Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Shishir Kumar) Appearance:
Amitava Lala, J.-- The order impugned, which has been challenged by the appellant in this appeal, is the order dated 13th December, 2010 passed by the learned Single Judge in Civil Misc. Writ Petition No. 4853 of 1981 (Km. Abha Rani Vs. Regional Inspectress of Girls School, Meerut and others). The order impugned before us is an exhaustive order but in the form of interim order. However, now we are governed by the judgement of this Court that if any interim order is passed within the trappings of finality, then in that case a special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 can be held to be maintainable. In any event, so far as the appellant-writ petitioner is concerned, the matter has reached to finality. The operative part of the impugned order dated 13th December, 2010 to that extent is as follows:
"So far as the petitioner is concerned, the present writ petition is dismissed with cost of Rs.50,000/-. The same shall be deposited by the petitioner by way of bank draft drawn upon a nationalised bank before the Registrar General of this Court within three months from today, who shall transmit the same in the account of High Court Legal Services Committee, Allahabad. In case of default, the same shall be recovered by the District Magistrate from the petitioner as arrears of land revenue."
So far as merit of the appeal is concerned, it rests on a very short compass arising out of a writ petition of the year 1981. The appellant-writ petitioner's appointment was not approved, which was challenged by her in writ petition and by virtue of an interim order passed in the writ petition, she was continuing as a teacher in the institution concerned. Admittedly, she is working for last 30 years. The main argument was to be verified on two documents. But before going into such documents, let there be a recording of facts in this regard. The appellant-writ petitioner, who is a general category candidate, was given appointment on the post meant for Scheduled Castes, Scheduled Tribes and Other Backward Classes category. Learned Single Judge himself observed that in the advertisement two vacancies are shown, which can not be reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes category at the same time. The advertisement should specifically disclose as to which vacancy is for which reserved category. In any event, the Committee of Management has clarified the position by saying that since no candidate of the reserved category was found eligible for appointment, the appointment for the post in question was given to the general category candidate. From the Annexure-1 to the writ petition, which is available at page 61 of this special appeal, we find that this is an advertisement, which has been issued specifically mentioning that in case candidates of Scheduled Castes, Scheduled Tribes and Other Backward Classes category are not available, appropriate candidate of the general category will be selected. On the basis of such advertisement, when no eligible candidate of the reserved category was found, the appellant-writ petitioner was given appointment and she continued in service from the date of joining i.e. 02nd February, 1981 and subsequently she further continued on the basis of an interim order dated 30th April, 1981 passed by this Court and thereafter by an order dated 18th August, 1981 her salary was also directed to be paid and as such, by now she continued in service for last 30 years. In the said writ petition, private respondent no. 3 filed her counter affidavit along with stay vacation application in September, 1981 but the State authority did not file any stay vacation application and only filed a counter affidavit in December, 1981. It is well settled by now that long tenure of continuance of service should not be disturbed in view of the judgement of the Supreme Court reported in 2009 (1) SCC 768 (Tridip Kumar Dingal and others Vs. State of West Bengal and others) and JT 2010 (8) SC 96 (State of Karnataka and others Vs. M.L. Kesari and others).
The contention of the appellant-writ petitioner was supported by the Managing Committee of the school. However, learned Standing Counsel has contended that by order dated 04th February, 1981 the concerned Regional Inspectress of Girls Schools did not approve the selection. But we find that a cryptic order has been passed without giving name of any eligible candidate of reserved category, thereby such order is without any reason whatsoever. It is well settled that an order having civil consequences even though passed by the administrative authority must contain reasons so as to enable the aggrieved party to challenge the reasoning of the administrative authority. In the absence of reasons, no foundation can be laid down by the petitioner and only argument remains is that the order is based upon non-application of mind. In our view, if the reasoning of an order passed against the aggrieved person is not communicated and only a communication regarding decision has been communicated it cannot be assailed by the respondents that the grievance of a person has been decided. In our opinion, it is no order in the eyes of the law and it has no legs to stand. In AIR 1990 SC 1984 (S.N. Mukherjee Vs. Union of India) the Supreme Court has already held as follows:-
"In view of the expanding horizon of the principles of natural justice, the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework where under jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest under-lying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. Therefore except in cases where the requirement has been dispensed with expressly or by necessary implications, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.
The recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It is however not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
In 1991 (2) SCC 716 (Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and others) the Supreme Court has held as under:-
"The reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. They also exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. When an order affects the right of a citizen or a person, irrespective of the fact whether it is a quasi-judicial or administrative order, and unless the rule expressly or by necessary implication excludes recording of reasons, it is implicit that the principles of natural justice or fair play require recording of germane and precise relevant reasons as a part of fair procedure. In an administrative decision, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but at the least, the record should disclose reasons. It may not be like a judgement. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of the Supreme Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person."
In AIR 1970 SC 1302 (M/s Mahabir Prasad Santosh Kumar Vs. State of U.P. and others) the Supreme Court has held as under:-
"The High Court in rejecting the petition filed by the appellants has observed that the District Magistrate in considering the explanation of the appellants had "considered all the materials" and also that "the State Government in considering the appeal had considered all the materials". We have, however, nothing on the record to show what materials if any were considered by the District Magistrate and the State Government. The High Court has also observed that Clause 7 of the Sugar Dealers' Licensing Order does not require "the State Government to pass a reasoned order. All that is required is to give an aggrieved person an opportunity of being heard." We are of the view that the High Court erred in so holding. The appellants have a right not only to have an opportunity to make a representation, but they are entitled to have their representation considered by an authority unconcerned with the dispute and to be given information which would show the decision was reached on the merits and not on considerations of policy or expediency. This is a clear implication of the nature of the jurisdiction exercised by the appellate authority: it is not required to be expressly mentioned in the statute. There is nothing on the record which shows that the representation made by the appellants was even considered. The fact that Clause 7 of the Sugar Dealers' Licensing Order to which the High Court has referred does not "require the State Government to pass a reasoned order" is wholly irrelevant. The nature of the proceeding requires that the State Government must give adequate reasons which disclose that an attempt was made to reach a conclusion according to law and justice."
Against this background, it has been stated by the learned Standing Counsel that the matter is fixed before the learned Single Judge to decide it finally and he is not opposing the prayer for stay. However, when we find that so far as the petitioner is concerned, the order has reached to the finality even on the basis of the unreasoned order dated 04th February, 1981, we are of the view that neither such order of the authority nor the order of the learned Single can be sustained.
Hence, in totality, the order of the learned Single Judge dated 13th December, 2010 impugned in this appeal as well as the order under the challenge in the writ petition before the learned Single Judge being dated 04th February, 1981 passed by the concerned Regional Inspectress of Girls Schools regarding the appellant are set aside. Consequently, her service is deemed to be approved.
Accordingly, the special appeal is allowed, however,without imposing any cost.
(Justice Amitava Lala) I agree.
(Justice Shishir Kumar) Dated:12th January, 2011.
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Hon'ble Amitava Lala, J.
Hon'ble Shishir Kumar, J.
The special appeal is disposed of, however, without imposing any cost.
Dt./-12.01.2011.
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For order, see order of the date passed on the separate sheets (six pages).
Dt./-12.01.2011.
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