PRATIMA BHARDWAJ Vs. STATE OF U P

JUDGEMENT

(1.) Pursuant to this Court's order dated 3.2.2012, Sri Jitendra Kumar, Secretary, Secondary Education, U.P., Sri Manoj Kumar Dwivedi, Joint Director of Education, Jhansi Region, Jhansi, Sri Brijesh Kumar, District Inspector of Schools, Hamirpur (hereinafter referred to as "DIOS") and Smt. Kusumlata Shakyawar, Principal, Government Girls Inter College, Rath, Hamirpur are present. All of them admit that there is no restriction imposed by Code of Conduct issued by Election Commission regarding the joining of candidate already selected and therefore petitioner could not have been denied joining for this reason and the instructions given to learned Standing Counsel, as stated before this Court on 3.2.2012 were not correct. It is also pointed out that now petitioner has been permitted to join and he has submitted joining report on 11.2.2012. Admittedly, there is delay of one month and ten days in permitting the petitioner to join. Petitioner submitted her joining report on 30.12.2011 but when this Court passed a stern order on 3.2.2012 requiring the respondents to show the provision or order, if any, issued by Election Commission whereby during election proceedings newly selected candidate shall not be allowed to join, they have come with a specific case that there is no such provision or order and denying joining to petitioner it was clearly unauthorized and illegal. Now the moot question is who is the person responsible for this wholly arbitrary and illegal action of denying the petitioner her lawful right, i.e. joining on the post in question despite her appointment on the post of Assistant Teacher (Home Science) and in what manner the glaring injustice caused to petitioner be met.

(2.) Respondent No. 4, i.e. Smt. Ku sum lata Shakyawar, presently working as Principal, Government Girls Inter College, Rath, District Hamirpur, before whom the joining report was submitted by petitioner on 30.12.2011 has filed her personal affidavit. She has admitted that petitioner submitted joining report on 30.12.2011 alongwith appointment letter dated 8.12.2011 issued by Joint Director of Education, Jhansi, posting the petitioner at Government Girls Inter College, Rath, District Hamirpur. However, she declined to accept the said joining alleging that she was under the impression that election proceedings having commenced, during this period no appointment and joining can be made. On what basis the said impression she could gathered or formed no material has been placed. It appears, it was her sheer conjecture and surmises. There was no substantial reason for respondent No. 4 to form such an opinion. She, however, said that a letter was written by her to DIOS on 2.1.2012 that she has already sent details of teaching and non-teaching staff in the College to District Election Officer, Hamirpur and, therefore, permitting the petitioner to join whether would amount to violation of directions of Election Commission or not, be considered, and guidelines be issued by special messenger or speed-post. The said letter appears to have been received in the Office of DIOS on 4.1.2012. Thereafter, she received some fax message on 3.2.2012, obviously after this Court's order dated 3.2.2012. She claims that fax letter dated 3.2.2012 was not legible and therefore by letter dated 8.2.2012 she requested DIOS to send a clear copy of fax message. This letter was also claimed to have been served in the Office of DIOS on 9.2.2012. Copy of letter dated 9.2.2012 sent by DIOS addressed to respondent No. 4 is Annexure 3 to the affidavit of respondent No. 4 and it says that petitioner be allowed to join immediately else respondent No. 4 would be personally responsible. Consequently, respondent No. 4 issued letter on 9.2.2012 directing petitioner to join forthwith. This letter is said to have been received by petitioner on 11.2.2012 pursuant whereto she joined the institution on the same date.

(3.) Respondent No. 3, i.e. Sri Brijesh Kumar, holding the Office of DIOS has filed his personal affidavit stating that he did not receive any information from respondent No. 4 regarding joining of petitioner in the institution though he directed respondent No. 4 to allow petitioner to join vide letter dated 3.2.2012. He has not said anything about the guidance sought by respondent No. 4 vide letter dated 2.1.2012. The affidavit filed by respondent No. 3 is completely silent on this aspect. However, from his letter dated 3.2.2011 (a copy whereof has been filed as Annexure 1 to affidavit of respondent No. 3), it is evident that a letter was received by him from respondent No. 4 referring to the Code of Conduct imposed by Election Commission inasmuch in second paragraph of letter dated 3.2.2012, respondent No. 3 has required the respondent No. 4 to clarify by which provision of Code of Conduct of Election Commission, a newly appointed Teacher cannot be allowed to join her duties. Obviously, this part must have referred to query made by respondent No. 4 vide her letter dated 2.1.2012 which obviously remained unattended by respondent No. 3 for almost more than a month.