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PARASHURAM versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Parashuram v. State Of U.P. and others - WRIT - A No. 15688 of 1981 [2004] RD-AH 809 (16 September 2004)

 

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

Reserved

Civil Misc. Writ Petition No. 15688 of 1981

Parashuram Vs. The State of Uttar Pradesh and others

With

Civil Misc. Writ Petition No. 24848 of 1992

Parasu Ram Vs. State of Uttar Pradesh and others

With

Civil Misc. Writ Petition No. 38592 of 1994

Parashu Ram Vs. State of U.P. and others

~~~~~

Hon'ble Dilip Gupta, J.

The dispute involved in these writ petitions revolves around the appointment to the post of a Clerk in the Kisan Purva Madhyamik Vidyalaya, Bargadahi, district Gorakhpur (hereinafter referred to as the ''School') which is a recognised Basic School. Both Parashu Ram (Petitioner) and Jai Karan Yadav (respondent No.5) claim to have been appointed on the same post of Clerk in the aforesaid School. The School was brought under the purview of The Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 on 1.4.1980 under which the liability to pay the salary to the teachers and the other employees was of the State Government.

Writ Petition No. 15688 of 1981 has been filed by Parashu Ram for quashing the order dated 2.11.1981 passed by the District Basic Shiksha Adhikari, Gorakhpur and the order dated 15.12.1981 passed by the Manager of the School and for a direction upon the respondents not to withhold the salary of the petitioner on the basis of the order dated 15.12.1981. By means of the aforesaid order dated 2.11.1981,  the District Basic Shiksha Adhikari ordered that it is Jai Karan Yadav who had been working as a Clerk on the basis of the appointment order dated 1.7.1976 and he would be entitled to the payment of salary and other dues. It has further been ordered that necessary enquiry should also be conducted against the management of the School for the illegalities committed by it and for tampering with the records. By the order dated 15.12.1981 the services of the petitioner Parashu Ram were terminated by the Manager with immediate effect on the basis of the aforesaid order dated 2.11.1981.

Writ Petition No. 24848 of 1982 has been filed by Parashu Ram for payment of salary w.e.f. December, 1986 and for a direction upon the respondents not to interfere in his working as a Clerk in the School.

Writ Petition No. 38592 of 1994 has been filed by Parashu Ram for quashing the order dated 4.7.1994 passed by the Director of Education,  Uttar Pradesh intimating that on a careful consideration of the matter relating to the appointment of the Clerk in the School it was conclusively established that it was Jai Karan Yadav who was working in the School as a Clerk from 8.7.1976 and,  therefore, he would be entitled to the payment of salary and other dues but this order would be subject to the decision of this Court in Writ Petition No. 15688 of 1981. By means of an amendment application the petitioner has also sought the quashing of the order dated 6.4.1994 sent by the Secretary,  Government of U.P., to the Director of Education since it was this order which was made the basis for issuing the aforesaid order dated 4.7.1994.

I have heard Sri Arvind Srivastava, learned counsel for the petitioner and Sri Ashok Khare, learned Senior counsel appearing for the private respondent Jai Karan Yadav at length and have perused the materials available on record.

A perusal of the averments made in Writ Petition No. 15688 of 1981 clearly reveal that the petitioner Parashu Ram claimed to have been appointed as a Clerk on the basis of the order dated 2.4.1979 issued by the Manager of the Committee of Management of the School. By this order the petitioner was appointed as a Clerk on probation for a period of one year with effect from the date of joining in the pay scale of Rs. 185-260. It has further been stated in the petition that the petitioner was confirmed on 8.4.1980 and in this connection the letter issued by the Manager of the School has also been filed. The petitioner has challenged the order dated 2.11.1981 passed by the District Basic Shiksha Adhikari and the order dated 15.12.1981 passed by the Manager terminating his services on the ground that no opportunity was provided to him before passing the aforesaid orders. In the aforesaid writ petition no interim order was granted in favour of the petitioner and only affidavits were directed to be exchanged.

A counter affidavit has been filed on behalf of the respondent Nos. 1,2 and 6 by the District Basic Shiksha Adhikari, Gorakhpur mentioning, inter alia, that the petitioner did not even possess the minimum eligibility requirement for appointment to the post of a Clerk and that even the Manager of the School had admitted that Jai Karan Yadav had been appointed as a Clerk in the School in 1976 and that the Manager of the School by his letter dated 24.11.1980 had also requested the District Basic Shiksha Adhikari for regularisation of the services of one Prem Narain Rai as a Clerk in the School. A counter affidavit has also been filed by Jai Karan Yadav in which the appointment order dated 1.7.1976 issued in his favour has been annexed as also the joining report w.e.f. 8.7.1976. A copy of the Staff statement bearing the signature of the Principal of the School showing the name of Jai Karan Yadav at Sl. No.7 and the date of appointment as 1.7.1976 has also been annexed. Along with the counter affidavit, a copy of the letter dated 27.6.1980 written by the Manager of the School to the Branch Manager of the Kshetriya Gramin Bank for opening account of the members of the staff of the School in which the name of Jai Karan Yadav was shown at Sl. No. 7 has also been annexed. Pursuant to this letter a Savings Bank Account was also opened in the aforesaid Bank. A rejoinder affidavit was filed by the petitioner to both the aforesaid counter affidavits and it was sought to be contended that the petitioner had been appointed on 1.7.1976 and emphasis was placed on the order dated 18.5.1983 passed by the Director of Education.

Subsequently Writ Petition No. 24848 of 1992 was filed by the petitioner on 15.7.1992 for payment of salary w.e.f. December, 1986. It was stated that after the District Basic Shiksha Adhikari had passed an order dated 2.11.1981, an order dated 18.5.1983 was passed by the Director of Education directing the District Basic Shiksha Adhikari to pay salary to the petitioner and on the basis of the aforesaid order, the salary of the petitioner was released on 7.6.1983 and he was paid salary up to the month of November, 1986 and thereafter his salary was again stopped. On 15.7.1992 time was granted to the respondents to file a counter affidavit. The petition was,  however, dismissed in default on 28.2.2002 but was ultimately restored to its original number on 23.10.2002.

In Writ Petition No. 38592 of 1994 the petitioner Parashu Ram has stated that during the pendency of the aforesaid two writ petitions, an order dated 4.7.1994 was passed by the Director of Education, Uttar Pradesh as a result of which the salary would be released in favour of the private respondent Jai Karan Yadav which would cause loss to the petitioner. The order dated 4.7.1994 was sought to be quashed on the ground that it was without jurisdiction. This Court, on 1.12.1994 granted time for exchange of affidavits and in the mean time the operation of the order was stayed till 24.1.1995. The interim order was,  thereafter, extended from time to time and the affidavits were exchanged between the parties. A counter affidavit has been filed on behalf of the respondent Nos.1,2,3 and 4 by the Deputy Basic Shiksha Adhikari in which a reference has been made to the order dated 2.11.1981 passed by the District Basic Shiksha Adhikari in which it was held that the private respondent No.5 Jai Karan Yadav was the person who had been actually appointed as a Clerk in the School w.e.f. 8.7.1976 and that the petitioner did not even possess the necessary qualifications for being appointed as a Clerk in the year 1979. In fact,  the petitioner had done his High School in the year 1978 and his Intermediate in the year 1980 and as such there was no occasion to appoint the petitioner as a Clerk on 2.4.1979. It has further been submitted that the District Basic Shiksha Adhikari had also submitted his report dated 6.3.1986 and that the District Magistrate had also submitted his report dated 26.2.1992 to the State Government on the basis of which the State Government had sent the communication dated 6.4.1994 to the Director of Education. The private respondent No.5 Jai Karan Yadav has also filed a detailed counter affidavit. The petitioner has filed a rejoinder affidavit to both the counter affidavits and has subsequently filed and amendment application for quashing the communication dated 6.4.1994 sent by the State Government.

The controversy that requires to be determined is whether the petitioner had been appointed as a Clerk in the School or whether Jai Karan Yadav,  respondent No.5 had been appointed as a Clerk. In the first petition filed by the petitioner i.e. Writ Petition No. 15688 of 1981 a categorical statement had been made by the petitioner that he had been appointed as a Clerk by means of the order dated 2.4.1979 issued under the signatures of the Manager of the School and that he had been confirmed on 8.4.1980. In paragraph 8 of the petition the petitioner further stated that he had joined the School as a Clerk on 2.4.1999. Paragraph Nos. 2 and 8 of the petition are quoted below:-

"2. That the petitioner was appointed on the post of Clerk by the management of the institution on 2.4.1979 after complying with all the requisite formalities. After completing the period of probation the petitioner was confirmed by the management by the order dated 8.4.1980. The true copies of the order of appointment and the confirmation are being filed herewith as Annexures 1 and 2 to this writ petition.

8. That Sri Jai Karan Yadav had never been working as a Clerk in the institution. The petitioner had joined the institution as clerk on 2.4.1979. Since that day the petitioner never saw Sri Jai Karan Yadav in the institution. No salary was paid to Sri Jai Karan Yadav from the institution."

In the subsequent Writ Petition No. 38592 of 1994 filed by the petitioner Parashu Ram,  the petitioner resiled from the aforesaid statement and came out with a case that though he was working in the School since June,  1976 he had been formally appointed on the post of Clerk on 2.4.1979. Paragraph No. 2 of the writ petition is quoted below:-

"2. That the petitioner was working as a Clerk in the aforesaid institution since the year 1976. However,  he was formally appointed on the post of Clerk by the management of the institution on 2.4.1979 after complying with all the requisite formalities. After completing the period of probation,  the petitioner was confirmed by the management vide an order dated 8.4.1980. The true copy of the order of appointment as well as of confirmation of the petitioner are being annexed herewith as Annexures 1 and 2 respectively to the writ petition."

The records of the case further reveal that the entire confusion that has been created is because of the shifting stand taken by the Manager and the Principal of the School at different stages as is clear from the order dated 2.11.1981 issued by the District Basic Shiksha Adhikari. The said order had been passed on the representation dated 1.10.1980 submitted by Jai Karan Yadav for payment of salary on the basis of the appointment order dated 1.7.1976. Before the District Basic Shiksha Adhikari Jai Karan Yadav had made specific allegations that the Manager of the School was related to the Principal since the sister of the Principal was married to the Manager and that one Prem Narain Rai who was the real brother of the Principal was working as a teacher in the School. The petitioner had been appointed on 1.7.1976 and there was no dispute till the time the School was brought on the grant in aid list in the year 1980 whereupon only those teachers/non teaching staff who had been appointed in accordance with law, against sanctioned post could be paid salary and then it transpired that there was one teacher in excess and that unfortunately happened to be the real brother of the Principal of the School, namely,  Prem Narain Rai as he was the junior most untrained teacher. As such, in order to ensure that the said Prem Narain Rai continued in employment,  the name of Jai Karan Yadav as a Clerk was removed and the name of the said Prem Narain Rai was shown as a Clerk. According to Jai Karan Yadav it is this fact that had resulted in the entire dispute because ultimately when the Manager and the Principal could not succeed in saving the appointment of Prem Narain Rai,  they introduced Parashu Ram so that he (Jai Karan Yadav) could also not continue as a Clerk since he had exposed the misdeeds of the Manager and the Principal before the District Basic Shiksha Adhikari. Jai Karan Yadav, in support of his case, had placed various documents before the District Basic Shiksha Adhikari, namely, the appointment letter and the joining report and the letter dated 27.6.1980 sent by the Manager to the Bank containing his name as a Clerk and the Pass Book issued to him by the Bank.

The District Basic Shiksha Adhikari in the order dated 2.11.1981 has recorded a categorical finding that the appointment letter dated 1.7.1976 issued in favour of Jai Karan Yadav,  was not been denied by the Manager. The District Basic Shiksha Adhikari also noticed that in the Staff statement the name of Jai Karan Yadav was mentioned as a Clerk and this was in accordance with the appointment letter and that the other documents,  namely, the letter dated 27.6.1980 sent by the Manager to the Bank for opening an Account in which the name of Jai Karan Yadav was also mentioned and issuance of the Pass Book and the experience certificate dated 16.7.1980 issued by the Manager also clearly demonstrated that Jai Karan Yadav had been appointed as a Clerk and was continuously working. The District Basic Shiksha Adhikari, therefore,  disbelieved the case of the management that either Parashu Ram or Prem Narain Rai had been appointed and a finding has also been recorded by him that tampering had been done in the records by the Management of the School to confer undue benefit on these two persons for which purpose an enquiry was required to be conducted to fix the responsibility. The District Basic Shiksha Adhikari also took notice of the fact the relationship between the Manager, Principal and Prem Narain Rai had not been denied. It is,  in these circumstances,  that the District Basic Shiksha Adhikari ordered that the payment should be made to Jai Karan Yadav.

This order dated 2.11.1981 was challenged by the petitioner in Writ Petition No. 15688 of 1981 but even during the pendency of the aforesaid writ petition, the petitioner Parashu Ram obtained an order dated 18.5.1983 from the Director of Education, Uttar Pradesh declaring that Parashu Ram had been appointed as a Clerk w.e.f. 1.7.1976 and the earlier letter dated 2.11.1981 issued by the District Basic Shiksha Adhikari in favour of Jai Karan Yadav was found to be incorrect only on the ground that it was based solely on the affidavit filed by Jai Karan Yadav whereas the District Basic Shiksha Adhikari was required to take into consideration the Attendance Register and other documents before the passing of an order in favour of Jai Karan Yadav. He, therefore, ordered that the payment of salary to the petitioner Parashu Ram may be made in accordance with law. It is on the basis of the said order that the petitioner Parashu Ram received salary up to November,  1986 when it was stopped.

The aforesaid order dated 18.5.1983 of the Director of Education is contrary to the records. Parashu Ram had not been appointed on 1.7.1976 because even according to his case,  the appointment letter was issued in his favour only on 2.4.1979 and he had joined the School on this date. This was the statement made by Parashu Ram in the initial writ petition no. 15688 of 1981 filed by him but subsequently he resiled from this statement since he wanted to take his appointment to the year 1976 when Jai Karan Yadav had been appointed and, therefore, stated that though he had been working from 1976 he was issued a formal letter on 2.4.1979. This apart,  a bare perusal of the order dated 2.11.1981 passed by the District Basic Shiksha Adhikari clearly reveals that it is not based solely upon the affidavit filed by Jai Karan Yadav but is based mainly on the basis of the documents referred to in the order.

On the record there is also a report dated 6.3.1986 submitted by the District Basic Shiksha Adhikari to the Government of U.P. mentioning therein that pursuant to the directions issued he had inspected the School. Jai Karan Yadav was present in the School but Parashu Ram was not to be found in the School and on a perusal of the entire records and also the statements of the teachers, it was established that the earlier order dated 2.11.1981 passed by the District Basic Shiksha Adhikari was correct and that the appointment of Jai Karan Yadav was valid. However, because of the subsequent order dated 18.5.1983 the enquiry was not continued. It appears that thereafter the Director of Education sent a Telegram on 27.5.1987 for stopping the payment of salary to the petitioner Parashu Ram and then the salary was paid to Jai Karan Yadav from January, 1989 till April,  1991 when it was again stopped. Feeling aggrieved, Jai Karan Yadav filed representations for payment of salary. The matter was examined in detail by the Additional District Magistrate on the basis of the documents submitted by the District Basic Shiksha Adhikari, the various reports and the documents/evidence submitted both by Jai Karan Yadav and Parashu Ram and then the report was submitted to the District Magistrate. A categorical finding has been recorded that the Manager and the Principal were solely responsible for creating a dispute to the post of Clerk in the School as a result of which three persons were claiming that they had been appointed against the single post and this had also resulted in the issuance of two conflicting orders by the Educational Authorities, namely the order dated 2.11.1981 passed in favour of Jai Karan Yadav and the subsequent order dated 18.5.1983 passed in favour of Parashu Ram. The order dated 18.5.1983 of the Director of Education has been strongly commented upon. It has been mentioned that by the order dated 18.5.1983 the appointment of the petitioner Parashu Ram has been shown w.e.f. 1.7.1976 whereas even before the High Court Parashu Ram had claimed appointment on the basis of the order dated 2.4.1979 and if this fact was taken to be correct,  then on 1.7.1976 Parashu Ram would not have even completed his High School since from the documents produced by Parashu Ram,  it was clear that he had passed his High School examination in the year 1978 and the Intermediate examination in the year 1980. The conduct of the Manager of the School has also been commented upon and it has been mentioned that even though the Manager had sent the comments to the District Basic Shiksha Adhikari on 21.9.1980 admitting the issuance of the appointment letter in favour of Jai Karan Yadav but yet the same Manager in order to confer undue benefit upon his relation Prem Narain Rai in his letter dated 24.11.1980 sent to the District Basic Shiksha Adhikari, had sought the regularisation of the services of Prem Narain Rai as a Clerk. This was done because both the Manager and the Principal of the School were related to Prem Narain Rai. The essential qualifications for the post of Clerk was Intermediate but Parashu Ram had not passed the Intermediate examination either in 1976 or in 1979. On the other hand,  the report further points out that the documents clearly revealed that the order dated 2.11.1981 passed by the District Basic Shiksha Adhikari was a correct order based on the materials on record.

It is on the basis of the aforesaid report that the State Government sent a communication dated 6.4.1994 to the Director of Education pointing out that Jai Karan Yadav should be treated to have been appointed as a Clerk from 8.7.1976 and he was entitled for the payment of the salary. This order was, however, made subject to the order passed by the Court in Writ Petition No. 15688 of 1981 filed by Parashu Ram. At the same time an enquiry was also ordered to be conducted into the affairs of the School. The order dated 4.7.1994 sent by the Director of Education is based on the aforesaid communication sent by the State Government.

Learned counsel for the petitioner submitted that no opportunity was given to the petitioner before passing the orders dated 2.11.1981,  15.12.1981, 6.4.1994 and 4.7.1994.

The dispute relates to appointment of a Clerk in the School in the year 1976. The petitioner has to establish that he was appointed in accordance with law before any relief can be granted to him. The authorities have recorded a finding of fact that the Principal and the Manager,  who were closely related to each other,  were hand in gloves and in order to confer undue benefit upon one Prem Narain Rai who was the real brother of the Principal had set up the petitioner Parashu Ram for which purpose they had even tampered with the records of the School. In the first writ petition filed by Parashu Ram he claimed his appointment from 2.4.1979 but in the subsequent writ petitions he conveniently changed his stand that he was actually appointed on 1.7.1976. This was obviously done because Jai Karan Yadav had been appointed on 1.7.1976. The question, therefore, arises whether any relief should be granted to such a person by this Court while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India. The facts of the present case compel me not to exercise my discretion.  

In the case of M.P. Mittal Vs. State of Haryana and others reported in AIR 1984 SC, 1888, the Supreme Court held as follows:-

"The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction,  it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief."

In the case of State of Maharashtra and others Vs. Prabhu reported in (1994) 2 SCC 481 the Supreme Court observed as follows:-

"Therefore,  even if the order of the Government was vitiated either because it omitted to issue a proper show cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference.

.........

It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."

The same position was reiterated by the Supreme Court in the case of Chandra Singh Vs. State of Rajasthan and another reported in JT 2003(6) SC 20 in which it was observed as follows:-

"Issuance of a writ of Certiorari is a discretionary remedy (Champalal Binani v. CIT, West Bengal, AIR 1970 SC 645). The High Court and consequently this Court while exercising its extra ordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case,  the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant."

It has also come on record that Parashu Ram passed his High School Examination in the year 1978 and the Intermediate Examination in the year 1980. Thus in all probability he would be in the VIIIth class in the year 1976 when he claims to have been appointed to a Class III post as a Clerk in the School. Even if it be assumed that the U.P. Basic Education Act,  1972 or the Rules framed there under at that time did not prescribe any basic educational qualification for the post of a Clerk, still it cannot be conceived that a person who had not even passed class VIII could have been appointed as a Clerk since the Rules applicable to Government employees also prescribe that for a person to be appointed as a Clerk, he must have passed the Intermediate Examination. Thus, even otherwise, Parashu Ram could not have been appointed as a Clerk.

On the other hand, the Manager in his communication sent to the District Basic Shiksha Adhikari has admitted that the appointment letter dated 1.7.1976 was actually issued in favour of Jai Karan Yadav. On the basis of the numerous documents available on record the District Basic Shiksha Adhikari in his order dated 2.11.1981 came to the conclusion that Jai Karan Yadav had been appointed by means of the order dated 1.7.1976 and he should be paid his salary. This order was challenged by the petitioner in Writ Petition No. 15688 of 1981 in which no interim order was granted but only the affidavits were directed to be exchanged but even during the pendency of the said petition,  an order dated 18.5.1983 was passed in favour of Parashu Ram. I have already observed that the said order was absolutely uncalled for and against the documents available on the  records.

The question,  therefore, that arises is whether even in such circumstances the petitioner can complain that the principles of natural justice had been violated. The records establish beyond doubt that Jai Karan Yadav had been appointed on 1.7.1976 and there being only one post of a Clerk in the School,  the question of appointing any other person subsequently did not arise at all. This apart, a perusal of the report dated 28.2.1992 clearly indicates that the petitioner Parashu Ram had been given adequate opportunity since it does mention that the documents and evidence submitted by Parashu Ram had also been examined. The orders darted 6.4.1994 and 4.7.1994 are only consequential orders and,  therefore, the petitioner is not correct in his submission that proper opportunity was not afforded to him.

Even otherwise, it is well settled that the principles of natural justice cannot be put into a strait-jacket formula. Its application depends upon the facts and circumstances of each case and it is also well settled that they cannot stretched too far. This is what has been held by the Supreme Court in the case of N.K. Prasada Vs. Government of India and others reported in 2004 AIR SCW 2673. Reference may also be made to a decision of this Court in the case of Bharat and others Vs. Nagarpalika, Azamgarh and others reported in (1994)2 UPLBEC 745 observed as follows:-

"9. Learned counsel for the appellants also submitted that no opportunity of hearing was given to the appellants before passing the impugned orders. We have seriously considered this aspect of the matter too and, in our opinion, where the benefit accrued to the person complaining breach of the principles of natural justice is the result of fraud, unfairness, arbitrariness or misconduct at the source of such benefit, the principles of natural justice cannot be invoked. Hon'ble Supreme Court in case AIR 1991 SC 909 (supra) and in case of S.P. Chengalvaraya Naidu (dead) by L.Rs. V. Jagannath (dead) by L.Rs. and others Judgment Today 1993 (6) SC 331 in identical circumstances refused to interfere on the ground of breach of principles of natural justice before passing orders. The relevant portion of the latter judgment is being extracted below:

"The court of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He  can be summarily thrown out at any stage of the litigation".

10. In our opinion, the facts and circumstances of the present case also do not give a different picture. The appellants are in fact beneficiaries of the selection process which has already been held to be unfair and non-existent. In the circumstances, they are not entitled to any relief on the ground of violation of the principles of natural justice which cannot be pressed in service without there being equity on the side of the appellants. The case relied on by the learned counsel for the appellants is clearly distinguishable on facts and it cannot be applied here."

The matter can be examined from another angle and that is whether the Court under Article 226 of the Constitution of India should quash an order on the ground of breach of natural justice if it would result in the restoration of an order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law. In the instant case, the order dated 18.5.1983 had been passed by the Director of Education without affording any opportunity to the respondent No.5 Jai Karan Yadav and I have already held that the said order was an illegal order. The consequence of quashing the orders dated 6.4.1994 and 4.7.1994 would be the revival of the order dated 18.5.1983.

The Supreme Court in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh and others 1966 (2) SCR 172 refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice and observed as follows:-

"In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise as extraordinary discretionary power in the circumstances of the case."

Similar view was taken by the Supreme Court in the case of Mohammad Swallah and others Vs. Third Addl. District Judge, Meerut and another reported in JT 1987 (4) SC 291 wherein the Court held that interference was not necessary, if the result of the interference would be the restoration of another order which was not legal.

The Supreme Court in the case of M.C. Mehta Vs. Union of India and others reported in JT 1995 (5) SC 114 held as follows:-

"The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law."

The next submission of the learned counsel for the petitioner that the averments made in the counter affidavit cannot supplant the reasons given in the impugned order,  cannot be sustained because a bare perusal of the orders clearly indicates that reasons mentioned in the counter affidavit had been mentioned in the orders of the District Basic Shiksha Adhikari and the report submitted to the Government.

Learned counsel for the petitioner then submitted that respondent No.5 Jai Karan Yadav had never worked as a Clerk in the School. I have already dealt with this submission in the earlier paragraphs from which it is clear that Jai Karan Yadav had been appointed on 1.7.1976 and that he had been working in the School. It is true that the petitioner has obtained some reports and letters from some of the authorities to the effect that he had been appointed but from the evidence on record there cannot be any doubt that it was Jai Karan Yadav who had been appointed on 1.7.1976.

Learned counsel for the petitioner also contended that the orders in favour of Jai Karan Yadav had been passed on political considerations without application of mind. The said allegations have been made only in respect of Kailash Nath Pathak who was the Accounts Officers in the office of the District Basic Shiksha Adhikari. He has not been impleaded as a party respondent in Writ Petition No. 38592 of 1994. In fact,  no officer has been   impleaded by name. It is, therefore, not open for the petitioner to raise such a contention. A further submission was made that when the petitioner was appointed, minimum qualifications for the post of Clerk had not been prescribed and it is only in the year 1984 when the Uttar Pradesh Recognized Basic Schools (High Schools Recruitment and Conditions of Service of Teachers) Rules, 1978 were enforced that there was a requirement of passing the Intermediate Examination. Learned counsel for the respondents, however, submitted that in the absence of any specific provision in the Act and the Rules prescribed at that time,  the requirement in respect of the Government employees should be applied for the appointment to the post of Clerk and since the minimum qualification is Intermediate,  the petitioner was not qualified in the year 1976 or 1979 as he had passed his High School Examination in the year 1978 and the Intermediate examination in the year 1980. Thus even if it is assumed that prior to 1984 there were no rules for the Junior High Schools, then too the Rules relating to the Government employees for class III post would be applicable which required a candidate to have passed the Intermediate Examination. This is what has also been held by the authorities.

For all the reasons stated above,  there is no merit in the petitions which are,  accordingly, dismissed. The interim order, if any,  stands vacated.

There shall be no order as to costs.

Dt/-

Sharma  


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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