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SMT. VIBHA PANDEY versus SMT. SHALINI KAUL & ANOTHER

High Court of Judicature at Allahabad

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Smt. Vibha Pandey v. Smt. Shalini Kaul & Another - WRIT - A No. 14055 of 2007 [2007] RD-AH 5254 (23 March 2007)

 

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.39

Civil Misc. Writ Petition No.14055 of 2007

Smt. Vibha Pandey

Versus

Smt. Shalini Kaul and others

Hon'ble V.K. Shukla, J.

Heard Sri B.N. Tiwari, Advocate, for petitioner. Sri H.N. Pandey and Sri Rajesh Kumar Mishra, Advocates, for the respondents.

Smt. Vibha Pandey, the petitioner, has approached this Court for issuing a writ in the nature of Quo-warranto to Smt. Shalini Kaul, Principal, Air Force School, Bamrauli, Allahabad to show cause as to under what authority of law she is occupying the chair/office of the Principal of the Air Force School, Bamrauli, Allahabad.

Petitioner has contended that she had been a clerk in the Air Force School, Bamrauli, Allahabad, and after a long service of 21 years, she retired from service on 31.10.2005; her two grand-daughters are studying at the said school, as such she is very much aggrieved by the appointment of Smt. Shalini Kaul as Principal of the said school and he continuance as such in the said post.

Brief background of the case which emerges is to the effect that Shalini Kaul had been selected as Principal of Air Force School, Bamrauli, Allahabad, somewhere in the year 2004. Her selection and appointment had been subject matter of challenge by one Sanjay Kumar Sharma, contending therein that Smt. Shalini Kaul has been unduly favoured with by virtue of being sister of Air Vice Marshal  and further she does not fulfill requisite qualification as provided for in the Education Code. Sanjay Kumar Sharma had filed two writ petitions before this Court, and both were dismissed. Against the orders dismissing writ petitions, two Special Appeals, being Special Appeal Nos. 653 and 956 of 2006, had been filed. The said Special Appeals have been allowed, and therein Sanjay Kumar Sharma has been directed to serve as P.G.T. (Commerce) and further liberty has been given to respondents either to take work or not to take work from him. In the said case also issue qua validity of appointment of Smt. Shalini Kaul had been subject matter of challenge. Relevant extract of the judgment of Division Bench is being quoted below:

"It seems that the present test of common law bias is that if on a conspectus of all the facts and circumstances of the case, an insider would form a view that there was a possibility of bias in reaching the decision in question, then the case of bias in common law is made out. Since we are remanding this matter, if thought it fit by the Hon'ble Single Judge, his Lordship might examine the current law on the matter.

One of the points strongly pressed on behalf of the respondents is that the writ was not maintainable, as the School is not Article 12 authority. It was said that the School is run by a Society registered on 25.9.1980, and that the funding is basically by the fees paid and the contributions of Air Force personnel, and allegedly not one rupee comes by way of State aid.

The Education Code handed up to us, which has been framed by the Chairman of the Board of Governors of the Indian Air Force Education and Cultural Society, bears the emblem of the Indian Air Force on its top cover. Chapter 8 Rule 9 of the said book deals with how the finances are received; grant in aid as well as interconnection with other service institution funds, is mentioned.  

Mr. Vijay Bahadur Singh, learned Senior Advocate relied on several Supreme Court cases in this regard. It is well known that the three important factors for considering whether the authority is an Article 12 authority or not, are (i) finance, (ii) control and (iii) purpose of the Institution. State financing tends to make the Institution come within Article 12; so does State control; so does public purpose, say, education as opposed to golfing activity.

One of the other possible ways of looking at it would be to imagine a hypothetical removal in one's mind of all State activity, and see whether the Institution would survive such removal. As an example, I.T.C. would certainly survive and it is certainly not an Article 12 authority. But cases which come to Court are not so simple, and all facts and circumstances have to be examined in each case. This is also well settled law. Would this School survive if all ''State and Government' were removed from India? That is the question to look the answer for.

Yet another aid in deciding whether the authority is an Article 12 or not, is to ask oneself the question whether it is reasonable to treat the authority as at par with the State. Not identical, but a similar question is whether it would be unreasonable to exclude the authority from being treated as a State.

If the School is not an Article 12 authority subject to a writ scrutiny, then and in that event, a prospective employee, like the appellant would have no recourse against the School, or the Board, if he were simply kept out of the run without assigning any reason or justification at all; if even no advertisement is issued; if out of reasons of personal choice, say, the twentieth in the list were preferred to the first. He would not be able to file a Suit as he has no contractual or other relationship and he is not a member of the Society either. He would have no recourse, just as he would have no recourse, if somebody were selected as a Manager in one of the small departments of I.T.C.  It is for the Court to examine whether this is the reasonable view to take in the facts and circumstances of this case.

On a balance of convenience, it is manifestly clear to us that the appellant has an arguable case in both the appeals. Although the show cause was made a subject of the writ two months after it was issued, yet one cannot exclude from consideration the fact that it takes time for a layman to get prepared with a law case and to file it in Court. Before anything could be done, the removal order also came. It was at first thought that the writ against the removal had become infructuous, but later on it appeared, may be on queries made by the Court itself that if the show cause is inextricably connected with the appointment order of Ms. Kaul, and further, if the ground of mala fides is good, then everything resting upon the show cause has to be quashed alongwith it.

The matters are remanded to the first Court. Parties will be entitled to pray for amending and filing fresh pleadings. Until further orders of Court, the removal order passed against the appellant and all the proceedings and orders consequent upon the impugned charge sheet dated 23.2.2006 (including the said removal order), shall remain stayed. On and from date, the appellant shall be permitted to join the service in the Institution as P.G.T. (Commerce) and be entitled to all payments and benefits of service and emoluments in regard thereto. If the respondents are not willing to let the appellant perform the actual service, then and in that event, they shall continue to pay to the appellant all such pay, benefits of service and emoluments, as if he is regularly and faithfully rendering service in the Institution as above. The payment made during the pendency of the litigation will be subject to the final order of the Court.

The reason why we permit this alternative is that the inquiry had been started against the appellant, inter alia, on the allegation that on or about 30.11.2004, ten girl students had been indecently treated by the appellant. The appellant alleges that the students themselves withdrew the charge and there is also a statement by them that they were asked to put the charge in at the instance of Ms. Kaul. The other charges against the appellant were, writing directly to the Chief of Air Staff, forcing the boys to take tuition, leaking news to media in breach of discipline, and manipulation in marking numbers.

Since the matter is being remanded and since we have to strike a reasonable balance, we cannot force the respondent-authorities compulsorily to take the appellant into the Institution actually; on the other hand there is a lot to be said about, the appellant being really not in breach of any principle of propriety or rule at all.

The impugned order dated 5.7.2006 is set aside. The Hon'ble Single Judge will decide the matter entirely uninfluenced by our orders and observations, however worded. Those are all without prejudice and made for the purpose of supporting the interim order only.

In case the appellant succeeds, the appellant will be entitled to all arrears from the date of removal, just as the respondents will be entitled to recover monies paid on the basis of this interim order, if they succeed in the litigation ultimately."

Pursuant to order passed by Division Bench of this Court, issues which have been mentioned in Division Bench judgment are pending before Hon'ble Single Judge of this Court. Record of writ petition clearly reflects that petitioner has been set up by Sanjay Kumar Sharma and at the behest of Sanjay Kumar Sharma present writ petition has been filed for issuing a writ of quo-warranto. Ground of challenge in the present writ petition is identical to the ground which has been raised in the writ petition filed by Sanjay Kumar Sharma while questioning the validity of appointment of Smt. Shalini Kaul. Instant writ petition is nothing but proxy writ petition. Sequence of the events mentioned in the writ petition is nothing but verbatim reproduction of the grounds, which had been taken in the writ petition by Sanjay Kumar Sharma while questioning the validity of appointment of Smt. Shalini Kaul. Proceedings on her behalf are not at all  bona fide and most surprising feature is that even the counsel of Sanjay Kumar Sharma as well as that of petitioner is one and the same. All  these circumstances clearly show that there is live nexus between the petitioner and Sanjay Kumar Sharma. Such proceedings at the behest of an incumbent, who is being used merely as stooge and a pawn cannot be permitted to continue, as this is nothing but misuse of judicial proceeding.

Consequently, writ petition, as it has been framed and drawn, is dismissed.

23.03.2007

SRY              


Copyright

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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