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1997 DIGILAW 803 (ALL)

COMMITTEE OF MANAGEMENT v. DISTRICT SAMA] KAIYAN ADHIKARI MAU

1997-07-21

D.K.SETH

body1997
D. K. SETH, J. It is alleged that the petitioners appointment was approved by an order dated 24-6-94 which is Annexure 13 to the writ petition but without afford ing any opportunity to them the approval of appointment was confirmed by an order dated 29-9- 94 which is Annexure 14 to the writ petition in which the names of the petitioners were omitted. Aggrieved by which, the petitioners have filed this peti tion alleging that the alleged enquiry, on the basis whereof names of the petitioners were omitted, was held without affording opportunity to them and that too by Probation Officer who is not authorised to decide the question. 2. According to Mr. Shambhoo Nath Srivastava, learned Counsel appearing for the petitioners it is the District Social Wel fare Officer who is the competent authority to decide the same, therefore, the said order is wholly without any authority and jurisdiction and as such void. He also contends that even on merit the finding that the petitioners were not appointed in the school is perverse. The allegation that the petitioners are relation of the Committee of Management would not stand in the way of appointment in the concerned school where there is no bar in such appointment. It is also alleged that it was not ascertained as to which Commit tee of Management the petitioners were related. He further points out that pur suant to the order passed by this Court on 16-11-94 the District Social Welfare Of ficer had decided the representation of the petitioners rejecting their claim which is Annexure 20 to the writ petition but the same does not give any reason despite specific direction given by this court that the order should be a reasoned one. 3. Mr. Srivastava, elaborated his con tention on the ground that no opportunity was given to the petitioners as well as on the question of perversity and the question of competence of the District Probation Officer. 4. Mr. Saba jit Yadav, learned Stand ing Counsel appearing for the respondent Nos. 1 to 3, on the other hand, points out from the counter-affidavit that enquiry was held after giving opportunity to the petitioners and that on record it appears that some of the petitioners were related to the members of the Committee of Management, details whereof have been specified in the counter-affidavit. 1 to 3, on the other hand, points out from the counter-affidavit that enquiry was held after giving opportunity to the petitioners and that on record it appears that some of the petitioners were related to the members of the Committee of Management, details whereof have been specified in the counter-affidavit. He also contends that from the record itself it is apparent, particularly in the attendance register that the petitioners, were not working, even on the spot inspection they were not found and therefore there is no infirmity in the enquiry. He further sub mits that District Probation Officer has not passed the order, he had held enquiry at the instance of the competent authority, therefore, the question of competency raised by Mr. Srivastava, learned Counsel for the petitioners cannot be sustained. According to him the material produced does not show any infirmity or perversity in the enquiry report or in the orders passed. 5. Mr. Navin Sinha, learned Counsel appearing for the respondent No. 4 sup ports the contention of Mr. Yadav and points out from paragraph 9 of the counter-affidavit filed by him detailing the relations of the petitioners. He also con tends that there is no want of competence in the facts and circumstances of the case as is revealed from the record. 6. I have heard learned Counsel for the parties. From the counter-affidavit it appears that specific allegations have been made in respect of some of the petitioners that they were relation to some of the members of the Committee of Manage ment as well as that some of the petitioners were working in different capacity at different places namely, one was working as Teshildar at the relevant point of time and two others were working in different other schools at the relevant points of time. The enquiry report also shows that on spot verifications the petitioners were not found and that in the attendance register and other record of the Schools the names of the petitioners were not available and it was found that they were not working. The enquiry was held some time in 1993 and the attendance register was examined in July 93 but the Manager had sent the relevant papers on 15-7-94. 7. The enquiry was held some time in 1993 and the attendance register was examined in July 93 but the Manager had sent the relevant papers on 15-7-94. 7. The statements made in paragraph 9 of the counter-affidavit filed by respon dent No, 4 has been dealt with in the rejoinder affidavit in paragraph 10 but nothing are in the orders passed. 8. Mr. Navin Sinha, learned Counsel appearing for respondent No. 4 supports the contention of Mr. Yadav and points out from paragraph 9 of the counter-af fidavit filed by him detailing the relations of the petitioners. He also contends that there is no want of competence in the facts and circumstances of the case as is revealed from the record. 9. I have heard learned Counsel for the parties. From the counter-affidavit it appears that specific allegations have been made in respect of some of the petitioners that they are relation to some of the mem bers of the Committee of Management as well as that some of the petitioners were working in different capacity at different places namely, one was working as Tahsildar at the relevant point of time and two others were working in different other schools at the relevant point of lime. The enquiry report also shows that on spot verification the petitioners were not found and that in the attendance register and other record of the schools the names of the petitioners were not available and it was found that they were not working. The enquiry was held some time in 1993 and the attendance register was examined in July 93 but the Manager had sent the relevant papers on 15-7-94. 10. The statements made in para graph 9 of the counter-affidavit filed by the respondent No. 4 has been dealt with in the rejoinder affidavit in paragraph 10 but nothing has been reflected. It is also not disputed that the relations were not with the committee of management which had given the appointment. Therefore, the statement made in paragraph 9 of the counter- affidavit filed by respondent No. 4 in the absence of any specific denial, stands admitted by the petitioners. 11. So far as the absence of the names in the attendance register has not been specifically explained. It is contended by Mr. Srivastava that in fact there was no enquiry and the Probation Officer never been to the school. 11. So far as the absence of the names in the attendance register has not been specifically explained. It is contended by Mr. Srivastava that in fact there was no enquiry and the Probation Officer never been to the school. Such contention can not be looked into by this court while exer cising power under Article 226 of the Constitution in writ jurisdication as being a disputed question of fact in the absence of any material to hold that the statement made by the petitioner are possess is of some substance. Nothing has been shown to this court that such statement is of sub stance. 12. Then again even on the question of merit where it was found from the record that some of the petitioners were employed elsewhere and they already, sought to disassociate themselves from the writ petition by filing an application seek ing to withdraw from the proceedings. This clearly shows that there are substance in the finding of enquiry report. If it ap pears that in respect of some of the petitioners the findings are correct and are accepted by themselves by filing an ap plication seeking to withdraw from the proceedings, it cannot be said that they are incorrect. On the other hand, it goes against the petitioners. 13. Then again pursuant to the order passed by this Court, the District Social Welfare Officer has passed an order dated 30-1-95 which is Annexure 20 to the writ petition where it has been specifically mentioned that the petitioners were given opportunity of hearing and producing of documents and after having heard and considered the materials on record he had come to a finding that the order dated 29-9-94 does not require to be interfered with and is correct. 14. Mr. Srivastava, assails the said order on the ground that though the petitioners were given opportunity of hearing but none of the documents produced by the petitioners were taken into account or considered by the said respondent. He also assails that the said order does not give any reason despite an order passed by this Court, therefore, the said order cannot be sustained. 15. The question that no opportunity was given stands concluded by reason of order dated 30-1-95 (Annexure 20) which has passed in pursuance of the order of this Court and after hearing the petitioners. He also assails that the said order does not give any reason despite an order passed by this Court, therefore, the said order cannot be sustained. 15. The question that no opportunity was given stands concluded by reason of order dated 30-1-95 (Annexure 20) which has passed in pursuance of the order of this Court and after hearing the petitioners. Even if it is post decisional hearing still then it cannot be ignored. Inasmuch as by now it is well settled principle that hearing can be post decisional. Therefore, I do not agree with the contention of the learned Counsel for the petitioner that no oppor tunity of hearing was given. 16. Now the question whether docu ments have been considered or not has been raised by Mr. Srivastava. The facts revealed in the present case does not jus tify the claim of the petitioner. Mr. Srivas tava, let me through the various docu ments produced before this court and ar gued his case elaborately. He has not been able to prove from any other documents which could reverse the enquiry report to the extent that those persons who were found to be working at different places were not working on the said date as al leged or that those persons who happen to be relation of the Committee of Manage ment were not relations of them or that the findings that the name of the petitioners were not appearing in the at tendance register is incorrect. Nothing has been brought to this court to show that the findings given on the basis of record are perverse. More over sufficient oppor tunity was given to the petitioners to produce the relevant documents and even during the course of hearing of this peti tion, learned Counsel for the petitioners was permitted to produce any documents to support his contention. Therefore, I am unable to agree with the contention of the learned Counsel for the petitioners on the question of merit that the findings are per verse and based on no material. No perver sity has been brought to my notice from the materials placed before this court. 17. Now the question of competence with regard to that of the District Social Welfare Officer is to be looked into. No perver sity has been brought to my notice from the materials placed before this court. 17. Now the question of competence with regard to that of the District Social Welfare Officer is to be looked into. Ad mittedly the impugned order was signed by the District Social Welfare Officer but he had mentioned that on the basis of the recommendation of the District Magistrate the order was passed by him. From the record it appears that the Dis trict Probation Officer has held an enquiry and on the basis whereof a decision was taken on the recommendation of the Dis trict Magistrate but the original order was passed by the District Social Welfare Of ficer. It can be said that the District Social Welfare Officer did not apply his mind and had acted on behalf of District Magistrate, therefore, the order suffers from infirmity which goes to the root of the validity of the order. But by reason of interim order dated 16-11- 94 of this court, the District Social Welfare Officer having been directed to consider the representation and he having decided and having passed an order as contained in Annexure-20 to the writ petition regarding that he had given hearing and had applied his mind and examined the materials on record and the evidences, therefore, it shows that he had applied his mind though a post decisional in the matter had passed an order. Therefore, even if there was any lacuna the same has been met by reason of the orders of this court and no useful pur pose would be served in sending the same for deciding afresh only on that count which is too technical a ground. 18. So far as the question of giving of licence is concerned, admittedly the order contained as Annexure 20 to the writ peti tion does not specify any reason. When the court passes an order directing considera tion of a representation with a reasoned order, it is expected that the authority should given reason. It may not be elaborate or like a judgment of the judicial officer. It is only reason which is to be reflected on the order that there was suffi cient application of mind. Though no reason has been assigned in the order con tained as Annexure 20 to the writ petition but it appears that there was sufficient application of mind in the matter. It is only reason which is to be reflected on the order that there was suffi cient application of mind. Though no reason has been assigned in the order con tained as Annexure 20 to the writ petition but it appears that there was sufficient application of mind in the matter. Now so far as the reasons are concerned, I have examined the material placed before through which learned Counsel for the petitioner had led me and I have found that there is no justification in sending back the case only on the ground that the order contained as Annexure 20 to the writ petition has not specified reasons. Inas much as from the record available before this Court, it is apparent that the order passed on 29-9-94 is valid and correct and that there is no material to show that the petitioners claims could be justified and entertained. It has been asserted that the order contained as Annexure 13 to the writ petition was passed by then District Social Welfare Officer for unknown reason con trary to the records which necessitated the interference and due to which the orders contained as Annexure 14 to the writ peti tion was passed. 19. For all these reasons stated above, I am not inclined to interfere in the matter. The writ petition fails and is accordingly dismissed with cost. Petition dismissed. .