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2024 DIGILAW 1890 (ALL)

Shardindu Kumar Singh v. State of Uttar Pradesh

2024-08-13

SUBHASH VIDYARTHI

body2024
JUDGMENT : SUBHASH VIDYARTHI, J. 1. Heard Sri Gautam Baghel, the learned counsel for the petitioner, Sri Gaya Prasad Singh, the learned Standing Counsel appearing on behalf of the State-opposite parties no. 1 to 4, 7 and 8, Sri Indra Raj Singh, the learned counsel for the opposite party no. 6. 2. The opposite party no. 5-Manoj Kumar Mishra is the District Inspector of Schools, Azamgarh who has been impleaded in his personal capacity as allegations of malice have been levelled against him. 3. By means of the instant writ petition filed under Article 226 of the Constitution of India the petitioner has challenged the validity of an order dated 10.04.2024, passed by the District Inspector of Schools, Azamgarh, whereby he has declined to hand over the charge of Officiating Principal of S.K.P. Inter College, Jokhara, Azamgarh (which will hereinafter be referred to as ‘the college’) to the petitioner till a decision in this regard is taken by the Director of Education (Secondary Education), Uttar Pradesh The petitioner has also challenged the validity of an order dated 24.07.2024, passed by the opposite party no. 7-Authorized Controller of the college/District Inspector of Schools, Azamgarh, whereby the petitioner has been placed under suspension. 4. Briefly stated, the facts of the case are that the petitioner was appointed as L.T. Grade teacher in S.K.P. Inter College, Azamgarh in the year 1993 with the approval of District Inspector of Schools, Azamgarh. The petitioner’s services were regularized by means of an order dated 27.06.2001. The petitioner was promoted on the aforesaid post of Lecturer (Zoology) on ad-hoc basis by means of an order dated 26.07.1999, passed by the District Inspector of Schools, Azamgarh, which was confirmed by the Joint Director of Education by means of an order dated 27.09.2001. The senior most Lecturer who was working as ad-hoc Principal of the college resigned on 16.08.2022 and the petitioner was made Officiating Principal of the college and his signatures were attested by the District Inspector of Schools, Azamgarh 01.09.2022. 5. On 10.07.2023 the District Inspector of Schools, Azamgarh issued a circular directing all the Managers/Principals of aided intermediate colleges to give updates of the pending writ petitions filed by the employees of the colleges. 5. On 10.07.2023 the District Inspector of Schools, Azamgarh issued a circular directing all the Managers/Principals of aided intermediate colleges to give updates of the pending writ petitions filed by the employees of the colleges. Upon issuance of the aforesaid circular the petitioner verified the status of the pending court cases, whereupon it came to light that one Ram Sahai Maurya, a Class-IV employee of the college, had filed Writ (A) No. 25304 of 2001, in which this court had passed an interim order dated 13.07.2001 directing payment of salary to the petitioner, but the writ petition was dismissed for want of prosecution on 20.04.2018. On 26.07.2023 the petitioner issued a notice to the aforesaid employee asking about the status of his pending case and a similar notice was issued by the Authorized Controller on 27.07.2023. 6. On 03.08.2023, the District Inspector of Schools, Azamgarh issued a show cause notice to the petitioner as to why the aforesaid Class-IV employee was paid salary after dismissal of his writ petition and on 04.08.2023 the authorized controller issued a similar notice to the petitioner. 7. The petitioner submitted a reply to the aforesaid notice stating that he got knowledge of dismissal of the writ petition only after holding an enquiry in pursuance of the circular dated 10.07.2023 issued by the District Inspector of Schools, Azamgarh. He further stated that he had assumed the charge of the post of Principal on 01.09.2022 only and he was never informed about the dismissal of the writ petition on 20.04.2018. 8. On 29.08.2023 the District Inspector of Schools, Azamgarh passed an order reverting the petitioner to the post of Lecturer on the ground of payment of salary to a Class-IV employee after dismissal of the writ petition and also certain irregularities committed in making admissions to NCC, which ground was not mentioned in the show cause notice. 9. The petitioner challenged the aforesaid order by filing Writ (A) No. 15234 of 2023 which was disposed off by means of an order dated 12.10.2023 granting liberty to the petitioner to prefer a comprehensive representation to the Joint Director of Education, Azamgarh Region, Azamgarh, who would decide the same. 10. 9. The petitioner challenged the aforesaid order by filing Writ (A) No. 15234 of 2023 which was disposed off by means of an order dated 12.10.2023 granting liberty to the petitioner to prefer a comprehensive representation to the Joint Director of Education, Azamgarh Region, Azamgarh, who would decide the same. 10. The Joint Director of Education has decided the petitioner’s representation by means of an order dated 01.04.2024, whereby the petitioner was exonerated of both the charges and the District Inspector of Schools, Azamgarh/Authorized Controller, S.K.P. Intermediate College, Azamgarh was directed to ensure further action in this regard. After passing of the aforesaid order the petitioner was reinstated in service. 11. On 10.04.2024, the District Inspector of Schools, Azamgarh passed another order stating that the matter of promotion of the petitioner on the post of Lecturer (Zoology) was pending consideration of Director of Education (Secondary) and therefore he cannot be given charge of the post of Principal. The petitioner has filed this writ petition on 02.05.2024 challenging the validity of aforesaid order dated 10.04.2024. 12. On 22.05.2024, this court had passed the following order: “1. The District Inspector of Schools, Azamgarh will file his affidavit within three days next clearly stating as to who is the senior most Lecturer as on date functioning with the SKP Intermediate College, Azamgarh. 2. The position about the seniority of Lecturers working with the said Institution will be indicated as on date and not on the basis of conjectures for the future as to what may happen once the Director of Education (Secondary), Uttar Pradesh Prayagraj decides the issue of seniority. 3. Lay as fresh on 28.05.2024 along with a report regarding status of pleadings. 4. By that time, respondent nos. 1, 2, 3 and 4 may file a counter affidavit on whose behalf Mr. Saurabh, learned Standing Counsel accepts notice. 5. Let this order be communicated to the Director of Education (Secondary), Uttar Pradesh Prayagraj through the Civil Judge (Senior Division), Allahabad and the District Inspector of Schools, Azamgarh and the Joint Director of Education (Secondary), Azamgarh Region, Azamgarh through the Civil Judge (Senior Division), Azamgarh by the Registrar (Compliance) within 72 hours.” 13. The purport of the aforesaid order was that the senior most Lecturer of the college is entitled to give charge of the post of Principal of the college. 14. The purport of the aforesaid order was that the senior most Lecturer of the college is entitled to give charge of the post of Principal of the college. 14. After this Court had passed the aforesaid order dated 22.05.2024, the authorized controller has passed an order dated 24.07.2024 placing the petitioner under suspension and the petitioner has challenged validity of this order also by way of amendment in the Writ Petition. After placing the petitioner under suspension the opposite party no. 6 has been given charge of the post of Officiating Principal of the College. 15. The petitioner has challenged the validity of the suspension order by making amendments in the writ petition and it has been submitted that the suspension order has been passed maliciously to deprive the petitioner of the benefit of the order dated 01.04.2024, passed by the Joint Director of Education absolving the petitioner of the charges levelled against him and directing necessary consequences to follow. 16. The learned counsel for the petitioner has submitted that in compliance of the earlier order dated 12.10.2023, passed by this Court in Writ A No. 15234 of 2023, the Joint Director of Education has already passed a detailed order dated 01.04.2024, whereby the petitioner has been exonerated of the charge of making wrongful payment of salary of a Class-IV post employee after dismissal of his writ petition for want of prosecution and also for certain irregularities committed in making admissions to NCC and he has directed the District Inspector of Schools, Azamgarh/Authorized Controller, S.K.P. Intermediate College, Azamgarh to ensure further action in furtherance of the aforesaid decision of the Joint Director of Education. 17. 17. The basis of the statement made by the District Inspector of Schools in his letter dated 10.04.2024 that the matter of the petitioner’s promotion on the post of Lecturer (Zoology) was pending consideration of Director of Education (Secondary) and therefore he cannot be given charge of the post of Principal, is a report dated 16.12.2023 sent by the Joint Director of Education, Azamgarh Division, Azamgarh to the Director of Education (Secondary), Uttar Pradesh wherein the Joint Director of Education has stated that the petitioner was promoted from the post of Assistant Teacher to the post of Lecturer on ad-hoc basis on 26.07.1999 and he ought to have first been regularized in L.T. Grade and thereafter his seniority ought to have been fixed and his promotion should have been considered. The aforesaid letter further states that the District Inspector of Schools, Azamgarh had himself decided to promote the petitioner on ad-hoc basis to the post of Lecturer and the Regional Level Committee had regularized his services on 27.06.2001 and thereafter he was promoted to the post of Lecturer (Zoology) on 27.09.2001. Therefore, the promotion of the petitioner to the post of Lecturer made on 27.09.2001 was as per Rules. The Joint Director stated that the Director of Education may take an appropriate decision in this regard. The Director of Education has not taken any decision contrary to the stand of the Joint Director that the petitioner’s promotion was made as per Rules. 18. In these circumstances, the action of the District Inspector of Schools, Azamgarh in declining to hand over charge of the post of Officiating Principal to the petitioner on the pretext that the matter of the petitioner’s promotion to the post of Lecturer (Zoology) is pending consideration of Director Education (Secondary), is apparently unreasonable and unsustainable in law. When the Joint Director of Education has recorded in the aforesaid letter dated 16.12.2023 that the promotion of the petitioner was made on 27.09.2001 as per Rules and the Director of Education has not taken a decision contrary to it, the District Inspector of Schools, Azamgarh, who is subordinate to the Joint Director, cannot take a decision contrary to the aforesaid finding recorded by the Joint Director of Education that the promotion of the petitioner was made in accordance with Rules and he cannot refuse to obey the directions of the Joint Director of Education. 19. 19. The subsequent suspension order dated 24.07.2024 passed during pendency of this petition on charges including the charges from which the petitioner already stands absolved by an order passed by the Joint Director of Education, smacks of malice against the petitioner as this order would result in the petitioner being deprived of benefit of the order dated 01.04.2024, passed by the Joint Director of Education. 20. The learned counsel for the petitioner has relied upon a decision of Hon’ble Supreme Court in the case of Union of India and another Vs. Ashok Kumar Aggarwal, (2013) 16 SCC 147, wherein the Hon’ble Supreme Court has held as follows: “21. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. 22. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee’s continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc. 23. In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel & Ors. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc. 23. In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel & Ors. (2006) 8 SCC 200 , this Court explained: “18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision.” ............ 55. The aforesaid facts make it crystal clear that it is a clear cut case of legal malice. The aspect of the legal malice was considered by this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors. AIR 2010 SC 3745 , observing: “25. The State is under obligation to act fairly without ill will or malice - in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. 26. Passing an order for an unauthorised purpose constitutes malice in law.” (Emphasis added) 21. Per contra, the learned counsel for the opposite party no. 6 has submitted that besides the two charges of which the petitioner has been absolved, eight other charges have been levelled against him, including the charge of misbehaviour with superior officer and he has relied upon a decision of Hon’ble Supreme Court in the case of L.K. Verma Vs. H.M.T. Ltd. (2006) 2 SCC 269 , wherein the Hon’ble Supreme Court held that verbal abuse can be sufficient for inflicting punishment of dismissal. The Hon’ble Supreme Court has referred to an earlier decision in the case of Hombe Gowda Edn. Trust and another Vs. State of Karnataka and others, (2005) 10 SCALE 307 , wherein the Hon’ble Supreme Court has held that indiscipline in an educational institution should not be tolerated. 22. There can be no dispute to the aforesaid proposition of law and this Court has to examine the facts and circumstances of the case in light of the law laid down by the Hon’ble Supreme Court in the cases mentioned above so as to ascertain whether the actions of the D.I.O.S. suffer from legal malice or whether the petitioner appears to have committees a serious misconduct warranting his suspension. 23. The petitioner was first imputed with the allegation of making payment of salary to Ram Sahai Maurya, a Class-IV employee after dismissal of his writ petition. 23. The petitioner was first imputed with the allegation of making payment of salary to Ram Sahai Maurya, a Class-IV employee after dismissal of his writ petition. Ram Sahai Maurya had filed Writ (A) No. 25304 of 2001, in which this court had passed an interim order dated 13.07.2001 directing payment of salary to the petitioner. The writ petition was dismissed for want of prosecution on 20.04.2018. The petitioner had taken charge of the post of Principal on 01.09.2022. There is nothing on record that the fact of dismissal of the Writ Petition filed by Ram Sahai Maurya had been brought to the knowledge of the petitioner or any other authority and this fact came to light only after the petitioner enquired into the matter in compliance of the circular dated 10.07.2023 issued by the District Inspector of Schools, Azamgarh directing all the Managers/Principals of aided intermediate colleges to give updates of the pending writ petitions filed by the employees of the colleges. There is no allegation that the petitioner had paid salary to Sri. Ram Sahay Maurya after the fact of dismissal of his Writ Petition had come to light. 24. Thereafter charge of the post of Officiating Principal was taken away while adding another charge of committing irregularities in making admissions to NCC and charge of the post of Officiating Principal of the college was handed over to the opposite party no. 6. 25. The Joint Director Education had absolved the petitioner of both the aforesaid charges by means of his order dated 01.04.2024 and he had directed the District Inspector of Schools, Azamgarh/authorized controller to ensure necessary action, but the District Inspector of Schools, Azamgarh declined to hand over the charge of the post of Officiating Principal to the petitioner by misquoting a report dated 16.12.2023 sent by the Joint Director to the Director Education wherein the Joint Director of Education has categorically stated that the District Inspector of Schools, Azamgarh had himself decided to promote the petitioner on ad-hoc basis to the post of Lecturer and the Regional Level Committee had regularized his services on 27.06.2001 and thereafter he was promoted to the post of Lecturer (Zoology) on 27.09.2001 and that the promotion of the petitioner to the post of Lecturer made on 27.09.2001 was as per Rules. The Joint Director stated that the Director of Education may take an appropriate decision in this regard. The Joint Director stated that the Director of Education may take an appropriate decision in this regard. The Director of Education has not taken any decision contrary to the stand of the Joint Director that the petitioner’s promotion was made as per Rules. Therefore, the act of District Inspector of Schools, Azamgarh in declined to hand over the charge of the post of Officiating Principal to the petitioner and instead handing over charge of the post to the opposite party no. 6, is apparently unreasonable and unsustainable in law. 26. Apparently, the D.I.O.S. has passed the suspension order dated 24.07.2024 during pendency of this writ petition to deprive the petitioner of the benefit of order dated 01.04.2024, passed by the Joint Director of Education and to illegally permit the opposite party no. 6 to continue to hold the aforesaid post. 27. In view of the aforesaid facts and circumstances of the case, the impugned orders suffer from malice in law for which there is no necessity of issuing notice to the District Inspector of Schools, Azamgarh in his personal capacity when he has already filed a counter affidavit sworn by himself. The malice in law is different from malice in fact, which allegation necessitates opportunity of personal hearing to the authority against whom malice in fact is alleged. 28. In view of the foregoing discussion, the writ petition is allowed. The impugned order dated 10.04.2024, passed by the District Inspector of Schools, Azamgarh declining to hand over the charge of the post of Officiating Principal to the petitioner and the order dated 24.07.2024, passed by the authorized controller of the college placing the petitioner under suspension are hereby quashed. All the opposite parties are directed to ensure that the petitioner is given charge of the post of Officiating Principal of the college forthwith. 29. So far as the fresh charges levelled against the petitioner are concerned, the opposite parties will be at liberty to hold an enquiry strictly in accordance with law, after giving adequate opportunity of hearing to the petitioner.