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SATISH CHANDRA SRIVASTAVA versus STATE OF U.P. THRU' DIRECTOR OF HIGHER EDUCATION & ORS.

High Court of Judicature at Allahabad

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Satish Chandra Srivastava v. State Of U.P. Thru' Director Of Higher Education & Ors. - WRIT - A No. 14906 of 2002 [2006] RD-AH 9538 (15 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.26

Civil Misc. Writ Petition No. 14906 of 2002

    Satish Chandra Srivastava

Versus

      State of U.P. and others

Hon.Shishir Kumar, J.

By means of the present writ petition, the petitioner has approached this Court for quashing the order dated 2.8.2001 passed by the respondent No.1 (Annexure 5 to the writ petition) and further issuing a writ in the nature of mandamus directing the respondents to pay the salary to the petitioner admissible to a Class III employee of the Post Graduate College regularly as and when it falls due.

The facts arising out the writ petition are that there is an institution namely Baba Raghav Das Post Graduate Degree College, Deoria is a recognized institution for the purposes of imparting education up to post graduate level and affiliated with the Gorakhpur University and the statute of University is applicable.  There were two posts of Class III employee, admittedly sanctioned by the Directorate of Higher Education in pay scale of Rs.200-300. The Committee of Management in the year 1992 has initiated the procedure for appointment on the said post.  The post was advertised and the petitioner was given appointment on 3.4.1992.  From the date of appointment the petitioner is working continuously but the salary to the petitioner has not been paid.  The papers were sent to the relevant authority for the purposes of granting financial approval but no orders have been passed.  Then the petitioner had approached this Court by way of Writ Petition No.41252 of 2000.  The said writ petition was finally disposed of by order dated 14.9.2000 directing the respondents to consider and decide the representation of the petitioner within a period of three months.  Now the petitioner submits that the impugned order has been passed denying the claim of the petitioner for the purposes of payment of salary.

The main ground taken by the respondents i.e. Directorate of Higher Education while rejecting the claim of the petitioner, the basis is of the report submitted by the Regional Director of Education, Gorakhpur Region.  It has been submitted that from the perusal of the order, it clearly appears that the order has been passed taking into consideration only the report submitted by the respondents Nos.4 and 5. The petitioner submits that at the time of appointment the another Committee of Management was functioning and subsequently another Committee of Management has taken over and has intimated the authorities that no such appointment has been made.  It has further been submitted on behalf of the petitioner that in the present writ petition when the District Magistrate was functioning as a authorized Controller of the institution had directed one of the teacher of the institution namely, Sri Mahesh Prasad, who was working as professor (Botony) to file a counter affidavit in the said writ petition.  In Para 4 of the said counter affidavit, it has clearly been stated that the petitioner was appointed on the post of routine grade clerk and the Committee of Management has authorized the Principal of the College to issue an appointment letter to the petitioner and the petitioner is working from that day.  In view of the aforesaid fact, the petitioner submits that the factum of appointment of the petitioner is admitted in the college and if there was some adverse report submitted by the respondent No.4, the copy of the same was never served upon the petitioner and the petitioner has not been afforded an opportunity to deny the allegations made in the said report.

The reliance has been placed by the petitioner upon a judgment of the Apex Court in K.Vijayalakshmi Vs. Union of India and others reported in (1998) 4 Supreme Court Cases, 37 and reliance has been placed upon paras 6 and 7 of the said judgment.  The same is being reproduced below:-

"6. We are of the view that without going into the factual aspect of the case, the order of the Tribunal as well as the order of the General Manager confirmed by the appellate authority are liable to be set aside on the sole ground that the document based on which the conclusion came to be reached having not been supplied to the appellant, the decision cannot be sustained.  The  respondent ought to have given to the appellant a copy of the opinion of the Forensic Department based on which the impugned order came to be passed.    

7.  Accordingly, the order of the Tribunal as well as the order of the General Manager confirmed by the appellate authority are set aside and the matter is remanded back to the original authority and if the Department so desires, it can proceed further in the matter after supplying all the relevant documents to the appellant on which they propose to place reliance for taking further action against the appellant."

In view of the aforesaid fact, the petitioner submits that the Hon'ble Apex Court has also held that if the expert information of Forensic Department has been taken into consideration for the purposes of cancellation of the candidature in the examination and the report was never furnished to the person concerned, this is in clear violation of the principle of natural justice and the Apex Court has quashed the proceedings and has given a liberty to pass fresh orders according to the law after supplying the copy of the expert.  

In view of the aforesaid fact, the petitioner submits that the petitioner was never supplied the report submitted by the respondent Nos. 4 and 5, which is the basis of the order passed by the respondent No.1, therefore, the order is vitiated and is liable to be quashed.

A supplementary affidavit has been filed. This Court while taking into consideration the averment made in paragraph 8 of the supplementary affidavit has granted time to the learned Standing Counsel to file a specific reply of the said paragraph.  On 13.1.2006, 31.3.2006, 24.4.2006 and 8.5.2006 time were granted to the learned Standing Counsel to file a reply but no supplementary counter affidavit, denying the allegations made in paragraph 8 of the said supplementary affidavit, has been filed.

In view of the aforesaid fact, the petitioner submits that as the averment made in para 8 of the supplementary affidavit in spite of the time granted by this Court has not been filed, the case of the petitioner is fully covered in view of the judgment of the Apex Court in Vijayalakshmi's case (Supra).

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

Without going into the controversy, in view of the Apex Court judgment, in my opinion, the impugned order dated 2.8.2001 (Annexure 5 to the writ petition ) is liable to be quashed only on this ground alone and the matter is remanded back to the respondent No.1 to consider the claim of the petitioner in view of the observation as well as in view of the judgment cited above.  The respondent No.1 while passing the final order will afford full opportunity to the petitioner and will also supply copy of the report submitted by the respondent No.4 and will permit the petitioner to file an objection in the case. The aforesaid exercise be done by the respondent No.1 if possible, within a period of three months from the date of production of the certified copy of this order.

With these observations the writ petition is disposed of.  There shall be no order as to costs.

15.5.2006

SKD    


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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