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2015 DIGILAW 706 (ALL)

SUNIL KUMAR DUBEY v. STATE OF U. P.

2015-04-06

P.K.S.BAGHEL

body2015
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner Sunil Kumar Dubey is a Class IV employee in a recognized Intermediate College. 2. Brief reference of the factual aspects would suffice. 3. Adarsh Inter College, Bisunderpur, district Mirzapur is a recognized Institution by the Board of High School and Intermediate. It receives aid out of the State Fund. the provisions of the Act No. II of 1921 (Uttar Pradesh Intermediate Education Act, 1921), regulations framed thereunder and the Act No. 24 of 1971 (Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971) are applicable to the institution. The institution is established by a society and its affairs are administered by the Committee of Management, the respondent No. 3 herein, in terms of the provisions of the aforesaid Acts. 4. In the said College three post of Class IV employee fell vacant. The Principal under the Act No. II of 1921, is the appointing authority of Class IV employee. He made an application dated 8.9.2005 seeking permission of the District Inspector of Schools for appointment on the post of three peons in accordance with law. A copy of the permission accorded by the District Inspector of Schools is on the record as Annexure-1 to the writ petition. It is averred in the writ petition that after obtaining the said permission the Principal issued advertisement in two newspapers namely Rashtriya Sahara and in one local newspaper on 10.1.2006 calling the application for appointment on the aforesaid three posts. Copies of the advertisement published in the newspaper is Annexure-2 and 3 to the writ petition. 5. The petitioner claims that in pursuance to the said advertisement he made an application and after the interview he was found suitable. The Principal of the College sent papers to the District Inspector of Schools for its approval and in the meantime he issued an appointment on 15.2.2006. The District Inspector of Schools in terms of the Government Order dated 16.12.2000 referred the matter to the Regional Level Committee for approval of the payment of salary. The Joint Director who is Chairman of the Regional Level committee vide order dated 4.7.2007 directed the District Inspector of Schools, Mirzapur to make the payment of salary to the petitioner. A copy of the order of the Joint Director of Education is Annexure-7 to the writ petition. The Joint Director who is Chairman of the Regional Level committee vide order dated 4.7.2007 directed the District Inspector of Schools, Mirzapur to make the payment of salary to the petitioner. A copy of the order of the Joint Director of Education is Annexure-7 to the writ petition. It is stated that pursuance to the said order the District Inspector of Schools accorded his financial approval vide order dated 10.7.2007 and from the said date the petitioner has pleaded that he was continuously working and receiving his salary. 6. In the meantime one Sandeep Kumar Pandey who was not even candidate challenged the appointment of the petitioner before this Court by means of Writ Petition No. 49181 of 2007 (Sandeep Kumar Pandey v. State of U.P. and others), which was disposed of on 11.10.2007 with a direction upon the District Inspector of Schools to consider the complaint of Sandeep Kumar Pandey and pass appropriate order in accordance with law. In compliance thereof the District Inspector of Schools passed a elaborate reasoned order on 8.1.2008 wherein he found that the complaint made by Sandeep Kumar Pandey was baseless and incorrect. He has also recorded a finding that the appointment of the petitioner is in accordance with law. The said order was challenged by the Sandeep Kumar Pandey by means of Writ Petition No. 23106 of 2008. In the said writ petition no interim order was passed by this Court and it is tagged with the present writ petition. 7. In the meantime one Bharat Kumar Tiwari approached the Commissioner of the Mirzapur Region. In his complaint he has reiterated the allegations which have been found incorrect by the District Inspector of Schools and the said order is subjudice before this Court. The Commissioner sent a communication dated 27.6.2008 to the Director of Education (Madhyamik), Uttar Pradesh, Lucknow with a copy to the Principal Secretary (Madhyamik Education), Uttar Pradesh, Lucknow and Secretary(Madhyamik Education), Uttar Pradesh, Lucknow. From the records it appears that the Director has not taken any action on the letter of the Commissioner. 8. On the basis of the said communication the Joint Secretary vide communication dated 6th March, 2009 issued a direction to the Director of Education (Madhyamik), to cancel the appointment of the petitioner with immediate effect. From the records it appears that the Director has not taken any action on the letter of the Commissioner. 8. On the basis of the said communication the Joint Secretary vide communication dated 6th March, 2009 issued a direction to the Director of Education (Madhyamik), to cancel the appointment of the petitioner with immediate effect. It is averred in the writ petition that in compliance of the said order of the State Government/Joint Secretary, the appointment of the petitioner has been cancelled by the Joint Director of Education, Vidhyachal Region, Mirzapur on 30.3.2009 and a consequential order has been passed by the District Inspector of Schools and the Committee of Management terminating the services of the petitioner. 9. In paragraph 27 of the writ petition the petitioner has stated that all these proceedings by the State Government and other authorities have been conducted without giving any opportunity. 10. The contention of learned counsel for the petitioner is that his appointment was challenged in this Court and in compliance of the order of this Court dated 11.10.2007 the District Inspector of Schools after giving full opportunity to the complainant has passed a detailed order on 8.1.2008 and he found that the appointment of the petitioner was valid. He has also referred the matter in respect of payment of salary to the petitioner to the Regional Level Committee and after the approval of the Regional Level Committee the salary of the petitioner has been paid. The said order has been challenged before this Court by means of Writ Petition No. 23106 of 2008 but the Court has not granted any interim order and the petitioner therein is not pursuing the matter. The said writ petition is listed today but there is no one to press the said writ petition. 11. Learned counsel for the petitioner submits that another complainant has made a complaint to the Commissioner who has conducted an enquiry behind the back of the petitioner without giving any opportunity to the petitioner. He wrote a letter to the State Government go cancel the appointment of the petitioner ignoring the fact that Regional Level Committee and the District Inspector of Schools accordingly held that the appointment of the petitioner is valid and legal and the validity of the said order is subjudice before this Court. He wrote a letter to the State Government go cancel the appointment of the petitioner ignoring the fact that Regional Level Committee and the District Inspector of Schools accordingly held that the appointment of the petitioner is valid and legal and the validity of the said order is subjudice before this Court. He further urged that the Commissioner and the State Government has exceeded their jurisdiction by taking decision in the matter which is already subjudice before this Court. 12. Lastly he urged that under the provisions of the Act No. II of 1921, the Commissioner is completely alien and State Government also has no authority to cancel the appointment of a Class IV employee of a recognized Institution. 13. A counter-affidavit has been filed. The stand taken in the counter-affidavit is on the basis of enquiry conducted by the Commissioner, the State Government has taken the decision and a direction has been issued to cancel the appointment of the petitioner. In the counter-affidavit the averments made in the writ petition that all the action of the State Government and the Commissioner, Vindhyachal Region, has been taken without any opportunity has not been denied. 14. On 7.5.2009 time was granted to the respondent No. 1 but he has preferred not to file counter-affidavit. 15. Learned Standing Counsel has taken the Court to the various paragraphs of the counter-affidavit in support of his submission that the enquiry was conducted by the Commissioner who found that the petitioner’s appointment was illegal. He further submitted that he has also received the instruction by the District Inspector of Schools. On the basis of the said instructions he has tried to justify the action of the State Government and the Commissioner. Learned Standing Counsel has also submitted that the State Government under Section 9(4) of the Act No. II of 1921 has ample power to cancel the appointment. 16. I have heard learned counsel and perused the material on record. The Principal is the appointing authority of a Class IV employee in an Intermediate College. It is on the record that on 8.9.2005, the Principal had sought the permission from the District Inspector of Schools to fill the vacancies of Class IV employee. The District Inspector of Schools had permitted him to initiate the recruitment process by order dated 15.12.2005. The Principal is the appointing authority of a Class IV employee in an Intermediate College. It is on the record that on 8.9.2005, the Principal had sought the permission from the District Inspector of Schools to fill the vacancies of Class IV employee. The District Inspector of Schools had permitted him to initiate the recruitment process by order dated 15.12.2005. In compliance thereof the advertisement were made in two newspapers and after the appointment petitioner’s papers were sent to the District Inspector of Schools for his approval. The District Inspector of Schools, sent the papers before the Regional Level Committee. The Regional Level Committee accorded its approval for payment of salary and this decision was communicated by the Joint Director of Education, Vindhyachal Region, vide communication dated 4.7.2007. The District Inspector of Schools after affording opportunity to the complainant Sandeep Kumar Pandey came to hold that the allegations against the selection of the petitioner was baseless and incorrect and he found that the appointment of the petitioner was made in accordance with law. 17. The said order has been challenged by means of Writ Petition No. 23106 of 2008 before this Court which has been dismissed by the Court. The petitioner’s services have been terminated pursuant to the order of the State Government dated 6th March, 2009. From the said letter it appears that the State Government has passed that order only on the basis of the recommendation of the Commissioner without giving any opportunity to petitioner. The order also indicate that there is no application of mind. 18. The issue whether a Commissioner has authority to conduct such enquiry has already been considered by this Court in the case of Madan Kumar and others v. District Magistrate, Auraiya, 2013 (1) ADJ 606, while considering the said issue the Court held that under the Act No. II of 1921 the District Magistrate does not have any power to issue a direction to the District Inspector of Schools to cancel the appointment of the employees of a recognized Institution. Relevant paragraph of the said judgement reads as under : “A close look at the gamut of the Scheme of the Act instantly brings out that the District Magistrate is a foreign authority under the Scheme. There is no reference of the District Magistrate in the entire Scheme of the Act. Relevant paragraph of the said judgement reads as under : “A close look at the gamut of the Scheme of the Act instantly brings out that the District Magistrate is a foreign authority under the Scheme. There is no reference of the District Magistrate in the entire Scheme of the Act. In case the institution receives aid out of the State Fund the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 (hereinafter referred to Act No. 24 of 1971), a close look at the Scheme of the said Act No. 24 of 1971 also establishes that like U.P. Intermediate Education Act, 1921 under this Act also the District Magistrate has not been assigned any role. The Regional Deputy Director of Education and the District Inspector of Schools are authorities to pass orders/directions against the erring managements. The order passed by those authorities are appealable under Section 7 and under Section 8 revision lies to the State Government. Again in this Act also there is no reference of the District Magistrate under any provisions of the Act.” 19. What emerges from the above mentioned case is that any authority which has not been conferred any power under the Act, Regulation or Rules has no jurisdiction/power/authority to take decision independently. If he has received some complaint, he may refer it to the appropriate authority to take action in accordance with law. 20. In the present case I am of the view that the action of the Commissioner is totally arbitrary and he has transgressed his jurisdiction by conducting an enquiry in the matter. The Act does not give any power to the District Magistrate, Commissioner or any Administrative Officer to conduct an enquiry and take decision himself. If the Commissioner had received any complaint against the selection of a Class IV employee, the proper course was that the Commissioner ought to have sent the complaint to the appropriate authority. However, in the present case the Commissioner has exceeded his jurisdiction by conducting an enquiry himself in the matter. The said exercise taken by the Commissioner is wholly without jurisdiction, arbitrary and appears to be infected with bias. 21. However, in the present case the Commissioner has exceeded his jurisdiction by conducting an enquiry himself in the matter. The said exercise taken by the Commissioner is wholly without jurisdiction, arbitrary and appears to be infected with bias. 21. In addition to above the order of the Commissioner is totally unfair as he has not given any opportunity to the petitioner before reaching at the conclusion that the appointment of the petitioner is illegal. The petitioner has averred in writ petition in paragraph 24 and 27 that no opportunity was afforded to the petitioner. Paragraph 24 and 27 of the writ petition reads as under : “24. That even the principal of the college also passed the impugned order dated 28.4.2009, without affording an opportunity of hearing to the petitioner and without giving any show-cause notice to him hence the impugned order dated 28.4.2009 passed by the respondent No. 4 is liable to be quashed by on this ground alone. 27. That it appears that behind the back of the petitioner, some body has made complaint to the State Government upon which the Joint Secretary of the State Government and upon which the Joint Director of Education, Vindhyachal Mandal, Mirzapur have directed the District Inspector of Schools, Mirzapur to cancel the appointment of the petitioner and to terminate his services.” 22. That it appears that behind the back of the petitioner, some body has made complaint to the State Government upon which the Joint Secretary of the State Government and upon which the Joint Director of Education, Vindhyachal Mandal, Mirzapur have directed the District Inspector of Schools, Mirzapur to cancel the appointment of the petitioner and to terminate his services.” 22. The reply given by the respondents in their counter-affidavit in paragraph 13 and 15 reads as under : **13&;gfd ;kfpdk ds izLrj 20 ls 24 rd esa of.kZr dFku esa ;g dguk gS fd 'kklu ds i= fnukad 6 ekpZ 2009 ds vuqikyu esa mDr dk;Zokgh dh xbZ gS A ftldh Nk;k izfr layXud lh0,0 1 ds :i esa layXu dh tk jgh gS A** **15&;gfd ;kfpdk ds izLrj 26 ls 30 rd esa of.kZr dFku esa ;g dguk gS fd vk;qDr foU?;kpy e.My ehjtkiqj ds tkWap vk[;k fnukad 27&6&2008 ,oa ‘kklu ds i= fnukad 6 ekpZ 2009 ds dze esa leLr dk;Zokgh izfroknh }kjk dh x;h gSa ftldh Nk;k izfr layXud lh0,0 2 ds :i esa layXu dh tk jgh gSA ;fn tkWap esa fu;qfDr esa vfu;ferrk ik;h x;h gS rks mlds vuqlkj foHkkx n~okjk dk;Zokgh dh gS tks fu;ekuqdwy gS] vr% mijksDr of.kZr rF;ksa ds vk/kkj ij ;kph n~okjk nk;j ;kfpdk vk/kkjghu o cyghu gksus ds dkj.k iks"k.kh; ugha gS vkSj ;kph ekuuh; U;k;ky; ls fdlh Hkh izdkj vuqrks"k izkIr djus dk vf/kdkjh ugha gS vkSj ;kph dh ;kfpdk lO;; fujLr fd;s tkus ;ksX; gS A** 23. From a reading of the aforesaid paragraphs it is evident that there is no specific denial of the fact. It is trite law that if a fact is not denied specifically then it amounts admission. Reference may be made to the judgement of the Supreme Court in Tek Bahadur Bhujil v. Debi Singh Bhujil and others, 1966 SC 292; Jahuri Sah v. Dwarika Prasad Jhunjhunwala and others, AIR 1967 SC 109 ; M.L. Subbaraya Setty v. M.L. Nagappa Setty, (2002) 4 SCC 743 ; Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others, AIR 2002 SC 2004 and Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673 . 24. The State Government has also exceeded its jurisdiction as simply on the basis of the order of the Commissioner without affording opportunity to the petitioner, has passed the order cancelling the appointment of the petitioner. 24. The State Government has also exceeded its jurisdiction as simply on the basis of the order of the Commissioner without affording opportunity to the petitioner, has passed the order cancelling the appointment of the petitioner. The State Government does not have any such power in respect of the recruitment of a teacher or non teaching employee or Class IV employee. On the other hand the submission of the learned Standing Counsel that the State Government has exercised its power under Section 9 (4) of the Act II of 1921, hardly merit acceptance. Section 9 (4) of the Act, II of 1921 reads as as under: “9 (4) Whenever, in the opinion of the State Government, it is necessary or expedient to take immediate action, it may, without making any reference to the Board under the foregoing provisions, pass such order or take such other action consistent with the provisions of this Act as it deems necessary, and in particular, may be such order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly.” 25. A simple reading of Section 9 (4) of the Act No. II of 1921 makes it clear that the State Government can exercise its power only in consistent with the provisions of the Act. It does not have any power to pass order contrary to the Act. 26. The scope of Section 9 (4) of the Act has been considered by this Court in C.M.W.P.No. 24401 of 2013, Committee of Management, Shiv Charan Das Kanhaiya Lal Inter College and another v. State of U.P. And others, 2013(3) ESC 1176 (All) : 2013(5) ADJ 109 (NOC), in the following terms : “The question, therefore, is can the Government Order dated 15.3.2012 be read as a Government Order under Section 9 (4) of the U.P. Intermediate Education Act, 1921. The provisions of Sub-section (4) of Section 9 are extracted hereunder : “(4) Whenever, in the opinion of the State Government, it is necessary or expedient to take immediate action, it may, without making any reference to the Board under the foregoing provisions, pass such order or to take such other action consistent with the provisions of this Act as it deems necessary, and in particular, may, by such order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly.” A perusal of the aforesaid power as conferred on the State Government clearly indicates that such a power can be exercised provided the action is consistent with the provisions of the Act. The Regulations framed under Chapter III of the U.P. Intermediate Education Act makes a provision for appointment of class-III and IV employees. There is no amendment in the 1921 Act or the Regulations framed thereunder of banning any such appointments. In the absence of any such specific provision being made, the Government Order dated 15.3.2012 would not survive the test of the ingredients of Section 9 (4) of the 1921 Act. The said Government Order nowhere discusses as to why and why not is it necessary, to proceed, not to make appointments against class-III posts in Intermediate and High Schools governed by the 1921 Act.” 27. The appointment of the petitioner has been approved by the District Inspector of Schools, Regional Level Committee and the Joint Director of Education, Vindhyachal Region. Those orders have not been cancelled. In fact in one of the writ petition filed by the complainant Sandeep Kumar Pandey, it was disposed of by a direction to the authority concerned to adjudicate the matter. In compliance thereof the appointment of the petitioner was found legal. Therefore, the State Government ignoring these material facts and the order and the Commissioner without application of mind has issued the direction for cancellation of the appointment of the petitioner. 28. In view of the above discussion I hold that the State Government does not have any power under sub-section (4) of Section 9 of the Act No. II of the 1921, in respect of recruitment of teachers or non teaching staff or Class IV employees as the power is vested to various educational authorities in respect of recruitment of the teachers and non teaching staff. 29. 29. After careful consideration of the material on record I am of the view that the termination order passed by the Principal of the College in compliance of the order of the State Government, Joint Director and the District Inspector of Schools are patently illegal and arbitrary. 30. All the three impugned orders need to be set aside. It is accordingly set aside. 31. The appointment of the petitioner has already been approved by the District Inspector of Schools and Regional Committee. Those order have not been recalled or cancelled. Therefore, there is no need to send the matter to competent authority. 32. A direction is issued to the respondents for continuance of petitioner, treating the impugned orders as they have never been passed. 33. Writ petition is allowed. 34. There shall be no order as to costs. ———————