Writ Petition No.1776 of 1990

5th October, 2004

Petitioner Counsel: ANJAN DE,MURTHY
Respondent Counsel: V. A. MASODKAR,JAWALKAR,DEOPUJARI

Cases Cited:
Mohinder Singh Gill Vs. The Chief Election Commissioner, New Delhi, AIR 1978 S.C. 851 [Para 2]

JUDGMENT

D. D. SINHA, J. :- Heard Learned Counsel for the Petitioner and learned Counsel for the Respondents.

2. In the instant case, the petition is directed against the impugned order dated 25-05-1990, passed by the Education Officer (Secondary), whereby the approval to the post of Junior Clerk held by the Petitioner at the relevant time was refused. The Counsel for the Petitioner contended that the Petitioner was appointed vide order dated 29-08-1987 passed by Respondent No.1 Management whereby the Petitioner was appointed as a Junior Clerk. The Petitioner joined the service on 03-09-1987 and the case of the Petitioner was forwarded to the Education Officer (Secondary) for consideration of grant of approval to the Petitioner. The Learned Counsel for the Petitioner contended that the Education Officer passed the impugned order dated 25-05-1990 and refused the approval without any reason or justification. Learned Counsel states that the order impugned is completely non-speaking order and there are no reasons whatsoever given by the Education Officer for refusing to grant approval to the post of Junior Clerk held by the Petitioner at the relevant time. It is submitted that in view of the law laid down by the Apex Court in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 S.C. 851, the impugned order may be quashed and set aside and the matter may be remanded back to the Education Officer (Secondary) for reconsideration of grant/refusal of the approval by the Education Officer, with further direction to grant an opportunity of being heard to the Petitioner as well as other parties concerned.

3. Learned A.G.P. appearing for Respondent No.2 Education Officer, on the other hand, contended that the appointment of the Petitioner was de hors of the relevant provisions of law and, therefore, same is bad ab initio. It is submitted that the Education Officer after taking into consideration the provisions of law as well as the relevant facts and circumstances, came to the conclusion that the Petitioner failed to make out a case for grant of approval and, therefore, justified in refusing to grant approval to the post of Junior Clerk held by the Petitioner at the relevant time and was further justified in directing the Management to promote Respondent No.3 from the post of Peon to the post of Junior Clerk by the same order.

4. The Counsel for Respondent No.3 Mrs. Jawalkar also supported the impugned order and submitted that the Order passed by the Education Officer is sustainable in law and the direction given to the Management to grant promotion to Respondent No.3 by the Education Officer is just and proper and, therefore, same is also sustainable in law.

5. We have considered the contentions canvassed by the respective Counsel. Perused the impugned order dated 25-05-1990 passed by the Education Officer as well as the law laid down by the Apex Court.

6. Perusal of the impugned order dated 25-05-1990 would show that the Education Officer has not given any reasons whatsoever for refusing the grant/approval to the post held by the Petitioner at the relevant time. The said order is non speaking order and is completely silent in respect of reasons for the same. So far as the reasons are concerned, the order is undoubtedly without any reason and only mentions that the Petitioner is not entitled for grant of approval and, therefore, the approval to the post of the Petitioner is refused. There is nothing in the order to show that on what grounds the Education Officer came to the conclusion that the Petitioner is not entitled to get approval. There are no reasons given in the order justifying the conclusion arrived at by the Education Officer. At this stage, it will be relevant to consider the observations of the Apex Court made in the above referred Judgment, particularly, in para 8 which reads thus :

"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji (AIR 1952 S.C. 16) (at p.18):

"Public orders publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and intended to affect acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older."

7. It is no doubt true that the above referred observations made by the Apex Court are in different context. However, in our view, they do have a bearing on the issue in question. In the instant case, the order is made by the Education Officer who is the Authority, constituted for the purpose of considering the grant and refusal of approval to the teaching and non-teaching staff of the School run by the private Management to whom the aid is given by the State Government and, therefore, if such authorities make an order which takes away the rights of the person concerned, that order must show reasons for the conclusions arrived at by the Education Officer. The respondent cannot over come this lacuna by filing affidavit before the Court and giving reasons therein for passing of the order by the Education Officer. These reasons must find place in the order itself, failing which, the order would be without reasons and invalid in law.

8. In the instant case, the Petitioner was appointed to the post of Junior Clerk and has served in the same post for 3 years and, therefore, had a legitimate expectation of getting approval from the Education Officer. In a situation like this, when the Education Officer is disallowing the claim of the Petitioner for grant of approval by passing the impugned order dated 25-05-1990, it must contain reasons for concluding the issue that the Petitioner is not entitled for approval. In absence thereof, the order impugned, in our considered view, is not sustainable in law.

9. For the reasons stated herein above, the order impugned dated 25-05-1990 is hereby quashed and set aside.

10. The matter is remanded back to the Education Officer (Secondary) Wardha, to reconsider the issue of grant/refusal of approval to the post of Junior Clerk held by the Petitioner at the relevant time.

11. It is brought to the notice of this Court that by virtue of the interim order passed by this Court, the Petitioner is still working in the said post. We direct the Education Officer to decide the issue afresh as directed by us on its own merit according to law, after giving reasonable opportunity of hearing to the Petitioner as well as Respondent No.3 and other concerned persons as early as possible, in any case not beyond the period of eight weeks from the date of receipt of this order.

12. Needless to mention that the Education Officer is expected to consider the claim independently without getting influenced by any other observations made by us in the instant petition.

13. Rule made absolute in above terms with no order as to costs.

Petition allowed.