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2018 DIGILAW 1074 (ALL)

RAJAN SINGH v. STATE OF U. P.

2018-05-02

AJIT KUMAR

body2018
JUDGMENT : Hon'ble Ajit Kumar, J. 1. Heard learned counsel for the parties. 2. The controversy involved in the present case pertains to the seniority between the petitioner and the 6th respondent. The case of the petitioner is that he was appointed on compassionate ground on 17.4.1996 as an Assistant Clerk in the Institution and ever since then he continued in the institution as such, whereas, the 6th respondent was appointed on 27.11.1992 though on compassionate ground but on a supernumerary post of clerk as per the then existing regulations which provided for Class III appointment on a supernumerary post as well. Admittedly, the 6th respondent was granted appointment on a supernumerary post in the Institution namely Janta Inter College, Nauhjheel, Mathura in pursuance to which he reported for joining on 1.1.1993. Its appears that later on he was again adjusted/absorbed against regular vacancy in the petitioner's Institution namely Rastriya Inter College, Raya on 30th September 2000. So there is no issue with regard to the absorption of the petitioner against the substantive vacancy on 30th September 2000 in the Institution. The seniority, therefore, came to be determined by the District Inspector of Schools vide order dated 02.02.2008 after conducting detailed enuiry and hearing the rival parties and the petitioner was held senior to the 6th respondent on the ground that his substantive appointment in the cadre was earlier in point of time. Since, the order dated 02.02.2008 was coming in the way of approval, the District Inspector of Schools first passed the impugned order dated 20.3.2008, cancelling his earlier order and then granted his approval to the promotion of 6th respondent as Head-Clerk vide order dated 30.4.2008. 3. The matter of absorption of the 6th respondent in the Institution, it is submitted by the learned counsel for the petitioner has been subject matter of litigation before this Court, however as on date he is continuing in the Institution under the interim order passed by this Court in the writ petition filed by him bearing no. 21622 of 2001. 4. It is, therefore, clear that vacancy of the Head-clerk that had fallen vacant in the year 2007-2008 became primarily a bone of contention and resultantly the question of inter-se seniority between the petitioner and the 6th respondent became subject matter of contest before the District Inspector of Schools. 21622 of 2001. 4. It is, therefore, clear that vacancy of the Head-clerk that had fallen vacant in the year 2007-2008 became primarily a bone of contention and resultantly the question of inter-se seniority between the petitioner and the 6th respondent became subject matter of contest before the District Inspector of Schools. The District Inspector of Schools vide order dated 02.02.2008 after conducting the detailed hearing held the petitioner to be senior most, this order has been brought on record as Annexure 6 to the writ petition. It appears that thereafter the 6th respondent wrote some letter in the form of objection before the District Inspector of Schools against the order passed by him, on 04.02.2008 and in view of the objection by an ex-parte order the District Inspector of Schools stayed his own order dated 22.02.2008 vide order dated 05.02.2008. Thereafter, it appears that the District Inspector of Schools had proceeded to decide the matter on the basis of some letter issued by the Deputy Director of Education, Secondary Allahabad dated 07.03.2008 in which it was stated that the 6th respondent was appointed on 01.01.1993 whereas the petitioner was appointed on 07.04.1996 and, therefore, in his opinion since the appointment of 6th respondent was prior in point of time, he was to be considered as senior. This letter of the Deputy Director of Education was in the form of advise/guidelines to the District Inspector of Schools and District Inspector of Schools, proceeded on the advise/guidelines of the Deputy Director of Education and did not consider it necessary to afford even opportunity of hearing to the petitioner and thus in an ex-parte manner cancelled his own order dated 02.02.2008 whereby the petitioner was earlier held to be senior to the 6th respondent. 5. Learned counsel for the petitioner has drawn the attention of the Court towards paragraph 23K of the writ petition which reads as under:- "That the order dated 20.3.2008 of the District Inspector of Schools is an ex-parte order and has been passed without providing opportunity of hearing to the petitioner and the same is bad and illegal. This fact is also clear from the order itself." 6. This fact is also clear from the order itself." 6. Thus, the specific plea was taken in the paragraph that the order passed by District Inspector of Schools was ex-parte without providing any opportunity of hearing to the petitioner and, therefore, on this account alone the order was illegal and bad. Reply has been made by the District Inspector of Schools to this paragraph. While submitting reply in the counter affidavit to the amendment application he has stated that only on account of concealment of fact by the petitioner that the order dated 2.2.2008 got passed. The paragraph 10 of the counter affidavit filed by Sri R.S. Dwivedi the then Principal of the Government Inter College, Mathura on behalf of the respondent nos.3 and 4 is reproduced here-under:- ^^¼10½ ;g la'kks/ku 'kiFki= ds izLrj la[;k&23 ¼thŒ,pŒvkbZŒtsŒdsŒ,yŒ½ ds vfHkdFku vLohdkj gSaA ;kph }kjk rF;ksa dk xksiu dj viuh ofj"Brk vkns'k fnukad 02-02-2008 tkjh djk;k x;k FkkA rF;ksa ds izdk'k esa vkus ij iwoZ vkns'k fnukad 02-02-2008 dks fujLr djrs gq, fu;ekuqlkj fnukad 20-03-2008 dk vkns'k tkjh fd;k x;kA rRdkyhu ftyk fo|ky; fujh{kd] eFkqjk ds i= fnukad 07-03-2008 ds }kjk ofj"Brk izdj.k ij ekxZ n'kZu ekaxk x;k Fkk] ftlds vuqØe esa mi&f'k{kk funs'kd ¼ek/;fed½ f'k{kk funs'kky; mŒÁŒ bykgkckn ds i= fnukad 14-03-2008 ds }kjk Jh lkSfe= dqekj mik/;k; dh fu;qfDr fnukad 01-01-1993 ,oa ;kph Jh jktu flaag dh fu;qfDr fnukad 17-04-1996 ls fof/kor ekurs gq, izdj.k ij dk;Zokgh djus gsrq funsZ'k fn;s x;sA mŒizŒ ek/;fed f'k{kk vf/kfu;e 1921 esa fdlh Hkh v/khuLFk vf/kdkjh }kjk ftKklk djus ij mPpkf/kdkjh }kjk vius v/khuLFk vf/kdkjh dks ekxZn'kZu fn;s tkus dk izkfo/kku gSA vr% dk;kZy; ds i= fnukad 20-03-2008 izkfo/kkuksa ds vkyksd esa fu;ekuqlkj tkjh fd;k x;k gSA** "The contents of paragraph No. 23 (GHIJKL) of the affidavit of the amendment application are not admitted. The petitioner has got issued order of seniority dated 020.2.2008 by concealment of facts and after the facts were discovered the order dated 28.03.2008 was issued in accordance with law cancelling the earlier order dated 02.02.2008 regarding issue of seniority and in response to the same Deputy Director of Education (Secondary) U.P. Allahabad, vide order dated 14.03.2008 has directed for necessary action holding the appointment of Sri Saumitra Kumar Upadhayay dated 01.01.1993 and Sri Rajan Singh dated 17.04.1996 absolutely in accordance with law. Under the Intermediate Education Act, 1921, it is provided that a higher officer shall provide necessary guidance in the event of query being made by a Subordinate Officer. Accordingly, the Office Letter dated 28.03.2008 has been issued in accordance with the provisions." (Translated by Court) 7. Thus, from the contents of paragraph 10 of the counter affidavit it is clear that contents of paragraph 23(K) of the writ petitioner has not been specifically denied. Learned Standing Counsel also does not dispute that neither from the counter affidavit nor, from the recital of order impugned it can be discerned that any opportunity of hearing or notice was given to the petitioner before passing the impugned order. 8. Sri Kavish Sohail, Advocate holding brief of Sri Sidharth Khare, learned counsel for the respondent could not point-out from the order impugned as to whether any opportunity of hearing was given to the petitioner or not. He also could not point out from the order impugned as to what facts were concealed by the petitioner while the earlier order was passed as admittedly in the order impugned there is not recital to the effect as to what nature of concealment was there at the end of the petitioner so that it could be said that he procured the order from the District Inspector of Schools on the basis of concealment of facts. On the arguments of learned counsel for the parties four points emerge:- (a) Whether the District Inspector of Schools was justified in passing an order without any notice and opportunity of hearing to the petitioner, who could be aggrieved against in the event of such order being passed? (b) Whether the District Inspector is justified in recalling or canceling his earlier order without recording a finding to the effect that the earlier order passed by him was only because of certain concealment of material facts at the end of the party which has been ultimately benefited by the said order? (c) Whether the order impugned has amounted to review of an earlier order and District Inspector of Schools has a right to review his own order. (d) Whether supernumerary post shall fall in regular cadre of strenght of staff in a establishment. 9. (c) Whether the order impugned has amounted to review of an earlier order and District Inspector of Schools has a right to review his own order. (d) Whether supernumerary post shall fall in regular cadre of strenght of staff in a establishment. 9. As far as the first aspect is concerned, it is a well laid down law that a minimum requirement of principles of natural justice has to complied with in the event of an order being passed having adverse consequences. If an order prejudices a party, the law of principles of natural justice will automatically come into play. 10. To decide seniority means to adjudicate an issue. Whenever there is factual dispute to be resolved between the two parties, it has necessarily an element of adjudication. Adjudication means inviting objection of the parties and giving therein reasonable opportunity to defend their claim. An authority which is either vested in law to decide a dispute or by necessary implication acquires the status of an adjudicatory authority, will necessarily have to adopt due procedure which will render his decision judicious. Principles of natural justice are germane to the principle of just and fair action. In the case of Manohar Vs. State of Maharastra ( 2012 13 SCC 14 , the Apex Court has held "the adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and recording of reasoned decision are the basic of elements of natural justice." 11. And, therefore, it cannot be said that the District Inspector of Schools is justified in passing the order without putting notice to the aggrieved party. Neither from the recitals made in the order nor, from the counter affidavit filed on behalf of District Inspector of Schools it can be discerned that any opportunity of any kind whatsoever was afforded to the petitioner so as to give him a chance to explain his position particularly when an order is sought to be stayed or rescinded or canceled on the ground that it was obtained by means of fraud in the form of concealment of materials facts at the end of the petitioner. Under such circumstances the order of District Inspector of Schools impugned in the writ petition cannot be sustained for non compliance of principles of natural justice at the very out set. 12. Under such circumstances the order of District Inspector of Schools impugned in the writ petition cannot be sustained for non compliance of principles of natural justice at the very out set. 12. The second issue is with regard to the charge of concealment of fact. The District Inspector of Schools in his order does not state anywhere as to why he was opening up a new inquiry on the letter of the 6th respondent once he had taken already a position in his earlier order after hearing at length the rival parties. Having not done so the District Inspector of Schools in my opinion was in clear error of law in recalling an order or staying an order and thereafter canceling it by a subsequent order. It is settled law that no amount of pleading raised in counter affidavit can improve upon the order impugned which has been passed and, therefore, on this count also the order is not sustainable. Further the District Inspector of shools has not clarified as to what exactly was the concealment of fact by the petitioner and as to why an earlier order passed after thoughtfull consideration was to be treated as procured one to warrant another enquiry into the matter. When the records are straight and no additional facts are required to be barrowed from any collateral document in possession of a party, there can hardly be any inference of misrepresentation or mis-statement of facts so as to hold it amounting to concealment of fact. In the absence of any such finding, the reason for cancelling the order dated 02.02.2008 is absolutely misplaced and deserves to be rejected and is hereby rejected. 13. In sor far as the third point is concerned, it is settled legal position that District Inspector of Schools is certainly not vested with a power of review. Division Bench of this Court in the Case of Gauri Shanker Rai V. Dr. Ram Lakhan Pandey has held thus:- "10. Both these points are being dealt with together. The legal position seems indisputable namely that the District Inspector of Schools was not invested either under the U.P. Intermediate Education Act or the Regulations framed thereunder to review an order passed on merits recognizing a Managing Committee as a body which is for the time being in effective control of the management of the Institution. The legal position seems indisputable namely that the District Inspector of Schools was not invested either under the U.P. Intermediate Education Act or the Regulations framed thereunder to review an order passed on merits recognizing a Managing Committee as a body which is for the time being in effective control of the management of the Institution. As an administrative authority the District Inspector of Schools could exercise only such powers and functions as were specifically conferred upon him by the application statutes. It is thus apparent that the District Inspector of Schools had no jurisdiction to review the order dated 13.6.1980. The same view has been taken in the case of Jaswant Singh V. The District Inspector of Schools, reported in 1980 U.P. LBEC 43: 1980 All LJ 174 in which a Division Bench of this Court held that the District Inspector of Schools after having once passed an order on merits for the limited purpose of performing duties and functions cast upon him under the relevant Statutes, recognizing any group of individuals as being in effective control of the management, has no jurisdiction to review his order later, unless it is established that the said order was obtained by fraud or misrepresentation. The Division Bench further held that even in cases of fraud or misrepresentation, the District Inspector of Schools must not recall his earlier order without giving opportunity of hearing to the person in whose favour the earlier order was passed. 11. The same principle has been reitereated by this Court in a subsequent decision in the case of Mohan lal Sharma V. The District Inspector of Schools Muzaffarnager, reported in 1982 U.P. Lbec 213. Although that was a case relating to the grant of approval of appointment of a teacher under S. 16-E of the Intermediate Education Act, the principle therein enunciated was the same namely the in the absence of any statutory provision the District Inspector of Schhols has no jurisdiction to review his order except on the grounds of fraud or misrepresentation in which case also the order should not be recalled wihtout affording opportunity of hearing to the affected parties. 12. 12. We are in agreement with the law laid down in the aforesaid decisions and hold that the order dated 1.8.1980 passed by the District Inspector of Schools is clearly without jurisdiction as he had no power of review, and admittedly no opportunity was afforded to the petitioners before passing the same. In paragraph 36 of the petition it has been categorically averred that no opportunity whatsoever was given to the petitioners by the District Inspector of Schools before passing the impugned order. This assertion has not been denied by contesting respondent. The stand taken by the contesting respondent in his counter-affidavit however, is that the relevant records were already before the District Inspector of Schools, when the order dated 13.6.1980 was passed and that consequently any further opportunity to the petitioners for hearing was unnecessary." 14. Thus, it is well settled by this Court that the District Inspector of Schools is not vested with any such power to review his decision once he has taken it on merits. The only exception is fraud or concealment of fact. In the absence of any finding to the effect that any fraud or concealment of facts was there at the end of the petitioner as discussed above while dealing with point (b), the order impugned certainly amounted to review by the District Inspector of Schools. The conduct of the District Inspector of Schools in my considered opinion in this case was not just and fair. He sought some legal advice or guidelines or guidance from his higher authority and straight away passed the order. Virtually, I find that there was no application of mind by the District Inspector of Schools. 15. Now coming to the 4th point(d) the findings recorded by the District Inspector of Schools in his order that the 6th respondent was appointed prior in point of time taking to his appointment on a supernumerary post to be a substantive appointment is questionable. In view of the regulations that have been framed time and again by amendments (Regulation 106) the working period on the supernumerary post is to be considered only for the purposes of pension and pay increments the question of seniority is always dependent upon an employee acquiring substantive position. Regulation 106 of Chapter III of Intermediate Education Act, 1921 reads as under:- "106. Regulation 106 of Chapter III of Intermediate Education Act, 1921 reads as under:- "106. Appointment of the member of the family of the deceased employee as per his academic eligibilities shall be done in trained graduate grade or on any clerical post so far as possible in that institution in which the deceased employee was in service. If there is no vacancy in trained graduate grade for teacher or in ministerial cadre in such institution, he shall be appointed in any other recognised, aided institution of the district where such vacancy lies: Provided that if for the time being no vacancy exists in any recognised, aided institution of the district then in the institution where deceased was serving at the time of his death, appointment against any surplus post of teacher in trained graduate grade or clerical post of class four shall immediately be made. Such surplus post shall be deemed to be created for this purpose and shall be continued until any vacancy in that institution or any other recognised, aided institution of the district is available and in this case service rendered by such surplus post holder shall be counted for the purpose of pay fixation and retirement benefits" "16. The word supernumerary means in excess to regular staff and the Oxford English (living dictionary (c) 2018 Oxford University Press) "not belonging to a regular staff but engaged for extra work." 17. According to the Merrium-Webster "exceeding the usual, stated, or prescribed number, not enumerated among the regular components of a group. 18. According to collins it denotes "extra' "that is beyond the number or quantity needed or desired; superfluous. 19. Thus, whatever is supernumerary can not be a part of regular strength of staff or cadre and this status of a post continues with the employee so appointed till absorption. The post vanishes as the incumbent is absorbed in regular cadre and has no continuity as an independent status of the post. The person, therefore, who is robed with this superfluous character to meet the urgency in terms of compassionate appointment to provide succour to the bereaved family, can not acquire any status of regular cadre untill he is clothed with the substantive appointment in a substantive vacancy. The person, therefore, who is robed with this superfluous character to meet the urgency in terms of compassionate appointment to provide succour to the bereaved family, can not acquire any status of regular cadre untill he is clothed with the substantive appointment in a substantive vacancy. Permanency in this character of appointment on compassionate ground only ensures non-dismissal by an order of termination simpliciter but to be a member of regular cadre one has to be absorbed in a regular sanctioned post, which finds its character of regular cadre under sanction of the Government. Further it has permanency attached to it. These basic elements are lacking in the creation of supernumerary post. All these aspects are attracted for thoughtfull consideration in the light of relevant rules and regulations but has not been addressed to in the order by the District Inspector of Schools. 20. It is an admitted case that the 6th respondent had continued on a supernumerary post until the year 30 September, 2000 and he was absorbed on a substantive vacancy in petitioner's institution. Therefore, the District Inspector of Schools ought to have taken a conscious decision on this legal aspect also before passing the order and accepting the guidelines or guidance or advisory note sent by his higher authority. Absence of reference to the relevant regulations also renders the findings recorded by the District Inspector of Schools perverse and unsustainable. 21. In view of above, the order dated 20.3.2003 passed by respondent no.3 is hereby set aside. Since the factual question of seniority vis-a-vis appointment in substantive vacancy should be gone into while determining the seniority and the impugned order does not consider the relevant regulations, I am of the opinion that the matter is required to be revisited by the District Inspector of Schools. 22. The matter is remitted to the District Inspector of Schools, Mathura to decide afresh in the light of the observations and directions made herein-above within a period of three months from the date of production of certified copy of this order. He will give a proper and reasonable opportunity of hearing to the rival parties including Committee of Management before passing the final order. He will give a proper and reasonable opportunity of hearing to the rival parties including Committee of Management before passing the final order. The promotion of the 6th respondent and his approval on the post of Head-clerk will abide by the result of the decision that will be taken in the matter of seniority by the District Inspector of Schools strictly in accordance with law. 23. In view of the above, the writ petition succeeds and is allowed with the above observations and directions.