1. Heard counsel for the petitioner and learned Standing Counsel who has put in appearance on behalf of respondents No.1 to 3.
2. The writ petition is directed against order dated 11th July, 2011, Annexure 10 to the writ petition passed by District Inspector of Schools, Baghpat (hereinafter referred to as "DIOS") stating that in compliance of this Court's order dated 9th March, 2011 passed in Writ Petition No.13771 of 2011 recognizing respondent No.4 senior to the petitioner, she (respondent No.4) be handed over charge of officiating principal, being senior most lecturer.
3. Learned counsel for the petitioner drew attention of this Court to the fact that dispute of seniority of respondent No.4 and 5 is subject matter of writ petition no.13771 of 2011 wherein this Court passed the following order on 9th March, 2011:
"Learned counsel for the petitioner is permitted to implead the District Inspector of Schools, Baghpat as respondent no.5 in the array of parties.
Heard learned counsel for the petitioner, learned standing counsel appearing for respondent nos.1 and 5 and Shri A.K. Yadav, learned counsel appearing for respondent no.2.
It is contended that the date of promotion of the petitioner to the post of lecturer is 12.5.2000 whereas that of respondent no.4 is 27.11.2002 and thus, in view of Regulation 3 Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, admittedly, the petitioner would be senior to respondent no.4 but the committee of management has wrongly and illegally forwarded her record to the selection board to be considered for appointment on the post of principal treating her to be the second senior most.
Prima facie, from a perusal of the record, there appears to be force. Matter requires scrutiny.
Learned standing counsel representing respondent nos.1 and 5 and Shri A.K. Yadav, learned counsel representing respondent no.2 may file counter affidavit within three weeks.
Issue notice to respondent nos.3 and 4, who may also file counter affidavit. Petitioner shall take steps for service of notice by the registered post within three days. Office shall issue notice returnable at an early date.
List on the date fixed by the office on the notice.
Considering the facts and circumstances, any recommendation made by the commission for appointment on the post of principal in the institution in question shall be subject to final result of the writ petition."
4. It is not disputed that above writ petition is still pending. Reading of order dated 9th March, 2011 clearly shows that this Court did not make any declaration with regard to seniority of anyone but said that any recommendation made by Commission for appointment on the post of Principal in the institution shall be subject to final result of the writ petition.
5. Since there was no declaration of seniority in the aforesaid order, this Court found prima facie correct that DIOS has read something in this Court's order dated 9th March, 2011 which is not mentioned therein and has deliberately twisted and distorted the said order in favour of respondent No.4.
6. Noticing above submission, this Court passed order on 30th August, 2011 and paras 7, 8 and 9 thereof read as under:
"7. On that date, District Inspector of Schools, Baghpat, respondent no. 3 shall also appear before this Court in person to explain as to how he read the order dated 9.3.2011 in writ petition no. 13771 of 2011 holding Smt. Sudesh senior most Teacher in the institution concerned, though the said order nowhere decide any dispute al all.
8. Until further orders operation of the impugned order dated 11.7.2011 (Annexure 10 to writ petition) shall remain stayed.
9. Copy of this order shall be made available to learned Standing Counsel for information to concerned respondent and compliance.
7. Pursuant to the said order, respondent No.3 Sri Udaibhan Yadav, who is holding office of DIOS has filed his counter affidavit and admitted that he misread/misunderstood order dated 9th March, 2011 and thus passed order dated 11th July, 2011.
8. Realizing his mistake, DIOS has passed an order of modification on 12th September, 2011 deleting the sentence "High Court has held Smt. Sudesh senior vide order dated 9th March, 2011" and says instead it shall be read that "in the aforesaid writ petition Smt. Sudhesh herself has claimed to be senior". It is mentioned in para 5 of counter affidavit that aforesaid modification would result as if the claim of Smt. Sudesh respondent No.4 being senior most teacher is now not accepted by him. However, he further says Committee of Management has passed a resolution appointing respondent No.5 as officiating Principal of the institution and signatures of respondent No.5 have been attested by DIOS on 12th September, 2011. The admission of alleged mistake in the words of DIOS would be useful to be reproduced as contained in paras 5 and 10 of the counter affidavit:
"5. That, the deponent/answering respondent has misread/ understand the order dated 09.03.2011 and due to the aforesaid misunderstanding, the deponent has passed an order dated 11.07.2011 by which Smt. Sudesh become the senior most teacher but after coming into the knowledge to the answering respondent that due to misreading/ misunderstanding a wrong order has been passed. Thereafter, the answering respondent has rectified/modified his earlier order dated 11.07.2011 vide order dated 12.09.2011 by which the Committee of Management has directed to read "as the contention of the petitioner is senior most teacher in the institution", but the real fact is that she is not senior most teacher in the institution. It is relevant to mention here that the Committee of Management has passed a resolution by which Smt. Mithlesh Bansal, Lecturer has made as an officiating Principal of the institution and also handed over the charge of officiating Principal to Smt. Mithlesh Bansal and the signature of Smt. Mithlesh Bansal has been attested by the answering respondent on 12.09.2011. The photostat copy of the order dated 11.07.2011 and modified order dated 12.09.2011 are being filed herewith and marked as ANNEXURE NOS. 1 AND 2 to this affidavit.
10. That, in reply to the contents of paragraph No. 16 of the writ petition it is stated that the answering respondent has passed an order on 11.07.2011 by which he has been directed to the Committee of Management to hand over the change of officiating Principal of the aforesaid institution to the senior most, available and eligible candidate. Whenever in the aforesaid letter/direction due to misunderstanding and due to typing error, Smt. Sudesh, the P.T. Teacher has been treated as senior, on which basis Smt. Sudesh treated herself as senior. The answering deponent has passed a rectification/modification order dated 12.09.2011. The deponent always ensure the compliance of the order passed by this Hon'ble Court and even in dream he cannot dare to flout or disobey the orders passed by this Hon'ble Court however, for such typing error, the answering deponent tenders his unconditional and unqualified apology before this Hon'ble Court and regrets for the same."
9. Even if, the facts as stated above are admitted, it would be interesting to note that modification in para 1 of formal letter dated 11.7.2011 has been made by DIOS by order dated 12.9.2011 but so far as second paragraph of letter dated 11th July, 2011 is concerned, it remains the same.
10. The order dated 9th March, 2011 passed by this Court in Writ Petition No.13771 of 2011, as reproduced above, makes it clear that it had not issued any direction to the respondents to do or to omit something in any manner and it simply makes recommendation of Commission, if any, regarding appointment on the post of Principal in the institution in question, subject to final result of the writ petition. Therefore, so far as officiating appointment of Principal in the College is concerned, Court's order does not contain any direction and its reference in the order dated 11th July, 2011 is clearly not only misconceived but to cover up and give strength to the order passed by DIOS. He has rectified the order only when this Court called upon him to explain the circumstances in which the said order was passed and not otherwise.
11. Unfortunately similar mischievous, incorrect and illegal orders passed by educational authorities are burdening this Court with a large number of cases and mostly this Court has found that litigation is persisting because of vexatious and motivated orders issued by one or other DIOS.
12. In the present case, respondents No.3 has passed impugned order claiming strength from this Court's order though as a matter of fact such strength was nonest. This is a way evolved by statutory authorities particularly in Education Department where they are passing such mischievous orders alleging support driven from the order of High Court though it is nonest.
13. A similar case earlier came up before this Court in Smt. Mithilesh Kumari Vs. State of U.P. & Ors., 2011 (1) ADJ 40 where, against an order of transfer, a writ petition was dismissed with cost but the competent authority cancelled the order of transfer in purported compliance of High Court's order. This Court seriously castigated this kind of attitude on the part of authority concerned finding that this is nothing but a distorted facet of corrupt activities on the part of executive authorities. This Court accordingly in the above case namely Mithilesh Kumari (supra) observed as under:
"24. In brief, malice in law is when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. (See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198).
25. The order dated 14.08.2008 which is the basis of the relief sought in the writ petition has been obtained by the petitioner and passed by the authority concerned in the garb of giving effect to a judgement of this Court though no such judgement exist. In other words the judgement exist but it does not say so what the authorities have purported and construed therein and thereof. This constitute a case of fraud and misrepresentation also, and, that being so, it vitiates everything.
36. There does not appear to be any other justification shown in the aforesaid noting except that the authorities concerned attempted to give colour to their action as if they are complying some kind of order or direction of this Court though there exist none. This, in my view, is clearly a case of not only deliberate and intentional twisting of the facts to obtain a desired result but it satisfy the requirement of not only the principle of malice and law but also that of fraud and misrepresentation both.
39. In the last 60 years of independence, if there is one field we can boast of a national allround development and that too multifold, it is the field of corruption. It has various shades. It is not confined to only one field of bribery, cash and kind, but has different colours and nuances.
40. There are some statutes in the name of checking/preventing this menace, but that is virtually toothless, a paper tiger. These statutes have not proved at all, in actual sense, a deterring measure, for the civil servants engaged in such activities. In fact these activities are beyond any limits and bounds and have crept in all the wings of State, whether executive, legislature or even judiciary.
52. In general the well accepted meaning of corruption is the act of corrupting or of impairing integrity, virtue, or moral principle; the state of being corrupted or debased; lost of purity or integrity; depravity; wickedness; impurity; bribery. It further says, "the act of changing or of being changed, for the worse; departure from what is pure, simple, or correct; use of a position of trust for dishonest gain."
53. Though in a civilised society, corruption has always been viewed with particular distaste to be condemned and criticised by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word 'bribery', meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt. The Greek Philosopher Plato, in 4th Century BC said, "in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognised also in the aphorism that those who want to hold power are most likely those least fit to do so." While giving speech before the House of Lords William Pitt in the later half of 18th Century said, "Unlimited power is apt to corrupt the minds of those who possess it." Lord Acton in his letter addressed to Bishop Creighton is now one of the famous quotation, "Power tends to corrupt and absolute power corrupts absolutely."
54. Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means "inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)." It is an specially pernicious form of discrimination. Apparently its purpose is to seek favourable, privileged treatment from those who are in authority. No one would indulge in corruption at all if those who are in authority, discharge their service by treating all equally.
55. We can look into it from another angle. Corruption also violates human rights. It discriminates against the poor by denying them access to public services and preventing from exercising their political rights on account of their incapability of indulging in corruption, of course on account of poverty and other similar related factors. Corruption is, therefore, divisive and makes a significant contribution to social inequality and conflict. It undermines respect for authority and increases cynicism. It discourages participation of individuals in civilised society and elevates self interest as a guide to conduct. In social terms we can say that corruption develops a range bound field of behaviour, attitude and beliefs. Corruption is antithesis of good governance and democratic politics. It is said, that when corruption is pervasive, it permeates every aspect of people's lives. It can affect the air they breathe, the water they drink and the food they eat. If we go further, we can give some terminology also to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle we look into it, the ultimate result borne out is that, and the real impact of corruption is, the poor suffers most, the poverty groves darker, and rich become richer.
56. ....This country has now reached a stage where we find level of corruption running in several thousand of crores and going to even lacs of crores. Everyone wherever is possible, indulging in such activities depending on one's capacity, capability and opportunity. This Court do not mean to say that all are corrupt. Fortunately that is not so. Still we have sufficiently large number of people who do not indulge in such activities and bold enough to discard any attempt, if made by someone, but those who want to take advantage of such widespread corruption, have now become so fearless that they can dare to approach and go to any extent to lure those who are in authority, to seek favour in one or the other manner. In their belief, everyone has some price, degree may defer. Fortunately, this country still have sufficiently large number of people who are beyond such vice. Probably it is for this reason we are still marching ahead and developing with galloping pace but now time has come when stern steps have to be taken with determination and cementised will to nip out corruption at every level, lest it may be too late.
57. I do not intend to indulge in further discussion on this aspect since it needs be debated, at different forum, so as to enlighten the people, and to pursue them to stand against and to arm them so as to route it out. This Court is well aware that in this process, the prime responsibility lie on the executive. But in particular it is now of paramount importance that the judiciary must also take this task upon itself. The cases involving corruption must be dealt with extraordinary pace. It must ensure that those indulged in corruption are prosecuted and punished at the earliest and within a reasonable time. The judiciary should not show any leniency on corruption and corrupt people whether small or larger, one. A message must go that corruption at all cost shall result in severe and deterrent punishment. The booty, loot or benefit one has earned by indulging in corruption, must be forfeited so that it may become a part of public revenue, and may be utilised for public benefit, instead of allowing it to remain with the corrupt beneficiary, otherwise, the effectiveness of deterrence shall stand lessened. The law enforcement machinery, i.e., investigators must probe such matters independently, without any interference and should ensure completion of investigation within record time. Everyone who abate, who allow to perpetuate by inaction, encourage it and similarly all other persons connected in one or other way be dealt with in the same manner as if the corrupt person and should be punished severely but with a pace so that the others may learn lesson and continue in their memory. It be not allowed to be eroded with passage of time. All this require determination and will, at different level and needs to be looked into with real sincerity since time has ripened now."
14. To my mind, observations made in Mithilesh Kumari (supra) is squarely apply in this case also and conduct of respondent No.3 thus cannot be condoned.
15. Having considered the matter deeply, this Court is clearly of the view that officer like respondent No.3 does not suit the requirement of an independent, honest and impartial officer to hold the responsible office of DIOS since in the said office whosoever is posted, has to discharge several statutory duties and a person so unmindful like respondent No.3 cannot justify such responsible position. He is clearly unfit to discharge such onerous duties.
16. Respondent No.3 has admitted his mistake since there was no escape otherwise. But in doing so he took two months. His letter despite modification still is capable of misconstruction though it is now claimed that office of Principal on officiating basis has been allowed to be functioned by another person that is respondent No.5. To avoid any confusion and misconstruction I find it justified to quash the impugned order.
17. The writ petition is allowed. The impugned order dated 11th July, 2011 (Annexure 10 to the writ petition) is hereby quashed.
18. The petitioner shall be entitled to cost which I quantify to Rs.50,000/- against respondent No. 3. However, it is directed that at first instance the said cost shall be paid by the respondent No.1 to the petitioner but it shall have liberty to recover the same from respondent No. 3.
Order Date:-14.10.2011 KA