1. The Special Appeal has been filed against the judgment and order dated 21.10.2008 passed by learned Single Judge by which the writ petition has been dismissed as not maintainable.
2. We have heard Shri Vivek Verma, learned Counsel for the appellant, learned Standing Counsel appearing for respondents No. 1 to 3, Shri V.B. Mishra, learned Counsel appearing for respondent No. 5 and Shri Ghanshyam Maurya, learned Counsel appearing for respondent No. 6.
3. Shri Vivek Verma, learned Counsel for the appellant submits that the learned single Judge has dismissed the writ petition on the basis of the decision rendered in Special Appeal No. 547 of 2004, Mala Deviv. State of U.P. and others, decided on 17.5.2004 (AII)(DB). The said decision is based on the decision of learned single Judge in Writ Petition No. 15908 of 2003, Pradeep Kumar v. Adhyaksha
Gram Shiksha Samiti and others, decided on 15.4.2003 (All) (DB), but the decision in Pradeep Kumar''s case was set aside by another Division Bench of this Court in Special Appeal No. 338 of 2003.
4. The order passed by the Division Bench is reproduced below:
"By consent of parties this appeal is treated as on day''s list and taken up for hearing.
A writ petition was moved by the writ petitioner asking for setting aside an order dated 25.2.2003 passed by Block Development Officer; Sadar Auraiya, District Auraiya and also directing the Staterespondents not to release the fixed pay in favour of respondent No. 4 and other incidental reliefs.
From a perusal of the impugned order against which the present appeal has been preferred we find that the learned Judge proceeded on the basis that the writ petitioner himself claimed appointment on the post of Shiksha Mitra although the relief claimed in the writ application was totally different.
That being the position, we have no other alternative but to set aside the impugned order and send the case back to the learned Judge for a decision afresh in accordance with law after giving hearing to the parties and after passing a reasoned order. In the event the nonappearing respondents are aggrieved by this order. It will be open for them to apply for recall of this order in the presence of other parties.
With the above observations, this Special Appeal, the application for stay becomes infructuous and is disposed of."
5. He has also invited the attention of the Court towards the decision of this Court in Urmila Chaurasia v. State of U.P. and others, 2005(4) ESC 2548 and Smt. NirmalaDwivediv. Stateof U.P. andothers, 2006(2)ESC 1288(All),wherein learned Single Judge after tracing out the constitutional/statutory origin of the Government orders pursuant thereto Shiksha Mitra are appointed and considering Mala Devi''s case has held that the writ petitions are maintainable where the impugned orders are passed by the Government authorities as the illegal and arbitrary action of the Government authorities are open to challenge under Article 226 of the Constitution of India.
6. The reliance has also been placed by the learned Counsel for the appellant on the Division Bench decision of this Court in Special Appeal No. 1498 of 2008, Meena Srivastava v. State of U.P. and others, decided on 4.11.2008 wherein the Division Bench has observed that since the writ petition has been filed against the action of Government Officer, who is a public authority, therefore, the writ petition under Article 226 of the Constitution of India is maintainable against the public authority. The public authorities, who are Stateauthorities and instrumentalities are not to act arbitrarily, irrationally or unreasonably. Any action of public authority can always be impugned in the writ petition and it cannot be said that the writ petition is not maintainable in such case. The Division Bench opined that the writ petition is maintainable in such matters.
7. Here in the present case the impugned order dated 26.7.2008 in the writ petition was passed by the Basic Education Officer, therefore, we are of the view that the writ petition was maintainable and the learned Single Judge has erred in dismissing the writ petition as not maintainable.
8. Now with the consent of Counsel for the parties we are taking up the matter for final disposal on merits on the admitted facts.
9. The facts giving rise to this case are that the appellant was appointed as Shiksha Mitra at Prathimik Vidyalaya, Hata Bujurg, Uruwa Bazar, Gorakhpur. It appears that based on a complaint made against the appellant an inquiry was conducted by Basic Education Officer and on the inquiry it was found that the marks sheet of the appellant was forged.
10. Learned Counsel for the appellant has submitted before the Court that the impugned order dated 26.7.2008 in the writ petition has been passed without affording any opportunity of hearing to the appellant he further submits that Registrar, Sampurnan and Sanskrit University has verified his marks sheet and consequently the Principal of college has also certified the same. In his submission had the opportunity was given he could have filed his reply on the basis of material supplied by the respondent No. 5 and Principal of College.
11. We have seen the order impugned in the writ petition dated 26.7.2008. From the perusal of the said order it is apparent that the opportunity of hearing was not given to the appellant.
12. It is well settled that before passing an order which leads to civil consequences, an opportunity of hearing has to be given by the authorities.
13. The Apex Court in the case of D.K. Yadav v. J.M.A. Industrial Ltd., (1993) 3 SCC 259, has observed:
"The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily effecting the rights of the concerned person.
It is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh GUN. Chief Election Commissioner, the Constitution Bench held that ''civil consequences'' covers infraction of not merely property or personal right but of civil liberties, material deprivation and nonpecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black''s Law Dictionary, 4th Edn., page 1487 defined civil rights are such as belong to every citizen of the State or country... they include... rights capable of being enforced or redressed in civil action ... In State ofOrissa v. (Miss) Birapani Dei, this Court held that even an administrative orderwhich involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.
In Stete of W.B. v. Anwar All Sarkar per majority, a sevenJudge Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India, another Bench of seven Judges held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice.
The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil right or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between quasijudicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the qusijudicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put in negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasijudicial inquiry and not to administrative inquiry. It must logically apply to both.
Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relive legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable."
14. In the case of K.I. Shephardv. Union of India, AIR 1988 SC 686, it was held that even administrative acts have to be in accordance with natural justice if they lead to civil consequences. This view has also been affirmed by the recent decision of the Apex Court in DeviDuttv. Union of India and others, 2008 (8) SCC 725.
15. Here inttie present case the impugned order passed by Basic Education Officer is selfexplanatory as it do not show that any opportunity has been given to the appellant for having his version with regard to the forged nature of marks sheet and the decision has been taken only on an exparte report as has been noticed by us.
16. We also find substance in the submissions of Shri Vivek Verma, learned Counsel for the appellant that the respondent No. 5; i.e., Sampurnanand Sanskrit University, Varanasi has verified the marks sheet of the appellant and the same has also been supported by the Principal of the College. Therefore, it was very much essential for the respondents to have the version of the petitioner before passing the impugned order dated 26.7.2008. Had the opportunity was given to the petitioner the result would have been different.
17. In view of this we find that the impugned order dated 26.7.2008 passed by Basic Education Officer suffers from breach of principles of natural justice and deserves to be quashed.
18. In view of the observations made above, the Special Appeal succeeds and is allowed. The order passed by learned Single Judge dated 21.10.2008 is hereby set aside and the writ petition also succeeds and is allowed. The order dated 26.7.2008 passed by Basic Education Officer is hereby quashed. However, the Basic Education Officer, Gorakhpur is at liberty to pass an appropriate order in accordance with law, after providing an opportunity of hearing to the petitioner. It is also observed that if any action has been taken pursuant to the order dated 26.7.2008 prejudicial to the interest of the petitioner. The said actions are rendered void.
