Court No. - 26 Case :- WRIT - A No. - 1477 of 2010 Petitioner :- C/M Shri Ram J.H. School Thru' Its Manager & Another Respondent :- State Of U.P. & Others Petitioner Counsel :- R.N. Yadav,Ashok Khare Respondent Counsel :- C.S.C.,V.K. Kushwaha Hon'ble Shishir Kumar,J.
Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri R.N.Yadav,
learned counsel appearing for petitioners and Sri V.K.Khushwaha, learned
counsel appearing for respondent Nos. 3 & 5 and learned Standing Counsel.
This writ petition has been filed for quashing the orders dated 30.11.2009 and
23.12.2009 passed by Basic Shiksha Adhikari, District Mau respondent No.3
(Annexure 17 and 19A to the writ petition). Further a writ in the nature of
mandamus commanding the respondents to accord approval to petitioner’s
appointment on the basis of papers submitted on 25.11.2009.
Petitioners submit that on the basis of advertisement as provided under
Regulation 7 of U.P. Recognized Basic School (Recruitment of Teachers)
Rules, 1978 petitioner was selected according to merit after constitution of the
Selection Committee and name of petitioner was at Serial No.5 according to
the marks obtained in the interview, petitioner obtained 98.66 marks, which
was highest. It appears that on the basis of some complaint by one Sandeep
Yadav and one Ramesh Singh, alleged himself to be founder of the Society an
order dated 13.10.2005 has been passed that the appointment has not been
made strictly in accordance with the Rules and, therefore, no approval can be
granted. Petitioner coming to know regarding the aforesaid fact filed a writ
petition to this effect bringing the correct facts but respondents Basic Shiksha
Adhikari vide its order dated 23.12.2009 placing reliance upon the aforesaid
order has passed an order dated 23.12.2009 (Annexure 19 A to the writ
petition) holding therein that proper procedure as provided has not been
followed.
Sri Ashok Khare, learned Senior Advocate, has submitted that there is no such
procedure as provided under Regulation 7 of Rules 1978 and admittedly after
publication, Selection Committee was constituted and petitioner was
appointed, therefore, it cannot be held that there is any illegality in the
selection made. Further the order impugned is an order without any notice and
opportunity to petitioner, as such, the same is liable to be quashed.
I have considered the submissions made on behalf of learned Standing
Counsel as well as the counsel for the Basic Shiksha Parishad. Respondents
are not able to show from the record that any violation of rules relating to
appointment has been made and they are not also able to show from the
record that this order has been passed after affording opportunity to petitioner
as well as the Committee of Management.
In such circumstances, I am of the view that the orders passed by respondents
Basic Shiksha Adhikari is not sustainable in law in view of the fact that no
reasons have been recorded. Therefore, there will be a presumption that order
is non-application of mind without assigning any reason.
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 eye of
law and it has no legs to stand.
In case of S.N.Mukherjee Vs. Union of India reported in A.I.R. 1984 the
Apex Court has already held as follows:-
“In view of the expanding horizon of the principles of natural justice, the
requirement to record reason an 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 disposed 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 explicitly so as to indicate that the authority has been
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 the case of Maharashtra State Board of Secondary and Higher
Secondary Education Vs. K.S.Gandhi and others reported in 1991 (2)
SCC, 716 the Apex 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 a 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 explicitly
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, of 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 the case of M/s Mahabir Prasad Santosh Kumar Vs. State of U.P. &
others reported in AIR 1970, SC, 1302, the Apex 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 expency. 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 given adequate
reasons which disclose that an attempt was made to reach a conclusion
according to law and justice.”
In view of aforesaid fact, The writ petition is allowed. The orders dated
30.11.2009 and 23.12.2009 passed by Basic Shiksha Adhikari- respondent
No.3 (Annexure 17 and 19A to the writ petition) are hereby quashed and the
matter is remanded back to respondent No.3 i.e. District Basic Education
Officer, District Mau to pass appropriate orders strictly in accordance with
law taking into consideration the relevant rules after affording full opportunity
to petitioner as well as Committee of Management within a period of two
months from the date of production of certified copy of this order.
No order as to costs.
Order Date :- 13.1.2010
SKD