GEETA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) THIS special appeal has been filed against the order dated 2.12.08 passed by the learned Single Judge, by means of which, directions were issued to the District Magistrate to decide the representation preferred by the private respondents, questioning the approval and selection of the present appellant as Shiksha Mitra on various grounds. THIS special appeal has been filed with delay of about 5 months. The delay has occurred as the appellant did not know about the said order as no notice was issued to her and on day one, the writ petition was disposed of with the aforesaid directions. It was only when the District Magistrate in compliance of the aforesaid order, passed the order on 7.5.09, a copy of which the appellant received on 15.5.09, the present special appeal has been filed. It cannot be said that there is delay in filing the appeal or in other words, the delay is not deliberate, therefore, we condone the delay. The learned counsel for the appellant says that no order could have been passed by the learned Single Judge without issuing notice to the appellant as the effect of the aforesaid order is that the selection/appointment of the appellant, which was perfectly legal and in pursuance of which she was continuing as Shiksha Mitra, was again put into jeopardy and the matter was directed to be reopened and reagitated, that too without there being any finding by the learned Single Judge, even prima facie, that there appears to be some illegality in the selection. Further argument is that no direction could have been issued for deciding the representation unless it was a statutory representation and in any case, if the Court was of the view that the questions raised in the writ petition or in the representation require consideration by the District Magistrate or by any other authority competent, for the reason that some points, which need be considered could not be considered at the time of appointment/selection, or there are certain questions which require consideration by the district authority, even then the order could not have been passed unless notices were issued to the respondent in the writ petition, i.e. the appellant. The counsel for the appellant has relied upon the cases of Smt. Sabuna Devi vs. Jhinkan and others 2008(26) LCD 1038 and Deep Narain Misra vs. The Director of Education (Madhyamik) and others (Special Appeal No. 217 of 2009), decided on 6.5.09 by a Division Bench of this Court, in which one of us (Pradeep Kant,J.) was a member, wherein the Court observed as under: "In the absence of any statutory provision for making a representation, every litigant cannot come to the Court seeking direction for deciding the representation. Apparently, an order or direction for deciding a representation, may be after affording an opportunity to all the parties, ordinarily will be issued by the Court if such a representation is not provided under any Act or Rules. The reason is that a validly passed order by a competent authority in favour of one or the other person is put into the realm of scrutiny and review again even though the Court does not have any occasion, nor has applied its mind as to whether the order so passed suffers from manifest error or illegality. In case the order challenged suffers from any manifest error or illegality, the writ petition itself may be entertained and the matter may be decided in the writ petition itself, but if the Court is of the view that for some reasons, namely, for the fact that certain important questions or relevant pleas or the documents, which were though before the authority concerned, have not been considered, it may relegate the person for having a fresh decision on representation. Ordinarily the authority, who has already passed an order after considering the material on record and has applied its own mind, is not supposed to look into the matter again by way of review under the garb of direction for deciding the representation. In any case, if the Court is inclined to pass an order for deciding the representation, in such a case, that can be done only after issuing notice and giving opportunity of hearing to the contesting party, the reason being that the contesting party, in whose favour the order exists, would be subjected to a fresh round of litigation, may be before the authority concerned, putting the order in his or her favour into jeopardy and giving one more chance to an unsuccessful party to have another order." We find force in the argument of the counsel for the appellant that whenever any selection or appointment or any other order is challenged in the writ petition, it means that the authority competent to pass such an order, has passed the order, which has resulted into discontentment of the person who has come to the Court. Without recording even prima facie, finding that the challenge is sustainable would mean that a validly passed order is again given into the hands of the administrative authorities for being interpreted in their own manner. The administrative power once exercised unless exercised in terms of the authority given cannot be allowed to be used again and again merely on asking by a person who feels dissatisfied with the order, moreso, when such a person approached the Court where judicial scrutiny of the order is to be made before issuing any direction, which has the effect of affecting the order which is already under challenge. By issuing a direction in the instant case on day one for deciding the representation by the District Magistrate, the District Magistrate was required again to take decision and to look into the validity of the appointment of the appellant, but without giving her any notice and without giving any opportunity and without being even, prima facie, satisfied about the case of the respondent, such an order was passed by the Court. We, however, take notice of the fact that since the appellant has approached this Court only after the District Magistrate in compliance of the order passed by the learned Single Judge, has passed an order on 7.5.09, recording finding against the appellant, no useful purpose would be served if the order under challenge in the appeal is now quashed. We, under the circumstances, give liberty to the appellant to approach the Collector, as she says that the order has been passed without giving her any opportunity. The special appeal is dismissed with the aforesaid liberty.