Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 1262 (MP)

Kishanlal Kushwaha v. State of M. P.

2000-11-30

S.S.JHA

body2000
ORDER S.S. Jha, J. 1. Petitioner is aggrieved b the order Annexure P-1 dated 19-7-1999 where by his appointment has been cancelled on the enquiry report of the Sub-Divisional Officer, Guna and respondent No. 6 Shri Mohammad Islam Khan has been appointed in place of petitioner. 2. Counsel for petitioner submitted that the petitioner has submitted an application for appointment under a scheme known as Madhya Pradesh Education Guarantee Scheme (hereinafter, referred to as the 'Scheme'). The Education Committee has considered the case of the petitioner and prepared a provisional panelin which petitioner was placed at Sr. No. 1. In pursuance of the recommendations petitioner's appointment was approved by the Project Officer vide Order dated 15-1-1999 Annexure P-5. Petitioner was appointed in Alternative School Harijan Chak in Village Goura. After the appointment, respondent No. 6 made complaints to the respondents regarding the selection of the petitioner. On the complaint of the respondent No. 6 it appears that some enquiry was conducted by the Sub-Divisional Officer. The Sub-Divisional Officer submitted his report dated 28-4-1999 filed as Annexure R-6 with the respondents 1 to 4. The Sub- Divisional Officer held that application form of the respondent No. 6 was received by the Gram Panchayat, but his name was not included in the panel though he secured higher percentage of marks. The conduct of Sarpanch and Secretary of the Panchayat was found to be doubtful. He recorded an finding that appointment of the petitioner is liable to be quashed and respondent No. 6 having higher percentage of marks be appointed in place of the petitioner. After the report dated 28-4-1999, order Annexure P-1 was passed and respondent No. 6 was appointed in place of the petitioner. 3. Learned counsel for the petitioner submitted that this order is passed without affording opportunity to the petitioner. Learned counsel for the petitioner further submitted that once right has accrued in favour of the petitioner it cannot be withdrawn without affording opportunity of hearing to the petitioner. Learned counsel for the petitioner then submitted that once the petitioner's appointment was approved on 15-1-1999 by the District Organiser, it could not be set at naught unless opportunity of hearing is provided to the petitioner. Learned counsel then submitted that the letter referred in the document Annexure R-6 dated 11-12-1998 has not been filed by respondents 1 to 4. Learned counsel for the petitioner then submitted that once the petitioner's appointment was approved on 15-1-1999 by the District Organiser, it could not be set at naught unless opportunity of hearing is provided to the petitioner. Learned counsel then submitted that the letter referred in the document Annexure R-6 dated 11-12-1998 has not been filed by respondents 1 to 4. Even the order whereby appointment is cancelled has not been produced by the respondents though notices were issued to them. Learned counsel, therefore, submitted that this order of cancellation of appointment of the petitioner is bad in law and deserves to be quashed, and the petitioner shall be allowed to continue as teacher. 4. Counsel for respondent No. 6 submitted that the appointment of the petitioner itself was void and as such void order could not be protected by this Court. He referred to the judgment in the case of Aligarh Muslim University Vs. Mansoor Ali Khan (2000) 7 SCC 529 , and submitted there can be certain situations where order passed in violation of principle of natural justice need not be set aside under Article 226 of the Constitution of India. Where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal, that it is not necessary to quash the order merely because of violation of principles of natural justice. Learned counsel for respondent No. 6 then referred to another judgment in the case of Surinder Singh Vs. Central Government ( AIR 1986 SC 2166 ) and submitted that in the absence of production of impugned order, it would not be possible to ascertain the reasons which may have impelled the Authority to pass the order. Learned counsel, therefore, submitted that since the impugned order is not produced before the Court, petition should be dismissed, as such order cannot be quashed without examining the proprietory or improprietory. 5. Learned counsel for respondent No. 6 then referred to another judgment in the case of Maharaja Chintamani Saran Nath Shahdeo Vs. Learned counsel, therefore, submitted that since the impugned order is not produced before the Court, petition should be dismissed, as such order cannot be quashed without examining the proprietory or improprietory. 5. Learned counsel for respondent No. 6 then referred to another judgment in the case of Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar (1999) 8 SCC 16 , and submitted that if the order of the Authority itself is invalid and improper and the higher authority, although had no jurisdiction, had interfered with the order, the order should not be interfered with, since the order of the Authority itself was bad. Learned counsel also placed reliance on another judgment in the case of Mohd. Swallen Vs. IIIrd Addl. Distt. Judge, Meerut ( AIR 1988 SC 94 ) to reiterate the same principle. 6. Learned counsel for respondent No. 6 then referred to the judgment in the case of M.P.E.B. Vs. Virendra Kumar Sharma [ 1998 (1) JLJ 49 ] and submitted that the policy Annexure P-2 is without any force of law, and cannot be enforced through Court. Therefore, the petitioner cannot claim relief on the basis of the policy. 7. Learned counsel for the petitioner referred to the judgment in the case of Mata Prasad Sahu Vs. State of M.P. and submitted that even if appointments arc made contrary to law, then enquiry is necessary. Learned counsel invited attention to para 9 of the judgment and submitted that for arriving at a conclusion that the appointment was contrary to the provisions of law, holding of enquiry is necessary and the person whose appointment is under enquiry, has to be issued notice and if such a notice is not given, then it is like playing Hamlet without the Prince of Denmark. 8. In the case of Roman Dayaram Shetty Vs. International Airport Authority of India and another (1979) 3 SCC 489 . The question in this case as to issuance of writ has been considered under the provisions of Article 226 of the Constitution. 9. Before dealing with the case, it is to be examined whether the Scheme has a force of law. On bare reading of the scheme it provides for education to the children who cannot attend school or cannot attend any education centre to get education. 9. Before dealing with the case, it is to be examined whether the Scheme has a force of law. On bare reading of the scheme it provides for education to the children who cannot attend school or cannot attend any education centre to get education. The Scheme also provides for education to the children of the families who are moving from place to place in search of job. Thus, the Scheme has been prepared by the State of Madhya Pradesh for imparting education to the children who are unable to get education on account of their personal or family problems. 10. Article 41 of the Constitution of India guarantees right to work, to education and to public assistance in certain cases. The duties of the State under this Directive is not only to establish education institutions, but also to effectively secure the right to education. Thus it is the duty of the State to make effective policies for right to education to such children who are unable to get education. Therefore, the Scheme shall have the statutory force as it is a notification for enforcing the policy of right to education under Article 41 of the Constitution. Therefore, the Scheme has a force of law and it has to he followed for appointment of teachers as laid down in the policy. 11. Under the Scheme, teachers are to be appointed on honorarium so that education is given at the minimum level of learning. For the purposes of selection, it is provided that Education Committee shall invite applications from the candidates having the qualification to be appointed and thereafter shall prepare a merit list. This panel shall be provisional which shall be forwarded through the Block Education Officer to the Zila Panchayat Office. After examining the panel, proposal may be rejected or accepted by the Authority. If the proposal was accepted, then appointment shall be made in which it will be mentioned that the appointment is purely temporary and selected candidates will have to undergo training for a period of 21 days. After examining the performance during training, appointment shall be finalised. 12. Under this Scheme, petitioner's name was recommended and it has been approved vide order Annexure P-5 dated 15-1-1999 with a condition that after completion of successful training the appointment shall be regularised. Petitioner has successfully completed the training. 13. After examining the performance during training, appointment shall be finalised. 12. Under this Scheme, petitioner's name was recommended and it has been approved vide order Annexure P-5 dated 15-1-1999 with a condition that after completion of successful training the appointment shall be regularised. Petitioner has successfully completed the training. 13. Respondent No. 6 Shri Mohammad Islam Khan has lodged a complaint that he had secured more percentage of marks, yet his form was not considered by the Sarpanch and the Secretary of the Panchayat and his name was not recommended. He has also mentioned that the District Education Officer has rejected the panel, but petitioner is appointed from the rejected panel. On this complaint, some enquiry was conducted behind the back of the petitioner and in that enquiry, it is found that respondent No. 6 has submitted his form which was within time limit, but the Panchayat has not recommended his name in the panel, though he has secured higher percentage of marks. The Sub-Divisional Officer has recommended that appointment of petitioner be cancelled and respondent No. 6 be appointed in place of the petitioner. 14. Considering the facts of the case, it transpires that there is dispute as to percentage of marks. Respondent No. 6 claims to have secured higher percentage of marks i.e., 56% whereas the petitioner has secured only 54% marks. The marks secured by respondent No. 6 is dispute by the petitioner. 15. All the same, it is true that the petitioner's appointment was affirmed, therefore, it was necessary to hear him before cancelling his appointment. However, in any case, no direction for appointment of third person could be issued. If it was a case where it is found that merit was ignored, the matter ought to have been referred back to the Education Committee for considering the cases afresh according to the Scheme prepared by the Government. In the present case, petitioner's appointment is set aside without affording him an opportunity of hearing, and without recommendation of the Committee respondent No. 6 is appointed. 16. Thus, the Authorities had invoked the powers which were not vested in them, for appointment of respondent No. 6. At the most, after enquiry, the matter should have been referred back to the Education Committee for preparation of panel afresh, and after preparation of fresh panel, appointment should have been made in accordance with law. 17. 16. Thus, the Authorities had invoked the powers which were not vested in them, for appointment of respondent No. 6. At the most, after enquiry, the matter should have been referred back to the Education Committee for preparation of panel afresh, and after preparation of fresh panel, appointment should have been made in accordance with law. 17. In such circumstances, it will be appropriate that fresh selection should be made by the Education Committee on the basis of the applications received by it after considering merit of each candidate or it may call fresh applications and appoint more meritorious candidates. 18. Considering the facts of the case, order Annexure P-1 dated 19-7-1999 is quashed with a direction that fresh selection shall be made as directed above and the person continuing on the post shall be allowed to continue till fresh selections are made. 19. With the aforesaid direction, the petition is disposed of. 20. Writ Petition allowed.