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Rama Shankar Tewari v. D.I.O.S. & Others - WRIT - A No. 22087 of 2000  RD-AH 656 (26 August 2004)
Civil Misc.Writ Petition No.22087 of 2000
Rama Shanker Tewari vs District Inspector of Schools
Jaunpur and others.
Heard Sri A.K.Sinha, learned counsel for the petitioner and Sri Sandeep Mukherji, learned Standing Counsel for the respondents-State.
(1). In this petition prayer has been made for quashing the order dated 8.12.1999 as mentioned in the orders dated 10.1.2000 and 3.2.2000 ( Annexures -9 and 10 to the writ petition ) passed by District Inspector of Schools Jaunpur. By order dated 10.1.2000 a direction was given by the D.I.O.S. to the management/Principal of Sri Narain Sinha Inter College, Sarai Harkhu, Jaunpur in short " category " hereinafter to give appointment to Smt. Urmila Singh on the compassionate ground in view of his earlier letter dated 8.12.1999 and by another order dated 3.2.2000 of District Inspector of Schools,Jaunpur issued direction to the principal of the said college an affirmative direction was given for giving the above indicated deployment of Smt.Urmila Singh.
(2). With the consent of learned counsel for the parties this petition is decided at this stage in view of Second proviso to Rule 2 of Chapter XXII of Allahabad High Court Rules 1952.
(3). This case was heard in detail earlier and after hearing learned counsel for the parties a detailed order was passed on 3.11.2003. The relevant part is given as below:-
" According to the petitioner after a proper advertisement and selection the petitioner was given appointment to the post of Class-IV in Sri Narain Sinha Inter College Sarai Harkhu Jaunpur and when the petitioner has not been paid salary he approached this Court by way of writ petition no. 41900 of 1999 and the above writ petition was disposed of on 30.9.1999 with the direction to the D.I.O.S., Jaunpur to decide the representation of the petitioner and after disposal of the writ petition an order was passed on 26.10.1999 by the D.I.O.S. disposing of the representation indicating that the appointment of the petitioner was validly made and he was entitled for the salary. It appears that on 8.12.1999 Smt. Urmila Singh was also appointed to the Class-IV post in the said college on compassionate grounds who was not allowed to resume duty, therefore, on 10.1.2000 the D.I.O.S. Jaunpur wrote a letter to the Principal of the said college and again on 3.2.2000 the D.I.O.S. reiterated the direction given earlier indicating the principal of the said college to allow Smt. Urmila Singh to resume duty and to work. These two orders have been challenged by the petitioner here and this Court on 19.5.2000 while issuing notice the operation of the impugned orders dated 10.1.2000 and 3.2.2000 ( Annexures-9 and 10 to the writ petition ) was stayed until further orders, provided the respondent no.5 Smt. Urmila Singh has not already joined.
(4). It has been submitted during the course of hearing on behalf of the learned counsel for the petitioner that in view of Anneure-S.A.-4 enclosed with the supplementary affidavit, it appears that Smt. Urmila Singh was appointed by the order dated 17.11.2000 in Saltanat Bahadur Inter College, Badlapur, Jafrabad, Jaunpur after the retirement of Sri Shyamjeet Class-IV employee on 30.4.2000 and Smt. Urmila Singh has been allowed to join in another school.
(5). According to the paras 4,5,6,7,9,12 and 14 of the counter affidavit filed on behalf of the respondents the selection was never conducted, no recommendation of the selection committee was made, no name was called from the Employment Exchange, no advertisement was published and the approval of the D.I.O.S. was forged one. In these circumstances, the said appointment of the petitioner in question is non-existence and it is difficult to give any order. It has also been indicated that the petitioner was not allowed to work or to give salary. According to the averments and stand taken by the respondents prima facie it appears that the entire appointment is fake and in the circumstances, careful scrutiny shall be made and no bogus person shall be allowed to work.
(6). The Joint Director of Education, Varanasi Region, Varanasi is hereby directed to make an inquiry after consideration and taking statements of all the persons concerned to the college including the petitioner and shall submit the inquiry report by way of affidavit before this court by next date of hearing. If necessary he may take help of district administration including the police department, judicial department or any of the department of the State Government. Such officer may even inquire from the retired government officials of the education department or any of the official concerned of the state government and for making inquiry of any officer out of the State, permission of this Court may be taken. In view of the above observation, the petitioner shall not be allowed to work or give salary."
(7). In reference to the order dated 3.11.2003 and 16.1.2004 a fact finding report on the great efforts of Dr.Sri Krishna Pathak, Joint Director, Varanasi Region, Varanasi is given. Endeavourance of Joint Director is admirable. It has been placed before this Court by way of affidavit with application dated 10.3.2004. During the course of inquiry Joint Director of Education has provided opportunity of hearing, to the present D.I.O.S. Jaunpur, dealing assistant, '' Principal ' of the said '' college ' as well to the petitioner and has perused all the documents as indicated in the report and has arrived that no original records pertaining to the selection of the petitioner is available in the '' college ' and the '' college ' officials could not display or give any prove as to when the advertisement was published in the newspaper and how many persons had participated in the interview. Names of how many persons were requisioned from the Employment Exchange. No records were indicated in respect of mode calling the names of the candidates. No record was available in respect of selection, and constitution of committee. How the candidates and incumbents had participated in the interview, and mode of awarding of marks in the interview was also not disclosed. According to the Inquiry Officer Joint Director of Education no material in respect of the appointment of the petitioner was made available. In these circumstances the finding of fact has arrived that the appointment of the petitioner is forged having been made without any advertisement, without approval of any valid selection committee and the said approval dated 26.10.1999 is also said to be forged. It has also indicated in the report that Regulation 101,107 incorporated in Chapter III in the Regulation of U.P.Intermediate Education Act specifically in view of Regulation 101, the appointment to the post of Class-IV could be made only with prior approval of the D.I.O.S. Regulation 101 and 107 are given as below:-
101. Appointing authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution.
107. Management of the recognized, aided institution to which application is sent by Inspector for issuance of appointment letter, shall issue appointment letter informing the Inspector within a period of one month from the date of receipt of the application.
(8). It has also been indicated by the Joint Director of Education, that in large number of cases came to his notice that in many cases the approval were not given or the approval was given on the fake signature of Sri Sangam Lal Shukla, D.I.O.S. as such the inquiry is being conducted in such matters.
It has been indicated on behalf of the petitioner that petitioner came to know that in about 50 Intermediate Colleges in District Jaunpur, the Joint Director of Education, Varanasi Region, Varanasi ( present ) in connivance with the District Inspector of Schools and Management of the aforesaid institution has made payment of salary to the teachers and other employees beyond the sanctioned post in which some approval order was passed by the then District Inspector of Schools, Janpur Sri sangam Lal Shukla. The petitioner is giving the name of some institution in which beyond sanctioned post teachers and other employees are getting salary under the order of the present Joint Director of Education Varansi Region,Varansi.
Sl. No. Name of the Institution Sanctioned Post. No. of Teachers and other employees who are getting their salaries.
1. Sri Yadresh Inter College, Navperwa,Jaunpur. 33 53
2. Janta Inter College, Beerbhanpur, Jaunpur 16 42
3. Ram Adhar Yadav Ucchattar Madhyamik Vidyalaya,Rasoolpur. 21 36
4. Sant Param Hans Ucchattar Madhyamik Vidyalaya Aonka, Sarai Harkhu, Jaunpur. 27 54
5. Janta Janardan Inter College, Jasopur, Jaunpur. 24 47
6. Inter College Machali Shahar, Jaunpur. 33 68
7. Bhartiya Uchattar Madhyamik Vidyala, Sultanpur, Jaunpur. 18 30
As submitted on behalf of State Government Sri Sandeep Mukherji learned Standing counsel reiterating the stand and averments taken in the counter affidavit as well as inquiry report. As indicated that if the complaint of above nature in para 8 to the reply of the petitioner mentioned above, he is not in a position to controvert or make any comment for lack of instruction. However, according to him the complaints as indicated in para 8 to the reply of the petitioner are not relevant for adjudication.
(9). I have heard learned counsel for the parties. I find that it is well settled and after analyzing large number of cases this court as well as Supreme Court, it has been specifically held by this court in writ petition no. 27437 of 1997 ( Mahandra Singh vs. State of U.P.& others ) decided on 29.1.2004 that a person being an out put of defective selection or being an output of spoiled system shall have no right to the post and salary. This court has found the defects and irregularities in the following paragraphs and after framing several questions have dealt with those questions as indicated below:-
(10). To deal the issue involved in the present case it would be necessary to consider very important aspects in the interest of justice, rule of law and in the great interest of public, when any particular process or selection or appointment has suffered from legal and procedural improprieties, deficiencies, irregularities, illegalities, foul-play, corruption, dubious, malpractice, fraud, forgery, falsity, scandal, misrepresentation, malafide, favouritism, non-availability of post/ vacancy, illegal and erroneous constitution of selection committee, selection being bad for lack of proper sanction of competent authority or for lack of competency of appointing authority and the said selection is defective for statutory procedural infirmities e.g. for non-publishing advertisement or not inviting names from employment exchange, selection made without interview, fake and ghost interviews, tempering with records, fabricating documents or non-observance of reservation policy, anomaly in preparation of select list, unauthorised appointments made beyond expiry of the select list, taking benefit of manipulation in date of birth and production of false certificates/degree, lack of eligibility criteria, deficiency in qualification, admission to a course or benefits/ gains in any form procured by foul means, non-observance of other provisions or requirements of relevant Act, rules, regulations, bye-laws, norms, government orders, official memorandum, legal established pattern, (as some examples out of many more variety of defects) then selected beneficiary candidate as an outcome of such defective selection or spoiled system if appointed and has started working, acquiring legal right to the post , in such circumstances the following aspects shall be necessary for consideration.
(A) Whether the such beneficiary/ candidate is entitled for opportunity of hearing in consonance to the principles of natural justice before termination of his service in the above circumstances?
(B) Whether the opportunity of hearing in consonance to the principle of natural justice shall be necessary to be given to the beneficiary candidate before termination of his service and to what extent? When suo-moto or on general or specific complaint made on behalf candidates participating in the selection or appointment or gain in question or on the basis of preliminary inquiry conducted for and on behalf of the appointing authority or on the basis of some audit report or inspection report, the State Government or competent authority or employer thereafter has made itself or got conducted a detailed inquiry through C.B.I. or an independent agency or Vigilance department or Committee, taking into consideration all the facts, circumstances, records, evidences and witnesses and on the basis of finding arrived at out of such inquiry or probe, the selection or appointment or gain in question is found to be defective on one or more out of above mentioned drawbacks/ grounds?
(i) when beneficiary candidate was already associated and heard in the inquiry or probe;
(ii) when beneficiary candidate was not associated and not heard in the inquiry or probe at all;
(iii) when beneficiary candidate was provided opportunity of hearing in reference to the inquiry report or probe subsequently but before termination.
(C) Whether for one or many of the above mentioned drawbacks the said selection or appointment or gain is found defective and the termination of the service of the beneficiary candidate is set aside for not providing opportunity of hearing and non-observance of principles of natural justice before termination of his service, in those circumstances;
(i) Whether reinstatement of beneficiary candidate in service with consequential benefits shall be a usual phenomena? Or
(ii) Whether on reinstatement of beneficiary candidate in service, the above mentioned defects and drawbacks inherited in the selection or appointment or gain in question are to be ignored or overlooked or shall be redundant or shall be automatically deemed to have been rectified? Or;
(iii) Whether keeping in view the seriousness of defects and drawbacks occurred in the selection or appointment or gain in question, the Court at its pleasure in the interest of justice and to uphold the rule of law, may allow fresh inquiry or probe to be made allowing participation of the beneficiary candidate by providing opportunity of hearing in consonance to the principles of natural justice within a stipulated time?
(D) Whether for reinstatement of the beneficiary candidate the sympathy may be shown for his bonafide, or for no fault on his part?
(E) Whether the authorities or officials instrumental, involved in scandal and defective selection or appointment or gain are to be dealt with under law or their misdeeds and wrong on their parts are to be ignored?
(F) Whether providing of opportunity of hearing in consonance to the principle of natural justice is farce or statutory or mandatory or directory or requirement or ingredient or legal formalities only to be observed in all cases in respect of termination of beneficiary candidate as an outcome of defective selection or appointment or gain?
(G) Whether by different modes other than conventional modes, on adjudication over the pleadings of the parties any selection or appointment of gain is declared or proved before the Court/ Tribunal to have been suffering from inherent defects then consequence of upsetting the termination of the beneficiary candidate on the ground of non-observance of principle of natural justice would be to hear a fresh in terms of such declaration?
(H) When no inquiry conducted and in respect of selection or appointment or gain having acknowledged by Court/ Tribunal to have suffering from inherent defects as indicated in paragraph 7 and beneficiary candidate was not provided opportunity of hearing before termination?
(I) Whether providing of opportunity of hearing in consonance to the principle of natural justice shall be necessary when the defects, deficiencies, fraud or forgery in cases of illegal admissions, selection or appointment or in matters of benefits/ gains in any form derived or based on the documents said to be the verdict of the Court or in the name of institutions/ institutional head/ constitutional dignitaries?
(11). It is well settled that the appointment made from selection dehors the rules or provisions or the 'Act' applicable are unenforceable and inexecutable, thus, are to be set aside as the rule of law. The system and the public at large become susceptible, could never tolerate such illegality and the illegally appointed person being product of spoiled system, however, the declaration of such appointment of the beneficiary candidate to be a defective output or ingenuine product is to be made undergoing a process or by making inquiry or probe, needed in facts and circumstances in reference to the complaint or on the information to the State or competent authority. However, such probe or inquiry is for the specific purpose unlike disciplinary inquiry, nevertheless is to be exhaustive and broad based to such an extent so that in its optimum amplitude and horizon the effected party being a beneficiary candidate may also be given a chance by associating himself to consider his stand or say treating him a necessary ingredient or component and also in order that all possible aspects might be taken care of indicated above in the process and no scope is left or nothing remains or desired to be placed or incorporated on the part of the beneficiary candidate before finalization of the verdict or declaration in respect of the ingenuinity or defectiveness or illegalities of selection or appointment or benefits/ gains in any form. The social order, healthy system, interest of justice and interest of public requires that if any person has procured appointment by utilising forged degree or certificate or wrong date of birth or erroneous qualification or has used concocted documents to procure employment then service of such person if terminated by the Court on the sole ground of non-providing of opportunity of hearing or principle of natural justice then this may give unusual message tantamounting acknowledging such deficiencies and illegalities being completely ignored or rectified because the ingenuinity and misdeeds and foul play in the background persists in gain or appointment of such beneficiary candidate and it shall always pinch to the system as thorn to the healthy body. Likewise also, if one or many of the persons have procured appointment on the basis of some G.O., notification or order or circular, which later on after inquiry or probe turned out to be bogus, fake and non-existent then before declaring the selection or appointment as ingenuine or defective, if any person out of lot has been inquired into and defectiveness of appointment and selection has been proved then beneficiaries in mass are not to be heard separately. The principle of natural justice need not to be stretched too far so as to include in its ambit and scope of providing of opportunity of hearing a full fledged detail inquiry in respect of deficiencies mentioned in paragraph-7 above. It all depends on the facts and circumstances. If some document, order, notification, circular found to be ingenuine and illegal, however, has been utilised for the purpose of procuring employment then the declaration that such order, document, notification or circular is bogus, forge, fake, non-existent by author or competent authority in whose name these are said to be issued, then beneficiary candidates need not be given opportunity of hearing in the light of the verdict of Supreme Court in B. Sheetal Nandwani (supra).
(12). The defects as referred in paragraph 7 above are few examples only, there may be many more cause depending upon the facts and circumstances affecting the sanctity of appointment or selection or gains derived in any form. Need of hour and public demand is to get best calibre, output or product from the system, for which in deed the productive system has to be made healthy, clean, genuine. In any case everyone discards defective piece as product of spoiled system. If the drawbacks and flaws have cropped up since inception and structural defects inherited in the system of production making it spoiled system, the output / product is bound to be imperfect and defective one, therefore, the defects as indicated or conceived of in paragraph 7 above are to be eradicated on administrative or judicial side, however, in both fairness and observance of principle of natural justice shall be necessary. The competent authority might refer the inquiry report, so made earlier, or look at the proposed inquiry or probe or proceeding to be conducted subsequently taking into consideration records and documents and fixing also specific date, time and place and allowing the beneficiary candidate to avail oral/ personal hearing and to adduce evidences and further permission to examine or cross-examine the witnesses. The beneficiary candidate has to be heard so that truth may be arrived at and it could not be said at any stage that something was left from consideration or desired to be incorporated on the part of the beneficiary candidate. The opportunity of hearing to beneficiary candidate is neither farce, nor mandatory or directory, in every case but is most essential ingredient and legal requirement to be adopted to arrive at truth and to achieve finality and precision in the finding or declaration. The hearing of the beneficiary candidate is in order to bring perfection in the finding on the issue of appointments or selection or gains derived, by covering vital aspects and broad based parameters, and giving weightage on different parameters involved in inquiry or probe and in hearing before or after in reference to the defects depending upon the facts and circumstances. Sometimes the competent authority or inquiry officer may concentrate or contemplate much on the documents or records, sometimes on the oral or written evidences only. Sometimes more weightage over the statement of witnesses may be vital. However, all these shall depend upon the requirement of the case and on the wisdom of the competent authority. In order to ensure precision and fairness in the finding of the inquiry or probe, the beneficiary candidate as an affected party, is to be heard treating him to be an essential component of the inquiry or the declaration. Providing of opportunity of hearing to the beneficiary candidate in reference to the inquiry or probe or declaration may not be so casual, as the beneficiary candidate may drag on hearing unnecessarily. However, depending on the facts and circumstances in a particular case, even a written submission preferred at the choice of the beneficiary candidate may serve the purpose or may be treated as sufficient for observance of principle of natural justice. If by other than conventional mode, during adjudication by the Court/ Tribunal while considering the pleadings of the parties, if the selection or appointment in question is proved or declared as defective then it shall be necessary to hear the affected party in reference to such declaration. If the declaration of the selection or appointment to be defective is not based on inquiry or probe, the beneficiary candidate being affected party may be heard even on subsequent stage, in any case, before passing termination order. In conspectus, the beneficiary candidate being an outcome of such selection, which has been noted to be defective or spoiled selection, on the basis of inquiry or probe acknowledged as such by the Court or Tribunal, shall have no legal right to remain in the employment and is bound to be ceased or ousted in any case but in accordance with law and the affected beneficiary person is either to be heard by associating him in reference to such inquiry or probe or declaration, so that the stand of affected party may be incorporated before taking the decision of ousting him by the competent authority.
(13). In view of the foregoing analysis and observations, now, it is clear when any selection/recruitment or appointment to some post was made or benefits/ gains are procured illegally and it is noticed on the complaint or at subsequent stage that illegalities, irregularities, improprieties, procedural infirmities and deficiencies and defects have occurred, forgery or foul-play adopted or non observance of Act, rules, norms were made in process then the beneficiary candidate, who has become output and product of such defective and bad selection or outcome of spoiled system process shall have no right or claim to the post or salary or any consequential benefits in the service by virtue of such selection or appointment or gains in any form being illegal or void or nonest and being violative of mandate of provisions of articles 14 and 16 of Constitution, but before termination or dismissal of such persons or beneficiaries, a proper inquiry associating with such beneficiary candidates shall have to be made by providing them opportunity of hearing in consonance to the principle of natural justice. If at the instance of some complaint or at the instance of competent authority or of the State Government or employer, the proper inquiry or probe taking into consideration the facts, circumstances, records, evidences or witnesses has already been made by any of the competent authority and person being a beneficiary candidate has been associated in the said inquiry or probe or investigation and such inquiry has been made in consonance to the principle of natural justice then termination of beneficiary candidate in such circumstances shall not be said to be illegal and such beneficiary candidate is not to be given opportunity of hearing any more, but in the circumstances indicated above if the beneficiary candidate by virtue of being a product of a defective selection or process is dismissed or terminated and no inquiry was ever made as indicated above and such termination order if set aside on the ground of not providing of opportunity of hearing in consonance to the principle of natural justice, the Court at its pleasure may direct a fresh inquiry or probe to be made in accordance with law keeping in view the gravity of defects, charges, drawbacks, allegations involved in the said selection as narrated in paragraph (7) above inherited in the said selection or process or appointment or illegal gains and in order to eradicate defects and evils, which had cropped up or had insinuated from its inception. If the beneficiary candidate is heard in reference to the inquiry or probe or report by providing him adequate opportunity of hearing in consonance to the principle of natural justice before termination of his service then subsequent another opportunity of hearing shall not be necessary.
(14). I have heard learned counsel for the parties and perused the record. In view of the above analysis and observation it is well settled that an output of defective system or spoiled system shall have no right to the post and salary. For and on behalf of petitioner it has been submitted forgery could be inquired into. In my respectful consideration forgery and disputed fact could not be adjudicated under Article 226 of the Constitution specifically in the writ jurisdiction. However, petitioner and others were accorded sufficient opportunity of hearing before the Inquiry Officer. The Joint Director of Education after careful consideration has taken into all the aspects and has given report on fact findings which indicate that the appointment of the petitioner was forged and illegal and as such being an out come of spoiled system, shall have no right to the post, therefore, he is not entitled to any relief as prayed for.
In view of the above, the writ petition is disposed of
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