1. Heard Sri Amrendra Nath Tripathi, learned counsel for the petitioners and the learned Standing Counsel for the respondents.
2. By means of this writ petition, the petitioners have assailed the order dated 30.06.2020 passed by the District Inspector of Schools, Lucknow, respondent No.3, (in short D.I.O.S.), by means of which the earlier order of approval of selection/ appointment of the petitioners dated 18.04.2013 has been cancelled.
3. The brief facts of the issue are that two substantiative vacancies occurred in the attached primary section of Sohan Lal Intermediate College, Rajendra Nagar, Lucknow (in short College/ Institution) and therefore, the Manger of the Committee of Management of the College by his letter dated 27.02.2013 sought permission of the D.I.O.S. for filling up the aforesaid two vacancies. The D.I.O.S. vide his order dated 03.03.2013 granted permission for making selection and appointment on the post of Assistant Teacher in attached primary section of the College for making one appointment from amongst the general category candidates and one appointment from amongst the scheduled caste category candidates.
4. Pursuant to the permission granted by the D.I.O.S., an advertisement was published on 04.03.2013 in two leading Newspapers, namely, Indian Express and Swatantra Bharat. The bare perusal of the advertisement dated 04.03.2013, it is crystal clear that in the advertisement it has been categorically stated that the educational qualification and age will be required as prescribed in U.P. Intermediate Education Act, 1921 (here-in-after referred to as the 'Act, 1921') along with the certificate of T.E.T. Thus, it is very much clear that the educational qualifications prescribed in the advertisement is as per the statutory requirement under the law.
5. Both the petitioners are graduates in their respective subjects and had passed B.Ed. Examinations and also possess T.E.T. qualifications for appointment on the post of Assistant Teacher in attached primary section of the College. The petitioners being fully eligible for appointment on the post of Assistant Teacher submitted their application through registered post.
6. All the candidates were sent call letters through registered post to appear in the interview scheduled on 14th April, 2013. The petitioners received the interview call letters and appeared in the interview along with other candidates on the date fixed before the duly constituted Selection Committee and on the basis of the quality point marks, the Selection Committee prepared two separate select lists, one for the candidates of general category and other for the candidates of scheduled caste category for the two separate posts.
7. From the aforementioned select list prepared by the Selection Committee, it clearly born out that against the general category vacancy name of the petitioner No.1 was recommended as a general category candidate and against the vacancy of scheduled caste category name of petitioner No.2 was recommended as a Scheduled Caste Category candidate.
8. After completion of the selection process, the Manager of the Committee of Management of the College forwarded all the papers pertaining to selection to the D.I.O.S. vide his letter dated 15.04.2013 whereby he requested him for granting approval of the selection.
9. The District Inspector of Schools examined all the papers pertaining to the selection and after being satisfied with due selection procedure and the candidates possess the requisite qualifications granted approval to the selection so made vide his order dated 18.04.2013 whereby the appointment of the petitioners on the post of Assistant Teacher in the attached primary section of the College was approved. The order dated 18.04.2013 has been enclosed as Annexure No.6 to the writ petition.
10. Pursuant to the approval granted by the D.I.O.S., petitioners were issued letters of appointment. The petitioner No.1 was issued letter of appointment on 18.04.2013 and consequently he joined on 20.04.2013 and the petitioner No.2 was issued letter of appointment on 18.04.2013 and consequently he joined on 22.04.2013 on the post of Assistant Teacher in the attached primary section of the College.
11. Both the petitioners pursuant to their appointment submitted their joining in the College which was duly accepted and the petitioners started discharging their duties attached to their post. Both the petitioners continued to discharge their duties in the College and both were paid their due salary from the State Exchequer from the month of April, 2013 till the month of October, 2013.
12. As per learned counsel for the petitioners, all of sudden without there being any order in writing payment of salary of the petitioners was stopped. The petitioners had represented to the D.I.O.S. and requested that their appointment has already been approved by the Competent Authority i.e. D.I.O.S. concerned vide order dated 18.04.2013 and they were being paid their regular salary, therefore, there is no occasion for stopping their salary and ultimately they prayed for payment of their regular salary, but in vain.
13. When the salary of the petitioners was not paid, the petitioner No.1 filed writ petition bearing Writ Petition No.299 (S/S) of 2015 with the prayer for direction to opposite parties for making payment of regular salary and this Court vide order dated 19.02.2015 directed the D.I.O.S. to decide the representation of the petitioner with a speaking and reasoned order.
14. The respondent No.3 while deciding the representation of the petitioner No.1 for payment of salary declared the appointment of both the petitioners as illegal vide order dated 03.07.2015 without affording any opportunity of hearing.
15. As per learned counsel for the petitioners, this Court vide order dated 19.02.2015 passed in Writ Petition No.299 (S/S) of 2015 only directed the respondent No.3 to consider the case of the petitioner No.1 for payment of salary not to review the appointment of the petitioners which was duly approved by the Competent Authority on 18.04.2013. As a matter of fact, the Administrative Authority cannot review its own order.
16. Learned counsel for the petitioners has submitted that on one hand the respondent No.3 has declared the appointment of the petitioners illegal but the order dated 18.04.2013 granting approval of the appointment of the petitioners was neither cancelled nor revoked and the same remained intact.
17. The reason to declare the appointment of the petitioners is illegal vide order dated 03.07.2015 is that the educational qualifications for appointment on the post in question have not been properly disclosed in the advertisement in question.
18. Learned counsel for the petitioners has submitted that the aforesaid ground is apparently unwarranted inasmuch as the advertisement in question clearly indicates that the educational qualifications for the post of Assistant Teacher would be such as prescribed under the Act, 1921 and the candidate must possess the T.E.T. qualification. Therefore, in that sense the order dated 03.07.2015 is perverse.
19. Both the petitioners have assailed the order dated 03.07.2015 by filing separate writ petition bearing Writ Petition No.4184 (S/S) of 2015 (Petitioner No.1) and Writ Petition No.784 (S/S) of 2016 (Petitioner No.2). During pendency of those writ petitions, the petitioners had represented to the respondent No.3 vide representation dated 06.02.2016 making request that since the petitioners were continuously working on the post of Assistant Teacher, therefore, they be paid their due salary.
20. As per learned counsel for the petitioners, the Regional Joint Director, Secondary Education, Lucknow vide its letter No.(2)/11264/2014-15 dated 26.12.2014 had constituted a three member enquiry Committee to look into the matter. The said three members enquiry Committee had found the selection and appointment of the petitioners valid and legal. The respondent No.3 had forwarded the enquiry report to the respondent No.2 vide its letter No.Ma./11560-61/2015-16 dated 08.03.2016 along with enquiry report. The letter dated 08.03.2016 along with enquiry report has been enclosed by the petitioners as Annexure No.13 to the writ petition.
21. Learned counsel for the petitioners has further submitted that the Finance Controller, Directorate of Education, Allahabad in his audit report had opined that there was no justification in the non-payment of salary of the petitioners and expected to make payment of salary of the petitioners. Such audit report has been enclosed as Annexure No.14 to the writ petition.
22. The respondent No.3, on the basis of enquiry report, the audit report and the fact that the order giving approval of selection/ appointment of the petitioners still remained intact, being the Competent Authority, had passed order dated 28.05.2016 for payment of salary to the petitioners and also the arrears were released. The copy of order dated 28.05.2016 has been enclosed as Annexure No.15 to the writ petition.
23. As per learned counsel for the petitioners, since the respondent No.3 had passed the order dated 28.05.2016, the petitioners left with no grievance, hence, both the petitioners withdrew their writ petitions.
24. Thereafter, pursuant to the order dated 28.05.2015 passed by the respondent No.3, the petitioners were paid regular salary till December, 2019 and no objection of any kind whatsoever was raised from any quarter. However, as per learned counsel for the petitioners, all of sudden the salary of the petitioners was again stopped without any rhyme or reason, in a most illegal and arbitrary manner and without there being any order in writing having been communicated to the petitioners. Feeling aggrieved, the petitioners again represented the respondent No.3 vide separate representation dated 18.03.2020 for payment of salary for the month of January and February, 2020. On the said representation, the respondent No.3 had passed the impugned order dated 30.06.2020, which is contained as Annexure No.1 to the writ petition, by means of which, the order of grant of approval of selection/ appointment of the petitioners dated 18.04.2013 and the order of release of salary dated 28.05.2016, were recalled holding that no salary is liable to be paid to the petitioners.
25. As per learned counsel for the petitioners, the impugned order dated 30.06.2020 has been passed on the ground that the advertisement was erroneous and incomplete and the procedure of selection was not transparent. All the grounds taken in the impugned order dated 30.06.2020 are perverse and non-tenable and are passed in a most mechanical and arbitrary manner.
26. Learned counsel for the petitioners has reiterated that first of all there was no error in the advertisement as the same specifically states that the educational qualification would be as per the Act, 1921. Thus, whatever prescriptions were given under the Act, 1921 regarding the educational qualification, were the qualifications for the post. There is no prescription of any specific mode or proforma for prescribing the educational qualification in the advertisement under the law.
27. Learned counsel for the petitioners has submitted that as far as the ground taken in the impugned order dated 30.06.2020 regarding alleged forged experience certificate is concerned, the same is also perverse and un-tenable in the eyes of law.
28. Sri Tripathi has contended that the respondent No.3 vide its letter dated 26.05.2020 had sought information from the Manager of the Eram Convent Inter College, Rajajipuram Lucknow regarding experience certificate of the petitioner No.1 and in pursuance thereof the Manager of the said Institution had given the clarification vide letters dated 08.06.2020 and 19.06.2020. In the reply, the Institution had informed the respondent No.3 that the petitioner No.1 was appointed in January, 2006 in its Indira Nagar Branch and had started teaching and subsequently he was transferred to its another branch at Rajajipuram where he worked till May, 2011. Thus, it is evident that the petitioner No.1 had experience of more than 5 years and was duly given weightage of 10 marks as per law. The copies of the aforesaid correspondences have been enclosed as Annexure Nos.18 & 19 with the writ petition.
Further, the respondent No.3 vide its letter No.417 dated 26.05.2020 had sought information from the Manager of the National Public High School, Rajajipuram, Lucknow regarding experience certificate of the petitioner No.2 and in pursuance thereof the Manager of the said Institution had given the clarification vide letter dated 22.06.2020. In the reply, the Institution had informed the respondent No.3 that the petitioner No.2 had worked as Assistant Teacher from 1st July, 2005 to 31st May, 2007 and again from 1st July, 2009 to 31st January, 2013. Thus, it is evident that the petitioner No.2 had experience of more than 5 years (in two trenches) and was duly given weightage of 10 marks as per law. The bare perusal of the impugned order goes to show that the respondent No.3 in its impugned order had not considered the fact that the petitioner No.2 had worked in National Public High School in two trenches.
29. Sri Tripathi has contended with vehemence that the allegation in the impugned order dated 30.06.2020 regarding appointment of the petitioner No.1 being OBC category candidates against the vacancy of general category is concerned, the said ground is a frivolous one. As a matter of fact, every one including the OBC category candidate is eligible to apply against the unreserved seats (commonly known as general category seats) and, as such, there was no illegality in the said appointment of the petitioner No.1. Thus, it is evident that the impugned order dated 30.06.2020 is baseless, illegal and arbitrary in nature and is passed without having any jurisdiction to review its earlier approval order dated 18.04.2013, thus without jurisdiction.
30. Learned counsel for the petitioners has submitted with vehemence that the Quasi Judicial Authority or the Administrative Authority has got no power to review its earlier order if the statute does not provide so, in view of the dictum of Hon'ble Apex Court in re: Naresh Kumar & others vs. Government (NCT of Delhi) reported in (2019) 9 SCC 416. The inference has been drawn towards para-13 of the aforesaid judgment, which is being reproduced here-in-below:-
"13. It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the statute concerned, such power of Review cannot be exercised by the authority concerned. This Court in the case of Kalabharati Advertising vs. Hemant Vimalnath Narichania (2010) 9 SCC 437, has held as under: (SCC pp. 445-46, paras 12-14).
"......12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasijudicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar [AIR 1965 SC 1457] and Harbhajan Singh v. Karam Singh [AIR 1966 SC 641] .)
13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjun Singhji [(1971) 3 SCC 844, Major Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321], Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525 : 1987 SCC (L&S) 491:, State of Orissa v. Commr. of Land Records and Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1 SCC (Cri) 537] this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.
14. Therefore, in view of the above, the law on the point can be summarized to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification /modification/ correction is not permissible."
31. Besides, the Hon'ble Apex Court in re: Dr. (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & others reported in [AIR 1987 SC 2186) has also held that the Administrative Authority or a Quasi Judicial Authority cannot review its own order unless power of review is expressly conferred on it by the statute under which it derives its jurisdiction.
32. Per contra, learned Standing Counsel has submitted that since the specific qualification was not mentioned in the advertisement in question, therefore the impugned order dated 30.06.2020 has been rightly passed. He has also submitted that on account of several complaints being received against the selection/ appointment in question, the enquiry was conducted. So far as enquiry conducted by the three members Committee whereby the appointment of the petitioners was found valid and legal is concerned, the learned Standing Counsel has submitted that the said enquiry was not conducted properly.
33. On being confronted on the point as to whether the Administrative Authority can review/ recall its own order, learned Standing Counsel could not demonstrate any provisions of law permitting the same authority to review/ recall its own order. On being further confronted as to whether there may be other qualification except those qualifications as indicated in the Act, 1921, the learned Standing Counsel has submitted that it is true that there are no other qualifications except such qualification which has been indicated under the Act, 1921 but instead of indicating the qualification as per the Act, 1921, specific qualifications should have been indicated in the advertisement. On being further confronted as to whether the petitioners are not having requisite qualifications, learned Standing Counsel has submitted that the petitioners are having requisite qualifications as prescribed under the law. Further, as to whether the candidate belonging to OBC category candidate may not compete with the candidate of General Category or he may not be selected on the vacancy earmarked for General Category candidate, learned Standing Counsel has submitted that in view of the settled proposition of law of Hon'ble Apex Court, the candidate of the reserved category may compete for the vacancy earmarked for the General Category.
34. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that in view of the dictums' of Hon'ble Apex Court in re: Naresh Kumar (supra) and Dr. (Smt.) Kuntesh Gupta (supra), the power of review can be exercise only when the statutes provides for the same and since the statutes does not provide the provision permitting to review/ recall the order, the same cannot be done by the authority concerned.
35. Further, the advertisement in question clearly indicates that the educational qualification and age will be required as prescribed under U.P. Intermediate Education Act, 1921 along with the certificate of T.E.T. and for making selection on the post of Assistant Teacher in the Institution governed under the provisions of the Act, 1921, the qualification prescribed in the advertisement is the correct qualification. There is no allegation of any fraud or misrepresentation on the part of the petitioners in the impugned order and undoubtedly the petitioners are having requisite qualifications prescribed under the law. The District Inspector of Schools, Lucknow had granted approval to the selection of the petitioners vide his order dated 18.04.2013. Thereafter, on the basis of enquiry report and audit report and considering the factum of approval earlier given for the appointment of the petitioners, the D.I.O.S. passed an order dated 28.05.2016 for payment of salary to the petitioners which was earlier stopped in the month of November, 2013 and even the arrears of salary were also released. On account of these facts, the petitioners have got their writ petitions withdrawn, which were filed assailing the order dated 03.07.2015 passed by the D.I.O.S. holding the appointment of the petitioners erroneous as the advertisement in question was not issued properly. Therefore, when the conscious decision has been taken by the D.I.O.S. on 28.05.2016, the impugned order dated 30.06.2020 should have not been passed by the same authority making review of its earlier order. As a matter of fact, the D.I.O.S. vide impugned order dated 30.06.2020 has not only reviewed the order of approval dated 18.04.2013 but also reviewed the order dated 28.05.2016, therefore, the said order dated 30.06.2020 is without jurisdiction and uncalled for order. The Administrative Authorities must mind their statutory limits and if such limit is crossed without having any colour of authority, the said inaction would be absolutely unacceptable.
36. In view of the facts and circumstances as well as the dictums' of Hon'ble Apex Court in re: Naresh Kumar (supra) and Dr. (Smt.) Kuntesh Gupta (supra), the order dated 30.06.2020 passed by the respondent No.3, which is contained as Annexure No.1 to the writ petition, is illegal, unwarranted and without jurisdiction, besides, suffers from voice of arbitrariness and perversity, hence, such order is hereby quashed.
37. A writ in the nature of mandamus is issued commanding the opposite parties to allow the petitioners to work on their respective posts and they be paid their regular salary forthwith. The opposite parties are also directed to pay the arrears of salary, which has been withheld, within a period of three months and the petitioners shall be treated continued in service.
38. Accordingly, the writ petition is allowed.
39. No order as to cost.
Order Date :- 05.02.2021 Suresh/