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GAON SHIKSHA SAMITI, GRAM SABHAD, DISTRICT AURAIYA & ANR. versus STATE OF U.P. & ORS.

High Court of Judicature at Allahabad

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Gaon Shiksha Samiti, Gram Sabhad, District Auraiya & Anr. v. State of U.P. & Ors. - WRIT - A No. 40962 of 2000 [2003] RD-AH 75 (4 April 2003)

 

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

A.F.R.

COURT NO. 24

CIVIL MISC. WRIT PETITION NO 40962 Of 2000

Gaon Shiksha Samiti, Gram Sabha Sabhad,

District Auraiya & Anr. ----- Petitioners

Versus

State of U.P. & ors. -----       Respondents.

--------------

Hon'ble Dr. B.S.Chauhan, J.

This writ petition has been filed for quashing the order dated 14.8.2000 (Annex. ''7'), by which three teachers have been transferred from the school of the petitioner, and further to direct the respondents not to interfere with peaceful functioning of the institution in village Sahabad.

Facts and circumstances giving rise to this case are that in the village Sahabad there was a Primary School and it was upgraded and posts of three teachers were sanctioned. The list of the new established schools were issued in which the school of the petitioner's village was also there. It appears that there has been some change in the list and in place of the name of the petitioner's village the name of another village was substituted vide order dated 11.8.1999. In pursuance of the said order the three teachers posted there because of upgradation have been transferred to various other places. Hence this writ petition.

Learned counsel for the petitioner has not filed the order by which the school stood upgraded. What has been filed as Annex. ''1' is a copy of the part of some newspaper showing the name of the petitioner's school. The order by which the earlier order upgrading the school has been recalled is not a part of the record. Nor any application has been made to issue the direction to the respondents to supply the copy of order dated 11.8.1999 to the petitioner. What has been filed before this Court is order of transfer of three teachers posted there because of the upgradation. Thus, it is evident that neither the order upgrading the school nor the order modifying that order of upgradation has been placed on record and prayer has been made to issue direction to the respondents not to interfere with the peaceful functioning of the school, and further to set aside the order of the transfer.

The questions arising in this case are as to whether an order which is not a part of the record can be quashed and further as to whether without challenging the basic order a consequential order can be challenged.

It is settled proposition of law that unless the order under challenge is filed and placed on record, the Court has no power to quash the same. In Surender Singh Vs. Central Government, AIR 1986 SC 2166, the Hon'ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record.  The Apex Court observed as under:-

"In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it.  In absence of impugned order it   would not   be possible to assign the reason which have impelled the authority to pass the order. It  is  therefore, improper to  quash  an order  which  is not produced before  the High  Court in a proceeding under Article 226 of the Constitution."

In the instant case as order dated 11.8.1999 modifying the order of upgradation has not been filed nor any application for issuing direction to the respondents to furnish the copy of the said order has been made, petition is liable to be dismissed only on this ground.

In C.P. Chitranjan Menon & ors. Vs. A. Balakrishnan & ors., AIR  1977  SC  1720,  the Hon'ble Supreme  Court  held that in  absence  of challenge  to  the basic order, subsequent  consequential order cannot be challenged.

Similar view has been reiterated in Roshan Lal & ors. Vs. International Airport Authority of India & ors., AIR  1981  SC  597, wherein the  petitions were primarily confined to the seniority list and the Apex Court held that challenge to appointment orders could not be entertained  because of inordinate delay and in absence of the same, validity of consequential seniority cannot be examined.  In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined.

In  H.M.  Pardasani Vs. Union of India & ors., AIR  1985  SC 781, the Apex Court  observed that if "petitioners  are  not able to establish that the  determination  of  their  seniority  is wrong and  they  have  been  prejudiced  by  such adverse determination,  their  ultimate claim  to promotion would, in deed, not succeed."

Without challenging the order of modification of the upgradation of schools only consequential order of transfer of teachers has been challenged. The writ petition is not maintainable in such an eventuality.

In view of the above, the writ petition has been filed in a casual and cavalier manner without any sense of responsibility by the petitioner. Even the order by which the school stood upgraded has not been placed on record of the case Newspaper cutting showing the name of the petitioner's school does not meet the requirement of law entertaining the petition. Nor order dated 11.8.1999 modifying the  order  of upgradation has been filed and thus the prayer made in a clandestine manner cannot be granted.

Petition is accordingly dismissed as not maintainable.

Interim order passed by this Court earlier dated 12.9.2000 stands vacated.

4.4.2003

AKSI


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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