JUDGMENT
S.K. Singh, J.
1. By means of this writ petition, the petitioner has prayed for quashing the order dated 10.10.2000 (Annexure-15) to the writ petition passed by the District Inspector of Schools, Ghazipur.
2. There happens to be an Intermediate College known as Kedar Narain Krishak Inter College, Uchauri, district Ghazipur (herein-after referred to. as the college), which is recognised by the U. P . Board of High Schools and Intermediate Education Act which receives the grant-in-aid from the State Government. The petitioner claims to have been appointed as Assistant Teacher in C. T. grade on 4.10.1984 which was approved by the District Inspector of Schools . It is stated that as a policy decision, the C.T. grade was declared as dying cadre and as such, there remained only two cadres i.e., L.T. grade and Lecturer’s grade. It has been stated in para 4 of the writ petition that the decision was made effective w.e.f. 1.1.1986, consequently, the petitioner started receiving all the benefits available to the Assistant Teacher in L.T. grade, including the salary. The petitioner claims that as he was appointed in the year 1984 and, therefore, in view of the amendment inserted in U. P. Act No. 5 of 1982, the petitioner’s services, which were on ad-hoc basis, were regularised per order dated 4.8.1995 passed by the Joint Director of Education. It is claimed that one Lalita Prasad, who was working as Lecturer in Economics retired on 30.3.1995, on account of which, a substantive vacancy on the post of Lecturer (Economics) came into existence. It has been claimed that in view of paras 4 and 5 of U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981, all the vacancies in Lecturer’s grade were to be filled from qualified teachers working in L.T. grade and direct recruitment can be made only when no teacher is available in the institution in the L.T. grade. As the petitioner has been working as Assistant Teacher in L.T. grade and was getting salary in that scale and as according to the petitioner, he had already completed more than 8 years service as L.T. grade on the date of occurrence of vacancy, he claimed for promotion on the post of Lecturer referred above which was considered. After the notification of vacancy of the post of Lecturer (Economics) to the Commission through the District Inspector of Schools, when no candidate was made available, the Committee of Management passed resolution for promotion of the petitioner on the post of Lecturer (Economics) on 10.8.1995. The papers regarding petitioner’s promotion was forwarded to the District Inspector of Schools for approval who after considering the entire facts accorded approval by order dated 14.5.1997 upon which, letter of appointment was given to the petitioner No. 14.7.1997 by the Manager of the Institution. In pursuance of the aforesaid exercise, the petitioner’s salary was duly fixed in the Lecturer’s grade and necessary entries with regard to the promotion were also made in his service book and without any break, the petitioner started receiving continuous salary in the Lecturer’s grade. It has been stated in the writ petition, that in respect to the working/functioning of Manager, Kuber Nath Singh, who has filed Caveat application in this petition and also a counter-affidavit, opposing the petitioner’s claim, complaint was made in respect to various kind of financial irregularities and embezzlement of huge amount of money and no-confidence motion was also put and carried out. On enquiry, it was found that Kuber Nath Singh has mis-appropriated a sum of Rs. 09.85 lacs from college fund and college property besides other misappropriation. It is said that aforesaid Kuber Nath Singh was removed and in his place Rajendra Prasad Pandey was elected as Manager of the College. It is at this stage, the pleadings set forth by the petitioner, states that again Kuber Nath Singh, some how or the other succeeded in getting his signature attested from the District Inspector of Schools but the same was challenged by Rajendra Prasad Pandey in which an interim order was granted on 11.6.1999 which was made absolute on 18.8.1999 (although there appears to be some dispute about continuance of stay order) and thus it is Rajendra Prasad Pandey who is functioning as Manager. It has been stated that although Kuber Nath Singh was removed but he lodged frivolous complaint abdut illegal appointment/ promotion of the petitioner on the pretext that he obtained it on incorrect resolution, although petitioner was not eligible for promotion. It is stated that the said complaint was made before the District Magistrate, Ghazipur, upon which, the S.D.M., Sadar was asked to hold enquiry who in its turn submitted report to the District Inspector of Schools, upon which he passed the order dated 10.10.2000 by which the approval, so accorded to the petitioner’s promotion was cancelled. It is this order of the District Inspector of Schools by which the petitioner’s promotion on the post of Lecturer (Economics) has been cancelled, is under challenge before this Court.
3. Learned counsel for the petitioner submits that the impugned order of the District Inspector of Schools besides being illegal, unwarranted on the facts, is also in violation of principle of natural justice. It is further submitted that the District Inspector of Schools without examining the matter himself, has proceeded to take decision solely on the report submitted by the S.D.M., Sadar for which the petitioner was never afforded any opportunity in any manner. It has been further submitted that on the facts of the present case and from the record also, it is fully clear that the petitioner is eligible and qualified to be promoted as Lecturer in Economics and the approval was given by the District Inspector of Schools to the petitioner’s promotion on correct facts. Lastly, it has been submitted that the entire exercise adverse to the petitioner’s interest started at the initiation by the then Manager Kuber Nath Singh. who was already removed from the post, on account of serious charges of financial irregularity. Learned counsel submits that the District Inspector of Schools has not properly attended the matter and solely on the basis of the report as submitted by the S.D.M., Sadar to which the petitioner had no opportunity, has passed the impugned order, which is liable to be quashed by this Court. Learned counsel in support of his contention about the entitlement of the petitioner for promotion having completed five years service in L.T. grade, has placed reliance on a decision given by this Court in the case of Santosh Kumar Singh v. District Inspector of Schools, 1995 (3) AWC 1579 ; 1995 (3) ESC 21.
4. Learned standing counsel, on the facts so stated in the counter-affidavit, submits that as on the post of Lecturer (Economics), any regularly selected candidate has not joined, the Committee of Management passed resolution for promotion of the petitioner on ad hoc basis. At the same time, it has been submitted that the petitioner was not eligible and qualified for giving regular promotion on permanent basis. It has been pointed out that in view of the relevant Government order, it is after completion of 10 years service in C.T. grade, the petitioner was to be given L.T. grade with effect from 4.10.1995 and, therefore, the claim of the petitioner for regular promotion as Lecturer is not to be accepted.
5. Learned counsel, who appears on behalf of Kuber Nath Singh, on the basis of facts so stated in the counter-affidavit submits before the Court that the petitioner was not eligible for being promoted as Lecturer and the dispute as has been raised in this petition about the rights of Kuber Nath Singh to function as Manager is totally untenable and uncalled for. It has been submitted that Kuber Nath Singh happened to be valid Manager and the complaint as filed by him has been rightly attended and after giving full opportunity to the petitioner, the decision has been taken by the District Inspector of Schools. To strengthen the submission that the petitioner was not qualified to be promoted, learned counsel places reliance on a decision of this Court given in the case of Smt. Aruna Ghosh v. State of U. P., 1995 (1) AWC 576 ; 1995 (2) LBESR 12.
6. In view of the aforesaid submissions, the pleadings and materials as exists, have been examined. On consideration of the facts and submissions, it appears that the controversy as has been raised before this Court, relates to various factual and legal aspects but the Court feels that this writ petition can be decided on a short ground without entering into the merits in rival contentions.
7. The law is well-settled on the point that the action of any authority, if it has civil consequence, has to be after giving adequate opportunity to the person sought to be affected. Of course, there appears a dispute about the correctness of the entire exercise, i.e., passing of the resolution in relation to the petitioner’s promotion and its approval by the order of the District Inspector of Schools dated 14.5.1997 but nevertheless, the fact remains that the resolution of the Committee of Management came into existence, which was sent to the District Inspector of Schools, who in its turn passed the order according approval to the petitioner’s promotion. There is no allegation from the side of the respondents that the order of the District Inspector of Schools dated 14.5.1997 is forged and fraudulent order. The only controversy which appears is, that the resolution for petitioner’s promotion was not a valid resolution and the petitioner being not qualified, by not placing correct facts before the District Inspector of Schools, approval order was obtained. In view of the pleadings, it is clear that order passed by the District Inspector of Schools on 14.5.1997 approving the petitioner’s promotion, was duly implemented. The petitioner started functioning and receiving his salary in the Lecturer’s grade. Necessary entries were also made in the service book. It is at this stage, on complaint having been filed by Kuber Nath Singh, right which accrued in favour of the petitioner, is to be taken away. It is clear from the pleadings that the complaint by Kuber Nath Singh was filed before the District Magistrate, Ghazipur, who got the necessary enquiry conducted from the S.D.M., Sadar which appears to have been sent to the District Inspector of Schools for necessary action, on the basis of which, the impugned order has been passed.
8. Now in view of the aforesaid discussions, the matter can be examined from two aspects. Firstly, the complaint on which the matter has proceeded was filed before the District Magistrate who got the enquiry conducted from the S.D.M., Sadar. In respect to the irregularity In the appointment made on any of the post in the educational institution, as there is specific procedure for making appointment, its approval by the authorities nominated for the purpose, the Court feels that in the event of any complaint about the illegality or incorrectness in relation to any appointment, it is that very authority/ forum as prescribed, who should be approached and enquiry of any kind in respect to the allegation of forgery in any resolution, order, lack of qualification, lack of non-completion of required formalities has to be attended from the stage A to Z by the authorities as are provided under the Education Code. The District Magistrate and the S.D.M. should be confined to their executive functioning and, therefore, the move by complainant before the District Magistrate and the enquiry in that respect by the S.D.M. appears to be totally unauthorised. The second aspect which also tilts in petitioner’s favour is that in the light of the pleadings as has come before this Court, it appears to be an established position/ fact that the petitioner has not received any opportunity in the enquiry which is said to have been conducted by the S.D.M., and petitioner has not been given copy of the enquiry report which was specifically asked by him, on the notice having been received from the office of the District Inspector of Schools dated 2.9.2000. There is specific pleading in the writ petition as is contained in paras 21 to 23 in which it has been clearly stated that the petitioner has not been provided any opportunity in the proceedings and he has not been given the copy of the enquiry officer’s report. The reply of the aforesaid is contained in paras 21 and 22 of the counter-affidavit filed by the State authorities and in paras 16 and 18 of the counter-affidavit filed by Kuber Nath Singh. In none of the counter-affidavits, there is any detail about giving of opportunity to the petitioner and nothing has been specified that how and in what manner the enquiry was conducted, whether any date was fixed calling upon the petitioner to participate therein and after completion of the enquiry, whether the petitioner was given copy of the report to enable him to submit an effective reply. In view of the aforesaid, it is clear that the petitioner has not been afforded any opportunity whatsoever before passing the impugned order. The observation as is contained in the impugned order that the petitioner was given notice dated 2.9.2000 but the petitioner failed to satisfy the correctness of the enquiry report appears to be not acceptable, in view of the averments as contained In para 22 of the writ petition, wherein the petitioner has clearly stated that pursuant to the aforesaid notice, he made a request for supply of the report of the S.D.M., so that he may submit effective reply, but on the facts so exists, it is clear that it was never supplied to him.
9. In view of the aforesaid, passing of the impugned order by the District Inspector of Schools cancelling the approval to the petitioner’s promotion appears to be in gross violation of the principle of natural justice. It has been held by this Court as well by the Apex Court that an order/action having civil consequence, if is in violation of principle of natural Justice, it has to be quashed. Reference in this respect can be made to the decisions given in case of Basudeo Tiwary v. Sido Kanhu University, 1998 (6) JT 464 ; Mohammad Ral Ahmad v. State of U. P., 1998 (2) UPLBEC 1232 and Subhash Chandra Sharma v. Managing Director and Anr. (2000) 1 UPLBEC 451.
10. Although, this writ petition is to succeed on the ground that impugned action is in violation of principle of natural justice but at the same time, the contention on behalf of the respondents that whether the petitioner was promoted in pursuance of the valid resolution and the petitioner was eligible and qualified for being promoted, in the light of the facts and the cases as relied upon, is liable to be examined by the District Inspector of Schools after affording full opportunity to the petitioner and other concerned parties, within a reasonable time which this Court feels a period of four months from the date of receipt of certified copy of this order, will suffice. The final entitlement of the petitioner shall depend on the decision either way as and when is taken by the District Inspector of Schools, as directed above.
11. In view of the aforesaid discussions, the impugned order dated 10.10.2000 (Annexure-15 to the writ petition) passed by the District Inspector of Schools is hereby quashed and the writ petition is allowed in the light of the directions as contained In this judgment.