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1992 DIGILAW 585 (ALL)

Ashok Kumar Pandey v. Basic Shiksha Adhikari

1992-04-22

M.K.MUKHERJEE, R.A.SHARMA

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JUDGMENT : M.K. Mukherjee, CJ. At all material times, Ram Vijai Singh, the respondent No. 2 herein, was the Head Master of Girja Pati Purva Madhyamik Vidyalaya. a Junior High School in the town of Garwa in the district Baliia (hereinafter referred to as the 'School') while Bal Chand Ram, Vijai Shanker Pandey and Moti Chand Ram, the Respondents Nos. 3, 4 and 5, were teachers of the School and Vishwanath Prasad, the respondent No. 6, was a peon thereof. In the year 1981 they unauthorisedly absented themselves from their respective duties, for which they were charge-sheeted no further step was however taken against them pursuant thereto and they were allowed to continue in their respective jobs as they offered an unqualified apology Later on they again absented themselves from duty and on their failure to turn up their service were terminated by the Committee of Management of the School by a resolution dated May 29, 1983, and a copy thereof was forwarded to the Basic Shiksha Adhikari. Ballia (Adhikari for short), the respondent No. 1 herein, for approval. The Adhikari caused an inquiry to be made into the matter through the sub-Deputy Inspector of Schools. Baliia and on receipt of the report of inquiry he passed an order on 5-7-1983 according approval to the termination of the services of the above Respondents with a rider that if in future any defect was brought to his notice regarding the order, he reserved his right to cancel the same. On receipt of such approval the Committee of Management sought for and obtained permission of the Adhikari to fill in the vacant posts. The posts were thereafter advertised and a Selection Committee was constituted to hold interview of candidates on 6-11-1983. After interview, the Selection Committee recommended one Mohan Pandey for the post of Head Master, the Appellants Nos. 2, 3 and 5 for the posts of teachers and one Gangadhar for the post of peon and forwarded the papers relating to the selection to the Adhikari for approval on 7-11-1983. 2. In the meantime, the Respondents Nos. 2, 3, 4 and 5 had sent a joint complaint to the Adhikari against the proposed filling of posts in their vacancies and on receipt of that complaint the Adhikari passed an order on 2-11-1983 asking the School authorities that the posts in question should not be filled up till further orders. 2. In the meantime, the Respondents Nos. 2, 3, 4 and 5 had sent a joint complaint to the Adhikari against the proposed filling of posts in their vacancies and on receipt of that complaint the Adhikari passed an order on 2-11-1983 asking the School authorities that the posts in question should not be filled up till further orders. Thereafter on March 6, 1984 the Adhikari passed an order recalling his earlier order dated 5-7-1983, whereby he had accorded approval to the termination of the services of the above Respondents, and directed the School authorities to terminate the services of those who had been appointed in place and stead of the above Respondents. He pointed out that the question of according approval to such appointments did not arise. 3. Assailing the above order dated March 6, 1984, Mohan Pandey, Appellants Nos. 2 3 and 5, the Committee of Management, represented by its Manager Lalit Mohan Pandey. and Gangadhar filed a writ petition before a learned Judge of this Court seeking a Writ of Certiorari for quashing the same By his judgment and order dated February 28, 1992, the learned Judge quashed the impugned order so far as it related to Gangadhar but dismissed the writ petition so far as the others were concerned. Aggrieved thereby the four Appellants, namely, Durg Vijai Dubey, Vijai Bahadur Yadava, Deo Saran Ram and the Committee of Management along with one Ashok Kumar Pandey filed this Special Appeal. 4. At the outset, we may point out that arrayal of Ashok Kumar Pandey as an Appellant is wholly misconceived inasmuch as he was neither a writ Petitioner nor was he in any way involved in the dispute. On the contrary, we find that Mohan Pandey. whose name was recommended by the Selection Committee for being appointed as Head Master and who figured as a writ Petitioner, has not preferred any appeal and, we are told, at the Bar, that he is no more interested in the matter. We are therefore left with the appeal of the Committee of Management and the Appellants Nos. 2, 3 and 5. 5. In assailing the impugned order of the Adhikari, Mr. We are therefore left with the appeal of the Committee of Management and the Appellants Nos. 2, 3 and 5. 5. In assailing the impugned order of the Adhikari, Mr. R. N Singh, the learned Advocate appearing for the Appellants, first submitted that in the absence of any statutory power, the Adhikari was not entitled to review his earlier order, whereby he had accorded approval to the termination of the services of the Respondents-teachers, as, for all intents and purposes, it was a quasi judicial one. Mr. Singh however, in his usual fairness, conceded that in a given case, notwithstanding absence of such power, the authority making such an order could review it if it was obtained by fraud, coercion or undue influence, but argued that as in the instant case such a factual situation did not exists, the Adhikari could not have exercised the power of review. Mr Singh next urged that the Adhikari had exercised the power in passing the impugned order under the dictates of the District Inspector of Schools and not on his own volition, and therefore the order could not be sustained. Mr. Singh lastly submitted that as the Appellants were to suffer due to the impugned order, they were entitled to a reasonable opportunity of being heard before the same was passed. In other words, Mr. Singh submitted that principles of natural justice were violated in passing the impugned order. For all or any of these reasons, the impugned order was liable to be set aside, contended Mr. Singh. Mr. S.N. Agrawal. the learned Counsel appearing on behalf of the Respondents-teachers, not only repelled the above contentions of Mr. Singh but further contended that as the Appellants Nos. 2, 3 and S were not given any appointment as teachers in the School, they had no right which they could assert through a writ petition. 6. In the context of the points on which the parties have joined issue, it will be apposite for us to first ascertain the status of the Appellants Nos. 2, 3 and 5 vis-a-vis the School. 6. In the context of the points on which the parties have joined issue, it will be apposite for us to first ascertain the status of the Appellants Nos. 2, 3 and 5 vis-a-vis the School. Before however we proceed to consider the relevant facts appearing on the record relating to this aspect of the matter, we may profitably look into the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and/conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the 'Rules'), which lay down, amongst other things, the mode of recruitment of teachers of Junior High Schools Rule 9 thereof relates to the constitution of Selection Committees for appointment of Head Masters and assistant teachers and Rule 10 lays down the procedure for selection Clause (1) of Rule 10 prescribes the method of preparing the list of candidates found suitable for appointment and Clause (3) says that the Selection Committee shall forward the list together with the minutes of the proceedings to the Committee Management. Clause (4) provides that the Manager shall, within one week from the date of receipt of papers under Clause (3) send a copy of the list to the Adhikari and Clause (5) lays down what the Adhikari has to do on receipt of the list. The latter clause, to the extent it is relevant for our present purposes, reads as under: (5)(i) If the District Basic Education Officer (Adhikari) is satisfied that: (a) the candidates recommended by the Selection Committee possess the minimum qualifications prescribed for the post. (b) the procedure laid down in the rules for the selection of Headmaster or assistant teacher, as the case may be, has been followed he shall accord approval to the recommendations made by the Selection Committee and shall communicate his decision to the management within two weeks from the date of receipt of the papers under Clause (4) (ii) .... (iii) If the District Basic Education Officer (Adhikari) does not communicate his decision within one month from the date of receipt of the papers under Clause (4), he shall be deemed to have accorded approval to the recommendations made by the Selection Committee. The other Rule, relevant in the context of the facts of the instant case, is Rule 11, which reads as under: 11. The other Rule, relevant in the context of the facts of the instant case, is Rule 11, which reads as under: 11. Appointment--Appointment by the management--(1) On receipt of communication of approval or as the case may be, on the expiry of the period of one month under Clause (iii) of Sub-rule (5) of Rule 10, the management shall first offer appointment to the candidate given the first preference by the Selection Committee and on his failure to join the post, to the candidate next to him in the list prepared by the Selection Committee and on the failure of such candidate also, to the last candidate specified in such list. (2)(a) The appointment letter shall be sent under the signature of the Manager by registered post to the selected candidate. (b) The appointment letter shall clearly specify the name of post, the pay-scale and the nature of appointment, whether permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appoint meat letter his appointment shall be cancelled (C) A copy of the appointment letter shall also be sent to the District Basic Education Officer (Adhikari). 7. Coming now to the facts of the present case, we find that the stage up to Clause (4) of Rule 10 was reached on November 7, 1983 with the receipt of the papers, relating to selection of the Appellants concerned by the Selection Committee, on that day by the Adhikari, but there is nothing on record to show that the Adhikari accorded approval to the recommendations made by the Selection Committee in accordance with Clause (5)(i)(b) of Rule 10. as quoted above, far less to show that they were given appointments in accordance with Rule 11. In fact, the concerned Appellants have not produced any appointment letters or any other document to show that they were appointed teachers of the School in accordance with Rule 11. 8. Mr. as quoted above, far less to show that they were given appointments in accordance with Rule 11. In fact, the concerned Appellants have not produced any appointment letters or any other document to show that they were appointed teachers of the School in accordance with Rule 11. 8. Mr. Singh however argued, relying upon Clause (6) (iii) of Rule 10, that as the papers relating to the recommendations of the Selection Committee were admittedly received by the Adhikari on 7th November, 1983 and as within one month from the date of receipt of those papers the latter did not indicate his decision he should be deemed to have accorded approval to the recommendations made by the Selection Committee and that, as a corollary thereto, it must be said, in view of the express words of Rule 11, that they had been duly appointed. 9. In our considered view in the facts of the present case, the benefit of the deeming provision is not available to the Appellants. As has been already noticed, consequent upon receipt of a complaint from the Respondents teachers, the Adhikari had passed a specific order on 2-11-1983 asking the Management to stop the process of appointment in their place and stead and the record shows that on 3-11-1983, the said order was duly served upon the Manager. After the above order of the Adhikari, the Committee of Management was not entitled to nor justified in continuing with the selection process and that necessarily means that the selection was illegal and unjustified. In respect of such a selection, the Adhikari was under no obligation to exercise his powers under Clause (5) of Rule 10. To put it differently, the above clause and, for that matter, the deeming provision thereof do not apply of such selection. 10. It was, however, contended by Mr. Singh that the order dated 2-11-1983 was not received by the Manager, but considering the materials on record, we are unable to accept his contention. 11. From the discussion so far held, we are in complete agreement with the learned Counsel for the Respondents that the concerned Appellants were not appointed as teachers in the School. Consequently they had no legal right to enforce through the writ petition. 11. From the discussion so far held, we are in complete agreement with the learned Counsel for the Respondents that the concerned Appellants were not appointed as teachers in the School. Consequently they had no legal right to enforce through the writ petition. These findings of ours are sufficient to dismiss the appeal but then as the writ petition was not rejected on this ground, we proceed to consider the points raised by Mr. Singh. 12. The contention of Mr. Singh regarding competence of the Adhikari to review his earlier order cannot be entertained nor accepted as the impugned order was only giving finality to a conditional order. The question of review could only arise after an order had become final but, in the instant case, as has already been noticed, while granting approval to the termination of the services of the Respondents-teachers by letter dated 5th July, 1983, it was specifically mentioned by the Adhikari that if in future it was found that there was any infirmity in the order of termination, he reserved his right to withdraw his approval. That being the state of things obtaining on record, the Adhikari was fully justified in revoking his earlier order of conditional approval on the ground that the services of the Respondents-teachers were terminated without giving them an opportunity of being heard. Since the order of termination of the services of the Respondents teachers was violative of natural justice, it must be said that it was without any jurisdiction and the Adhikari had certainly the powers to revoke his earlier order. 13. The contention of Mr. Singh that the impugned order was passed by the Adhikari under the dictates of the District Inspector of Schools is not borne out by the record-It is, of course, true that it was under the directions of the District Inspector of Schools that the Adhikari inquired into the matter and passed the impugned order but on a perusal of the impugned order, we have already found that he has given reasons, which weighed with him in passing the impugned order. It cannot, therefore, be said that the order was passed under the dictates of the District Inspector of Schools. Consequently, the case of Swami Prasad Pradhan Vs. It cannot, therefore, be said that the order was passed under the dictates of the District Inspector of Schools. Consequently, the case of Swami Prasad Pradhan Vs. Hargovind Sahai Mathur and Others, AIR 1970 All 251 : (1969) 39 AWR 441, on which Sri Singh relied to support his above contention, has no manner of application. 14. As regards the last contention of Mr. Singh that before the impugned order was passed, the Appellants were not given an opportunity of being heard, it must be said that, in the facts of the instant case, it has no sub-stance. It has already been found that the concerned Appellants were not appointed as teachers. They were therefore not being deprived of any right, for which they were entiled to a prior opportunity of being heard. We hasten to add that even if we had found that they were entitled to such an opportunity and failure on the part of the Adhikari to provide them with the same made the order under challenge bad, we would not have been justified in quasffing the same for that would have amounted to putting premium upon and giving judicial imprimatur to another wrong, namely, conferment of a right upon certain persons who were not entitled to it. To put it differently, powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order. In making these observations, we have drawn sustenance from the Division Bench judgment of this Court in the case of S.K.J.P.K. Inter College v. District Inspector of Schools 1988 UP LB EC 739. 15. On the conclusions as above, we do not find any merit in the appeal and dismiss the same. There will, however, be no order as to costs.