RAM SWAROOP KATIYAR Vs. DIRECTOR OF EDUCATION SECONDARY

JUDGEMENT

(1.) The petitioner was appointed as a Lecturer of Physhology on 25th June, 1980 pursuant to his selection. The added respondent No. 3 Sri Ram Prakash Katiyar was also a candidate in the selection. He secured the second position after the petitioner. The respondent No. 3 raised an objection that the petitioner was related to the Principal of the school. The District Inspector of Schools there-upon asked the Principal to clarify as to whether the allegations made by the respondent No. 3 was correct or not. But the Principal did not give reply to the said letter. Thereafter by order dated 1st November, 1980 the District Inspector of School had stopped the payment of salary to the petitioner. The petitioner moved this Court in a writ petition No. 109031 of 1980 against the said order dated 1st November, 1980. The said writ petition was disposed of by an order dated 7th August, 1991 directing the District Inspector of Schools to sent all relevant papers to the Director of Education for determination of the dispute under Section 16-E (10) of the U.P. Intermediate Education Act, 1921. By an order dated 23rd November, 1994, the Director opined that on the basis of the papers, it was not possible to determine the relationship between the Principal and the petitioner without any enquiry. The Superintendent of Police, Kanpur Dehat was required to hold an enquiry pursuant to the order dated 23rd November, 1994. The Superintendent of Police had appointed the Circle Officer, Bhognipur to investigate the matter. The Circle Officer submitted his report on 11th January, 1995. In the said report, it was found that the petitioner was not the son-in-law of the Principal. On the basis of the said report, by an order dated 25th June, 1995, the Director had held in favour of the petitioner and rejected the objection of the respondent No. 3. The said order was never challenged. Subsequently the petitioner was again asked to appear before the police authority, Thereafter by an order dated 1st January, 1996, the petitioner was asked to show cause within 15 days as to why his service should not be terminated, The order dated 1st January, 1996 was received by the petitioner on 17th January, 1996. On 22nd January, 1996 the petitioner had submitted his reply. Before the expiry of 15 days the service of the petitioner was terminated. It is this order dated 11th January, 1996 contained in Annexure 7 to the writ petition that has since been challenged in this writ petition.

(2.) Dr. R. Dwiedi, learned Counsel for the petitioner contends that the question of relationship is governed by Rule 4, Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921, under Section 16-G thereof. The question of relationship is also covered by Section 16-GG which deals with ad hoc appointment. There was nothing in the Act which could include relationship as a bar in respect of appointment in the school in the Act itself. The Regulation having been framed under Section 16-G relating to condition of service, Regulation 4, Chapter III could not be extended to an appointment. The question of appointment cannot be governed by the conditions of service. Therefore, the dispute within the meaning of Section 16-E (10) cannot include a dispute with regard to the relationship which is outside the scope of appointment and is only a matter relating to condition of service. Thus, according to Dr. Dwivedi, the order passed by the Director in exercise of Section 16-E (10) is void abinitio on account of its being without jurisdiction. He next contends that alternatively even if, assuming but not admitting, the Director is empowered to decide such dispute in exercise of power under Section 16-E (10), then it is a power conferred on the Director himself. There is no provision for delegation of the power. In the present case, the Director had delegated the power to the Superintendent or Police for making an enquiry and it depended on the report of the police enquiry. He further contends that even if, assuming but not admitting, the Director could delegate such power, then it could be delegated to any civil authority. It could not have been delegated to the police authority empowered with criminal investigation. The dispute in the present case is a civil dispute and as such could not have been investigated by an authority empowered to investigate under the provisions of Code of Criminal Procedure or such other laws relating to crimes or analogous thereto. Dr. Dwivedi next contends that there is no power conferred on the Director to review his own order. In the present case the Director having passed an order on 26th June, 1995, cannot review the said order subsequently and pass a fresh order on 11th January, 1996. His next contention was that the question cannot be reopened under Section 16-E (10) long after 15 years' of appointment. Inasmuch as the appointment was made in 1980, whereas it is being reopened in 1995. He then contends that there is nothing on facts to show that the petitioner was related to the Principal. On the other hand there are materials to show that there were two Radhey Shyam Katiyar in the same village one of them was the Principal and the other was a cultivator. The petitioner had claimed that he happens to be the son-in-law of Sri Radhey Shyam Katiyar, the cultivator and not the Principal, which he had stated even on his written statement before the Director. Therefore, such intricately disputed questions of fact could not be decided solely on the basis of police report unless such police report is substantiated by independent evidence or by materials placed on record, which could lead to come to a conclusive conclusion. His last, but not the least, contention was that the impugned order dated 11th January. 1996 was passed without affording any opportunity to the petitioner. He contends further that the notice to show cause was received on 17th January, 1996. whereas the order was passed on 11th January. 1996 though in the order dated 1st January. 1996, 15 days" time was granted to the petitioner to reply. Therefore, in no circumstance, the order could have been passed before 16th January, 1996. For all these reasons he contends that the impugned order contained in Annexure 7 to the writ petition be quashed.

(3.) Mr. D. P. Singh, learned Counsel for the respondent on the other hand contends that admittedly, the petitioner himself has stated in paragraph 5 that despite the Principal being required to clarify as to whether the complaint of respondent No. 3 was correct or not. the Principal did not give any reply. This according to him, is sufficient to draw adverse presumption as against the Principal, who did not deny the allegation that the petitioner was son-in-law of the Principal. He next contends that nowhere in the writ petition the petitioner had ever pleaded that he was not the son-in-law of the Principal. On oath, the petitioner had never pleaded that the Principal was not his father-in-law. The statement made in paragraph 11 was affirmed as based on papers, and that too. was not a statement of the petitioner. Inasmuch as in paragraph 11 it as stated that the aforesaid reports specifically mentioned that the petitioner was not the son-in-law of the Principal. According to Mr. Singh. it was open to the petitioner to make the statement in the pleading that he was not related to the Principal. Thus the petitioner has not made out a sufficient case to establish his legal right to invoke writ jurisdiction since he had not disclosed the correct situation. According to him, the order dated 26th June, 1996 records that the petitioner was the son-in-law of Sri Radhey Shyam Katiyar. the cultivator, who was the son of Sri Baldeo and that Radhey Shyam Katiyar, the Principal was not his father-in-law This statement was made by the petitioner in writing but the same was not on oath. Therefore, it had no value and could not be relied upon. The non-denial of the fact on oath by the petitioner that he was not the son-in-law of the Principal is also a ground for drawing adverse presumption as against the petitioner himself. Therefore, on its own showing the petitioner has not come out with a clean and unequivocal denial that he was not the son-in-law of the Principal. He has also not stated on oath that he happens to be the son-in-law of Sri Radhey Shyam Katiyar, the cultivator. Mr. Singh further contends that though in the report contained in Annexure 2, it was mentioned that the petitioner's wife holds a Post Graduate Degree and had passed High School in 1966 yet nothing is produced to show that she was the daughter of Sri Radhey Shyam Katiyar, the cultivator. On the other hand, in the same report, it was mentioned that the Sarpanch had given a certificate that the petitioner had married the daughter of Sri Radhey Shyam Katiyar, the Principal about 24 years earlier, in the same village where the Sarpanch himself used to reside and a photo copy of the Kutumb Register was also annexed with the said certificate showing that Smt. Hemlata was the third issue of Sri Radhey Shyam Katiyar, the Principal. On the basis of such a situation, it was rightly held by the Director in his order dated 24th November, 1994 that it was not possible to decide such a disputed question without the help of the police and, therefore, there should be an enquiry made through the Superintendent of Police, According to him, this was a circumstance in which it was necessary to take the aid of outside agency for arriving at a definite conclusion. Therefore, it was not a delegation as contended by Dr. Dwivedi. According to Mr. Singh, the determination was made by the Director himself but he had sought for certain materials in order to come to a definite conclusion in the form of enquiry through the police authority. According to him, Section 16-E (10) does not prescribe any procedure as to how such enquiry has to be conducted. Therefore, it is open to the Director to conduct the enquiry as he may deem fit and proper. As such there is no illegality in the seeking of the report from the police authority. He then contends that Section 16-E (10) of the Act deals with the cancellation of appointment of teacher or Head of Institution. Section 16-G provides for making of regulation with regard to condition of service. Condition of service follows appointment. Any appointment made under the U.P. Intermediate Education Act requires the approval of the District Inspector of Schools. Thus, an appointment requires approval. It has been included within the scope and ambit of condition of service to include a provision akin to Regulation 4, Chapter III. Chapter III itself is headed by the title "Probation, Confirmation and Promotion'. An appointment it subject to probation and confirmation. Therefore, Regulation 4, Chapter III cannot be said to be outside the scope and ambit of Section 16-E (10) of the Act, which deals with appointment. Since an appointment is confirmed after probation or approved, provided the appointment is made properly. Section 16-GG though deals with ad hoc appointment, but the same was introduced to convert such ad hoc appointees as regular appointees against substantive vacancies. Therefore, the conditions provided in Section 16-GG relates to substantive appointment and not ad hoc appointment since unrelated against a substantive vacancy granting him a substantive vacancy granting him a substantive appointment. Therefore the relationship as a bar is very much within the scope and ambit of the Act itself since been referred in the regulation, Therefore, according to him Section 16-E (10) of the Act can very well include the present dispute. He then contends that the question of review is normally dependent on the power conferred on the authority by the Statute. He contends that in the absence of the provision in the Statute, there cannot be any power to review. But the said proposition cannot be attracted in the present case in view of the peculiar facts and circumstances of the case. According to him, there were two reports-one by the Circle officer and the other by the Deputy Superintendent of Police. The report of the Deputy Superintendent of Police was dated 10th January, 1995: It was also in existance but the same was not considered while the order dated 26th June. 1995 was passed. The order dated 26th June, 1995 had relied upon the report of the Circle Officer alone without adverting to the report of the Deputy Superintendent of Police. As soon it was brought into the notice of the Deputy Director, it was open to him to look into (he same and reopen the case since it was done without adverting to the report already on record. He than contends that the dispute was continuing right from 1980 and by reason of various proceedings, the matter has since been delayed. Therefore, it is not being reopened after long 15 years but it is the continuation of the same process initiated in 1980. He further contends that there arc materials to show in the form of certificate by the Sarpanch that the petitioner was related to the Principal, which is supported by the report of the Deputy Superintendent of Police dated 10th February, 1995. It has been found to be correct by the Senior Superintendent of Police as was intimated to the Director. On these grounds, he contends that the writ petition should be dismissed.