Aparna Tiwari And 2 Others vs State Of U.P. And 4 Others
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Allahabad High Court

Aparna Tiwari And 2 Others vs State Of U.P. And 4 Others on 13 February, 2025

Author: Prakash Padia

Bench: Prakash Padia

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


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Neutral Citation No. - 2025:AHC:20598 
 
Court No. - 7
 

 
Case :- WRIT - A No. - 7446 of 2023
 

 
Petitioner :- Aparna Tiwari And 2 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- CSC
 

 
Hon'ble Prakash Padia,J.
 

1. Heard learned counsel for the petitioners and Sri Vijay Shankar Prasad, learned Additional Chief Standing Counsel on behalf of State-respondent nos. 1 to 4.

2. The petitioners have preferred the present petition inter alia with the prayer to quash the order dated 24.03.2023 as well as order dated 01.04.2023 passed by the Respondent No. 3/District Basic Education Officer, Deoria.

3. Facts in brief as contained in the writ petition filed by the petitioners are that earlier an order dated 23.10.2021 was passed by the Respondent no. 3 whereby and whereunder petitioners' selection and approval as Assistant Teachers in Krishak Laghu Madhyamik Vidyalaya, Madarsan, Gauri Bazar, Deoria, a recognized and aided institution under the U.P. Basic Education Act, 1972, have been found to be void and consequently cancelled and directions have been issued to the Manager of the Committee of Management of the Institution to take action as per the provisions of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978.

4. Aggrieved against the aforesaid, Writ A No. 17553 of 2021 (Smt. Arpana Tiwari (Mishra) and 2 Others Vs. The State of U.P. and 3 Others) was filed by the petitioners before this Court and after exchange of affidavits the aforesaid writ petition was finally allowed by a Co-ordinate Bench of this Court vide judgment and order dated 04.04.2022. The order reads as follows:-

"The writ petitioners by means of the instant writ petition seek to challenge the order dated 23.10.2021 (Annexure-6 to the writ petition) passed by the Zila Basic Shiksha Adhikari, Deoria (respondent no. 3) whereby and whereunder their selection and approval as Assistant Teachers in Krishak Laghu Madhyamik Vidyalaya, Madarsan, Gauri Bazar, Deoria, a recognized and aided institution under the U.P. Basic Education Act, 1972, have been found to be void and consequently cancelled and directions have been issued to the Manager of the Committee of Management of the Institution to take action as per the provisions of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. A further challenge to the termination orders dated 30.10.2019 (Annexures 7, 8 & 9 to the writ petition respectively) issued by the Manager of the Committee of Management (respondent no. 4) has also been sought.

It is contended on behalf of the petitioners that Krishak Laghu Madhyamik Vidyalaya, Madarsan, Gauri Bazar, Deoria is a recognized and aided institution, under the U.P. Basic Education Act, 1972. The service conditions of the teachers are governed under the provisions of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Vacancy of three posts of Assistant Teachers in the institution arose and were duly advertised in the Newspapers and also placed on the Notice Board by the Committee of Management of the Institution. Pursuant to the advertisement, the petitioners who possessed the requisite qualifications prescribed applied in the year 2016, faced selection by a duly constituted Selection Committee under the 1978 Rules and were selected. The selection was placed before the Zila Basic Shiksha Adhikari, Deoria and approval was accordingly, accorded vide order dated 16.5.2016. After the approval of the selection, appointment letters dated 22.5.2016 were issued to each of the petitioners and they joined their services on 1.7.2016. The petitioners were also paid their salary, arrears of salary barring a few months.

In furtherance of some enquiry into the appointments of the petitioners as Assistant Teachers being conducted by the office of the STF Field Unit, Gorakhpur a notice dated 19.8.2021 was issued to the Manager of the Institution requiring him to appear before the Zila Basic Shiksha Adhikari, Deoria with all requisite papers, explanation etc. under 16 Heads failing which orders would be passed under the provisions of the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978. In response to a subsequent Notice dated 27.8.2021, though the Manager and the Principal of the Institution appeared on 1.9.2021 before the District Basic Shiksha Adhikari, Deoria, but did not file any written submissions or documents. The petitioners appeared on 1.9.2021 and also filed their replies.

The learned counsel for the petitioners submits that the reply of the petitioners did not find favour with the Zila Basic Shiksha Adhikari, Deoria and he proceeded to pass the impugned order dated 23.10.2021. Consequently, the Manager also passed the termination orders dated 30.10.2021. He further submits that the impugned orders dated 23.10.2021 and 30.10.2021 are patently erroneous, illegal, arbitrary and unjust inter alia on the following grounds:

i) The impugned orders are vitiated on account of non compliance of the provisions of the U. P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and U.P. Basic Educational Staff Rules, 1973.

ii) As per the procedure prescribed under the Rules, the petitioners were required to be served with a charge-sheet thereafter given opportunity of hearing and cross examination before cancelling their appointments.

iii) The impugned orders are clearly in violation of the elementary principles of natural justice and cannot be sustained.

iv) The respondents were not justified in drawing an adverse inference against the petitioners inasmuch as the Dispatch Register stood duly verified by order dated 1.11.2019.

v) The issue regarding following the procedure laid down under Rule 16 of the 1978 Rules before the services of the confirmed employees can be terminated has already been settled by this Court in Writ Petition (A) No. 13527 of 2021 (Dilip Kumar Upadhyay and 3 others versus State of U.P. and 3 others) vide decision dated 28.10.2021 and as such, the petitioners are also entitled to the same relief.

A counter affidavit, in response to the writ petition, has been field on behalf of respondent nos. 1 to 3. Learned counsel for the petitioners submits that he does not wish to file any rejoinder affidavit in view of the stand taken by the respondent nos. 1 to 3 in their counter affidavit.

Learned Standing Counsel, in opposition of the writ petition, submits that the relevant documents with regard to the selection and appointment were not submitted before the Zila Basic Shiksha Adhikari, Deoria and the sanction / approval order relied upon by the petitioner is a forged and fabricated document. The State Exchequer cannot be saddled with financial burden in respect of the petitioners whose appointment and approval have been found to be forged and fabricated. Ample opportunity had been given to the Management of the Institution and to the petitioners but they failed to produce documents and in such circumstances, no fault can be found in the impugned orders dated 23.10.2021 and 30.10.2021.

I have heard the learned counsel for the petitioners as also the learned Standing Counsel for the State-respondents and have perused the record.

From the perusal of the counter affidavit of the respondent nos. 1 to 3 as also the arguments advanced by the learned Standing Counsel, it is borne out that the stand of the respondent nos. 1 to 3 is that the petitioners have obtained appointment on the basis of forged and fabricated approval order of the Zila Basic Shiksha Adhikari, Deoria. However, the factum that the petitioners are confirmed Assistant Teachers and were also paid regular salary, is not in dispute. This being the position, the Court is of the view that the petitioner being the confirmed employees, the procedure contemplated under Rule 16 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 is required to be followed before imposing major punishment. Admittedly, in the case at hand Rule 16 of the 1978 Rules provides that the Disciplinary proceedings shall be governed by the Rules applicable to a Headmaster and Assistant Teacher of a Basic School established or maintained by the Board. Thus, the procedure would be governed by the U.P. Basic Education Staff Rules, 1973 which, in turn, provides that the procedure laid down in Civil Services (Classification, Control and Appeal) Rules, as applicable to the servants of the U.P. Government shall be followed. The procedure for imposing major penalties under the U.P. Government Servant (Discipline and Appeal Rules) 1999 provides for appointing an Enquiry Officer, serving of charge-sheet, filing of written statement, filing of documentary evidence, cross examination of witnesses, submission of enquiry report, etc. Admittedly, the procedure in the case at hand has not been followed. The counter affidavit on behalf of the State-respondents is also silent in this regard.

In such circumstances, the orders impugned cannot be sustained. Accordingly, the order dated 23.10.2021 (Annexure 6 to the writ petition) passed by the Zila Basic Shiksha Adhikari, Deoria as also the consequential orders dated 30.10.2021 passed by the Manager of the Committee of Management, respondent no. 4 (Annexures 7, 8 and 9 to the writ petition) are set aside. However, liberty is granted to the respondents to pass fresh orders, strictly, in accordance with law.

The writ petition is allowed, subject to observation made above. "

5. That after the aforesaid judgment, the respondent no. 3 passed an order dated 17.06.2022 cancelled his earlier order of punishment. It is further stated that after the order dated 17.06.2022 was passed by the respondent no. 3, he appointed two members inquiry committee comprising by Block Education Officer, Pathardeva and Block Education Officer, Deoria Sadar, who issued a charge sheet to the petitioners on 22.06.2022.

6. By means of the aforesaid charge sheet, the petitioners were directed to appear before the Inquiry Committee on 27.06.2022. Pursuant to the aforesaid all the petitioners duly appeared before the Inquiry Committee and submitted their reply.

7. After receiving the reply dated 27.06.2022, no further date of hearing was fixed by the Inquiry Officers and instead fixing any date for hearing, they made spot inspection of the Institution on 29.06.2022 and thereafter, submitted their inquiry report on 16.07.2022 before the respondent no. 3. On the basis of aforesaid facts order dated 24.03.2023 was passed by respondent no. 3 by which services of the petitioners have been again terminated. Subsequently a modified order dated 01.04.2023 was also passed by him. Aggrieved against the aforesaid orders the petitioners have preferred the present petition.

8. It is argued that order passed by the respondent no. 3 clearly demonstrates that the Inquiry Committee only issued a charge sheet dated 22.06.2022, accepting the reply on 27.06.2022 and except the aforesaid neither any hearing was taken place nor any evidence was examined by him nor any date, time, or place was fixed by the Inquiry Committee for conducting the inquiry. It is further argued that a major penalty has been imposed by the respondent no. 3 hence it is obligatory on his part to initiate detailed procedure as prescribed under Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. It is further argued that a copy of the inquiry report dated 16.07.2022 was never provided to the petitioners. It is further argued that the order impugned has been passed in complete violation of the judgment and order passed by this Court dated 04.04.2022 as quoted above.

9. Pursuant to order passed by this Court a personal affidavit has been filed by the respondent no. 3. It is admitted in paragraph 12 of the said affidavit that the charge sheet was issued to the petitioners and they submitted their reply to it, however, no date, time and place was fixed nor they granted any opportunity to participate in the inquiry proceedings and purportedly a report dated 16.07.2022 was submitted to the disciplinary authority. It is further stated in paragraph 14 of the personal affidavit filed by the respondent no. 3 that the copy of the inquiry report was never provided to the petitioners. It is also admitted in paragraph 14 that no show cause notice was issued and thereafter by conducting an ex parte proceedings a major penalty of termination was again imposed upon the petitioners. Paragraph 12 and 14 of the personal affidavit filed by respondent no. 3, reads as follows:-

"12. That so far as para. 2 of the order dated 16.01.2024 that the charge sheet was issued and petitioners have submitted reply to it, however, no date, time and place was fixed nor he was granted any opportunity to participate in inquiry proceedings and purportedly a report dated 16.07.2022 was submitted to disciplinary authority, is concerned, in this regard, it is Most Respectfully submitted that prior to initiate proceedings against the petitioners, while constituting the Inquiry Committee, the matter was inquired into. The inquiry Officer has served a charge sheet upon the petitioners. On being found the appointments of the petitioners to be forged and fabricated, a direction has been issued to the Management of the school to initiate the proceedings in terms of the provisions contained in the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Condition of Service of Teachers) Rules 1978, which is just and legal. Since the appointments of the petitioners are based on forged and fabricated documents, hence there is no occasion or justification to pay salaries to the petitioners.

14. That so far as Para.3 of the order dated 16.01.2024 passed by this Hon'ble Court is that it is also case of petitioners that copy of said report was not provided to them. Even no show cause notice was issued thereafter and by absolutely ex parte proceedings a major penalty of termination was again imposed, is concerned, in this regard, it is submitted that in compliance of the order dated 04.04.2022 passed by this Hon'ble Court in Writ Petition No.17553 of 2021, Smt. Aparna Tiwari and 2 others v. State of U.P. and others, while nominating the Inquiry Officer with regard to make an inquiry, the inquiry was completed. The Inquiry Officer has also issued charge sheet to the petitioner in terms of the principle of natural justice and after following the law specified in the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, proceedings have been directed to be initiated against the petitioners by the Committee of Management. In the order dated 24.03.2023, a detailed Inquiry Report has been mentioned. No action on the part of the deponent has been taken except in accordance with law. The deponent is not the disciplinary authority to the petitioners and the Committee of Management is the disciplinary aurthority to the petitioners. "

10. Heard counsel for the parties and perused the record.

11. Against the termination of services of the petitioners vide order dated 23.10.2021, Writ A No. 17553 of 2021 (Smt. Arpana Tiwari (Mishra) and 2 Others Vs. The State of U.P. and 3 Others) was filed by the petitioners before this Court and after exchange of affidavits the aforesaid writ petition was finally allowed by Co-ordinate Bench of this Court vide order dated 04.04.2022. After the aforesaid orders were passed, the respondent no. 3 passed an order dated 17.06.2022 cancelling his earlier order of punishment and thereafter two members committee was constituted, who issued a charge sheet to the petitioner on 22.06.2022. Though the inquiry report was submitted on 16.07.2022 but without providing the copy of the aforesaid inquiry report to the petitioners and without following the procedure the order dated 24.03.2023 as well as order dated 01.04.2023 passed by the respondent no. 3. It is also admitted in the counter affidavit filed by respondent no. 3 that before passing the impugned orders the procedure prescribed for awarding major penalties was not complied with. It is also clear from perusal of judgment and order dated 04.04.2022 as quoted above, a direction was given by this Court for appointing an Enquiry Officer, serving of charge-sheet, filing of written statement, filing of documentary evidence, cross examination of witnesses, submission of enquiry report, etc. It is clear from the facts as quoted above the aforesaid directions were not complied with by the respondent no. 3 in the present case.

12. In such circumstances, the orders impugned cannot be sustained. Accordingly, the order dated 24.03.2023 as well as order dated 01.04.2023 passed by respondent no. 3 are set aside. However, liberty is granted to the respondents to pass fresh orders, strictly, in accordance with law.

13. The writ petition is allowed, subject to observation made above.

Order Date :- 13.2.2025

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