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Jharkhand High Court · body

2015 DIGILAW 670 (JHR)

Arvind Kumar Mishra v. State of Jharkhand

2015-05-22

RONGON MUKHOPADHYAY

body2015
Order Challenge has been made in the present writ application to the order as contained in Memo No. 1289 dated 09.08.2011 by dint of which Letter No. 960 dated 25.05.2009 by which the approval of appointment given to the Respondent No. 4 on the post of 2nd Para Teacher in Upgraded Primary School, Pandeydih in the District of Giridih was cancelled, has been set aside. 2. Before adverting to the contentions raised on behalf of the respective parties to the writ application it would be necessary to refer to the facts emanating in the present case. 3. For the purpose of selection of a Para Teacher in Upgraded Primary School, Pandeydih a meeting of the Village Education Committee was convened on 24.01.2007 and five applicants were in contest for the said post. The candidature of Respondent No. 4 to the post of Para Teacher in Upgraded Primary School was approved and since a dispute was raised that the selection of Respondent No. 4 was not as per the norms and guidelines an enquiry was conducted by the Regional Education Officer, Giridih. The enquiry report which was submitted revealed the fact that although the Village Education Committee, Upgraded Primary School, Pandeydih did not select the Respondent No. 4 as a 2nd Para Teacher but the same was got approved by the Block Education Committee, Gandey. The enquiry report further revealed that eligible local candidates were ignored which was against the spirit of Sarbh Shiksha Abhiyan. Considering the recommendation made by the Regional Education Officer the approval of Respondent No. 4 as Para Teacher in Upgraded Primary School, Pandeydih was cancelled and the Village Education Committee of the said School was dissolved and an order for reconstitution of the same was passed. Further an order was passed by the Respondent No. 2 which is contained in Memo No. 1289 dated 09.08.2011 by which on the basis of recommendation made by the members of the Village Education Committee and the local Member of Parliament the Letter No. 960 dated 25.05.2009 cancelling the approval of appointment of Respondent No. 4 as a Para Teacher was cancelled and it was directed thereunder to make payment of the dues to the Respondent No. 4. 4. Aggrieved by the issuance of the order as contained in Memo No. 1289 dated 09.02.2011 the petitioner has preferred the present writ application. 5. Heard Mr. 4. Aggrieved by the issuance of the order as contained in Memo No. 1289 dated 09.02.2011 the petitioner has preferred the present writ application. 5. Heard Mr. Arbind Kumar, learned counsel for the petitioner, Mr. Prabhat Kumar Singh, learned J.C. to A.A.G. for the respondent Nos. 1 and 2 and Mr. Manoj Tandon, learned counsel appearing on behalf of the respondent No. 4. 6. Mr. Arbind Kumar, learned counsel for the petitioner has submitted that the order as contained in Memo No. 1289 dated 09.08.2011 is a non-speaking and cryptic order bereft of any reasons. It has been submitted that on objection being raised with respect to the approval of appointment of Respondent No. 4 which was not as per the norms and procedures required for such appointment an enquiry was conducted and the enquiry report supported the fact that the appointment of the Respondent No. 4 was contrary to the basic objects of the Sarbh Shiksha Abhiyan and the Respondent No. 2 had rightly cancelled the approval of appointment of the Respondent No. 4. The learned counsel for the petitioner while referring to the supplementary affidavit filed by him has further submitted that the Respondent No. 4 was never in contention for the post of Para Teacher but by adopting illegitimate means his name has been inserted which would be apparent from the minutes of the meeting held for selection of Para Teacher. 7. Mr. Prabhat Kumar Singh, learned J.C. to A.A.G., on the other hand, has submitted that the petitioner does not have any locus standi to challenge the impugned order dated 09.08.2011 as the petitioner was never in the fray of being selected as a Para Teacher in Upgraded Primary School, Pandeydih. It has also been submitted that one Susma Kumari was initially selected as a Para Teacher and her name was recommended but since the selected candidates failed to produce her educational as well as other testimonials her candidature was not considered and on the basis of local enquiry conducted by the Committee constituted for the said purpose had decided to appoint Respondent No. 4 to the post of Para Teacher. It has also been submitted by learned J.C. to A.A.G. that the impugned order dated 09.08.2011 has been passed on the recommendation of the Secretary and Members of the Village Education Committee, Upgraded Primary School, Pandeydih as well as the local Member of Parliament and since the local Member of Parliament is a representative of people as such the entire facts were taken into consideration and recommendation after having been accepted the earlier Letter No. 960 dated 25.05.2009 was cancelled. It has thus been submitted that there is no error or illegality in the impugned order dated 09.08.2011 which has been passed in accordance with the established procedure of law. 8. Mr. Manoj Tandon, learned counsel appearing for the respondent No. 4 has submitted that the petitioner does not have any locus in filing the writ application inasmuch as the matter is between Respondent No. 4 and the State-Authorities and since candidature of the petitioner for selection to the post of Para Teacher did not contain the requisite eligibility the petitioner cannot be permitted to raise an issue which does not concern him. It has further been submitted that the minutes of the meeting would reveal that the respondent no. 4 was much more qualified being a graduate than the other candidates and, therefore, he was rightly approved for appointment to the post of Para Teacher. The learned counsel for the Respondent No. 4 further submits that if the impugned order dated 09.08.2011 is interfered with the same will result in revival of the order as contained in Memo No. 960 dated 25.05.2009 for which approval for appointment of the petitioner was cancelled and the petitioner would be left with no remedy for redressal of his grievance. 9. It is not in dispute that the Respondent No. 4 was selected as a Para Teacher by the Village Education Committee but subsequently on a dispute being raised with respect to the eligibility of Respondent No. 4 an enquiry was conducted and consequently the order as contained in Memo No. 960 dated 25.05.2009 was passed by virtue of which the approval for appointment of Respondent No. 4 as Para Teacher in Upgraded Primary School, Pandeydih was cancelled. However, the order as contained in Memo No. 960 dated 25.05.2009 was subsequently reversed in terms of the recommendation made by the Members of the Village Education Committee and the local Member of Parliament leading to issuance of the order as contained in Memo No. 1289 dated 09.08.2011. This order only mentions about this fact that both the sides were heard but it has never been disclosed in the said order as to whether the petitioner was given an opportunity of hearing. However, this fact has been clarified in the counter affidavit filed on behalf of the Respondent No. 2 in which it is categorically stated that the petitioner as well as Respondent No. 4 had participated in the hearing and their statements were also recorded. This averment made in the counter affidavit rules out the claim of the learned counsel for the State as well as the learned counsel for the Respondent No. 4 that the petitioner does not have any locus in filing the present writ application. It is also not in dispute that the petitioner was one of the candidates for selection to the post of Para Teacher and when the order dated 25.05.2009 was cancelled by virtue of impugned order dated 09.08.2011 the same definitely affected the petitioner as the candidature of the petitioner which was virtually renewed pursuant to the order dated 25.05.2009 became extinguished in terms of the impugned order. In such circumstance the petitioner being a aggrieved person did have a right to challenge the impugned order dated 09.08.2011 and, accordingly, the contentions made by the learned counsel for the respondents being misconceived is rejected. 10. As would be apparent the impugned order as contained in Memo No. 1289 dated 09.08.2011 does not contain any reasons whatsoever although a passing reference has been made that the parties have been heard. The order does not reflect independent application of mind on the part of Respondent No. 2 and the same seems to have been influenced by the recommendation made by the Village Education Committee, Upgraded Primary School, Pandeydih as well as the recommendation made by the local Member of Parliament. 11. The learned counsel for the petitioner in course of his argument has referred to certain orders and judgments of this Court and it is being dealt with in the subsequent Paragraphs. 12. In the case of Sushri Rinku Kumari Vs. 11. The learned counsel for the petitioner in course of his argument has referred to certain orders and judgments of this Court and it is being dealt with in the subsequent Paragraphs. 12. In the case of Sushri Rinku Kumari Vs. State of Jharkhand and Others reported in [2005] 2 JLJR 453 the Court was considering the fact as to whether merely on raising some objection by the M.L.A. without there being any allegation of malafide the order of termination could be sustained. The Hon'ble Court went on to hold that merely on the basis of some objection raised by the M.L.A. the services could not be terminated. The learned counsel for the petitioner while citing the aforesaid order has harped on the fact that the Respondent No. 4 could not be allowed to continue as a Para Teacher merely on the basis of recommendation of the local Member of Parliament without there being anything contrary to the same. 13. In the case of Srimani Devi Vs. State of Jharkhand and Others reported in 2012 (3) JLJR 41 the question of violation of natural justice arose and the order of termination was set aside as no reasons were assigned for such termination. 14. Similar was the question involved in the case of Renu Kumari Vs. State of Jharkhand and Another reported in [2012] 1 JLJR 133 wherein, the order of termination was set aside in view of the fact that the order is a thoroughly non-speaking order. 15. Although the impugned order dated 09.08.2011 is shorn of any details or any reasons for coming to such conclusion as has been reflected in the said order but the State has tried to supplement the reasons in their counter affidavit which also cannot be permitted to be allowed in view of the settled principle of law as has been laid down by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others reported in (1978) 1 SCC 405 and the relevant part of the said judgment is quoted hereinbelow:- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhanji: Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 16. The learned counsel for the Respondent No. 2 while defending the action taken by the State-Authorities has relied upon the case of M. C. Mehta vs. Union of India and Others reported in AIR 1999 (SC) 2583 and the relevant portion of the judgment is quoted hereinbelow:- “The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law.” 17. The learned counsel for the Respondent No. 4 while referring to the judgment of M. C. Mehta vs. Union of India and Others (Supra) has tried to establish the fact that if the impugned order dated 09.08.2011 is interfered with the same may result in revival of the order dated 25.05.2009 by which the approval for appointment of the Respondent No. 4 as a Para Teacher was cancelled. The peculiar facts of the present case do point to the fact that the controversies with respect to the appointment of Para Teacher in Upgraded Primary School, Pandeydih has continued unabated and that one order is being replaced by another order which ultimately deprives the students from getting proper education. It is high time that the matter be set at rest and the candidate who fulfills the requisite criteria in terms of the circular and guidelines issued for appointment of Para Teacher be appointed and a steadfast approach be initiated. As it is the impugned order as contained in Memo No. 1289 dated 09.08.2011 does not bare any reasons and merely reflects that the parties have been heard and in such circumstances the said order being cryptic, laconic and bereft of any reasons does not deserve any justification for its continuation. Accordingly, the order dated 09.08.2011 as contained in Memo No. 1289 issued by the Respondent No. 2 is quashed and set aside. Since, this Court is conscious of the fact that the order dated 25.05.2009 as contained in Memo No. 960 issued by the Respondent No. 2 gets revived once again it would be in the interest of all concern including the Respondent No. 4 that the matter be decided afresh. 18. Accordingly, the Respondent No. 2 is directed to take a fresh decision in accordance with law after giving ample opportunity of hearing to all the parties concerned in the selection of 2nd Para Teacher in the Upgraded Primary School, Pandeydih including the petitioner as well as the Respondent No. 4 and after considering the entire materials on records, shall pass a reasoned order within a period of six weeks from the date of receipt/production of a copy of this order. Till such order is passed the order as contained in Memo No. 960 dated 25.05.2009 shall be kept in abeyance. 19. This writ application is disposed of.