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2015 DIGILAW 952 (ALL)

MANOJ KUMAR SHARMA v. STATE OF U. P.

2015-04-23

D.Y.CHANDRACHUD, MANOJ KUMAR GUPTA

body2015
JUDGMENT By the Court.—The special appeal has arisen from a judgment and order of the learned single Judge dated 18 February 2015. By the impugned judgment and order, the writ petition filed by the appellant under Article 226 of the Constitution has been dismissed. 2. In pursuance of an advertisement, which was published on 31 May 2010 inviting applications for the post of two Preraks for Gram Sabha, Manikpur Kalan, 13 persons had applied. Among them were the appellant and the seventh respondent. One of the two posts was reserved for a woman candidate and against which Smt. Sushma Rani Srivastava was selected. Against the second post, the appellant was selected and was appointed on 23 June 2011, after which he was sent for training. The seventh respondent filed a representation on 21 August 2012, inter alia contending that he had appeared for his post graduation and though, the result was awaited, he ought to have been awarded marks. The District Magistrate rejected the representation on 27 November 2012. The seventh respondent then filed a writ petition, which was disposed of 25 August 2014 with a direction to the District Magistrate to constitute a Committee to consider the representation. The District Magistrate thereupon constituted a committee consisting of the Chief Development Officer and the District Basic Education Officer, Ghazipur. Admittedly, though the appellant was sought to be displaced, he was not afforded an opportunity of being heard. The Committee opined that the NSS certificate of the seventh respondent had not been taken into consideration in the award of marks and decided to accept the representation submitted by the seventh respondent. The Committee recommended that the appointment, which is made in favour of the appellant, be cancelled and that the seventh respondent be selected on the post. The appellant then filed a writ petition contending that there was a violation of the principles of natural justice, inasmuch as, he was not heard before the Committee, which submitted its report. The Learned single Judge by the judgment and order impugned in these proceedings has dismissed the writ petition. 3. From the impugned judgment of the learned single Judge, it appears that an interim order was passed on 7 January 2014, when the entire original record was summoned before the Court. The Learned single Judge by the judgment and order impugned in these proceedings has dismissed the writ petition. 3. From the impugned judgment of the learned single Judge, it appears that an interim order was passed on 7 January 2014, when the entire original record was summoned before the Court. From the record, it appeared that there was on over-writing on the application submitted by the seventh respondent and that the number of annexures to the application submitted was changed from 13 to 12. The learned single Judge noted that there was no initial in the relevant column in the application form of the seventh respondent against the over-writing and that it also appeared from a receipt issued by the authority of the Institution that the total number of enclosures alongwith the application submitted was 13. In this background, the learned single Judge accepted the finding of the Committee that though the seventh respondent had submitted his NSS certificate, it had not been taken into account. The learned single Judge held that as forgery is writ large on the face of the record, the ground taken for not allowing an opportunity of being heard to the appellant, was without force. The writ petition was dismissed. 4. The basic submission, which has been urged, in support of the appeal, is that the appellant was in service since July 2011 and was a duly selected candidate, whose appointment was sought to be disturbed on the representation submitted by the seventh respondent, and which has ultimately been accepted by the Committee constituted by the District Magistrate on 20 November 2014. Admittedly, though the seventh respondent was heard, the appellant was not furnished with an opportunity of being heard in consonance with the principles of natural justice. This flaw is fatal to the order of the Committee constituted on 20 November 2014. The principles of natural justice ought to have been observed by the Committee and in our view it is no substitute for the learned single Judge to summon the record and to carry out an appraisal of disputed facts at the hearing of the writ proceedings. The principles of natural justice ought to have been observed by the Committee and in our view it is no substitute for the learned single Judge to summon the record and to carry out an appraisal of disputed facts at the hearing of the writ proceedings. The issue as to whether the seventh respondent had or had not submitted the NSS certificate; whether there was over-writing in the application form of the seventh respondent; and whether the Principal had issued a receipt to the seventh respondent indicating that there were 13 annexures, are matters which cannot be resolved on a priori basis, as has been done by the learned single Judge. The order of the Committee is a matter which is prejudicial to the appellant, who is a duly selected candidate. His appointment is sought to be cancelled without affording to him an opportunity of being heard. The learned single Judge relied upon the earlier order dated 31 July 2014 directing the District Magistrate to refer the matter to a Committee with the observations that the Committee would decide it on the basis of representation and in the case of necessity by furnishing a personal hearing. These observations were made in the context of the writ petition submitted by the seventh respondent and would not indicate that the appellant should not be heard before his appointment was sought to be negated. Even as a basic principle of law, a party which is seriously affected by an order of the competent authority has to be afforded a reasonable opportunity of being heard. 5. For these reasons, we allow the special appeal and set-aside the impugned judgment and order of the learned single Judge dated 18 February 2015. In consequence, we also set-aside the report of the Committee constituted by the District Magistrate dated 20 November 2014. We direct in consequence that the Committee shall pass a fresh order, after furnishing both to the appellant and the seventh respondent, an opportunity of being heard. The Committee shall pass fresh orders without being influenced by any observations contained in its earlier report dated 20 November 2014 or in the impugned order of the learned single Judge dated 18 February 2015. The Committee shall complete the exercise within a period of three months from the receipt of a certified copy of this order. 6. The special appeal is accordingly allowed. The Committee shall complete the exercise within a period of three months from the receipt of a certified copy of this order. 6. The special appeal is accordingly allowed. There shall be no order as to costs. ———————