JUDGMENT M. Katju and D.R. Chaudhary, JJ.
1. By means of this writ petition, the petitioner has prayed for quashing the impugned order dated 9.12.98 (Annexure-11 to the petition) passed by respondent No. 1 by means of which petitioner has been given censure entry and his one annual increment has been withheld for two years,
2. The petitioner has also prayed for a mandamus directing that he should be promoted to the post of Deputy Director of Education from the date his juniors were promoted.
3. We have heard learned counsel for the parties.
4. The petitioner is a class one officer and is a member of the U. P. Provincial Education Service Group A. He was posted as District Inspector of Schools, Haridwar for the first time with effect from 24.2.90. Prior to that date, he was functioning as Principal of various Government Intermediate Colleges and it is alleged in para 3 of the petition that his work and conduct had been exemplary, and his record of service has been outstanding. It is further alleged that he was never issued any charge-sheet or given any adverse entry prior to 24.2.90. It is further alleged that due to his exemplary, service record, the petitioner was promoted as District Inspector of Schools, Haridwar w.e.f. 24.2.90.
5. It is alleged in para 4 of the petition that when the petitioner was promoted as District Inspector of Schools, Haridwar, one Sri B. P. Khandelwal had been holding the charge of the post of Director of Education (Secondary) U. P. at Allahabad. In para 5 of the petition, it is alleged that Sri R. N. Bhargava who was very closely associated with B. P. Khandelwal, had been functioning as District Inspector of Schools. Saharanpur and at the relevant time on 18.2.90 in back date accorded approval to the appointment of 12 ad hoc teachers at R. N. Inter College, Bhagwanpur, district Haridwar and the petitioner was saddled with the responsibility of payment of salary to these 12 ad hoc teachers. The petitioner after acquiring knowledge of the correct fact passed order-withholding salary of these 12 illegally appointed ad hoc teachers and for this reason. R. N. Bhargava became hostile to him. In para 6 of the petition, it is alleged that Sri R. N. Bhargava in spite of the fact that the petitioner was functioning as District Inspector of Schools, Haridwar, from 24.2.90 ensured payment of salary to the aforementioned 12 ad hoc teachers from the District of Saharnpur for the month of March, 1990 and he further succeeded in briefing Sri B. P. Khandelwal against the petitioner.
6. In para 9 of the petition, it is stated that Sri B. P. Khandelwal was bent upon harassing the petitioner and hence the petitioner was communicated an adverse entry dated 26.9.92 against which he made a representation on 30.11.92 to the State Government through the Director of Education (Secondary), true copy of which is Annexure-1 to the petition. Thereafter a charge-sheet dated 10.6.93 was served on the petitioner containing three charges vide Annexure-2 to the petition. True copy of the reply of the petitioner is Annexure-3. In para 11 of the petition. It is stated that the petitioner was due for promotion from the post of District Inspector of Schools to the post of Deputy Director of Education and the Departmental Promotion Committee met on 14.2.95 but because of the charge-sheet dated 10.6.93 sealed cover procedure was adopted and the result of the Departmental Promotion Committee so far as petitioner was concerned was kept in a sealed cover. In para 12 of the petition, it is stated that the select list of Deputy Director of Education which was published pursuance to the meeting of the Departmental Promotion Committee contains the name of persons who were junior to the petitioner. The names of these junior persons are mentioned in para 12 of the petition. In para 13 of the petition, it is alleged that thcreafter-another charge-sheet dated 22.3.96 was issued to the petitioner containing charges identical to those in the earlier charge-sheet. Copy of this charge-sheet is Annexure-4, and the reply of the petitioner is Annexure-5 to the writ petition.
7. In para 14 of the petition, it is stated that once again a Departmental Promotion Committee met on 26.7.96, and again the petitioner was considered but his result was kept in a sealed cover. In this selection, 35 persons were promoted who were all juniors to the petitioner except one Pan Singh Bishth. In para 15 of the petition. It is stated that there was complete inaction on the part of the respondents and the enquiry made no progress. In para 16 of the petition, it is stated that the Departmental Promotion Committee met for promotion to the post of Deputy Director but again seal cover procedure was adopted regarding the petitioner and the same ground was again made foundation and basis for withholding the promotion of the petitioner, that is, that there was a charge-sheet against him. A select list dated 21.6.97 of Deputy Director of Education is Annexure-6 to the petition. In para 17, it is stated that this select list dated 21.6.97 contains name of persons junior to the petitioner. Thereafter the petitioner filed Writ Petition No. 25928 of 1997 before this Hon'ble Court. In this petition on 8.8.97 this Court directed that the disciplinary enquiry be concluded within four months. True copy of the High Court order dated 8.8.97 is Annexure-7. In para 22 of the petition it is stated that despite this order of the High Court no steps have been taken to conclude the disciplinary proceeding.
8. In para 23 of the petition, it is stated that in the meantime again juniors to the petitioner were promoted to the post of Joint Director of Education on 30.4.98. The petitioner has alleged that he is being harassed consistently due to non-conclusion of the disciplinary proceeding, and has been discriminated against.
9. In para 28 of the petition, it is stated that ultimately the impugned order dated 9.12.98 has been passed, copy of which is Annexure-11 to the petition.
10. A counter-affidavit has been filed on behalf of respondents. In para 4 of the counter-affidavit, it is alleged that when the petitioner was posted as District Inspector of Schools, Haridwar, some serious irregularities were committed by him and as such departmental proceedings were initiated against him. The petitioner was given full opportunity of hearing and on the basis of the enquiry report, a show cause was also given to him. It was revealed that one Dasu Dev Pant, Assistant Teacher, BSM Inter College, Roorkee, was promoted on ad hoc basis to the post of Lecturer (Sanskrit) without requisite qualification and seniority on the basis of the recommendation made by the petitioner. In view of the relevant rule, the promotion of Basu Dev Pant was rejected. Also one Mahesh Kumar Sharma was promoted on ad hoc basis without sending requisition to the Secondary Education Commission and on the basis of promotion given to Mahesh Kumar Sharma, the petitioner appointed in his place one Sharmil Singh on ad hoc basis treating the vacancy caused due to the vacancy caused by promotion of Mahesh Kumar Sharma as a short-term vacancy. The petitioner was found acting against the rules and provisions of the U. P. Higher Secondary Education Service Commission rules and as such, the petitioner was given censure entry on 9.12.98 and his annual increment was stopped for two years. In para 5 of the counter-affidavit, it is stated that the petitioner was promoted as District Inspector of Schools on ad hoc basis and till date, he has not been given a regular promotion on the post of Deputy Director of Education or on an equivalent post.
11. Having heard learned counsel for the parties, we are of the opinion that the writ petition deserves to be allowed. A persual of the impugned order dated 9.12.98 shows that it refers to some report of the Director of Education dated 3.12.96. In para 29 of the writ petition, it is alleged that copy of this report dated 3.12.96 was never made available to the petitioner. The reply of the para 29 of petition is contained in para 24 of the counter-affidavit. A perusal of para 24 shows that no specific reply has been given to the averment in para 29 of the writ petition that copy of the aforesaid report dated 3.12.96 was not supplied to the petitioner. Thus, the allegations in para 29 of the writ petition stand unrebutted. In our opinion, this itself vitiates the impugned order as it was passed in violation of the rules of natural justice Since copy of the report dated 3.12.96 was not supplied to the petitioner. It is a settled principle that in an enquiry if any materials sought to be used against a person, then copies of the same must be supplied in advance to the accused so that he has an opportunity of rebuttal, vide State Bank of India v. D. C. Agarwal, (1993) (66) FLR 164 (SC), Sur Enamel and Stamping Works Ltd. v. Their Workmen. (1963) II LLJ 367 (SC), A. P. Kashinath Dikshita v. Union, AIR 1986 SC 2118, Chandrama Tewari v. Union of India, 1988 (56) FLR 323 SC, etc.
12. Moreover, in para 30 of the writ petition, it is stated that appointment of Basu Dev Pant was cancelled immediately after the correct facts came to the notice of the petitioner and the promotion of Mahesh Kumar Sharma was approved on the resolution sent by the Managing Committee. There is no allegation in the charge-sheet that the aforesaid action of the petitioner was on extraneous considerations. The petitioner had acted in discharge of his official duty, and that too, on the resolution of the Committee of Management. In our opinion, if the petitioner's action was illegal, it should have been challenged before this Court or before the appropriate authority, but this is not a ground for passing the impugned order.
13. Hence, in our opinion, the impugned order dated 9.12.98 is arbitrary and illegal and against the principle of natural justice, and It is hereby quashed.
14. A mandamus is issued directing that the sealed covers relating to the petitioner be opened, and if he has been selected in any of the D.P.C. meetings he shall be promoted as Dy. Director of Education from the date on which the persons junior to him have been selected in the earliest of these D.P.C.
meetings in which the petitioner has been selected. The petitioner shall also get all consequential benefits and arrears within three months.
15. Writ petition is allowed. No order as to costs.