Allowed

Dilip Kumar Prajapati and Another v. State of U.P. and 4 Others

Allahabad HC2 Nov 2022WRIA/5967/2021

Case brief

AI extract

What is this about?

Court quashed an order rejecting the petitioner's appointment as an Assistant Teacher. The rejection was based on new grounds raised in a subsequent order, which the Court held impermissible after a previous judgment limited the inquiry to a specific clerical error and found the earlier rejection to be non-application of mind.

What did the court decide?

Impugned order dated 21.1.2021 quashed. Respondent directed to pass fresh order within one month and pay dues within three months with 8% interest.

Dilip Kumar Prajapati and Another Vs State… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 36

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Case :- WRIT - A No. - 5967 of 2021

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Petitioner :- Dilip Kumar Prajapati And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Anil Kumar Yadav Counsel for Respondent :- C.S.C.,Manoj Yadav

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Hon'ble Saumitra Dayal Singh,J.

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Heard learned counsel for the petitioners, Sri Manoj Yadav learned counsel for the Committee of Management and the learned Standing Counsel for the State respondents.

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Challenge has been raised to the order dated 21.1.2021 passed by the Regional Level Committee/respondent No. 2 rejecting the claim of the petitioner regarding approval sought to their appointment as Assistant Teacher in primary section attached to the Veer Shivaji Intermediate College, Sarhari, District Gorakhpur.

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To cut the controversy short, earlier the approval sought to the appointment of the petitioner was declined by order dated 07.3.2019. Petitioners filed Writ-A No. 1036 of 2020, Dilip Kumar Prajapati and another Vs. State of U.P. and Others. It was disposed of by following order dated 19.2.2020:-

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"1. Heard Sri Anil Kumar Yadav, learned counsel for the petitioners and the learned standing counsel for the State-respondents.

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On 31.01.2020, this court passed a detailed order as under:

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"Heard Sri Anil Kumar Yadav, learned counsel for the petitioner and the learned standing counsel for the respondents.

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Undisputedly, the respondent no.5 invited the application for recruitment on the post of three Assistant Teachers. The advertisement was published in largely circulated daily newspapers "Aaj" and "Swatantra Bharat". Several persons

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applied pursuant to the said advertisement. There is no procedural irregularity or any illegality either in the advertisement or in process of selection. A four member board was constituted for selection purposes consisting of the Chairman Selection Committee, namely, the Manager, Sri Gulab Chandra Yadav, Parvekshak/Member, Associate District Inspector of Schools Gorakhpur, namely, Sri Bahadur Singh Chauhan, Member/Principal of the respondent no.5 institution, namely, Sri Harishchandra Dwivedi and the a Member of Scheduled Caste i.e. the Principal, Rajkiya High School, Gangtaheeh Sahajanava, namely, Sri Ramnagina Bhartiya. There is no dispute that this Board was validly constituted which conducted the selection process. Interview was taken by all the four members of the Selection Committee. Copies of marks obtained by each candidate on the basis of their educational certificates and training were compiled in one sheet (page 89 of the writ petition) which bears signatures of all the members of the Selection Committee. Marks awarded in the interview to each candidate who appeared in interview were separately recorded in separate sheets by each member of the Selection Committee. These four sheets have also been filed as Annexure 4 to the writ petition (pages 90 to 93) which bears signature of the concerned member of the Selection Committee. Thereafter the marks given by each member of the Selection Committee in interview were compiled by the Selection Committee in one sheet (page 94 of the writ petition) which bears signatures of all the members of the Selection Committee. Thereafter a merit list was prepared under the joint signature of all the members of the Selection Committee (page 95 of the writ petition) as per which the marks secured by the successful candidates and one Sri Pratibha Mall are as under :-

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Sl. No.	Name	Marks on the basis of Educational Certificates and training	Marks obtained interview	Total	Place on merit
1.	Swastika Yadav	61.74	70.50	132.24	I
2.	Dilip Kumar Prajapati	60.35	70.25	130.64	II
3.	Miraj Ahmad	57.21	72.25	129.46	III

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4.	Pratibha Mall	70.89	57.75	128.64	I-
					waiting

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It appears that due to typographical error in the sheet compiled by the Selection Committee the marks of Miraj Ahmad secured in interview was also mentioned against the name of Pratibha Mall i.e. 72.25 instead of 57.75. This created the whole problem and which has been made basis to pass the impugned order dated 07.03.2019. On the basis of this typographical error the Committee consisting of D.I.O.S., Deputy Director of Education Madhyamik VII Region, Gorakhpur, and Joint Director of Education VII Region, Gorakhpur, who passed the impugned order, formed an opinion that the selection process was erroneous and not transparent. Not a single reason has been recorded in the impugned order to come to this conclusion except the aforesaid typographical error. The correctness or genuineness of the sheets of marks awarded on the basis of educational certificate and training bearing signatures of all the members of the Selection Committee and separate sheets of interview conducted by each member of the selection committee and the compilation sheets of marks of interview and compilation sheets of total marks bearing signatures of all the members of Selection Committee have neither been doubted nor any illegality has been pointed out therein by the impugned order. Under the circumstances, prima faice, the impugned order appears to be the result of non application of mind or an abuse of power by the Regional Committee consisting of the District Inspector of Schools, Gorakhpur, Deputy Director of Education Madhyamik VII Region, Gorakhpur and the Joint Director of Education VII Region, Gorakhpur, to pass the impugned order dated 07.03.2019 declining to grant financial approval to the appointments of the petitioners.

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In view of the aforesaid, the respondent no.2 is directed to file a short counter affidavit by means of his personal affidavit to justify the impugned order. The respondents while filing the short counter affidavit shall annex therewith copies of all the relevant papers which they may intend to rely in support of their case. The short counter affidavit shall be filed on or before the next date fixed failing which the respondent no.2 shall remain personally present before this Court.

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Put up in the additional cause list on 05.02.2020."

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The personal affidavit dated 05.02.2020 of Sri Yogendra Nath Singh, Joint Director of Secondary Education, has been filed on behalf of the respondent No.2. In the aforesaid personal affidavit, the respondent No.2 has not said even a single word to justify the impugned order and grounds taken

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therein to reject the claim of the petitioners, despite the fact that this court in the order dated 31.01.2020 precisely mentioned the facts and the grounds of rejection taken in the impugned order.

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It appears that now the respondents want to supplement the impugned order on such alleged grounds which were not the basis to pass the impugned order. This is not permissible.

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In view of the aforesaid, the impugned order dated 07.03.2019 cannot be sustained and is hereby quashed. Respondent No.2 is directed to pass an order afresh in accordance with law, in the light of the observations made in the afore-quoted order dated 31.01.2020.

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The writ petition is disposed of. "

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4. While making compliance of the above order, impugned order

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has been passed containing following reasons:-

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“ekuuh; U;k;ky; bykgkckn ds ;kfpdk la0& 1036@2020 esa fn;s x;s vkns'k fnukad 19-02-2020 ds vuqikyu esa e.Myh; lfefr }kjk izdj.k dk iqu% ijh{k.k djus ij fuEukafdr fooj.k ds vuqlkj vafdr rF; Li"V rkSj ij ifjyf{kr gks jgs gS%&

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ftyk fo|ky; fujh{kd] xksj[kiqj ls izkIr iwokZuqefr ds i'pkr~ 02 nSfud lekpkj i=ksa ¼vkt ,oa Lora= Hkkjr½ ds vad fnukWd 06-11-2016 dks izdkf'kr mDr foKkiu ds ek/;e ls bPNqd vH;kfFkZ;ks ls vkosnu i= ekWxs x;sA ftuesa dqy 15 vH;fFkZ;ksa us mDr in ij fu;qfDr gsrq vkosnu fd;kA

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mijksDr vkosfnr vH;fFkZ;ks esa ls fuEu fooj.k ds vuqlkj vkosnu i= laLFkkf/kdkfj;ksa dks izkIr djk;s x;s rFkk mDr ds lkis{k mudh fu;qfDr] fu;qfDr izkf/kdkjh@ v/;{k p;u lfefr ¼izcU/kd] ohj f'kokth b.Vj dkyst ljgjh] xksj[kiqj½ }kjk Js"Brk yC/kkad ds vk/kkj ij mDr p;u lfefr }kjk fd;k x;k&

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Ø 0 la 0	vH;FkhZ dk uke	jftLVªh la0	jftLVªh dk fnukad
1-	Jh fnyhi dqekj iztkifr	EU635572172IN	11-11-2016] 19%01 xksj[kiqj vkj0,e0,l0&273012
2-	dq0 LokfLrdk ;kno	EU635572169IN	11-11-2016] 19%00 xksj[kiqj vkj0,e0,l0&273012
3-	Jh esjkt vgen	EU635572155IN	11-11-2016] 19%04 xksj[kiqj vkj0,e0,l0&273012

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mijksDr fooj.k ls Li"V gks jgk gS fd bu rhuks p;fur vH;fFkZ;ks dk vkosnu i= ,d gh Mkd?kj ls ,d gh frfFk vkSj ,d gh le; ij iathdr Mkd ls lqfu;ksftr rjhds ls izsf"kr fd;k x;k] ftuds Øekad Hkh ,d gh Ja[kyk ds gS] ftls egt ,d la;ksx ugha dgk ldrk gSA jftLVMZ vkosnu i= ds fyQkQksa dh Nk;kizfr dsoy bUgh 03 p;fur gksus

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okys vH;fFkZ;ks ds gh miyC/k djk;s x;s gS 'ks"k 12 vH;fFkZ;ks ds miyC/k ugha djk;s x;s gSA Ja[kyk dks ns[kus ls ,slk izrhr gks jgk gS fd muds vkosnu i= lEHkor% blh Øe esa fd;s x;s gksaxsA

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dqy izkIr 15 vH;fFkZ;ks ds vkosnu i=ksa ds lkis{k lk{kkRdkj esa dsoy 07 vH;FkhZ mifLFkr nf'kZr fd;s x;s gSA brus de vH;fFkZ;ks dk p;u izfØ;k esa mifLFkr gksuk Hkh p;u izfØ;k dks lUnsgkLin cukrk gSA bl izdkj ds p;u dh dk;Zokgh dks ikjn'khZ p;u izfØ;k ds vuqlkj ekU; fd;k tkuk fof/kd ifjyf{kr ugha gks jgk gSA

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fu.k;Z

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mijksDrkuqlkj ;kphx.kksa dh mDr fu;qfDr ekU; ,oa Lohdkj fd;s tkus ;ksX; ugha gSA vr,o ekuuh; mPp U;k;ky; esa ;ksftr ;kfpdk la[;k 1036@2020 es ikfjr vkns'k fnukWd 19-02-2020 ds vuqikyu esa ;kphx.kksa dk izR;kosnu fujLr dj fuLrkfjr fd;k tkrk gSA”

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Plainly, the reasoning now given in the order is wholly impermissible and in any case wholly incredible. The reasoning is impermissible in view of specific observations made in the earlier decision of the Court dated 19.2.2020 (quoted above). Perusal of the said order clearly reveals, the only defect found in the entire selection process was a typographical error in recording the marks obtained in interview by Ms. Pratibha Mall, who had inadvertently been shown to have secured 72.25 marks in interview though the marks actually awarded to her in that interview, as became apparent from perusal of the marksheets of individual members of the selection committee, were 57.75 only.

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At that stage, the Court had specifically found, other than the above typographical error there was no reason recorded in the impugned order (dated 07.3.2019) to doubt the legality, fairness or completeness of the selection process. That order was found to be a result of non application of mind and an abuse of the power vested in the Regional Level Committee. The counter affidavit filed in that writ petition also could not justify the same, to any extent.

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Further reason cited in the counter affidavit were disapproved by the Court and were found to be impermissible to be raised after

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making that observation in paragraph-4 of the order dated 19.2.2020. The Court then directed the Regional Level Committee to pass fresh order keeping in mind the observations made in the order dated 31.1.2020.

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Undisputedly, the aforesaid order of the Court dated 19.2.2020 has long attained finality. In absence of any challenge raised, there can be no denial to the fact that the order dated 19.2.2020 was an order of limited remand. It did not leave open to the respondent/Regional Level Committee to cull out any fresh ground to disapprove the approval to the appointment of the petitioners. Once the enquiry was to be made keeping in mind the observations made in the order dated 31.1.2020 and after making it plain that fresh grounds sought to be raised through the counter affidavit were impermissible, it never became open to the Regional Level Committee to look into any other or further ground to disapprove the appointment of the petitioners.

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Even otherwise the reasoning contained in the present impugned order (quoted above) is in itself wholly untenable. Merely because three candidates may have dispatched their applications from the same post office on the same date around same time may never be a reason to negate the fairness, legality or completeness of the selection process. It may be a matter of chance or otherwise. However, that fact could never be considered more than a suspicion voiced by the concerned. It may at most, if permitted in law, provoke an enquiry to establish whether all other candidates had been permitted to participate in the selection process. Clearly, that enquiry was never made. Relying solely on the submission of three application forms from the same post office on same date at about same time, the selection process has been found to be tainted.

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Findings such as this cannot be described in any way other than being perverse. It is neither based on any cogent material as may lead to such adverse inference nor it is complete in any manner to allow this Court to sustain such a reasoning. Consequentially, the impugned order dated 21.1.2021 is quashed. A mandamus is issued to the respondent to pass fresh order with regard to approval to the petitioners' appointment within a period of one month from today. Any amount found admittedly due and payable to the petitioner may be paid out within a period of three months, failing which same shall attract interest @ 8% from the date of initial appointment of the petitioners till actual payment.

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10. Writ petition accordingly stands disposed of.

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Order Date :- 2.11.2022 Faraz

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Digitally signed by FARAZ AHMAD Date: 2022.11.02 15:45:56 IST Reason: Location: High Court of Judicature at Allahabad

Dilip Kumar Prajapati and Another v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Dilip Kumar Prajapati and Another v. State of U.P. and 4 Others

Case brief

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