All the aforesaid writ petitions relate to common question of fact and law hence they are being decided by a common order.
In order to appreciate the controversy involved in all these writ petition, the facts as culled out are that Public Higher Secondary School, Amthari Nighuri, Post Sant Kabir Nagar (hereinafter referred as the Institution) was initially established as a Junior High School in the year 1977 with temporary recognition as a Junior High School. It was granted permanent recognition as a Junior High School in the year 1980 and High School in the year 1983. It was not receiving grant in aid till 1.4.1996. It is only w.e.f. 1.4.1996 that it was brought on the grant in aid and within the purview of U.P. Act No. 24 of 1971. At the time of its initial creation there did not exist any statutory rules governing the recruitment and appointment in the said Junior High School. Rules were framed for the first time as U.P. Recognised Basic Schools (Junior High Schools ) (Recruitment and Conditions of Service of Teachers) Rules 1978 promulgated by the notification dated 13.2.1978.
Petitioners are alleged to have been appointed on teaching and non-teaching posts in the Institution to which approval was granted to the appointment of petitioners by the Basic Shiksha Adhikari by an order dated 28.8.1981. They are alleged to have been appointed against the duly sanctioned post. Ever since their appointment petitioners are continuously working and discharging their duties. It seems that Deputy Director of Education, VIIth Region proceeded to sanction teaching post for the Institution as a consequent thereto the Deputy Inspector of Schools (DIOS) vide his order dated 19.2.1991 accorded approval to the members of the teaching and non teaching staffs against such sanctioned posts. After the Institution was brought on the grant in aid, Regional Joint Director of Education VIIth Region, Gorakhpur vide his order dated 27.3.1997 accorded sanction to the members of the staff for receiving salary from government grant in accordance with the provisions of UP Act No. 24 of 1971.
In pursuance to the order dated 27.3.1997, regular salary was given to the petitioners from the Government grant. They continued to receive salary till January 2006. Salary of all the members working in the Institution was withheld from February 2006, however, same was released on 18.11.2006. Salary of the petitioners, however, was not released on 18.11.2006. It seems that some doubts were raised regarding the appointment of the petitioners as a consequence of which procedure under Section 16 E(10) of the Intermediate Education Act were initiated seeking termination of the petitioner. It is in the light of this a notice was issued to the petitioners. Petitioners in reply to the said show cause submitted that they have not received any notice dated 20.9.2003. It is further stated by the petitioners that they were appointed in the Institution at that point of time when there were no recruitment rules governing services of the petitioners. It was only after the permanent recognition was granted rules became applicable to the Institution.
On a petition filed by the Management before this Court bearing Civil Misc Writ Petition No. 6583 of 2007 a direction was issued to the Director of Education to finalise the proceedings pending under Section 16 E (10) of the U.P. Intermediate Education Act. In pursuance to the direction issued notice was issued by the Addl. Director of Education (Secondary) to the petitioners and other persons for hearing on 11.5.2007 in the office of Director of Education, UP Lucknow. Petitioners presented themselves before the Director on the said date but no hearing was undertaken. Proceedings were conducted by Smt. Anarpati Verma, the Deputy Director of Education, (Vocational Studies). Thereafter, no date was communicated to the petitioners. What followed thereafter was an order dated 16.7.2007 passed by Director of Education (Secondary) UP terminating the services of the petitioners. This order of termination has been questioned by the petitioner in this writ petition.
Petitioners have questioned the order on the following grounds:-
a) That no enquiry was conducted by the Director who is the only authority to hold such enquiry under Section 16 E(10) of the Act instead enquiry has been conducted by Deputy Director of Education who was not authorised to do the same.
b) That at the time of initial appointment of the petitioners there were no statutory rules governing the services of the petitioners. As such the plea that some of the petitioners were under age at the time of their initial appointment cannot be accepted in absence of rules.
c) That no enquiry has been conducted against the petitioners for having forged their appointment order. Conclusion has been drawn by the respondents without any basis and without hearing the petitioners.
On the other hand stand of the respondents is that the petitioners were not eligible to be appointed as some of them had not crossed the age of 18 years. After the Institution was put on grant in aid, it was detected that 13 employees including the petitioners were illegally appointed which fact was detected by the Joint Director of Education while inspecting the Institution on 19.1.2001. In this behalf a report was submitted which was sent to the Addl. Director of Education on 11.4.2001. Recommendation was made by the Deputy Director vide his communication dated 25.1.2002 for stopping the salary of such illegally appointed teachers and for initiating proceedings for termination of their services.
As a sequel to that a show cause notice was issued to the petitioners and other employees on 20.9.2003. The said notice indicates that petitioners had procured their appointment when admittedly some of them had not completed the age of 18 years. They had also drawn salary illegally from the Government grant. Report was submitted by the DIOS on 25.5.2005 that the 13 employees of the aforesaid Institution have been illegally appointed. On being asked to initiate an enquiry in the matter, the DIOS communicated to the Joint Director of the Schools that there is no record available in respect of the said appointments in the office of the DIOS. It seems that a direction was issued by the Director of Education on 12.3.2006 to the Joint Director of Education to take appropriate action against 13 irregular appointments. As a result of which salary of the thirteen employees was stopped on 30.3.2006. On 11.8.2006, Joint Director Education gave last opportunity to the petitioners to file their reply to the show cause notice. Director of Education vide his communication dated 16.7.2007 has passed the impugned order in this writ petition after the direction in this behalf was issued by this Court on 7.2.2007 in Civil Misc. Writ Petition No. 6583 of 2007.
Heard learned counsel for the parties and perused the material on record.
Dispute in all these writ petitions relate to the appointment of the petitioners on teaching and non teaching posts in the Institution. On the relevant date, there were no statutory rules governing the services of the petitioners. It was only after 1980 when the permanent recognition was granted to the Institution and Rules of 1978 became applicable to the said Institution. Institution was brought on grant in aid in the year 1996, consequently, payment to the staffs was to be made by the Government. The appointment of the petitioners and other persons have been questioned after it was detected on an inspection being conducted by the Joint Director of Education that their appointments were illegal. The power to initiate cancellation of any appointment under the Act of 1921 vests with the Director in case of teacher and before any such action is proposed to be taken an opportunity of being heard is to be given to the petitioners. Power to conduct enquiry exclusively vests with the Director. Act does not contemplate of delegating such power to any other person. Nature of enquiry required to be conducted is quasi judicial. Effected person is required to be given opportunity to defend himself before any such cancellation order is passed.
Case set out by the petitioners is that no enquiry in the matter has been conducted by the Director. The matter was enquired by Deputy Director who was not competent to hold such enquiry. There was no power to delegate such authority the Director under the Statute.
This aspect of the matter has not been denied by the respondents as is clearly indicated in the Counter Affidavit filed by the respondents. In paragraph no. 30 of the counter affidavit, following averments have been stated by the respondents which is quoted herein below:-
"The notice was issued from the office of the Director of Education for the purpose of hearing on 11.5.2007. The Deputy Director of Education h as held the enquiry proceedings on behalf of the Director of Education, but before passing the order, the Director of Education has examined carefully the papers, statements and contention of the parties himself."
What clearly is visible from the stand of the respondents is that enquiry was conducted by the Deputy Director of Education on behalf of the Director of Education. Admittedly, no enquiry has been conducted by the Director. It is trite in law that a person empowered to hold an enquiry under the Statute cannot delegate such powers unless the statute so provides. There is no such authorisation provided under the Statute. Consequently, the impugned order is per-se illegal and non-est in the eyes of law.
It is a settled principle that when the Act pre- scribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. [Marathadawada University Vs Seshrao Balwant Rao Chavan, AIR 1989 SC 1582].
Where the power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden, was held in Taylor Vs Taylor, 1876 (1) Ch. D 426 and this view has been followed by Indian Courts in a series of cases.
Section 16-E (10) provides that if the Director is satisfied that a teacher in an institution was appointed in contravention of any of the provisions of the Act, he may cancel such appointment after giving an opportunity to the person concerned and pass such consequential order as may be necessary. Neither in the Act nor in the Regulation any procedure has been prescribed for exercising power under Section 16-E (10) of the Act. Thus, the Director is free to adopt the procedure which according to his opinion is deemed to be fit and proper. He is supposed to enquire and determine the disputed question of fact. He may rely upon such materials, which according to him, would enable him to determine said dispute. Section 16-E (10) does not confer any right or power on the Director to delegate his authority to anyone else.
What is being indicated is that even though enquiry has been conducted by the Deputy Director of Education but the Director of Education after perusing the records has passed the impugned order. What is clearly visible is that the Director did not have an occasion to hear the parties or applied his mind in this behalf. He has relied upon the report of the Deputy Director without serving the same to the petitioners. The exercise undertaken by the Director is not in conformity with the rules of natural justice. It be seen that no notice for initiation of enquiry against the petitioners has been issued by the Director. The Deputy Director who has conducted the enquiry was not authorised in this behalf by the Director as nothing in this behalf has been shown by the respondents. It appears from the record that enquiry was initiated by a person who is not competent to do. Even while holding the enquiry against the petitioners, Enquiry Officer did not give any opportunity to the petitioners to defend their case. No opportunity was provided to them to contest the allegations levelled against them. It is clearly reflected by the impugned order in the writ petition. It is a clear case of violation of rules of natural justice.
The expression 'natural justice' is a source from which procedural fairness flows. It means that result or process should be just. There are three broad purposes on which a public authority may owe a duty to exercise his functions in accordance with the fair procedures; (a) where legislation imposes a duty to follow fair procedure; (b) where the common law requires fair procedures to be followed in order to safeguard rights and interests; and (c) legitimate expectations created by public authority. There is broad range of requirements which vary according to context in which the public function is exercised, including (a) giving a notice of a proposed decision before making it; (b) to consult and receive written representations; (c) to disclose information before a final decision is reached; (d) to provide oral hearing at which (e) a person is offered legal representations or other assistance, and has right to cross examine witnesses and right to be given reasons explaining why a decision or action was taken.
Procedural fairness does not make any distinction between the judicial or administrative function or between the right and privileges. It has largely been replaced by general duty to act fairly which is key limit of procedural impropriety.
Applying this principle in the present case and proceeding on the assumption that the Deputy Director was authorised to hold an enquiry in the matter, petitioners have not been given a chance to make a representations against charge sheet and proposed punishment. Impugned order has been passed by the Director without hearing the petitioners. No notice was given by the Director to the petitioners. As a measure to safeguard the rights of the parties, duties, fairness cannot and should not be restricted by barriers and confined by inflexible category. The inference will be more compelling in case of any decision which adversely effects a person's right or interests or when a person has legitimate expectation of being fairly treated. This procedure has been given goby by the respondents while cancelling the appointment of the petitioners.
Order of termination has been passed against the petitioners on the ground that their appointments were made de-hors the rules. Case set out by the petitioners was that at the time the appointment was made there were no rules of 1978 were not applicable to the institution. Without considering this plea of the petitioners, impugned order has been passed. Respondents have not observed the procedural propriety required to be followed in this case.
From the aforesaid discussion, it clearly emerges that no opportunity was provided to the petitioners to present their case.
The power to cancel the appointment was with the Director who in law was required to hear the effected parties before passing the order of termination. He has passed the order on the basis of the enquiry conducted by Deputy Director of Education. Assuming that the Deputy Director was invested with the power to hold the enquiry even then before proceedings to cancel their appointment the Director of Education had an obligation to inform the petitioner about the proposed punishment to be imposed on them. He has not provided personal hearing to the petitioners in this behalf before passing the order of their termination.
Section 16-E (10) of the Act clearly lays down that such an order is to be passed only after affording an opportunity to the petitioners. Since the Director had relied on report of Deputy Director, therefore, it was incumbent on him to afford an opportunity to the petitioners.
Admittedly, no opportunity was given to the petitioners before passing the impugned order of termination, therefore, the said order is hit by the Principal of audi alteram partem and cannot be sustained. This principle has assumed universal acceptance in our judicial system. It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case.
In view of aforesaid discussion, the writ petitions are allowed. Impugned order of termination is hereby set aside. Petitioners shall be reinstated with all consequential benefits.
Order Date :- 15th May, 2012.
RKS/