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2019 DIGILAW 71 (ALL)

Poonam Sharma v. State of U. P.

2019-01-08

PRAKASH PADIA

body2019
JUDGMENT : Prakash Padia, J. 1. Heard Sri Ashok Khare, learned Senior Counsel, assisted by Sri Vinod Kumar Singh, learned counsel for the petitioner, learned Standing Counsel who has accepted notice on behalf of respondent nos. 1 and 2 and Sri J.K. Tiwari, learned counsel who appeared on behalf of respondent no. 3. 2. In the facts and circumstances of the case and in view of the order proposed to be passed, it is not necessary to issue notice to the respondent no. 4, at this stage. 3. With the consent of parties the present writ petition is being disposed of at the admission stage itself without calling for any counter affidavit. 4. The facts in brief, as narrated in the writ petition are that the institution in question viz. Bhartiya Junior High School, Bhikkanpur, Ghaziabad is an aided and recognized institution. The institution is governed under the provisions of Basic Education Act, 1972. The services of the petitioner are governed by the U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1978 (hereinafter referred to as Rules, 1978. 5. It is contented that petitioner was selected and appointed on the post of Headmistress by the order dated 18.10.2000, passed by the District Basic Education Officer, Ghaziabad. Copy of the approval order dated 18.11.2010, passed by the District Basic Education Officer, Ghaziabad is appended as Annexure-1 to the writ petition. Pursuant to the same letter of appointment was issued by the Manager of the Committee of Management in favour of the petitioner on 10.12.2000 and on the basis of the same she joined the institution on 14.12.2000. It is further contented by the petitioner that that from the date of joining petitioner is working regularly and is being paid her salary without any break. 6. The committee of management of the institution for the first time moved a complaint against the petitioner before the District Basic Education Officer, Ghaziabad regarding genuineness of the High School Certificate of the petitioner. On receipt of the aforesaid complaint the District Basic Education Officer, Ghaziabad directed the manager of the institution to take appropriate action against the petitioner if management found any discrepancy in the High School Certificate of the petitioner. On receipt of the aforesaid complaint the District Basic Education Officer, Ghaziabad directed the manager of the institution to take appropriate action against the petitioner if management found any discrepancy in the High School Certificate of the petitioner. It is further contented in para 12 of the writ petition that without initiating any enquiry against the petitioner and without any notice and opportunity, the committee of management terminated the services of the petitioner and forwarded the papers to the District Basic Education Officer, Ghaziabad vide communication dated 10.4.2018 to grant approval of termination. On receipt of the aforesaid communication dated 10.4.2018 since prior approval was not taken from the District Basic Education Officer, Ghaziabad as contemplated under Rule 15 of the Rules, 1978, the District Basic Education Officer, Ghaziabad passed order on 7.5.2018, stating therein that since Rule 15 of the Rules 1978 has not been complied with, approval cannot be granted. It is further contented by the petitioner that although approval for termination of service of the petitioner was declined by the District Basic Education Officer, Ghaziabad but the committee of management has stopped submitting bills for payment of salary to the petitioner from the month of April, 2018. 7. Being aggrieved by the aforesaid action of the committee of management, the petitioner moved representation before the District Basic Education Officer, Ghaziabad as well as Finance and Accounts Officer Ghaiziabad raising her grievances including the grievance that salary of the petitioner has been withheld since April, 2018 without any cogent reason. 8. In response to the same the Finance and Accounts Officer wrote a letter dated 19.6.2018 to the Manager of the Institution to disburse the salary to the petitioner. In this background of the matter since the committee of management failed to get any order from the office of the District Basic Education Officer, Ghaziabad he moved a complaint before the District Magistrate, Ghziabad on 15.09.2018, copy of which was also forwarded to the office of the Chief Minister. A copy of the complaint made by the Management against the petitioner to the District Magistrate, Ghaziabd dated 15.9.2018 is appended as Annexure-7 to the writ petition. 9. After receiving the aforesaid complaint the District Magistrate, Ghaziabad appointed Additional City Magistrate II to look into the complaint made by the manager of the institution and submits its report. A copy of the complaint made by the Management against the petitioner to the District Magistrate, Ghaziabd dated 15.9.2018 is appended as Annexure-7 to the writ petition. 9. After receiving the aforesaid complaint the District Magistrate, Ghaziabad appointed Additional City Magistrate II to look into the complaint made by the manager of the institution and submits its report. Thereafter, a notice was issued from the office of the Additional City Magistrate II Ghaziabad to the petitioner on 28.9.2018 directing the petitioner to submit her explanation by 4.10.2018. 10. It is further contented that although two weeks time was sought by the petitioner to submits his explanation but only 4 days time was granted fixing 8.10.2018. The petitioner submitted her detailed reply through her advocate on 8.10.2018. 11. It is contented in para 20 of the writ petition that petitioner received an order dated 19.12.2018 passed by the District Basic Education Officer, Ghaziabad by which approval granted to selection of the petitioner way back on 18.11.2000, by which selection of the petitioner was accorded, was cancelled. This order dated 19.12.2018 is under challenge in this petition. 12. Various arguments were raised on behalf of the learned counsel for the petitioner. It is contented that the inquiry report dated 1.11.2018 submitted by the Additional City Magistrate II Ghaziabad as well as copy of the order passed by the District Magistrate, Ghaziabad dated 14.12.2018, reference of which have been made in the order impugned were never provided to the petitioner. Though the same were provided to her under Right to Information Act after the order impugned was passed as such the same cannot be taken into consideration in so far as impugned order is concerned. 13. It is further contented that the order dated 19.12.2018 has referred the inquiry report of the Additional City Magistrate II, Ghaziabad in which allegations were made regarding interpolation in the mark-sheet and certificate of High School Examination regarding date of birth. 14. It is further contented by the petitioner that no proper opportunity was provided by the Additional City Magistrate II Ghaziabad except fixing 8.10.2018 for hearing of the matter. It is further contented that before passing the impugned order copy of the enquiry report was not provided to the petitioner. 14. It is further contented by the petitioner that no proper opportunity was provided by the Additional City Magistrate II Ghaziabad except fixing 8.10.2018 for hearing of the matter. It is further contented that before passing the impugned order copy of the enquiry report was not provided to the petitioner. It is contented in para 25 of the writ petiton that prior to passing of the order dated 14.12.1018 by the District Magistrate Ghaziabad, no notice was issued to him and the District Magistrate Ghaziabad passed the order on 14.12.2018 relying upon the inquiry report dated 1.11.2018 submitted by the Additional City Magistrate II Ghaziabad. It is further contented in para 27 of the writ petition that prior to passing of the order dated 19.12.2018 no notice or opportunity whatsoever has been provided by the District Basic Education Officer, Ghaziabad to the petitioner as such the order dated 19.12.2018 was passed in complete violation of the principle of natural justice and as such the same is liable to be set aside. 15. I have carefully considered the submissions of learned counsel for the parties and perused the records of the writ petition. 16. It is a trite law that if a statutory authority exercises his jurisdiction or passes an order at the dictate of some other officer, the order is vitiated. The reference may be made to the judgment of the Supreme Court in the case of The Purtabpur Company Ltd. vs. Cane Commissioner of Bihar and Others, AIR 1970 SC 1896 . The relevant paragraphs of the said judgment is quoted herein-below:- “13...........We have earlier seen that the Cane Commissioner was definitely of the view that the reservation made in favour of the appellant should not be disturbed but the Chief Minister did not agree with that view. It is clear from the documents before us that the Chief Minister directed the Cane Commissioner to divide the reserved area into two portions and allot one portion to the 5th respondent. In pursuance of that direction, the Cane Commissioner prepared two lists "Ka" and "Kha." Under the orders of the Chief Minister, the villages contained in list "Ka" were allotted to the appellant and in list "Kha" to the 5th respondent. The Cane Commissioner merely carried out the orders of the Chief Minister. It is true that the impugned orders were issued in the name of the Cane Commissioner. The Cane Commissioner merely carried out the orders of the Chief Minister. It is true that the impugned orders were issued in the name of the Cane Commissioner. He merely obeyed the directions issued to him by the Chief Minister. We are unable to agree with the contention of Shri Chagla that though the Cane Commissioner was initially of the view that the reservation made in favour of the appellant should not be disturbed, he changed his opinion after discussion with the Chief Minister. From the material before us, the only conclusion possible is that the Chief Minister imposed his opinion on the Cane Commissioner. The power exercisable by the Cane Commissioner under clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone-not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by clause (6) read with clause (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner. 14. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.” 17. The similar view was taken by the Supreme Court again in the case of Anirudhsinhji Karansinhji Jadeja and Another vs. State of Gujarat, AIR 1995 SC 2390 . It was held in paragraphs 14 and 15:- “14. The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of information under TADA in exercise of his discretion. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of information under TADA in exercise of his discretion. 15. The aforesaid is however not all. Even if it be accepted that as an additional safeguard against arbitrary exercise of the drastic provisions, the State Government had provided by administrative instructions an additional safeguard where under the DSP was required to obtain the sanction/consent of the State Government, we are of the view that in the present case the same was given by the State Government without proper application of mind. We have taken this view because the sanction/consent was given by the Government merely on the basis of the FAX message dated 17.3.1995 of the DSP. The reason for our saying so is that though there is on record a FAX message of Deputy Director General of Police also, which is dated 18.3.1995, the sanction/ consent order has mentioned above the FAX message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to use of harsh provisions of TADA against the appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post haste on 18.3.1995, i.e. the very next day of the message of the DSP. It seems the DSP emphasised the political angle in the first two paragraphs of his message. The dispute or motive stated was that the Darbars were annoyed because they were refused loan and not because of any political rivalry. In the third paragraph there is reference to statements of accused after arrest which would ordinarily be inadmissible in evidence. Reference to avoid incident of the past does not provide any nexus. The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. All these show lack of proper and due application of mind by the State Government while giving sanction/consent.” 18. Reference to avoid incident of the past does not provide any nexus. The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. All these show lack of proper and due application of mind by the State Government while giving sanction/consent.” 18. In the case of Tarlochan Dev Sharma vs. State of Punjab and Others, AIR 2001 SC 2524 the Court held that:- “15. In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302 , this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd. AIR 1970 SC 1896 , are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue.” 19. The similar view was taken by the Supreme Court in the case of Joint Action Committee of Air Line Pilots' Association of India vs. Director General of Civil Aviation, (2011) 5 SCC 435 . The Supreme Court held in paragraphs-26 and 28 of the said judgment as under: “26................It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic setup like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. 28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner.” 20. 28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner.” 20. If the District Magistrate has received some complaint with regard to illegality in selection, he only ought to have referred those complaints to the District Basic Education Officer to take appropriate action but it was beyond the jurisdiction of the District Magistrate to initiate an enquiry through Additional City Magistrate (II), Ghaziabad and thereafter direct the District Basic Education Officer, Ghaziabad, to pass an order as has been done in the present case. Thus, I find the District Magistrate has travelled beyond his jurisdiction. 21. From perusal of the same it is clear that the institution in question which is a recognized institution governed by the provisions of the Act of 1972 and the Rules framed there under in the year 1978. It is further contented that under the provisions of the Act of 1972 and the rules framed there under it is the District Basic Education Officer, Ghaziabad who is the competent authority to grant approval in respect to the appointment of teachers and Headmasters in the basic schools and Basic Junior High School. It is well settled law that the statutory authority is to pass orders independently in accordance with law. Statutory authorities are not bound to accept the directions of other authorities while exercising their statutory powers. 22. In so far as present case is concerned, it is clear from the perusal of the order passed by the District Basic Education Officer, Ghaziabad that the said order was passed at the dictate of the District Magistrate, Ghaziabad and as such it is clear that the District Basic Education Officer, Ghaziabad has failed to exercise its statutory duty and has passed order impugned at the dictate of the District Magistrate. 23. In view of the aforesaid facts, the impugned order passed by the District Basic Education Officer, Ghaziabad dated 19.12.2018 cannot be sustained and is hereby quashed. Matter is remanded back to the District Basic Education Officer, Ghaziabad to pass fresh order in accordance with law after affording opportunity of hearing to the petitioner as well as respondent no. 23. In view of the aforesaid facts, the impugned order passed by the District Basic Education Officer, Ghaziabad dated 19.12.2018 cannot be sustained and is hereby quashed. Matter is remanded back to the District Basic Education Officer, Ghaziabad to pass fresh order in accordance with law after affording opportunity of hearing to the petitioner as well as respondent no. 4-Committee of Management of the institution in question. It is further directed that the District Basic Education Officer, Ghaziabad will pass orders independently without being influenced by the directions issued by the District Magistrate, Ghaziabad expeditiously, preferably within a period of two months from the date of production of certified copy of this order. 24. Till final decision is taken by the District Basic Education Officer, Ghaziabad in the matter, it is necessary in the interest of justice that petitioner will be permitted to discharge her duties as Headmistress in the institution. It is further made it clear that the Court is not passing any order on the merits of the case and respondent no. 3 will pass order independently in accordance with law without being influenced by any observation made in this order. 25. With the aforesaid observation the writ petition is disposed off finally.