Allowed

Rajeev Kumar and Anr. v. State of U.P. and 3 Ors.

Allahabad HC8 Aug 2019WRIA/33056/2016

Case brief

AI extract

What is this about?

A single judge allowed a writ petition challenging an order rejecting appointment, holding it unsustainable as it was passed without an opportunity of hearing. The court emphasized that natural justice is flexible but requires being heard before adverse decisions. The matter was remanded to the respondent for fresh consideration after affording a hearing.

What did the court decide?

Writ petition allowed; order dated 06.2.2018 set aside. Matter remanded to respondent no. 3 to pass a reasoned order within three months after affording opportunity of hearing.

Rajeev Kumar and Anr. Vs State of U.P. and 3 Ors. — Service and Employment | Allahabad HC (2019)

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Court No. - 2

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Case :- WRIT - A No. - 33056 of 2016

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Petitioner :- Rajeev Kumar And Anr. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Amit Kumar Srivastava,Adarsh Bhushan Counsel for Respondent :- C.S.C.,Arpan Srivastava,Bhupendra Kumar Yadav

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Hon'ble Prakash Padia,J.

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Heard Sri Anil Bhushan, learned Senior Advocate assisted by Sri Amit Kumar Srivastava, learned counsel for the petitioners, learned Standing Counsel for the respondent nos.1 and 2, Sri B. K. Yadav, learned counsel for the respondent no.3 and Sri Arpan Srivastava, learned counsel for the respondent no.4.

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Affidavits have already been exchanged between the contesting parties.

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With the consent of the parties, the present writ petition is being disposed off at admission stage itself.

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The petitioner has preferred the present writ petition challenging the order dated 6.2.2018 passed by the District Basic Education Officer, Firozabad/respondent no.3, copy of which is appended as annexure 11 to the writ petition.

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During course of arguments it is submitted by the learned Senior Counsel that one teacher Rohit Pachauri filed Writ Petition No.3523 of 2017 (Rohit Pachauri Vs. State of U.P. and 3 others) which was allowed on 9.1.2019, matter was remanded to respondent B.S.A.to consider and pass appropriate order within three months. Pursuant to order dated 9.1.2019 District Basic Education Officer approved the appointment of Rohit Pachauri vide its order dated 4.5.2019.

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The facts as asserted in the writ petition in brief are that Sarojni Naidu Junior High School, Bodh Ashram, Firozabad is a recognized and aided junior high school (herein after referred to as 'institution'). The institution in question is governed by the provisions of U.P. Basic Education Act, 1972 and the rules, namely, U.P. Junior High School (Payment of Salary of Teachers and other Employees) Act, 1978. In the institution in question certain

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vacancies were there, namely, one the post of Headmaster and three posts of Assistant Teachers. In this regard a letter dated 21.12.2015 was written by the institution to the District Basic Education Officer, Firozabad seeking permission to fill up the aforesaid vacancies. The District Basic Education Officer, Firozabad vide its order dated 08.01.2016 granted permission to the institution to fill up the said vacancies. Pursuant to the aforesaid permission, the management of the institution proceeded to advertise the vacancies by inviting applications for filling up the post. Advertisements were made in two daily newspapers, namely, 'Aaj' and 'Dainik Sach' both dated 06.02.2016.

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The petitioners, being fully qualified and eligible, applied in pursuant to the aforesaid advertisement. A meeting of the selection committee was scheduled on 20th March, 2016. Intimation to the same was given by the institution to the District Basic Education Officer, Firozabad. In response to the same the District Basic Education Officer, Firozabad appointed Khand Shiksha Adhikari (H.Q.) as his nominee to participate in the meeting as a member of the selection committee vide its letter dated 10th March, 2016.

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The meeting of the selection committee had taken place on 20th March, 2016, in which the petitioners also participated along with other candidates. The petitioner no.1 was selected for the post of Assistant Teacher for Hindi/Sanskrit and petitioner no.2 was selected for the post of Assistant Teacher for Science. Subsequent to the selection, papers regarding selection were forwarded by the manager of the institution to the District Basic Education Officer, Firozabad along a covering letter dated 28.03.2016 for the grant of approval. These papers were received in the office of the District Basic Education Officer, Firozabad on 07.04.2016. In spite of the same, no orders were passed either for approval or disapproval of the selection within a period of one month, as stipulated under Rule 10(5)(iii) of the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978, resulting in deemed approval of the selection. Treating the approval as deemed approval in terms of the aforesaid provision, the petitioners were directed by the management on 11th May, 2016 to join the institution. According to the petitioners, they joined the institution and started functioning with effect from 11th May, 2016. However, the petitioner was not paid salary.

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It transpires that the District Basic Education Officer, Firozabad sought certain information from the Deputy Registrar, Firms, Societies and Chits, Firozabad with regard to the name of the society, which was provided by the Deputy Registrar, Firms, Societies and Chits, Firozabad, which has nothing to do with the selection of the petitioner.

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Present writ petition was heard on 4.1.2018 and the court directed the respondent no.3 to take decision with regard to grant of approval to the appointment of the petitioners. Pursuant to order dated 4.1.2018, District Basic Education Officer rejected the claim of the petitioners vide order dated 6.2.2018 then petitioners moved an amendment application to challenge the aforesaid order dated 6.2.2018.

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It was argued on behalf of the petitioner that before passing the orders impugned dated 06.02.2018 no notice or opportunity has been given to the petitioners. It is contended by the learned counsel for the petitioners that the selection of the petitioners are deemed to be approved in terms of the provisions contained under Rule 10(5)(iii) of the 1978 Rules. It is further contended that the representation along with documents submitted by the petitioner was not taken into consideration by the District Basic Education Officer, Firozabad while passing the order dated 06.02.2018.

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Sri Anil Bhushan, Senior Advocate submits that there does not exist any dispute regarding the existence of the vacancy. He submits that before filling up the post, the procedure prescribed in the Rules was duly followed but on account of mala fide reasons the order was passed by the District Basic Education Officer, Firozabad, which is liable to be quashed.

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It is admitted by the learned counsel for the respondents Sri B.K. Yadav, who has put in appearance on behalf of respondent no.3, that the order impugned was passed by the District Basic Education Officer, Firozabad without providing any opportunity of hearing and the interest of justice would be served if the matter is remanded back to the respondent no. 3 with a direction to decide afresh strictly in accordance with law.

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It is settled law that principles of natural justice have to be applied with. One of the principles of natural justice is audi alteram partem. It is equally well-settled that the concept of "natural justice" is not a fixed one. It has many

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colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the straitjacket of a rigid formula. In the case of Raj Pal Singh vs. State of U.P., reported in 2018(3) ESC 1531 (All)(DB)(LB) , this Hon'ble Court, while dealing with the matter, has referred as under:-

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"26. Before about six decades, in Russell v. Duke of Norfolk [(1949) 1 All ER 109 : 65 TLR 225 (CA)] , Tucker, L.J. stated: (All ER p. 118 D- E) "... There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."

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27. In the oft quoted passage from Byrne v. Kinematograph Renters Society Ltd. [(1958) 1 WLR 762 : (1958) 2 All ER 579] , Lord Harman enunciated: (All ER p. 599 D-E) "What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more."

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(emphasis supplied)

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28. This Court has also taken similar view. In Union of India v. P.K. Roy [AIR 1968 SC 850 : (1968) 2 SCR 186] , speaking for the Court, Ramaswami, J. observed: (AIR p. 858, para 11) "11. ... the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case."

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29. In the leading case of A.K. Kraipak v. Union of India [(1969) 2 SCC 262] , Hegde, J. stated: (SCC pp. 272-73, para 20) "20. ... What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."

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30. Again, in R.S. Dass v. Union of India [1986 Supp SCC 617 : (1987) 2 ATC 628], this Court said: (SCC p. 635, para 25) "25. It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case."

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31. At the same time, however, effect of violation of the rule of audi alteram partem has to be considered. Even if hearing is not afforded to the person who is sought to be affected or penalised, can it not be argued that "notice would have served no purpose" or "hearing could not have made difference" or "the person could not have offered any defence whatsoever". In this connection, it is interesting to note that under the English law, it was held few years before that noncompliance with principles of natural justice would make the order null and void and no further inquiry was necessary.

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32. In the celebrated decision of Ridge v. Baldwin [1964 AC 40 : (1963) 2 WLR 935 : (1963) 2 All ER 66 (HL)] it was contended that an opportunity of hearing to the delinquent would have served no purpose. Negativing the

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contention, however, Lord Reid stated: (All ER p. 73 F-G) "It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse."

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(emphasis supplied)

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33. Wade and Forsyth in their classic work, Administrative Law, (9th Edn.) pp. 506-09 also stated that if such argument is upheld, the Judges may be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. "But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudiced unfairly."

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(emphasis supplied)

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34. This Court expressed the same opinion. In Board of High School & Intermediate Education v. Chitra Srivastava [(1970) 1 SCC 121] , the Board cancelled the examination of the petitioner who had actually appeared at the examination on the ground that there was shortage in attendance at lectures. Admittedly, no notice was given to her before taking the action. On behalf of the Board it was contended that the facts were not in dispute and therefore, "no useful purpose would have been served" by giving a show-cause notice to the petitioner. This Court, however, set aside the decision of the Board, holding that the Board was acting in a quasi-judicial capacity and, therefore, it ought to have observed the principles of natural justice.

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35. In S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] , rejecting the argument that observance of natural justice would have made no difference, this Court said: (SCC p. 395, para 24) "24. ... The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of

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natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.

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(emphasis supplied)

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36. The recent trend, however, is of "prejudice". Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant."

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In view of the facts and circumstances of the case and the provisions of law, as stated above, I think that the order passed by the District Basic Education Officer, Firozabad dated 06.2.2018 is legally not sustainable.

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Accordingly, the orders dated 06.2.2018 is hereby set aside.

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The matter is remanded to the respondent no. 3 to consider afresh and to pass an appropriate reasoned speaking order strictly in accordance with law, after affording opportunity of hearing to the parties concerned, preferably within a period of three months from the date of presentation of a certified copy of this order before him.

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With the aforesaid observations/directions, the writ petition is allowed.

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Order Date :- 8.8.2019 Pramod Tripathi

Rajeev Kumar and Anr. v. State of U.P. and 3 Ors.

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Rajeev Kumar and Anr. v. State of U.P. and 3 Ors.

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