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2015 DIGILAW 883 (ALL)

DINESH PRATAP SINGH v. STATE OF U. P.

2015-04-18

DEVENDRA KUMAR UPADHYAYA

body2015
JUDGMENT Hon’ble Devendra Kumar Upadhyaya, J.—Heard learned counsel for the petitioner Sri S.P.Singh, learned Standing Counsel appearing for respondent Nos. 1,2,3 and 4 and Sri R.D.Shahi, learned counsel appearing for the Committee of Management of the Institution. 2. This petition has been filed by the petitioner assailing the validity of an order dated 13.8.2014 passed by the Manager, Sri Bhimsen Inter College, Badgaon, Amethi, an institution duly recognized under the relevant provisions of Intermediate Education Act, 1921. The provisions of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are also applicable to the teaching and non-teaching staff. 3. Submission of learned counsel for the petitioner is that though by means of impugned order the petitioner has been removed from service, however, before passing the same, no charge-sheet of any kind was ever served to him, neither any departmental proceedings were ever either instituted or conducted against him. He has further submitted that on account of the fact that the impugned order of removal has been passed without conducting any departmental proceedings, the same is unlawful. 4. It has been contended by learned counsel for the petitioner that in terms of the provisions contained in the Regulations framed under the Intermediate Education Act, 1921, any major penalty, including the penalty of removal, can be inflicted on a Class III employee only after approval of the District Inspector of Schools and in the instant case, no approval of the impugned order of punishment of removal has been accorded by the District Inspector of Schools, hence the order is legally not sustainable. 5. On the other hand, Sri R.D.Shahi, learned counsel representing the Committee of Management of the Institution and the learned Standing Counsel have opposed the plea being canvassed by the learned counsel for the petitioner by submitting that at the time of initial appointment of the petitioner, he was over age, that is to say, his age was more than the age prescribed for recruitment on Class IV post of Daftari in an Intermediate institution and hence, the initial appointment of the petitioner itself was unlawful and irregular. He has also stated that recruitment of the post of Daftari is made by way of promotion from amongst other Class IV employees working in an intermediate institution and since in the instant case, the petitioner was recruited and appointed through direct recruitment on the post of Daftari as such, his appointment cannot be justified and it is only on the instructions and directions issued by the District Inspector of Schools that the Committee of Management has passed the impugned order which does not suffer from any illegality or irregularity so as to call for any interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. 6. The facts of the case, as deduced from the material available on record and on a careful consideration of the arguments raised by learned counsel appearing for the respective parties, are that the petitioner appears to have been appointed through direct recruitment basis on the post of Daftari in the institution on 21.5.1998. On being appointed since the petitioner was not paid his salary, he filed a writ petition bearing Writ Petition No. 2119 (S/S) of 1999 in which this Court on 11.10.1999 passed an order that in case the petitioner has been appointed on a sanctioned post against clear vacancy and he is actually working the institution, he shall be paid his salary. 7. In compliance of the order dated 11.10.1999, the matter relating to payment of salary and according approval of appointment of the petitioner and financial concurrence for payment of salary to him, was considered by the District Inspector of Schools, who by his letter dated 7.1.2000 provided the financial concurrence for payment of salary to the petitioner for the post of Dafatri. The petitioner thereafter while working on the post of Daftari was paid the salary of the said post. The said writ petition has finally been disposed of by this Court on the basis of interim order dated on 25.3.2010 passed in a subsequent writ petition which was filed by the petitioner, namely, Writ Petition No. 867 (S/S) of 2010. 8. While working on the post of Daftari, the petitioner appears to have been promoted against a Class III post in the year 2009. 8. While working on the post of Daftari, the petitioner appears to have been promoted against a Class III post in the year 2009. When the petitioner was not being paid salary of the Class III post against which he alleges to have been promoted, he filed another writ petition, namely, Writ Petition No. 876 (S/S) of 2010 in which an interim order was passed on 25.3.2010 providing therein that if the petitioner is working on Class III post, he shall be paid his salary of Class III post. The writ petition No. 876 (S/S) of 2010 filed by the petitioner has been disposed of as infructuous by this Court by means of order dated 25.11.2012 observing therein that by an interim order dated 25.3.2010, it was directed that if the petitioner is working on a Class III post, he shall be paid his salary of Class III post. It has been further observed in the order dated 25.11.2012 that the said order has been complied with and the petitioner is being paid his salary regularly since then. 9. The order according approval to petitioner’s promotion was passed on 2.2.2012 by the District Inspector of Schools in compliance of the order passed by this Court in Writ Petition No. 867 (S/S) of 2010. The petitioner since then had worked on the Class III post. However, as has been submitted by learned counsel for the petitioner, with the change of guards at the Committee of Management of the institution, certain complaints were made against the petitioner’s appointment which appear to have been got inquired into by the District Inspector of Schools. In pursuance of the directions issued by the District Inspector of Schools for making inquiries into the complaints made against the petitioner, the Principal of the institution appears to have conducted some inquiry and has submitted his report on 10.7.2014. The District Inspector of Schools, on the basis of said report dated 10.7.2014, has passed an order/written a letter dated 14.7.2014 requiring the Management of the Institution to take action against the petitioner on the basis of the said report dated 10.7.2014 submitted by the Principal of the institution, which, according to the District Inspector of Schools clearly indicates that the appointment of the petitioner has been made against the provisions of U.P. Intermediate Education Act, 1921. The District Inspector of Schools by the said letter dated 14.7.2014 has also required the Management of the Institution to remove the petitioner from service. 10. It is on the basis of the aforesaid directions issued by the District Inspector of Schools in his letter dated 14.7.2014 that the impugned order dated 13.8.2014 has been passed by the Manager of the Institution. On the basis of the letter dated 14.7.2014, a notice was given by the Manager of the Institution to the petitioner to submit his explanation/reply to the allegation mentioned in the said notice dated 18.7.2014. The notice dated 18.7.2014 states that from a perusal of the letter of the District Inspector of Schools dated 14.7.2014 and the file forwarded to the Manager by the Principal on 9.7.2014, it is apparent that the District Inspector of Schools had directed the Principal of the Institution to make inquiries into the alleged irregularities which had allegedly occurred at the time of appointment of the petitioner and further that by constituting an Inquiry Committee he conducted the inquiry and found that the petitioner was appointed on 21.5.1998 by way of direct recruitment and further that as per High School certificate available on record, the date of birth of the petitioner is 28.6.1964 and hence, at the time of initial appointment, he was aged about 33 years and 10 months which is beyond the age prescribed for recruitment/appointment as per the extant departmental rules. 11. The petitioner thereafter while responding to the letter/show-cause notice dated 18.7.2014 issued by the Manager through his letter dated 31.7.2014 requested that in absence of certain documents and evidences which are mentioned in the said letter, it is not possible for the petitioner to submit his reply and accordingly the petitioner demanded copy of documents mentioned in his letter dated 31.7.2014. Through the letter dated 31.7.2014, the petitioner demanded that he be provided copy of charge-sheet, inquiry report submitted by the Inquiry Committee, resolution of the Committee of Management appointing Inquiry Committee and copy of any other order by which the Inquiry Committee was constituted. 12. The petitioner also sought the information as to under which rules, the determination of the minimum and maximum age has been made and as to whether the advertisement which was issued on 24.4.1998 contains the description of maximum and minimum age or not. He also demanded copy of the said advertisement. 12. The petitioner also sought the information as to under which rules, the determination of the minimum and maximum age has been made and as to whether the advertisement which was issued on 24.4.1998 contains the description of maximum and minimum age or not. He also demanded copy of the said advertisement. Apart from these documents, the petitioner also demanded copy of the complaint or any report on the basis of which the inquiry against the petitioner was conducted. He also demanded copy of statements of witnesses and documents which have been relied upon against the petitioner. However, in response to the request made by the petitioner by moving application dated 31.7.2014, it is clear that neither any documents were supplied nor the information sought through the said letter was ever provided to him. The impugned order, thereafter has been passed on 13.8.2014 whereby the petitioner has been removed from service. 13. From a perusal of the impugned order, it does not transpire that any departmental proceedings or inquiry against the petitioner was ever held. The impugned order also does not make a mention of any departmental inquiry having been conducted against the petitioner, neither does it make a mention of issuing charge-sheet, calling for any reply or fixing any date, time or place for enquiry or even appointment of any Inquiry Committee or Inquiry Officer. 14. Counter-affidavits filed by the Committee of Management and the State also do not disclose that the petitioner was ever served any charge-sheet or even any departmental proceedings were instituted against him. 15. As a matter of fact the Committee of Management and the District Inspector of Schools both appear to have completely misread the issue which they intended to deal with. 16. It is not a case of the respondents that the petitioner had either misconducted himself or even had procured his initial appointment on the basis of any fabricated or forged documents. The only ground which can be gathered from the pleadings available on record on the basis of which the District Inspector of Schools and the Committee of Management appear to have proceeded against the petitioner is certain alleged irregularities which may or may not have occurred at the time of initial appointment of the petitioner. The only ground which can be gathered from the pleadings available on record on the basis of which the District Inspector of Schools and the Committee of Management appear to have proceeded against the petitioner is certain alleged irregularities which may or may not have occurred at the time of initial appointment of the petitioner. According to the respondents, the petitioner had become over age, that is to say, he was older in age than the age prescribed for appointment against Class IV post in an Intermediate institution and further that the appointment against the post of Daftari could not have been made by way of making direct recruitment for the reason that the said post can be filled in only by way of making promotion from amongst Class III employees. 17. Thus, even from the own showing of the respondents, this could have been at the most case of cancellation of appointment and not a case where the petitioner could be proceeded against for any misconduct by instituting or carrying any departmental proceedings against him. However, the impugned order dated 13.8.2014 removes the petitioner from service. The District Inspector of Schools in his letter dated 14.7.2014 has also directed the Management of the Institution to remove the petitioner from service. While doing so, the District Inspector of Schools appears to have completely ignored the fact that the initial appointment of the petitioner was approved by giving financial concurrence for payment of salary to the petitioner by the District Inspector of Schools himself vide order dated 7.1.2000. The District Inspector of Schools further appears to have ignored that the financial concurrence for payment of salary to the petitioner against Class III post was also accorded by the District Inspector of Schools himself by means of order dated 2.2.2012. 18. So far as the disciplinary proceedings against a Class III employee working in an intermediate institution is concerned, the provisions are found in Regulations 31 to 45 of Chapter III of Regulations framed under the U.P. Intermediate Education Act, 1921. Regulation 31 provides that the punishment of removal, dismissal, reduction in rank or reduction in emoluments can be inflicted against the employees working in an institution (other than the teaching staff) only with the prior approval of the District Inspector of Schools or the Regional Inspectors of Schools. Regulation 31 provides that the punishment of removal, dismissal, reduction in rank or reduction in emoluments can be inflicted against the employees working in an institution (other than the teaching staff) only with the prior approval of the District Inspector of Schools or the Regional Inspectors of Schools. A detailed procedure has been provided in the aforementioned Regulations including as to how the inquiry will be conducted, as to how the charge-sheet will be drawn and served and delinquent employee will be given an opportunity to defend himself and further as to how approval to the proposed punishment has to be accorded by the District Inspector of Schools. Admittedly in the instant case, no charge-sheet was ever served to the petitioner, neither any departmental inquiry was ever held against him, nor the order of removal dated 13.8.2014 was passed with the approval of the District Inspector of Schools, thus, the impugned order of removal as contained in Annexure 1 to the writ petition is absolutely unlawful being clearly in violation of the provisions contained in Regulations 31 to 45 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921. 19. The writ petition, thus, deserves to be allowed and the impugned order of removal is not liable to be sustained. 20. It is noticed that while granting approval of appointment to the petitioner against Class IV post of Daftari and according financial concurrence for payment of salary to the petitioner for the said post, the District Inspector of Schools by means of order dated 7.1.2000 had provided that in case any facts which have been concealed come to the notice, the financial concurrence accorded shall stand cancelled. 21. Learned Standing Counsel as well as learned counsel for appearing for Committee of Management have laid great emphasis on the aforesaid prescription made by the District Inspector of Schools in his letter dated 7.1.2000 and have submitted that in fact, at the time of his initial appointment, the petitioner was over age and further that the appointment against the post of Daftari could not have been made by way of direct recruitment, hence when these facts come to light, it was well within the jurisdiction of the District Inspector of Schools to have required the Management of the Institution to remove the petitioner. 22. 22. The aforesaid argument, though, appears to be impressive but does not carry any force for two reasons. 23. The first reason is that the District Inspector of Schools in his order dated 7.1.2000 while according his financial concurrence for payment of salary to the petitioner has only stated that ‘in case any facts which have been concealed come to light, the financial concurrence will stand automatically cancelled’. The said sentence in Hindi is being quoted below : ÞfNik;s x;s rF; ds izdk'k esa vkus ij ;g osru lgefr Lor% lekIr le>h tk;sxhÞ 24. It is not a case of the respondents that the petitioner had concealed any fact at the time of seeking his initial appointment against the post of Daftari or even thereafter. The impugned order dated 13.8.2014 itself mentions that the date of birth of the petitioner is 28.6.1964. The said date of birth of the petitioner would have been gathered by the respondents only from the documents produced by the petitioner at the time of his initial appointment. The document from which the said date of birth has been gathered is neither fabricated nor forged as there is no such allegation against the petitioner. There is no other fact which can be said to have come to light which was earlier concealed by the petitioner or even by the Management at the time when the petitioner was given initial appointment. Thus, it is not a case where any fact which was earlier concealed has come to light which can be said to have prompted the District Inspector of Schools to pass an order requiring the Committee of Management to inflict the punishment of removal against the petitioner. 25. The second reason is that the submission made by the State-respondent as well as the Committee of Management does not appeal to reason as the order dated 7.1.2000 passed by the District Inspector of Schools wherein he had accorded his financial concurrence for payment of salary to the petitioner for the post of Daftari was passed in compliance of an interim order dated 13.5.1999 passed by this Court in Writ Petition No. 2119 (S/S) of 1999 and the said writ petition has finally been disposed of on 22.4.2014 by this Court in terms of the interim order dated 25.3.2010 passed by this Court in Writ Petition No. 867 (S/S) of 2010. Thus, the order dated 7.1.2000 passed by the District Inspector of Schools had attained the finality after disposal of the Writ Petition No. 2119 (S/S) of 1999 and it was not legally open either for the Management or for the District Inspector of Schools to give a re-thought. The Management as well as the State authorities had ample opportunity to have put forth their cases respectively at the time of disposal of Writ Petition No. 2119 (S/S) of 1999. 26. The subsequent Writ Petition No. 867 (S/S) of 2010 has also been finally disposed of by this Court on 26.11.2012 by observing therein that earlier an interim order was passed on 25.3.2010 directing therein that if the petitioner is working on Class III post, he shall be paid his salary of Class III post and further observing that the interim order of the Court had been complied with and the petitioner is now getting salary of the Class III post regularly and further that the grievance of the petitioner has already been redressed. 27. The dispute regarding petitioner’s initial appointment and further promotion, thus, has been given quietus by this Court. 28. In the light of the discussions made and reasons given above, the writ petition is allowed. The impugned order of removal of petitioner from service dated 13.8.2014 is hereby quashed. The petitioner shall be reinstated in service forthwith and he shall also be allowed to work on his post and be paid his salary as and when the same accrues to him. 29. Since the order of removal of the petitioner from service has been held to be completely illegal, he shall also be entitled to be paid the back wages for the period he has been out of employment on account of the order of punishment of removal passed against him. There will be no order as to costs.