RAMESH SINGH versus THE STATE OF UTTAR PRADESH AND ANR. on 3 March 2020

1. The appellant was posted as Zila Basic Shiksha Adhikari, DistrictBasti in January 2003. The appellant was the In-charge District BasicEducation Officer Gorakhpur, when he issued appointment letters to400 candidates holding B.Ed. degrees to the post of Assistant Teachersin Basic Schools (Primary Schools) in District Gorakhpur, and 121candidates in District Basti during April to June 2003.

2. The State vide Office Order dated 24.07.2003 placed theappellant under suspension, and directed a disciplinary/departmentalenquiry to be conducted under the Uttar Pradesh Civil Service (Disciplineand Appeal) Rules, 1999. The State appointed the Joint Director, BasicEducation as the Enquiry Officer.

The Charge Sheet was filed on 21.08.2003 wherein it was allegedthat the appointments of Assistant Teachers made by the appellant wereirregular, as they were in violation of Rules 16 and 19(3) of the U.P.Basic Education (Teachers) Service Rules, 1981 (“1981 Rules”).

3. The appellant submitted his reply to the charge sheet on09.11.2003 denying the charges levelled against him. It was contendedthat the appointments were made by him in compliance with earlier orderspassed by the High Court, and directions from senior functionaries.

4. The enquiry officer found the appellant guilty of the chargeslevelled against him in the charge sheet. The Report of the EnquiryOfficer was forwarded to the Disciplinary Authority on 19.06.2004.

5. The appellant challenged the order of suspension by way ofW.P. (C) 52287/2005, wherein the High Court vide interim Order dated28.07.2005 granted stay of the order of suspension.

6. During the pendency of the Writ Petition, the Deputy Secretary,Basic Education Department vide Order dated 10.01.2006 proposedpunishment of removal from service.

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1120SUPREME COURT REPORTS

AThe appellant challenged the Order dated 10.01.2006 by filingW.P. (C) No. 14083/2006, wherein vide interim order dated 08.03.2006,the High Court directed stay of the aforesaid Order of proposedpunishment.

7. On the basis of the enquiry report, the Government decided toBaward major punishment of removal from service under the provisionsof the U.P. Civil Service (Discipline and Appeal) Rules, 1999, andreferred the matter to the Uttar Pradesh Public Service Commissionvide Government Order dated 17.10.2005. The U.P. Public ServiceCommission approved the punishment of service to the appellant videletter dated 21.12.2006. The order of removal from service was passedCby the Governor dated 21.04.2008.

8. The appellant challenged the Order of Removal in W.P. (C)No. 28842/2008, wherein the High Court vide interim order dated20.06.2008 directed that the operation, implementation and execution ofthe order of dismissed dated 21.04.2008 shall remain stayed.DSubsequent to the interim order, the State Government withdrewthe proposed order of punishment on 19.05.2010.

As a consequence, the High Court dismissed the Writ Petition on25.05.2010 with the observation that the disciplinary proceedings mayEbe concluded in accordance with law, preferably within a period of 6months. The appellant was directed to co-operate with the disciplinaryproceedings.

9. The disciplinary authority issued a second show cause noticealong-with the enquiry report.FThe appellant inter alia submitted that conditional appointmentshad been made against fixed pay scale pursuant to the orders of thecourt, and pressure from the government. All appointments made weredeclared void ab initio. The enquiry was conducted without affordingany opportunity of hearing and adducing evidence through production ofwitnesses.G

10. The disciplinary authority granted a personal hearing to theappellant.

The disciplinary authority found all the charges proved againstthe appellant, and passed an order of removal from service on 27.06.2017.

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11. The appellant challenged the order dated 27.06.2017 by wayof Writ A. No. 31098/2017 before the Allahabad High Court.

The High Court vide the impugned judgment and order dated10.05.2018 partly allowed the Writ Petition.

The High Court held that the enquiry officer had not recordedany finding as to whether the appellant was given a notice intimating thedate, time and place of holding the oral enquiry. The appellant hadexpressly taken the plea that the enquiry officer had not afforded anyopportunity of hearing. The disciplinary authority while passing the orderof punishment overlooked the mandatory requirement of holding a validenquiry by complying with the principles of natural justice.

In these circumstances, the High Court felt that it would not beappropriate to consider the contention of the appellant that theappointments were made in compliance with the order passed by HighCourt and pursuant to the directions of the higher authorities, since itwould require appreciation of the evidence on record.

The High Court, however, rejected the contention that the enquiryofficer was biased, as there was no material on record to reveal anyelement of bias on part of the enquiry officer.

The Court rejected the contention of the appellant for parity withthe case of K.C. Bharati who had been awarded a lesser punishmentof withholding one increment for one year, and a censure entry in hisservice record.

The High Court concluded that since the enquiry was held inviolation of the principles of natural justice, the order of dismissal fromservice dated 27.06.2017 was liable to be quashed. The matter wasremitted to the disciplinary authority to hold the enquiry afresh from thestage of charge sheet. It was further directed that the appellant shall betreated under suspension, during the pendency of the enquiry and shallbe paid subsistence allowance as per the Rules.

The Court deprecated the casual and callous manner in which thedisciplinary authorities had acted in conducting an enquiry into graveallegations of corruption of such a magnitude where hundreds ofappointments were made by the appellant, without following the dueprocess of law. A direction was issued to the disciplinary authority toappoint an enquiry officer with the approval of the Chief Minister, whoshould be apprised of the outcome of the disciplinary proceedings.

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12. Aggrieved by the said judgment, the appellant filed the presentSpecial Leave Petition before this Court. This Court vide Order09.07.2018 issued notice on whether the appellant should be continuedon suspension, and whether the disciplinary authority should report thematter to the Chief Minister.

Pursuant to the impugned judgment, the State granted sanctionvide Office Memo dated 11.10.2018 to re-conduct the enquiry from thestage of the charge sheet.

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By a further order dated 31.10.2018, this Court ordered stay ofthe operation of the Office Memo dated 11.10.2018.

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13. We have heard learned counsel for the parties, and perusedthe record.

The issue which arises for our consideration is whether theappointment letters issued to 521 candidates who were B.Ed. degreeholders for the post of Assistant Teachers, was conducted de hors theDmandatory procedure prescribed by the Rules.

14. The counsel for the appellant submitted that the continuedsuspension of the appellant was not justified, and that his client had madethe appointments pursuant to an earlier order of the High Court, and alsoinstructions from higher authorities.

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14.1. Reliance was placed on a letter dated 10.04.2003 addressedby the Secretary, Basic Education, Government of U.P. to all the DivisionalAssistant Directors of Education (Basic) U.P, wherein it was directedthat orders passed by the High Court in connection with appointment ofteachers be complied by the District Basic Education Officers.F

14.2. It was further submitted that vide letter dated 18.4.2003,the appellant had requested the Director Basic Education, U.P. to issuedirectives for appointment of candidates to the post of Assistant Teachersin schools, who held qualifications of B.Ed./L.T./B.P.Ed./C.P.Ed.

14.3. By a further letter dated 21.04.2003, the appellant informedGthe Secretary, Basic Education, Govt. of U.P. that there were posts ofTeachers lying vacant in District Gorakhpur, and there was no provisionfor appointment of candidates holding qualifications of B.Ed./L.T./B.PEd./C.P.Ed. to the post of Assistant Teachers.

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14.4. The appellant subsequently issued a notification dated25.04.2003 stating that a decision was taken to issue appointment ordersto candidates with B.Ed./L.T. pursuant to discussions with the ChiefMinister, and the Minister for Basic Education, Secretary, BasicEducation, Govt. of U.P. held on 23.04.2003. It is also mentioned that hewas given directions that if the appointments were not made immediately,departmental proceedings would be initiated against him.

14.5. Accordingly, the appellant made appointments to 521 postsof Assistant Teachers in Basic Schools during the period May to June2003.

14.6. It was further submitted that the appellant sought the adviceof the Chief Standing Counsel for the State of U.P.

The Chief Standing Counsel vide letter dated 01.05.2003 statedthat the Government Order dated 10.04.2003 was general in nature.The appellant was advised to take a decision with the consent of theGovernment since such cases may affect the State in similar cases.

14.7. The appellant addressed another letter dated 06.05.2003 tothe Secretary, Basic Education Council seeking instructions on whetherthe appointment of candidates holding higher qualifications of B.Ed./L.T./B.PEd./C.P.Ed. could be made in accordance with the High Courtorders/directives.

14.8. The Secretary Basic Education vide Order dated 28.05.2003directed all Divisional Assistant Director (Basic Education) to makeappointments of candidates to the post of Teachers only in those casesin which final/interim orders had been passed by High Court by02.06.2003.

14.9. The appellant placed reliance on an earlier judgment of thedivision bench of the Allahabad High Court in Special Appeal No. 21(SB)/1993. The High Court took note of an earlier judgement in Firoz AlamKhan v. State of U.P. & Ors. 1986 UP LBC 674 wherein it was directedthat if sufficient number of B.T.C. trained candidates were not availablefor appointment as Assistant Teachers in the Basic Schools, the candidateswho qualified for appointment as stated in the advertisement could beappointed.

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AThe High Court in that case had referred to the judgement of thisCourt in Mohd. Riazul Usman Ghani and Ors. v. District & SessionsJudge, Nagpur[1], wherein it was held as under:

“21. A criterion which has the effect of denying a candidatehis right to be considered for the post on the principle that heBis having higher qualification than prescribed cannot berational. We have not been able to appreciate as to why thosecandidates who possessed qualifications equivalent to SCCExamination could not also be considered. We are saying thison the facts of the case in hand and should not be understood”as laying down a rule of universal application.C

[emphasis supplied]

15. We have perused the Uttar Pradesh Basic Education (Teachers)Service Rules, 1981, which lays down the procedure for appointment ofAssistant Teachers in basic schools in U.P.

DSub-rule (1)(b) of Rule 2 defines the “competent authority” asunder:

“(b) ‘Appointing Authority’ in relation to teachers referred toin Rule 3 means the District Basic Education Officer”

Rule 8 prescribes the academic qualifications for the post ofEAssistant Teachers as:

“8. Academic qualifications. - (1) The Essential qualificationsof candidates for appointment to a post referred to in clause(a) of Rule 5 shall be shown below against each :

FPost

Academic Qualifications

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(ii) Assistant Master and Assistant Mistress of Junior Basic Schools G

H1 (2000) 2 SCC 606

A Bachelor’s Degree from a University es ta blishe d by law i n I ndia or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher’s Certificate, Vishshit Basic T eache r’s Certificate (B.T.C), Hin dustan i tea ch er’ s Ce rtific ate, J u n i o r T e a c h e r ’ s C e r t if ic a te , Ce rtific ate of t eac hing or any other Training C ourse re cognized by the Gov ernme nt as equivalent thereto.

RAMESH SINGH v. THE STATE OF UTTAR PRADESHAND ANR. [INDU MALHOTRA, J.]

Rule 16 provides for constitution of the Selection Committee formaking appointments to any post under these Rules :

“16. Constitution of Selection Committee – For selection ofcandidates for appointment to any post under these Rules,there shall be constituted a Selection Committee comprising –

a) Principal, District Institute of–Chairman Education and Training

b) District Basic Education Officer –Member -Secretary

c) Principal, Government Girl’s–Member Intermediate College at the District Head-quarters

d) District Non-Formal Education–Member

Officer)

f) One Specialist in Hindu, Urdu–Member or other languages, as the case may be, nominated by District Magistrate …”

Rule 19(3) provides that no appointment shall be made exceptupon the recommendation of the Selection Committee.

“19. Appointment. –

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(3) No appointment shall be made except with therecommendation of the Selection Committee, and in the caseof direct recruitment except on production of residencecertificate issued by the Tahsildar.”

[emphasis supplied]

16. A perusal of the aforesaid Rules reveals that the appellant asthe District Basic Education Officer, being the appointing authority wasempowered to make appointments only on the basis of recommendationsof the Selection Committee as contemplated by Rules 16 and 19(3) asset out hereinabove.

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AIt is the case of the Respondent-State that the appellant made theappointments without complying with the 1981 Rules. Serious allegationsof corruption have been raised against the appellant by the state, whichwould require determination in a full-fledged enquiry by the disciplinaryauthority. It is pertinent to note that all these appointments were declaredto be void ab initio by the State, as mentioned in the appellant’s replyBdated 04.12.2012 to the second show cause notice.

The plea of the appellant that the appointments were made incompliance with an earlier order passed by the High Court, and underthe directions of senior functionaries, would require to be considered inthe enquiry.C

17. We uphold the impugned judgment passed by the High Courtin remitting the matter to the disciplinary authority, which would beconducted from the stage of the charge sheet. The disciplinary authoritywill conduct the enquiry in accordance with the principles of naturaljustice, after giving a full opportunity of hearing to the appellant, who willDbe allowed to produce both oral and documentary evidence. Nounnecessary adjournments will be granted to the parties.

The appellant will continue to remain under suspension during theperiod of enquiry. The enquiry is directed to be completed within a periodof 4 months.E

We modify the impugned judgement to the extent that the enquiryofficer be appointed by the Chief Secretary.

Let a copy of this order be despatched to the Chief Secretary.

It is clarified that there is no expression of any opinion on theFmerits of the case.

The Civil Appeal is dismissed.

Pending Applications, if any, are accordingly disposed of.

Ordered accordingly.

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Ankit Gyan

Appeal dismissed.

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