Dr. Umesh Singh vs State of U.P. and Others

A.P. Sahi, J.—Heard Sri Pradeep Singh Baghel learned senior advocate assisted by Sri Prabhat Kumar, counsel for the petitioner and Sri Saroj Yadav who has put in appearance on behalf of respondent No. 6. Notice has been accepted by learned standing counsel on behalf of respondents No. 1 to 4.

Keeping in view the nature of the submissions which has been advanced and the dispute raised, it is not necessary to issue notice to the respondent No. 5 at this stage. With the consent of the parties, the matter is being disposed of finally without calling for any further affidavits.

Sri Saroj Yadav learned Counsel for the contesting respondent No. 6 has conceded that the impugned order having been passed in violation of principles of natural justice, which affects rights of the petitioner, may be set aside, and the matter be remitted back to the Director of Education for decision afresh in accordance with law.

Learned standing counsel has also not objected to this course being adopted and the writ petition being allowed on the short ground of violation of principles of natural justice.

The contention of Sri Baghel is that the impugned order apart from being in violation of principles of natural justice is contrary to the law of reservation as laid down by this Court in the case of Smt. Pholpati Devi Vs. Smt. Asha Jaisawal and Others, which has followed the Apex Court decision in the case of R.S. Garg Vs. State of U.P. and Others, He further submits that the same position has been reiterated in the case of Dr. Vishwajeet Singh and Others Vs. State of U.P. and Others, On the strength of the said decisions, it is urged that the impugned order proceeds on an incorrect procedure of calculation with regard to reservation and further the posts which have been treated by the Director of Education of the reserved category is on an erroneous assumption of fact. Sri Baghel contends that as a matter of fact the post which is being occupied by the petitioner does not fall within the reserved category for which petitioner has stated facts as detailed in the writ petition.

Having heard learned Counsel for the parties and noticed the submissions as made hereinabove, the impugned order dated 13.10.2009 has been passed at the instance of respondent No. 6 who had earlier filed a writ petition before this Court being Writ Petition No. 42976/09 which had been disposed of with a direction to decide his representation. While deciding the representation, the findings recorded by the Director of Education directly affects the petitioner and his transfer has been consequently cancelled. In my opinion it was incumbent upon the Director of Education to have at least given a notice to the petitioner prior to the order being passed.

Accordingly, the impugned order dated 13.10.2009 is set aside. The writ petition is allowed with a direction to the respondent No. 2 to rehear the matter and decide the claim of the petitioner as well as of the respondent No. 6 after giving reasonable opportunity of hearing to the Committee of Management as well. The aforesaid exercise may be completed within six weeks from the date of representation of certified copy of the order.