JUDGMENT A.P. Sahi, J.
1. The petitioner has challenged the order dated 19.11.1984 passed by the District Inspector of Schools, Deoria whereby a direction has been issued by the District Inspector of School, the Manager of the Institution that the post against which the petitioner has been appointed and approved, was to be filled up by promotion, in view of the directions of the Director of Education U.P. and the Deputy Director of Education, VIIth Region, Gorakhpur. The order also recites, that in case the proposal of promotion is not received within a week, the approval to the appointment of the petitioner shall stand annulled. It further states that it shall be open to the petitioner to request the Principal of the institution for his appointment as a class IV employee.
2. The order has been challenged on the ground that the impugned order was passed without giving any notice or opportunity to the petitioner, that the District Inspector of Schools had no authority to review the order and that the conclusion drawn by the respondents that the post ought to have been filled up by promotion, is founded on an erroneous assumption of law. Learned counsel for the petitioner Sri Neeraj Tripathi has relied upon the decision of this Court in the case of Kedar Nath Maurya v. DIGS and Ors. reported in 1995 AWC 744 to support the last submissions.
3. Sri R.C. Dwivedi, learned counsel for respondent No. 3 has resisted the petition by relying upon the decision of this Court reported in 2001 ALR 565- A.K. Tiwari v. State of U.P.
4. The facts of the case lie in a very short compass.' The institution in question is an Intermediate College duly recognized and governed by the provisions of U.P. Intermediate Education Act and Regulations framed thereunder. It is admitted to the petitioner that there are four posts of clerk, including the post of head clerk sanctioned in the institution. From a perusal of the facts stated in paragraph 4(b) of the counter affidavit of respondent No. 3 and paragraph 4 of the rejoinder affidavit of the petitioner filed in reply to the same it is evident that Sri Ravi Ram Singh was working as head clerk in the institution, who retired on 30.6.1979. Sri Ram Naresh Prasad, who was the assistant clerk, was promoted as head clerk in July 1979. Thus, on the date when the dispute arose Sri Ram Naresh Prasad had been appointed by way of promotion to the post of head clerk. Sri Sachendra Nath Pandey, who was a peon in the institution was promoted as an assistant clerk in the vacancy caused by the said Sri Ram Naresh Prasad on 9.1.1980. One Ram Narain Chaturvedi was also occupying the post of assistant clerk, who had been appointed by direct recruitment. Similarly, Sri Vindhyachal Prasad Gupta had also been appointed by direct recruitment. The aforesaid facts clearly establish that out of four posts, including the post of head clerk, two posts were being occupied by way of promotion one that of Ram Naresh Prasad and the other of Sachendra Nath Pandey. The other two posts had been occupied by direct recruitees, namely, Ram Narain Chaturvedi and Vindhyachal Prasad Gupta.
5. Sri Vindhyachal Prasad Gupta died on 19.4.1984 in harness. The petitioner is the son of Sri Vinchaychal Prasad Gupta and he approached the management for being given appointment on compassionate basis under the government order dated 23.9.1981. The committee of management passed a resolution in favour of the petitioner and forwarded the same to the DIOS. The DIOS made certain queries, including the representatiop of the respondent Prakash Chandra Dubey claiming promotion, and that of one Sri V.B. Pandey who was also claiming appointment on compassionate basis. The Manager sent a detailed reply satisfying the DIOS on all issues vide letter dated 14.8.1984. The DIOS has approved the appointment of the petitioner vide order dated 27.8.1984 and extended the benefit of financial sanction to the petitioner from the date of issuance of the order.
6. It appears that the respondent No. 3 approached the Director of Education who sent some letters to the DIOS whereupon the DIOS issued a show cause notice to the Manager of the institution on 15.10.1984, The petitioner has clearly stated that he was never put to ' notice about any such proceeding being initiated and as such the petitioner did approach the respondent for information in this regard, but the same was not supplied to the petitioner for the reasons best know to the respondents. It has been clearly averred in paragraph 19 of the writ petition that the respondent-DIOS did not provide any opportunity prior to the passing of the impugned order dated 19.11.1984. Aggrieved, the petitioner filed the instant writ petition which was admitted by this Court and operation of the order dated 19.11.1984 was stayed.
7. Having heard learned counsel for the parties, what is evident is that the fact, that the petitioner was not given any opportunity of hearing prior to the passing of the impugned order dated 19.11.1984, is admitted to the DIOS in paragraph 13 of his, counter affidavit, wherein it has been stated, that opportunity of hearing has to be given only when a proposal of termination of the services of an employee is sent by the committee for approval to the DIOS, and as such there was no question of giving any opportunity to the petitioner The respondent no, 3 has stated in paragraph 13 of his counter affidavit that he had no knowledge with regard to the allegations contained in paragraph 16 of the writ petition and so far giving of opportunity was concerned, the management had been given full opportunity and that the petitioner was not entitled for any opportunity of being heard. It is thus clear from the pleadings of the parties that the petitioner was not given any opportunity of hearing prior to the passing of the impugned order. It is to be noted that the impugned order meets the petitioner with severe civil consequences. It seeks in effect, to cancel the approval already made in his favour on 27.8.1984, The effect of the impugned order is to nullify the appointment of the petitioner as a clerk in the institution and which seriously prejudices his right as such. Accordingly, there cannot be a second opinion on this issue, except, that the impugned order stands vitiated for having been passed in violation of principles of natural justice and, therefore, the order is unsustainable.
8. Taking the second issue canvassed by the petitioner, at hand, it is obvious that proceedings had already culminated with the approval of, the petitioner's appointment by the DIOS on 27.8.1984 The DIOS became functious officio thereafter unless it could be demonstrated that the appointment was obtained by any act of fraud or misrepresentation. There did not lie any power with the DIOS to review the matter. From a perusal of the order it is obvious that proceedings were initiated at the instance of the Director of Education which fact is also evident from a perusal of the counter affidavit of the DIOS. There is no material on record to demonstrate that there was either any fraud or misrepresentation by the committee of management. On the contrary, the explanation of the committee of management rendered on 14.8.1984 is in detail explaining every thing, and which, in the opinion of the Court, cannot be construed, to contain any element of fraud or misrepresentation on any fact. The fact of existence of the post and availability of promotion quota was clearly spelled out. The impugned order also does not contain any such finding. In absence of any such element of fraud or misrepresentation, it was not open to the DIOS to have proceeded at the behest of the Director of Education. The Director of Education also did not enjoy any such power so as to reopen the issue. In the event, a party was aggrieved and was under the impression that the order of approval of the petitioner was erroneous in law, it could have been challenged, which admittedly was not done. In view of this, review at the behest of a higher authority, namely, Director of Education was impermissible in law Reliance has rightly been placed on the case reported in 1984 UPLBEC 21. Reference may also be had to the decision of this Court reported in 1978 AWC 40 and 1996 AWC 123. It was not a case of simple mistake which could have been corrected, treating to be an error apparent on the face of the record.. This proposition is by now well settled and another decision which deserves to be taken note of is that of Kuntesh Gupta v. Kanpur University and followed in 1993 ALJ 1120. Accordingly, the petition must succeed on the second ground as well, to which no effective reply has been given by the respondents.
9. The third issue canvassed between the parties with regard to the existence of number of posts available for promotion is on the basis of the judgment relied upon by the counsel referred to in the opening paragraph of this judgment. Learned counsel for the petitioner has relied upon the decision in the case of Kedar Nath Maurya (supra) which is a clear case of the same nature on facts as in the present case.
10. This Court clearly ruled that the post of head clerk has to be counted together with all the clerks for the purpose of computing 50% quota. Paragraph 4 of the said judgment contains the reasoning in support of the aforesaid conclusion. On the other hand, learned counsel for the respondent placed his reliance in the case of Ashok Kumar Tiwari v. State of U.P. and Ors. reported in 2001 (42) ALR 565. The Court on the facts of that case came to the conclusion, that the post that was being claimed, could not be filled up by the management by direct recruitment and had to be filled up by promotion. The aforesaid decision no where over rules or takes a different view from that of the decision relied upon by the petitioner. As a matter of fact, the case of Kedar Nath Maurya has not been referred to in the said decision which is directly on the point. Accordingly, the writ petition must succeed on this ground as well. The petitioner, therefore, is right in impeaching the order on all the grounds raised in the petition.
11. The writ petition, therefore, succeeds and is allowed and the impugned order passed by the DIGS dated 19.11.1984, Annexure-6 to the writ petition is hereby quashed. There-shall be no orders as to cost.