Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 402 (ALL)

Rakesh Tripathi v. State of U. P.

2024-02-07

AJIT KUMAR

body2024
JUDGMENT : AJIT KUMAR, J. 1. Heard Sri Indra Raj Singh, learned counsel representing the petitioner, Sri J.N. Maurya, learned Chief Standing Counsel assisted by Sri R.S. Umrao, learned Standing Counsel appearing on behalf of the State-respondents and perused the records. 2. Petitioner has questioned the order dated 29.12.2023 passed by respondent no. 2- Regional Selection Committee chaired by the present Regional Joint Director of Education, Secondary, Prayagraj rejecting his claim for regularization of the petitioner only on the ground that short-term vacancy upon which he was appointed in the year 1997, later on got converted into a substantive vacancy in the year 2008. 3. This Court earlier, however, noticed this above reason and found to be highly misplaced and, therefore, had directed the Regional Joint Director of Education, Secondary, Prayagraj as well as the District Inspector of Schools concerned to remain present today in the Court along with their affidavits. Sri Sacchidanand Yadav, who happens to be the District Inspector of Schools, Kaushambi and Sri Dibya Kant Shukla, the Regional Joint Director of Education, Secondary, Prayagraj both are present. Both the officers have filed their personal affidavits in support of their application seeking exemption from personal appearance and have stated that as a matter of fact, the earlier Assistant Teacher Manmohan Pandey upon whose ad-hoc promotion as a Lecture (Sociology), the vacancy in L.T. Grade had arisen on a short-term basis, later on got reverted to the said position on 4.12.2003 and consequently the approval of the appointment of the petitioner on that short-term vacancy came to be cancelled on 30.9.2005. This stand taken in the affidavit and the order annexed runs contrary to the reason assigned in the order of the Regional Selection Committee while refusing to grant benefit of regularization to the petitioner that the vacancy had became substantive and so petitioner had no claim. In the reason assigned in the order passed by the Regional Selection Committee, it has clearly come in black and white that the said Manmohan Pandey had retired on 30.6.2008 while working as Lecturer (Sociology) in the Institution. Thus, the stand taken by the Regional Selection Committee which was chaired by the present Regional Joint Director of Education, Secondary, Sri Dibya Kant Shukla and of which Sacchidanand Yadav was the ex-officio Secretary, is contrary to this individual stand taken before the Court in their affidavits by the officers present in Court. 4. Thus, the stand taken by the Regional Selection Committee which was chaired by the present Regional Joint Director of Education, Secondary, Sri Dibya Kant Shukla and of which Sacchidanand Yadav was the ex-officio Secretary, is contrary to this individual stand taken before the Court in their affidavits by the officers present in Court. 4. Today, another order has been placed before this Court by the learned counsel appearing for the petitioner which was passed by the Additional Director of Education on behalf of the Direction of Education (Secondary) on 5th December, 2008, whereby the order passed by the District Inspector of Schools dated 30.9.2005 was held to be erroneous and illegal and was accordingly cancelled. It is the order dated 30.9.2005 upon which the affidavits filed today by Sri Dibya Kant Shukla and by Sri Sacchidanand Yadav, present in court, depend. 5. Upon a pointed query being made, both the officers have shown their ignorance of the order dated 5th December, 2008 and submit that this order was not available in their records. 6. In the total circumspect of the case as discussed above, it transpires that the Regional Selection Committee did not apply its mind to the correct facts available on record, nor could even search out the documents available in the Institution or in the office of the District Inspector of Schools. Sri Sacchidanand Yadav, who is present in court, submits that earlier report, which has been discussed by the Regional Selection Committee was submitted by earlier District Inspector of Schools and not by him and, therefore, he can not say much about the same. 7. It is unfortunate that the Regional Selection Committee has proceeded in the matter and passed order in a cursory manner without completely looking into the available records and without verifying its correctness, in consultation with the Committee of Management and the Office of the Director of Education, Secondary. This approach of the Regional Selection Committee in passing orders is a casual one and cannot be approved of. 8. This approach of the Regional Selection Committee in passing orders is a casual one and cannot be approved of. 8. This Court takes this to be a solitary case to condone the arbitrary act at the end of the present Regional Selection Committee headed by the Regional Joint Direction of Education, Secondary Sri Dibya Kant Shukla and the present District Inspector of Schools, Sri S.N. Yadav as its Secretary and their conduct in accepting mistake before the Court, but in future it is expected that such Regional Selection Committees will not play with the career of such teachers who have been teaching in the Institutions for more than two decades and have been drawing salary. Orders rejecting regularization would have adverse civil consequences and, therefore, not only the Regional Selection Committees are required to have seriously look into documents, but in the event of any confusion regarding the same, they may get it clarified from the concerned Committee of Management, the teacher concerned and also in consultation with the office of the Director of Education Secondary. 9. A teacher should not be axed simply because the Management did commit some irregularity unless and until such a teacher is found to have colluded with the management in securing appointment for which he was not eligible or found back door entry to the disadvantage of others in matters of open selection. In a recent judgment in the case of Radhey Shyam Yadav and Another vs. State of U.P. and Others, AIR 2024 SC 260 decided on 3rd January, 2024, Supreme Court relied upon its earlier authority in the case of Chief Engineer, M.S.E.B. and Another vs. Suresh Raghunath Bhokare, (2005) 10 SCC 465 : AIR 2005 SC 1622 , in which paragraph 5, it was held thus: “5. The entire basis of the dismissal of the appellant depends upon the factum of the alleged misrepresentation attributed to the respondent. The Industrial Court in its impugned order has noticed the fact that the respondent was appointed in April 1994 pursuant to the selection procedure followed by the competent authority and that he was selected by the panel of Selection Committee consisting of 6 members which included the very same Social Welfare Officer who had sent the proposal including the name of the respondent for appointment. It also noticed the fact that the selection in question was made after an oral interview and the required test as also the medical examination. The Industrial Court also noticed the fact that the appointment of the respondent was confirmed after one-year period and thereafter the respondent has been working without any complaint. The said Industrial Court also noticed the fact that the termination of the respondent was based on a show-cause notice issued on 5-7-1999 which was replied to by the respondent on 17-7-1999 and the termination was made in a summary procedure permissible under Rule 90(b) of the Service Regulations. The Industrial Court after perusing the pleadings and the notice issued to the respondent came to the conclusion that the alleged misrepresentation which is now said to be a fraud was not specifically pleaded or proved. In the show-cause notice, no basis was laid to show what is the nature of fraud that was being attributed to the appellant. No particulars of the alleged fraud were given and the said pleadings did not even contain any allegation as to how the appellant was responsible for sending the so-called fraudulent proposal or what role he had to play in such proposal being sent. It also noticed from the evidence of Mr Waghmare, Social Welfare Officer who sent the proposal before the Labour Court that he did not utter a single word as to whether the said supplementary list was ever called for by the department concerned or not. Thus applying the basic principle of rule of evidence which requires a party alleging fraud to give particulars of the fraud and having found no such particulars, the Industrial Court came to the conclusion that the respondent could not be held guilty of fraud. The said finding of the Industrial Court has been accepted by the High Court. Mr. Bhasme though contended that the fraud in question was played in collusion with the Social Welfare Officer and 2 other employees of the Board and action against the said 2 employees of the Board has been taken, but by that itself we are unable to accept the argument of Mr. Bhasme that there is material to support the contention of the Board that the appellant had also contributed to making the misrepresentation at the time of applying for the job with the Board. Bhasme that there is material to support the contention of the Board that the appellant had also contributed to making the misrepresentation at the time of applying for the job with the Board. In the absence of any such particulars being mentioned in the show-cause notice or at the trial, attributing some overt act to the respondent, we do not think the Board can infer that the respondent had a role to play in sending a fraudulent list solely on the basis of the presumption that since the respondent got a job by the said proposal, the said list is a fraudulent one. It was the duty of the Board to have specifically produced the material to prove that the respondent himself had the knowledge of such a fraud and he knowingly or in collusion with other officials indulged in this fraud. Since there is no such material on record, on the facts of the instant case, the Industrial Court and the High Court have come to the right conclusion that the alleged fraud has not been established by the appellants, hence, this is not a fit case in which interference is called for. This appeal, therefore, fails and the same is dismissed.” (Emphasis added) 10. Thus, the Court took a view that if the beneficiary is not liable to be charged with any misrepresentation or any kind of involvement in any conspiracy for securing such appointment, such an employee cannot be dismissed from service for such irregularity in appointment. Once, the appointment has been made and the teachers have been made to continue for a very long time like two decades or more, now to fire them by one stroke of pen only on the ground that Committee of Management was not fair enough in holding selection, is not justifiable. It has been held that if there is no cancellation of appointment order or cancellation of approval order then such teachers are liable to be treated in service. The Court in that case has also held vide paragraph 34 which reads thus: “34. We feel that the appellants were not at fault and the State could not have abruptly stopped their salaries. Accordingly, we set aside the judgments of the High Court dated 15.09.2021 in Special Appeal Nos. The Court in that case has also held vide paragraph 34 which reads thus: “34. We feel that the appellants were not at fault and the State could not have abruptly stopped their salaries. Accordingly, we set aside the judgments of the High Court dated 15.09.2021 in Special Appeal Nos. 1435/2013 and 1445/2013 and direct that the State shall pay the salaries of the appellants for the period from 25.06.1999 till January, 2002 in full. We also direct that insofar as the period from October, 2005 till today is concerned, the State shall pay the appellants 50% of the backwages. Since the appointment order and the approval order are still in force, we declare that the appellants have always been and are deemed to be in service. Apart from 50% backwages, as ordered above, we direct that all consequential benefits, including seniority, notional promotion, if any, and fitment of salary and other service benefits due, be granted to the appellants. We direct the State to comply with these directions within four weeks from today. We also direct that the appellants be allowed to commence work within the said period of four weeks.” 11. Supreme Court, however, permitted respondents to recover the amount after holding management to be guilty for such illegality/impropriety in making appointments. Vide paragraph 35, the Court held thus: “35. We notice from the record that the Committee of Management, Junior High School, Bahorikpur was arrayed as fifth respondent in the writ petition before the High Court. They are also arrayed as fifth respondent before us in these appeals. Before us, even though notice has been served on the Committee of Management, Junior High School, Bahorikpur, nobody has entered appearance. It appears that even before the learned Single Judge and the Division Bench, the Committee of Management did not appear. We grant liberty to the State to issue a show-cause notice to the Committee of Management (R-5), after setting out clearly the charge pertaining to the alleged manipulation of the sanction order and altering of the figure from two to three. After receiving reply, if any, and after holding an inquiry with an opportunity of personal hearing, the State will be at liberty to pass an appropriate order. In the event of the Committee of Management being exonerated, no further question will arise. After receiving reply, if any, and after holding an inquiry with an opportunity of personal hearing, the State will be at liberty to pass an appropriate order. In the event of the Committee of Management being exonerated, no further question will arise. In the event of them being found guilty of the charge, in view of any finding that may be arrived that the manipulation prior to the recruitment was done at the level of the employees of the school (whether by themselves or in collusion with the officials), we grant liberty to the State to recover from the Committee of Management one-third of the arrears, as ordered to be paid, hereinabove. This direction will serve the ends of justice in the matter.” 12. In view of the above, such teachers are held entitled to be paid salary until their claim is finally rejected. 13. The Director of Education (Secondary), Uttar Pradesh is directed to ensure that the Regional Selection Committees do not pass orders at their whims negligently without looking into the records and without verifying truthfulness of the same. 14. In future, if such orders are passed by any of the Regional Committees constituted for the said purpose, such orders will not only be unsustainable but act of conduct of the authorities concerned will also deserve reprimand. 15. The Director of Education (Secondary) U.P. shall, therefore, ensure that Regional Selection Committees while rejecting claim of Ad-hoc teachers for regularization must returned findings of fact with reason broadly on following points: (i) Existence of vacancy on the date of selection. (ii) Eligibility of candidate selected on the date of selection. (iii) Approval by the District Inspector of Schools. (iv) If approval under the orders of this Court, justification for such disapproval or withholding of approval prior to intervention of Courts. (v) Status of vacancy as on date. 16. In view of above, writ petition succeeds and is allowed. The order passed by the Regional Selection Committed headed by the Chairman namely the Regional Joint Director of Education, Prayagraj dated 29.12.2023 is, hereby, quashed. 17. (v) Status of vacancy as on date. 16. In view of above, writ petition succeeds and is allowed. The order passed by the Regional Selection Committed headed by the Chairman namely the Regional Joint Director of Education, Prayagraj dated 29.12.2023 is, hereby, quashed. 17. The matter is remitted to the Regional Selection Committee to pass orders afresh, after looking into and verifying the entire records and after verifying the order dated 5.12.2008 from the office of the Direction of Education, Secondary and also, if there is any confusion, getting it clarified by issuing notice to the Committee of Management and the teacher concerned namely the petitioner herein. Copy of the order dated 5.12.2008 has been supplied to the Regional Joint Director of Education, Secondary, who is present in the Court. The appropriate orders now will be passed in the next six weeks from today. The petitioner would, therefore, be entitled to continue in the service and shall be paid salary without any further break. 18. The petitioner shall ensure that he along with the Manager of the Committee of Management appears before the Regional Joint Director of Education on or before 28.2.2024 and the Committee of Management shall submit the entire material available with it before the Regional Joint Director of Education. 19. In the circumstances, the personal appearance of the officers concerned stands exempted. Notices issued to them stand discharged. 20. Let this order be communicated to the Director of Education (Secondary) Prayagraj, U.P. by Registrar (Compliance) within a week.