Reeta Pandey And 6 Others vs State Of U.P. And 3 Others
2021 Latest Caselaw 11447 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A. F. R.
 

 
Reserved on 25.11.2021
 
Delivered on 08.12.2021
 

 
Writ A No.15480 of 2021
 

 
Reeta Pandey and six others...............Petitioners
 
Versus
 
State of U.P. and three others......Opposite Parties
 

 

 
Hon'ble Alok Mathur, J.

1. Heard Sri Girijesh Tiwari, learned counsel for the petitioners, learned Standing counsel for the State while Sri A. P. M. Tripathi has accepted notice on behalf of respondent No.4.

2. The petitioners are aggrieved by the inquiry report submitted by Assistant Director of Education (Basic) on basis of a private complaint and have approached Court with the prayer to quash the said inquiry report, and further directing the respondnets not to proceed with conduct of regular inquiry,and not to take any coercive action against the petitioners and to allow them to continue as Assistant Teacher in institution.

3. The brief conspectus of the case is that the petitioners are working as Assistant Teacher in the institution known as Maa Reshma Kuwari Balaika Vidyalaya Manihari, Salempur, District Deoria which is a recognised and aided institution up to Junior High School standard, and provisions of the U.P. Recognised Basic School (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978 as well as the Provisions of U.P. Junior High School Payment of Salaries of Teachers and other Employees Act, 1978 are applicable and consequently the salary of the teaching and non teaching staff's is being disbursed under the provisions of the above Act.

4. It has been submitted that all the petitioners have been appointed in accordance with the relevant rules after publication of the advertisement and they fulfill all the requisite qualifications, and even their appointments were approved by the competent authority, and hence there is no infirmity in the same.

5. The grievance of the petitioners have commenced on account of a complaint sent by one Ritul Bisen to the District Magistrate Deoria levelling allegations that there was irregularity committed in the selection and appointment of the petitioner and also that they lack the relevant qualifications required for being appointed on the said posts.

6. The District Magistrate, Deoria by order dated 28/09/2020 directed the Basic Education Officer to conduct an inquiry into the matter, who in turn delegated it to Block Education Officer, Salempur, District Deoria. The Block Education Officer conducted an inquiry and submitted its report on 17/08/2020 to the Basic Education Officer holding that there was no infirmity in the appointment of petitioners, and consequently the said report was forwarded to the District Magistrate by the Basic Education Officer on 18/08/2020 reiterating the findings recorded by the Block Education Officer.

7. It is submitted that the similar complaint was submitted by Ritul Bisen to the Assistant Director of Education (Basic) Gorakhpur Region, Gorakhpur, who proceeded to inquire into the allegations himself and issued directions to the Manager of the institution as well as Basic Education Officer to submit their comments with regard to the allegations made in the said complaint. The Assistant Director of Education (Basic) after calling for the replies and also after examining the records produced by them as well as giving an opportunity to the petitioners has prepared an inquiry report which has been forwarded to the District Basic Education Officer, Deoria to conduct a regular inquiry in accordance with law. It is the said inquiry report which has been assailed by the petitioners in the present writ petition.

8. Counsel for the petitioners has submitted that once an inquiry has already been conducted by the District Basic Education Officer and the report was forwarded to the District Magistrate by order dated 18/08/2020 then there was no occasion for a regular inquiry into the same allegations and the same constitutes,harassment and consequently prayer has been made to set aside the order for conducting the regular inquiry on the said complaint.

9. The second ground urged by the petitioners is that all the petitioners are working for more than 10 years, and after such a long period of time questioning the qualifications and the process of selection is not permissible and constitutes harassment and consequently have submitted that no such inquiry should permitted to continue against the petitioners.

10. In order to consider submissions raised by learned counsel of the petitioners it would be relevant to consider the nature of the allegations made against the petitioners and also the material available in support of the allegations and the findings recorded in the impugned inquiry so conducted against the petitioners.

11. The copy of the complaint has not been annexed, but the details of the allegations finds mention in the report dated 12/08/2021 submitted by the Assistant Director of Education (Basic), according to which it has been alleged inter alia:-

A. Petitioner no.1 Km Rita Pandey was appointed by the Management without issuing any advertisement nor constituting any selection committee and even the approval granted was irregular and she did not possess the requisite educational qualifications required for the post of Assistant Teacher.

B. Petitioners nos.2, 3 and 4 are also alleged to have been appointed without any advertisement nor any constitution of a selection committee and the did not have the requisite qualifications in as much as the degree of B.Ed was not a recognised qualification for the said post at the time of appointment.

C. It is also alleged that some of the teachers do not possess Teachers' Eligibility Test qualification which was the essential qualification required to the post of Assistant Teacher and all these appointments were made during the period Sri A.N.Maurya was the Basic Education Officer by using corrupt methods. The allegations with regard to petitioner No. 4 is that she is the wife of the younger brother of the Manager of the Institution and even petitioner no 2 is very closely related to the Manager and consequently in light of the bar imposed in the rules of 1978 they could not appointed as such.

12. Initially the matter was left to the Block Education Officer to conduct the inquiry into the said allegations and he duly submitted his report on 17/08/2020. A perusal of his inquiry report reveals that he had sent his report on the basis of the material furnished by the Manager of the Institution against whom the allegations were also levelled and he was said to be the close relative of some of the teachers.

13. The Block Education Officer in his inquiry looked into the selection process, has laid great emphasis on the fact that the complaint should have been made on affidavit, only then said inquiry can take place. His report clearly indicates his reluctance to enquire into the alleged malpractices in the appointment of the teachers, and subsequently he has observed that all the teachers are duly qualified without even examining the details of their qualification and only stating that the appointment process has been and concluded on the orders of the High Court. The said inquiry on the face of it is totally unsatisfactory and does not indicate that any sort of effort was made by him to unravel the truth or to go into the allegations levelled against petitioners.

14. There is no letter order on record, nor any averment in writ petition that the District Magistrate has recorded his satisfaction or approved the inquiry conducted by the Block Education Officer.

15. The Assistant Director Education (Basic) has also conducted the inquiry on the same allegations. In his inquiry report, which has been forwarded to the District Basic Education Officer along with the impugned letter dated 12/08/2021 clearly narrates the entire process undertaken by him while conducting the said inquiry. It is stated in his letter dated 11/09/2020 that he had required the District Basic Education Officer, Deoria as well as the Manager of the Institute to be present on 28/09/2020. The complainant was also present on the said date and he presented all the evidence in support of the allegations, but the Manager of the Institution did not put up any case in his defence and consequently the next date fixed was 20/10/2020 after intimation to all the persons. The Manager of the Institution required that an affidavit should be filed by the complainant with regard to the allegations levelled therein and consequently the same was done and a copy was given to the Manager of the Institution. Number of dates were fixed and the District Education Officer was also required file a response, and it is also mentioned that the concerned teachers including the petitioners were also given an opportunity to submit documents and present their defence by means of letter dated 09/03/2021. On 08/04/2021 all the seven teachers were present and were given an opportunity to give their defence in writing which they refused, but produced their appointment letters and other educational qualifications/documents during the said hearing.

16. The Assistant Director of Education (Basic) has considered the complaint as well as, the version of the Manager of the Institution and thereafter recorded his findings on each of the points made in the complaint. His findings are recorded in a comparative chart from which the version of all the parties is clearly evident. With regard to Ms Rita Pandey he has held that she has completed B.Ed in year 2006 and she was appointed in the year 2008 and consequently it is not possible for her to have completed five years experience. He has raised a suspicion about the approval granted to her as well as with regard to her age and opined that these issues are required to be gone into and inquired by the District Basic Education Officer, Deoria.

17. With regard to the allegation that Rita Pandey was the wife of the Manager, Ajit Kumar Upadhaya, a copy of the marriage invitation card was produced in support of the allegations but it seems she was married after her appointment, and another piece of evidence produced was a copy of the election card, which also indicates Ajit Kumar Upadhaya to be her husband but it was not clear as to when the said election card prepared and consequently he was of the opinion that the matter may be inquired into after collecting relevant information. With regard to the allegation regarding that Ms Neetu who is said to be the wife of Dhananjaya Upadhaya, brother of the Manager as per election card, the said fact stood confirmed and he opined that her appointment is contrary to the rules.

18. This Court at this stage would not go into the veracity of the allegations in the present proceedings, but the inquiry report has been perused by us to determine the nature of allegations and the material in support of the same to determine and also to evaluate as to whether the allegations are frivolous or levelled due to sheer malice or there is any substance in the same, and also the manner in which the inquiry has been conducted, so as to consider the allegation of harassment levelled by the petitioner and also to determine whether a prima facie case is made out against petitioner.

19. Considering the inquiry report submitted by the Assistant Director of Education (Basic) it seems that he has considered all the material placed before him in detail and his observations seems to be in sync with the material produced, and wherever there is lack of any material or clarity in the documents, he has sought further inquiry into that aspect by the District Basic Education Officer.

20. The Assistant Director of Education has only considered the nature of allegations and the material produced in support of the same allegations and was opinion that a regular inquiry is necessary for which purpose is he has forwarded the entire material to the District Basic Education Officer. The exercise conducted by the Assistant Director of Education can only be equated with a fact-finding inquiry, and he has not given any final determination with regard to the allegation. From the impugned order, it cannot be said that the allegations are baseless or can be rejected outright but the matter deserves to be inquired further and consequently necessary directions have been given to the District Basic Education Officer. It is seen that even during the preliminary inquiry the petitioners were given an opportunity to participate and even the documents submitted by then were duly considered. On substance being found in the allegations, a regular inquiry is being sought which has been assailed by the petitioners.

21. One of the grounds urged by the counsel of the petitioner while assailing the impugned order is that the inquiry has already been conducted by a superior authority, that is the Assistant Director of Education (Basic), who has directed the District Basic Education Officer to conduct the inquiry, and therefore it is the apprehension of the petitioners that in all probability the District Basic Education Officer being subordinate to the Assistant Director of Education (Basic) would act on his dictate and not conduct inquiry independently.

22. From a perusal of the impugned order, the Assistant Director of Education (Basic) it is clear that he has only conducted a preliminary inquiry into the veracity of the allegations, and on a number of aspects he has recorded that the material was not sufficient to come to any conclusion, and therefore has left it to the District Basic Education Officer to conduct a regular inquiry and to record a finding in that regard. Considering the aforesaid inquiry report, this Court is of the considered opinion that The Assistant Director of Education (Basic) has only proceeded to verify the contents of the complaints, and it is at the most a fact-finding inquiry, which is necessary for initiating a regular inquiry, inasmuch as where the complaint is found to be frivolous and without any basis, then the complaint can be dropped, and there would be no need to proceed for a regular inquiry. In the instant case, the Assistant Director of Education (Basic) has verified the allegations levelled in the complaint are made against the petitioners, and only after satisfying himself has directed for a regular inquiry in accordance with law. The apprehension of the petitioners seems to be baseless, and only a vein attempt to prevent a regular inquiry.

23. In this regard it is relevant to mention that petitioner no.7 had approached this Court in an earlier occasion where The Assistant Director of Education (Basic) had only asked for the relevant records pertaining to the petitioners vide his order dated 09/03/2021, and in the said writ petition a similar ground was raised that an earlier inquiry has been conducted by the District Basic Education Officer, Deoria at the behest of a private individual and consequently a flawed inquiry into the same allegations would not be maintainable. This Court in its order dated 06/08/2021 passed in writ petition no. Writ "A" 5211 of 2021 disposed of the writ petition by providing that the inquiry officer shall take note of the earlier inquiry report dated 01/03/2021. From the above order it is clear that the grounds urged by the petitioners were not accepted by this Court and the prayer to stall the regular enquiry was unsucessful and on similar facts the present writ petition has been preferred.

24. Under ordinary circumstances there is no need for judicial interferance with the inquiry report in as much as the delinquent employee does not suffer any adverse consequences on mere submission of the inquiry report. Needless to say ,the inquiry report is subject to consideration by the disciplinary authority who is required to pass a reasoned and speaking order after giving a copy of the same to the employee concerned. It is open for the disciplinary authority either to accept the inquiry report or to reject the same, and therefore unless it is shown that the said inquiry report suffers from some jurisdictional error or that there is some element of malafide in conduct of the said inquiry interference is not required to be made by this Court in exercise of power under Article 226 of the Constitution of India.

25. The Hon'ble Supreme Court in the case of Allahabad Bank & Ors. vs. Krishna Narayan Tiwari, (2017) 2 SCC 308 has held as under:-

7. We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary inquiry or the resultant orders passed by the competent authority on that basis if the inquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the inquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The respondent's case that the inquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defense has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told the inquiry Officer, the Disciplinary Authority and the Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority.

26. In the present case the allegation against the petitioners are very serious. Some of the petitioners are alleged to be very close relatives of the Manager of the institution where they have been appointed, while the law prohibits such an appointment. In the complaint copy of the election cards of the petitioners where produced showing that the Manager is the husband of one of the petitioners, and the other petitioner is also the wife of the brother of the Manager.

27. A perusal of the impugned inquiry report, reveals that the educational qualifications of the petitioners have also found to be suspect, and even as per their own version they might not have completed the minimum experience required for the appointed on the post of Assistant Teacher. These allegations go to the very root of appointment of the petitioners and the further continuance on the said post. Mere continuing on a particular post for a long period of time does not establish that the selection of the individual was in accordance with law, and it can always be a subject of inquiry to establish that the appointment was lawfully made or not and that the said employees is not a usurper of office. Appointments in educational institutions have to be made strictly in accordance with the qualifications laid down in the rules existing at the time of the appointment, as it has widespread ramifications, inasmuch as an ineligible person appointed as a teacher may do more harm to the students and where a person who has tried to manipulate his appointment as a teacher, is less likely to inculcate the values desired to the student specially at the primary and Junior High school level.

28. It was submitted that the petitioners have been continuing in the said institution for a very long time and, therefore, after such a long time no inquiry should be held with regard to the mode of appointment or their qualifications. This argument in the facts of the present case is bereft of merit and is liable to be rejected outrightly. Any person who has been appointed on the basis of false declaration or on the basis of false documents regarding their eligibility, does not have any right to continue on the said post even if he/she has been woking for a long time. Fraud, cannot be condoned and as soon as it is determined that a person has obtained appointment fraudently, the appointment deserve to be set aside.

29. The Hon'ble Supreme Court held that anyone found guilty of using a forged caste certificate for getting education and employment will lose their degree and their job. To add to that, the guilty will be punished heavily too, announced the apex court.

30. If someone had committed a similar fraud to get a job, no matter how long they had been employed, their punishment will be inevitable too.

31.The Hon'ble Supreme Court in the case of Chairman and managing director FCI and ors vs. Jagdish Balaram Bahira and ors, (2017) 8 SCC 670 has held as under:-

"20 The next decision which is of relevance on the issue, is a judgment of three Judges of this Court in R. Vishwanatha Pillai Vs. State of Kerala4 . In that case the appellant who did not belong to a designated reserved community obtained a caste certificate and was selected as a Deputy Superintendent of Police on a seat reserved for the Scheduled Castes. However, it was found upon a complaint that the appellant did not belong to a Scheduled Caste and the Scrutiny Committee rejected his claim. The order of the Scrutiny Committee was upheld by the High Court and by this Court. Subsequently at the behest of the appellant the Central Administrative Tribunal directed that he should not be terminated from service without following the procedure under Article 311. The High Court reversed that decision and the appellant was dismissed from service. Before this Court the appellant inter alia sought protection since he had rendered nearly 27 years of service. Rejecting the submission this Court held that:

"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India, Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India, As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all." (Id. at p. 115) (emphasis suppled)

The Bench of three Judges also rejected the submission that since the appellant had rendered 27 years of service, the order of dismissal should be substituted with an order of compulsory retirement or removal to protect his pensionary benefits. The Court observed :

"19.....The rights to salary, pension and other service benefits areentirely statutory in nature in public service. Appellant obtained the

appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to thepost was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid andlegal appointment. Theconsequential right of pension and monetary benefits can be given only ifthe appointment was valid and legal. Such benefits cannot be given in a

case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered

the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person who, seeks equity

must come with clean hands. He. who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise

equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of false castecertificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud." (Id. at p. 116)"

32. Considering the arguments raised by counsel for the petitioners as well as the nature of allegation against the petitioner and also that, this Court is of the considered view that there is no infirmity in the impugned order directing regular enquiry against the petitioner and no ground is made out requiring interference by this Court at this stage and hence the petitioners being devoid of merit is dismissed.

Dated:  08.12.2021                                       (Alok Mathur, J.)
 
RKM.