for a writ in the nature of certiorari quashing the order dated 21.09.2017 passed by the 4th respondent on the ground that the procedure prescribed for under the Government Order governing the conditions of service of the Part Time Instructors in the scheme namely Right to Education for All, dated 31.01.2018, pursuant to which they were appointed, has not been followed.
3. Briefly stated facts are that petitioners were duly selected by going through the procedure as contemplated under the Government Order (supra) and were given appointment as Part Time Instructors initially for the session 2010-11 and have thereafter continued as such and their respective engagements were renewed from time to time on term to term basis (the term of 11 months). In the year 2017, as admittedly they had been working at the time, the order impugned dated 21.09.2017 was passed. The order impugned dated 21.09.2017 as quoted therein, assigns that the work of the Part Time Instructors, who are enlisted in the impugned order, has not been found satisfactory during the session 2017-18. The opinion has been formed on the basis of enquiry conducted by the District Development Officer and the report submitted by him. So virtually adopting these findings to be true the action was taken by the District Magistrate/Chairman of the District Education Project Committee under the Right to Education for All vide order dated 18.09.2017.
4. In the counter affidavit that has been filed by the respondent no. 4 on his own behalf as well as on behalf of the respondent no. 2 it has been averred in paragraph 8 that the work and conduct of the petitioners were not satisfactory in the academic session 2017-18 and, therefore, it has been decided at the end of the District Magistrate not to grant them further renewal.
5. The argument advanced on behalf of the petitioners is that since the initial appointments of the respective petitioners were made in May 2013-14, obviously on the expiry of each session of 11 months, the term was extended that is why they were working and, therefore, the order impugned dated 21.09.2017 seeks to annul their assignment/appointment for the remaining period of the ongoing session and as such the action could have been taken only by following the procedure laid down under the Government Order dated 31.01.2013. Sub-Clause 3 of Clause 6 of the Government Order has been relied upon while advancing the argument that prescribed procedure has not been followed and, therefore, the order impugned is vitiated in law and as such cannot be sustained. Clause 6 for the Government Order dated 31.01.2013 is reproduced here under :
^^ 6-& va'kdkfyd vuqns'kdksa dk dk;Zdky&
1& va'kdkfyd vuqns'kdksa dk dk;Zdky vf/kdre 11 ekg gksxk ,oa fdlh Hkh 'kSf{kd l= esa 31 ebZ dks Lor% lekIr gks tk;sxk rnkuqlkj va'kdkfyd vuqns'kdksa dks 31 ebZ rd ekuns; ns; gksxkA
2&va'kdkfyd vuqns'kdksa ds uohuhdj.k dh dk;Zokgh izR;sd o"kZ lafonk lekIr gksus ds de ls de ,d ekg iwoZ vo'; izkjEHk dh tk;s ,oa ftykf/kdkjh dh vuqefr ls uohuhdj.k dh dk;Zokgh lqfuf'pr dh tk;sA
3& ftu va'kdkfyd vuqns'kdksa dh lsoka, mi;qDr u ikbZ tk;s muds lEcU/k eas i=koyh ij lk{; lfgr vkdayu fd;k tk;sA ,dk,d lsok lekIr u dh tk;sxh vfirq ,sls dehZ dks viuh lsok esa lq/kkj ykus ds fy;s lq>[email protected] ftykf/kdkjh dh vuqefr ls ftyk csfld vf/kdkjh }kjk fyf[kr :i ls nh tk;sxhA ;fn vuqns'kd dh lsoka, vuqi;qDr ik;h tk;h gS rks ftykf/kdkjh ds iwoZ vuqeksnu ls ftyk csfld f'k{kk vf/kdkjh }kjk mls ,d ekg dk uksfVl nsdj lsokvksa dsk lekIr fd;k tk;sxkA
4& xaHkhj vuq'kklughurk dh fLFkfr esa ;fn lsok lekIr djus dh vko';drk izrhr gksrh gS rks ftyk csfld f'k{kk vf/kdkjh }kjk iq"V izek.kksa lfgr Lor% Li"V izLrko ftykf/kdkjh dks izLrqr fd;k tk;sxkA lafonk lekfIr gsrq fuxZr vkns'k ftykf/kdkjh ds vuqeksnu ds mijkUr gh ekU; gksxkA
6. Learned counsel for the respondents does not dispute two facts; firstly, the petitioners were appointed on 20.06.2013 and they have continued over these years by way of renewal from time to time; and secondly that their appointments have been made as per the procedure prescribed under the Government Order dated 31.01.2013 and, therefore, in the event a mid term action was taken drawing power from Clause 6 (3) of the Government Order dated 31.01.2013, the further procedure prescribed for ought to have been followed.
7. From the perusal of the order impugned it does not transpire that the petitioners were ever served with any notice, as contemplated under the relevant clause noted herein above. This Court therefore, is of the opinion that in case if the appointments have been made in terms of a prescribed procedure then the mid term annulment of appointment should also be made in terms of the prescribed procedure. This Court takes judicial notice of a fact that the petitioners were continued for over these years since 2013 till the impugned action, for good satisfactory work, the condition of renewal being good conduct, and work, and, therefore, if on one visit/inspection any laxity was found in respect of their work and conduct, petitioners in all propriety were entitled at least to a notice of opportunity to explain their conduct.
8. The administrative decision making it is well settled principle of administrative law should be reasoned and in other words if any administrative exercise of power reflects lack of any transparency in decision making process such action cannot pass the test of Article 14 of the Constitution of India which guarantees protection from arbitrariness and which is the bench mark of a rule of law of society. Such action therefore, needed immediate arrest to check the fallible action and miscarriage of justice.
9. The doctrine of fairness has emerged as a bedrock of administrative decision making process and coupled with natural justice form due process, the basic ingredient of rule of law. Whatever is arbitrary, is against the rule of law and arbitrariness means an action opposed to natural law, a concept of justice i.e. impartial dealing (and taking decision after) listening to both sides of dispute (P. Jackson: Natural Justice, 2nd Edn. 1979 115). The authority when required to act in a procedurally fair manner means it has to conform to the principles of natural justice. It is relevant here to also quote extract from Mullan in Natural Justice and Fairness:
".......This did not go far enough; the old law relating to natural justice was too rigidly entrenched. More importantly, the issues were now somewhat more sophisticated, and it was recognized that it was not a case of all or nothing. Some decision making functions, while not requiring full adjudicative hearings, might nevertheless have usefully had certain participatory obligations or perhaps simply an obligation of "proper" consideration attached to them.
Out of this predicament emerged the new vocabulary of the duty to act fairly. This was not in any sense the result of a growing feeling on the part of the courts that the time had come to assert a general review power over the wisdom of administrative decision-making, even though the subsequent conduct of one of the principal proponents of procedural "fairness" review, Lord Denning M.R., might suggest that this was indeed the case. It can best be viewed as a reaction to a particular problem in a particular area of judicial review. Hence it is ironic, though not perhaps surprising, to now see the emergence of fairness in the substantive law of judicial review as a standard for judging the merits of administrative decision-making........ . (1982) 27 McGill L.J. 273."
10. In view of the above, order impugned dated 21.09.2017, therefore, cannot be sustained and is hereby quashed. The petitioners had been wholly illegally deprived to discharge their duties that they would have otherwise discharged and would have been entitled to payment and, therefore, they are held entitled to the honorarium that they would have continued till the end of session 2017-18. The computation of the amount of honorarium shall be done within a period of six weeks from the production of certified copy of the order and the payment shall be made accordingly. However, so far the claim for further renewal/future renewal of the petitioners is concerned, suffice it to say that a contract appointment under the scheme does not guarantee any continuance regularly. If the term of appointment is for 11 months it shall obviously last till 11 months only and, therefore, no positive direction can be issued to further renew the appointment of the petitioners and also obviously for the reason of the term having expired in June 2018, and some other instructors might have been appointed. However, in future as and when the advertisement is issued, petitioners may apply and may face selection and may be appointed on their own merits.
11. The writ petition is therefore allowed with the aforesaid observations and directions.
Order Date :- 27.11.2018
Md Faisal
