Poonam Singh v. Spl. Secry. , Secondary Education, Social Welfare & 5 Ors
2013-12-13
D.Y.CHANDRACHUD, SANJAY MISRA
body2013
DigiLaw.ai
Sanjay Misra,J. The special appeal arises from a judgment of the learned Single Judge dated 29 November 2013. By the judgment, which has been impugned in appeal, the learned Single Judge has set aside an order of the Special Secretary (Secondary), Social Welfare Department, and has remanded the proceedings back to the Director of Social Welfare for re-examination of the entitlement of the appellant to the payment of salary. However, while doing so, the learned Single Judge has observed that since there is no dispute in regard to the payment of salary of the fifth respondent-Sriniwas Maurya and that there is no challenge to the appointment of the sixth respondent-Smt. Geeta Singh, the remand shall not reopen the entitlement either of the fifth respondent or of the sixth respondent to the appeal. 2. The grievance of the appellant is that while remanding the matter, the learned Single Judge has proceeded on the erroneous assumption that there is no dispute either in regard to the fifth or the sixth respondent. Since there are only two posts as against which there are three claimants, it has been submitted that no useful purpose would be served in passing an order of remand unless the Director, upon remand, is to consider the claims of all the three teachers, namely, the appellant, the fifth respondent and the sixth respondent. Hence, the issue which falls for determination is whether the learned Single Judge was justified in confining the proceedings on remand only in regard to the entitlement of the appellant. 3. The dispute relates to the Ambedkar Primary Pathshala Inderpur, Mau, which is a recognized institution. The institution has received grant-in-aid from the State Government from 1994. Initially, as the record before the Court would indicate, the fifth respondent-Sriniwas Maurya had filed a writ petition before this Court (Civil Misc. Writ Petition No.53549 of 1999), challenging an order of the District Social Welfare Officer. While setting the order of the District Social Welfare Officer, the learned Single Judge remanded back the proceedings for fresh consideration after due consideration of a letter of approval for the payment of salary dated 24 June 1994. The District Social Welfare Officer passed an order on 16 December 2006, holding that there were two claimants, namely, the appellant and the fifth respondent in respect of the same post and accordingly, made a reference to the Director.
The District Social Welfare Officer passed an order on 16 December 2006, holding that there were two claimants, namely, the appellant and the fifth respondent in respect of the same post and accordingly, made a reference to the Director. In the meantime, contempt proceedings were initiated before this Court and by an order dated 7 March 2007, the learned Single Judge directed that the Director, Social Welfare shall proceed to examine the claim of the appellant and the fifth respondent in accordance with law. By an order dated 27 August 2007, the Director came to the conclusion that the fifth respondent had been validly appointed on 1 September 1980 and the approval had been granted for the disbursal of his salary. The claim of the appellant was rejected. Subsequently, on a representation submitted by the appellant, it appears that by an order dated 16 January 2008, the earlier order dated 29 August 2007 came to be stayed and a reference was made to the State Government. The reference to the State Government, as the record would indicate, was made on 25 December 2009. The appellant made a representation to the Special Secretary (Secondary), Social Welfare Department, upon which a report was submitted by the District Social Welfare Officer on 17 December 2009. On the basis of the report, the Special Secretary passed an order dated 7 January 2010, by which he came to the conclusion that there was no record of the letter of appointment of the sixth respondent-Smt. Geeta Singh and that her name was not borne in the list of employees as on January 1981 and that consequently, it would not be appropriate to direct the disbursal of her salary. The order of the Special Secretary was admittedly passed without issuing any notice to the sixth respondent and without furnishing her an opportunity of being heard. Consequently, it was challenged in the writ proceedings before the learned Single Judge. 4. The learned Single Judge by the impugned order dated 29 November 2013, set aside the order of the Special Secretary on the ground that it has been passed without furnishing an opportunity of being heard to the sixth respondent and, therefore, is in violation of the principles of natural justice. Having so observed, the learned Single Judge directed that the claim of the appellant alone should be considered.
Having so observed, the learned Single Judge directed that the claim of the appellant alone should be considered. As regards the fifth respondent to the appeal-Sriniwas Maurya, the learned Single Judge noted that the Director had already passed an order in his favour, which has not been challenged and, therefore, the matter in respect of the payment of salary to him stood closed. Similarly, it was observed that the appointment of the original petitioner (the sixth respondent to the appeal) had also not been challenged and from the inspection report, it appears that the State Government was also satisfied in regard to the payment of her salary, as a result of which it was not necessary to re-open the case of the sixth respondent. Hence, the direction is that, upon remand, the Director shall consider the entitlement only of the appellant after furnishing her an opportunity of being heard. 5. The contention of the learned counsel for the appellant is that there was no justification for the learned Single Judge to confine the order of remand only in regard to the appellant, while at the same time, directing that this should not amount to the re-opening of the entitlement of salary in respect of the fifth and the sixth respondents. According to the learned counsel for the appellant, there are only two posts in the institution and if the cases of the fifth and the sixth respondents are not to be open upon remand, it would serve no useful purpose. 6. For convenience of exposition, we would consider both, the cases of the fifth and the sixth respondents separately. 7. As regards the fifth respondent, he had initially moved a writ proceeding before this Court in which a learned Single Judge had, by a judgment and order dated 8 April 2005, made specific observations while setting aside the order of the District Social Welfare Officer. Insofar as the fifth respondent is concerned, the learned Single Judge had observed as follows: "From the record, it is clear that the Manager of the Institution has accepted the appointment of the petitioner dated 1.9.1980 and has filed an affidavit to this effect that the petitioner is working on the date, the school came into grant-in-aid.
Insofar as the fifth respondent is concerned, the learned Single Judge had observed as follows: "From the record, it is clear that the Manager of the Institution has accepted the appointment of the petitioner dated 1.9.1980 and has filed an affidavit to this effect that the petitioner is working on the date, the school came into grant-in-aid. From the record, it is also clear that in the order dated 24.6.1994 of District Social Welfare Officer, the name of the petitioner has been shown at Serial No.7 and his appointment has been approved. If the contention of the respondents is accepted as stated in the counter affidavit, if the order dated 24.6.1994 is a forged document then how other teachers whose name has been included in the said list of approval are getting the salary." 8. The learned Single Judge was of the view that the fifth respondent has been found to be working and that his claim is genuine, but the Manager of the Institution wants that the salary be paid to another teacher. This, the learned Single Judge, held could not be a ground for the rejection of the claim of the fifth respondent who was a petitioner in those proceedings. Hence, while remanding the proceedings back to the District Social Welfare Officer, this court specifically directed that the order of approval dated 24 June 1994 shall be considered. Following this order, the Director on 27 August 2007 accepted the entitlement of the fifth respondent. 9. As regards the sixth respondent, the record before the court would indicate that she was not in the fray in the earlier writ proceedings. The sixth respondent has relied upon an order of appointment, a photocopy of which is not available. There is a report allegedly of the Tehsildar of 1993. A copy of the report which has been annexed to the counter affidavit of the appellant contains an overwriting. The rejoinder affidavit which has been filed by the sixth respondent before the learned Single Judge contains a copy of the report without overwriting. According to the learned counsel appearing on behalf of the sixth respondent, the name of the sixth respondent has only been shaded for the purpose of highlighting. 10.
The rejoinder affidavit which has been filed by the sixth respondent before the learned Single Judge contains a copy of the report without overwriting. According to the learned counsel appearing on behalf of the sixth respondent, the name of the sixth respondent has only been shaded for the purpose of highlighting. 10. The Special Secretary, in the order which was impugned before the learned Single Judge, came to the conclusion that there was no original record in regard to the appointment of the sixth respondent and that her name was not borne in the list of January 1981. This finding was arrived at without any notice to the sixth respondent. The consequence of this finding would be to forfeit the rights of the sixth respondent and such an order could not have been passed without complying with the principles of natural justice. The learned Single Judge has observed that the appointment of the sixth respondent has not been challenged and that from the inspection report it appears that the State Government was satisfied in regard to the payment of her salary and that there was no need to reopen her matter. 11. We are of the view that having regard to the state of the record, it would be necessary for the Director, upon remand, to reconsider the entirety of the matter afresh. As regards the fifth respondent, the Director shall have due regard to the observations, which were contained in the order of the learned Single Judge dated 8 April 2005, which have been noted above and which have not been modified or set aside. As regards the sixth respondent, the Director shall have due regard to all the facts and circumstances of the case and pass appropriate orders in accordance with law after considering the claim of the fifth respondent. 12. We, accordingly, modify the directions, which have been issued by the learned Single Judge to the aforesaid extent. We clarify that any determination shall only be arrived at after furnishing an opportunity of being heard to the appellant, the fifth and the sixth respondents though in the light of the observations, which have been made in this judgment. 13. The special appeal is, accordingly, disposed of. There shall be no order as to costs. _________________