Uttarakhand High Court

Kamini Verma vs State Of Uttarakhand And Others on 1 August, 2022

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL

       THE CHIEF JUSTICE SHRI VIPIN SANGHI
                       AND
      JUSTICE SHRI RAMESH CHANDRA KHULBE

                        1st AUGUST, 2022

                    WP(S/B) No.204 OF 2020

Kamini Verma                                           ...... Petitioner
                                    Vs.

State of Uttarakhand and others                    ...... Respondents

Presence: -

Shri Pankaj Miglani with Mr. Aakib Ahmed, learned counsel for the petitioner.

Shri Vikas Pande, learned Standing Counsel for the State.

JUDGMENT: (Per Shri Ramesh Chandra Khulbe, J.)

In this petition, petitioner has prayed to issue a

Writ, Order or Direction in the nature of Certiorari

quashing the dated 09.06.2020 and order dated

08.07.2020 (Annexure-12 & 13 respectively to the writ

petition).

2. Briefly put, facts of the case are that the

petitioner was initially appointed on 24.09.1984 as

Assistant Teacher, Government Girls Inter College,

Kotdwar. Before her retirement, a charge-sheet dated

05.01.2018 was issued against her. The petitioner denied

all the charges vide her reply dated 05.02.2018. Vide relieving order dated 31.07.2018, the petitioner retired as

Principal, Girls Inter College, Namjala, Pithoragarh. After

her retirement, an inquiry was set up nominating one -

Bhupinder Singh Negi as the inquiry officer.

3. The petitioner remained present before the

Inquiry. She was supplied with the copy of the charge-

sheet (a questionnaire and documents). Vide application

dated 21.02.2019, the petitioner sought information about

status of the inquiry against her. In reply to the said

application, a note-sheet was provided on 13.03.2019 in

which the inquiry report was mentioned. The petitioner,

vide her explanation dated 23.03.2019, had mentioned

that none of the charges were made out against her and

her entire retiral dues had wrongly been withheld. Again, a

show-cause notice dated 25.04.2019 was issued against

the petitioner.

4. The said show-cause notice was again duly

replied through registered post on 01.05.2019. When her

retiral benefits were wrongly withheld, she filed a writ-

petition WPSB No.399 of 2019, "Kamini Verma Vs. State

of Uttarakhand". The said writ-petition was disposed of on

29.08.2019 with the direction to finalise the payment of

retiral benefits as well as to conclude the disciplinary

inquiry within two months.

5. Since, no compliance of order dated 29.08.2019

was being made by the respondent authority, accordingly,

the petitioner preferred Contempt Petition No.71 of 2020,

"Kamini Verma Vs. R. Meenakshi Sundaram and Others".

In reply, the respondent no.1 issued a letter dated

09.06.2020 to the writ-petitioner wherein it has been

mentioned that the inquiry officer has found that the

petitioner belongs to OBC but she has been promoted

under SC quota while many senior teachers are still

working on the post of Principal. Consequently, the

promotion order dated 26.07.2013 relating to the

petitioner was cancelled. Accordingly, the recovery order

of Rs.13,33,688/- has been issued vide letter dated

08.07.2020. Hence, the present writ-petition has been

preferred.

6. The respondent no.2 and 4 filed a counter

affidavit and submitted that the Director, School Education

vide its order dated 02.11.2001 promoted the petitioner

as Lecturer on temporary basis in which her caste is

shown as scheduled caste (SC). Thereafter, she was

promoted vide order dated 01.07.2008 on the post of

Head Mistress in which her caste is shown as SC. Again

vide order dated 28.05.2010, the petitioner was promoted

as Downgrade Principal in Government Inter College in

which the caste of the petitioner is again shown as SC, but

the petitioner never brought this fact into the notice of the

Department. She was given promotion against SC

Category.

7. The counter affidavit further mentions that vide

letter dated 25.04.2019, the inquiry report was submitted

by the inquiry officer. Accordingly, opportunity of hearing

was given to her. Thereafter, inquiry report along with

representation and other relevant documents were sent to

Uttarakhand Public Service Commission with a proposal of

State Government vide its letter dated 29.11.2019. The

Uttarakhand Public Service Commission vide its letter

dated 22.05.2020, submitted to the State Government,

granted its approval and proposal of punishment.

Ultimately, the State Government vide its memorandum

dated 08.06.2020 passed the impugned order.

8. We have heard the learned counsel for the parties

and perused the record.

9. From the record, it is clear that a charge-sheet

dated 05.01.2018 was given to the petitioner by the

Secretary, Secondary Education, Govt. of Uttarakhand. As

per the charge-sheet, there were six charges levelled

against the petitioner which reads as under:-

"िदनांक 03.08.2012 से राजकीय बािलका इ�र कॉलेज काशीपुर, ऊधमिसंह नगर म� प्रधानाचाया� के पद पर तैनाती अविध

म� छात्राओं से अवैध शु� वसूली] अिभभावक संघ की धनरािश का दु�पयोग िकये जाने एवं सेवा अिभलेखों के संबंध म� िम�ापूण� जानकारी िदये जाने हेतु आपको िन� प्रकार आरोिपत िकया जाता है% &

1. आप �ारा िव�ालय की छात्राओं से मनमाने ढंग से शु� प्रा� कर, प्रा� धनरािश का दु�पयोग करते �ये िव�ीय अिनयिमतता की गयी है।

2. संबिधत िव�ालय की छात्राओं से मनमाने ढंग से शु� वसूली की धनरािश को संबंिधत छात्राओं को okil fd;s जाने हेतु उ�ािधका�रयों �ारा िदये गये िनद�शों की आप �ारा अवहेलना की गयी है।

3. संबंिधत िव�ालय के िश�क-अिभभावक संघ के खाते से िदनांक 10.02.2015 को �10000, िदनांक 14.09.2015 को �10900, िदनांक 09.11.2015 को �30000, िदनांक 02.12.2015 को �15000 एवं िदनांक 22.12.2015 को �० 10000 dqy धनरािश �0 75900.00 (पचह�र हजार ukS सो �० मात्र) आह�रत कर �य fd;k गया है, पर�ु उ� धनरािश के �य के िबल वाउचर lEcfU/kr iaftdk esa यथास्थान नहीं है। tkap सिमित के स�ुख भी mDr धनरािश का �य fdl मद म� िकया गया, की पुि� आप �ारा नहीं की गयी है। इस प्रकार आप �ारा उ� धनरािश का दु�पयोग कर िव�ीय अिनयिमतता की गयी है।

4. उ�राख� अधीनस्थ िश�ा (प्रिशि�त �ातक श्रेणी) की अ��म �े�ता सूची म� आपकी ज�ितिथ 24.07.1958 अंिकत है। प्रधानाचाया� रा०वा०b0का0 कोट�ार के पत्र िदनाक 14.07.2017 के अ�ग�त आप �ारा हाई�ूल की परी�ा वष� 1973 म� ि�तीय श्रेणी म� उ�ीण� िकये जाने तथा ज�ितिथ 24- 07-1968 होने के संबंध म� अवगत कराया गया है जबिक आप �ारा सेवा पु��का म� ज�ितिथ 24.07.1960 का त्रुिटपूण� vadu कराया गया है।

5. आपके िनयु�� पत्र म� िपछड़ी जाित (सोनार) अंिकत है, जबिक शैि�क अ�ापन (अधीनस्थ राजपित्रत सेवा) म� izk/kkना�ािपका के पद पर आपकी पदो�ित अनुसूिचत जाित कोटे के अ�ग�त �यी है। इस प्रकार िम�ा त� के आधार पर पदो�ित प्रा� कर आप �ारा उ�रांचल रा� कम�चा�रयों कh आचरण िनयमावली, 2002 के िवपरीत काय� िकया गया है।

6. शासकीय काया�लय सं�ा 839/xxiv/नवसृिजत/16-05 (05)/2016 िदनांक 14.10.2016 �ारा प्रशासिनक आ/kkर पर आपका स्थाना�रण रा०ck०b०का0 dkशीपुर, ऊधमिसंह नगर से रा०ck०b०का0 uमजला, fiFkkSjkx<+ िकया गया िक�ु वत�मान तक आप �ारा स्थानानाrfjr िव�ालय म� काय�भार ग्रहण नहीं िकया गया है, इस प्रकार स्थाना��रत िव�ालय म� काय�भार ग्रहण न कर vki }kjk "kklu ds funsZ"kksa dh vogsyuk dh x;h gSA"

10. In response to the said charge, the petitioner

submitted her explanation on 05.02.2018.

11. When the respondents did not submit the inquiry

report to the petitioner, she filed an application under the

RTI Act on 21.02.2019. Accordingly, the concerned

Department furnished all the information regarding the

inquiry and punishment related to the petitioner on

13.03.2019.

12. From the perusal of the note-sheet maintained at

the Secretariat level, it is clear that after receiving the

inquiry report, the matter was placed before the

concerned Secretary, who approved the office note dated

11.01.2019 by which recovery of money was proposed

against the writ-petitioner.

13. The following facts are not disputed by the

respondents:-

1) The petitioner was appointed as Assistant

Teacher vide order dated 24.09.1984 against the

OBC quota.

2) As per order dated 02.11.2001, she was

promoted as a Lecturer (Hindi).

3) Vide order dated 01.07.2008, she was

promoted as Head Mistress.

4) Vide order dated 28.05.2010, she was

promoted as Downgrade Principal in the Inter

College.

5) Vide order dated 26.07.2013, she was

promoted as Principal.

6) She completed her age of superannuation

on 31.07.2018.

14. As per the order dated 02.11.2001, the petitioner

was promoted as a Lecturer. Although, her name figured

at serial no.20 but it is not clear whether she was

promoted against OBC quota or SC quota. Presuming that

she was promoted as a Lecturer against the SC quota

whereas she was initially selected against OBC quota but it

was not the mistake of the writ-petitioner. The concerned

Department promoted her along with other teachers.

When she was promoted as Head Mistress vide amended

order dated 18.07.2008, her name figured at serial no.1

but in the said order, the caste of the applicant is not

mentioned. Even no caste is mentioned regarding the

other candidates.

15. The State Government issued a list of 96

candidates by which the writ-petitioner was promoted

along with other candidates as Principal in Government

Inter College vide order dated 26.07.2013 in which the

name of the petitioner was mentioned at serial no.94. In

the impugned order, no caste is mentioned against the

candidates.

16. From the above documents, it is clear that

neither in the order dated 18.07.2008 nor in the order

dated 26.07.2013, the caste of the petitioner was

mentioned.

17. The above orders were passed by the State

Government from time to time. It was not in the

knowledge of the petitioner that she was wrongly

promoted against the SC quota. Neither the concerned

Department nor the State has given any information to

her. Even no explanation was sought for from her. The

applicant did not conceal any fact either from the

Department or the State Government, rather she was

doing her job smoothly and completed her age of

superannuation on 31.07.2018.

18. From the note-sheet, maintained at the

Secretariat level, which was obtained by the petitioner

under the RTI Act, it reveals that the Government

collected information regarding her caste from the

concerned Department, however, no information was

sought from the petitioner and the inquiry was initiated.

19. From the record, it is clear that before issuing

order dated 09.06.2020 (Annexure-12) and order dated

08.07.2020 (Annexure-13) no sufficient opportunity of

hearing was given to the petitioner.

20. It is well settled principle of jurisprudence that

the proceedings qua a delinquent employee must be just,

fair and reasonable, and negation thereof offend Articles

14 & 21 of the Constitution of India. It is also well settled

law that principle of natural justice is an integral part of

Article 14 of the Constitution. No decision prejudicial to a

party should be taken without affording an opportunity of

being heard along with supplying the material, which is

the basis for the decision. The inquiry report constitutes

fresh material which has great persuasive force or effect

on the mind of the disciplinary authority. The failure to

supply copy of proceedings to the delinquent would be

unfair procedure offending not only Articles 14, 21 and

311(2) of the Constitution, but also, the principles of

natural justice.

21. Admittedly, the petitioner was promoted initially

vide order dated 02.11.2001 as a Lecturer and vide order

dated 18.07.2008 as a Head Mistress and again lastly, she

was promoted as Principal vide order dated 26.07.2013

but in the promotion order dated 18.07.2008 and

26.07.2013 no caste was mentioned against her name,

which shows that the department and the State

Government had given promotion to her on their own.

The petitioner has also performed her duties on these

posts in an un-blemished manner.

22. In Shyam Babu Varma and others v. Union of

India and others (1994) 2 SCC 521, the Apex Court, while

dealing with a similar situation, held out that since the

petitioner received higher pay scale not due to fault or his

own, it shall not be just and proper to recover the salary

already paid to him.

23. Similarly, in State of Punjab and others Vs. Rafiq

Masih (White Washer) and others reported in (2015) 4

SCC 334, the Hon'ble Supreme Court has held as

follows:-

"13............if the payment had been made for a long

duration of time, it would be iniquitous to make any

recovery. Interference because an action is

iniquitous, must really be perceived as, interference

because the action is arbitrary. All arbitrary actions

are truly, actions in violation of Article 14 of the

Constitution of India. The logic of the action in the

instant situation, is iniquitous, or arbitrary, or

violative of Article 14 of the Constitution of India,

because it would be almost impossible for an

employee to bear the financial burden, of a refund of

payment received wrongfully for a long span of

time........................."

24. From the above discussion, the writ-petition is

liable to be allowed on the following grounds:-

(A) The writ-petitioner was promoted as Head

Mistress vide order dated 18.07.2008 in which

no caste was mentioned against her name.

          (B)   She     was   promoted     vide    order     dated

          26.07.2013     as   Principal,   Government        Inter

College in which no caste was mentioned

against her name.

(C) She has completed her age of

superannuation on 31.07.2018.

(D) She discharged her duties on the above

posts efficiently and smoothly.

(E) Before passing order dated 09.06.2020

regarding cancellation of her promotion as

Principal and regarding recovery of

Rs.13,33,688/- no proper opportunity of hearing

was given to the petitioner, which is in violation

of Articles 14, 16 and 21 of the Constitution of

India.