Allahabad High Court
Gyanendra Kumar Mishra And 2 Ors. vs State Of U.P. Thru ... on 24 July, 2023
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:48470
Court No. - 7
Case :- WRIT - A No. - 11018 of 2019
Petitioner :- Gyanendra Kumar Mishra And 2 Ors.
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Prafulla Tiwari,Lalta Prasad Misra
Counsel for Respondent :- C.S.C.,Ghaus Beg,Shailendra Singh Rajawat
Hon'ble Abdul Moin,J.
1. Heard Dr L.P.Mishra, learned counsel for the petitioners, learned Standing counsel appearing on behalf of the respondents no. 1, 2, 5 & 6, Sri Shailendra Singh Rajawat, learned counsel appearing on behalf of the respondent no. 7 and Sri Kumar Ayush, Advocate who files his Vakalatnama on behalf of respondents no. 3 & 4.
2. Bereft of unnecessary details, the brief facts of the case are as under:-
3. Instant writ petition has been filed praying for quashing of the order dated 15.02.2019, a copy of which is annexure 1 to the writ petition passed by the District Inspector of Schools, Bahraich whereby the entire selection process for the post of Assistant Teacher (Junior High School) has been cancelled.
4. Dr L.P.Mishra, learned counsel for the petitioners submits that in pursuance to an advertisement that had been issued by the Committee of Management, the selection for the post of Assistant Teacher had taken place. A complaint was made by a person alleging various irregularities in the selection. Despite the appointing authority of the petitioners being the Basic Shiksha Adhikari, the matter was inquired into, on the direction of the District Magistrate by the District Inspector of Schools, who submitted an inquiry report dated 24.01.2019, a copy of which is annexure CA 3 to the counter affidavit. Placing reliance on the said inquiry report and irregularities having been noticed in the said inquiry report, the entire selection has been cancelled.
5. The legal argument raised by Dr. L.P.Mishra, learned counsel for the petitioners is that as the appointing authority of the petitioners is the Committee of Management who appoints Assistant Teachers with the approval of the Basic Shiksha Adhikari which approval to the selection has not been granted by the concerned Basic Shiksha Adhikari rather the Basic Shiksha Adhikari instead of granting the approval has placed reliance on an inquiry report submitted by the District Inspector of Schools meaning thereby that the approving authority has been swayed and persuaded by the inquiry report of a person who was not competent to do so and consequently, it would be deemed that the competent authority has failed to apply his mind.
6. Elaborating the same, the argument of learned counsel for the petitioners is that when the matter was sent for approval to the Basic Shiksha Adhikari it was always open for him to inquire into the matter pertaining to the selection but acting on an inquiry report of a higher authority and that too when even the complaint was not addressed to the Basic Shiksha Adhikari and thereafter cancelling the entire selection would be deemed to be an exercise done with patent non application of mind.
7. In this regard, reliance has been placed on a judgment of the Apex Court in the case of Anirudhsinghji Karansinghji Jadeja Vs. State of Gujarat reported in 1995 (5) SCC 302 that where an authority is vested with jurisdiction, he has to exercise it according to his discretion but if the discretion is exercised under the direction or in compliance with some higher authorities instruction, then it will be a case of failure to exercise the discretion altogether. For the sake of convenience, the observation of the Hon'ble Supreme Court in the case of Anirudhsinghji Karansinghji Jadeja (supra) are reproduced as under:-
"This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20A (1) was not exercised by the DSP at all.
12. Reference may be made in this connection to Commissioner of Police vs. Gordhandas Bhanji, 1952 SCR 135, in which the action of Commissioner of Police in cancelling the permission granted to the respondent for construction of cinema in Greater Bombay at the behest of the State Government was not upheld, as the concerned rules had conferred this power on the Commissioner, because of which it was stated that the Commissioner was bound to bear his own independent and unfettered judgment and decide the matter for himself, instead of forwarding an order which another authority had purported to pass.
13. It has been stated by Wade and Forsyth in 'Administrative Law', 7th Edition at pages 358 and 359 under the heading 'SURRENDER, ABDICATION, DICTATION' and sub- heading "Power in the wrong hands" as below:-
"Closely akin to delegation, and scarcely distingushable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them.....".
"Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise....".
8. Consequently, when the impugned order is seen in the light of the judgment passed by the Hon'ble Supreme Court in the case Anirudhsinghji Karansinghji Jadeja (supra), it thus clearly comes out that the said order runs foul of the settled proposition of law in this regard.
9. Considering the aforesaid, the writ petition is allowed. The order dated 15.02.2019, a copy of which is annexure 1 to the writ petition is set aside. However, the Basic Shiksha Adhikari is required to pass suitable orders in the case of the petitioners in terms of recommendation sent by the Committee of Management dated 22.12.2018 for which purpose it would be open for the Basic Shiksha Adhikari to also inquire as to whether the selection was made in accordance with law.
10. Let such an order be passed within a period of three months from the date of receipt of a certified copy of this order.
11. It is made clear that the other legal grounds that have been raised in the writ petition have not been entered into by this Court and are left open at this stage.
Order Date :- 24.7.2023
Pachhere/-
