1. This is third round of litigation.
2. The petitioner was appointed on a contractual post of ‘Warden’ on contract basis under Serva Shiksha Abhiyan, and joined her duties on 23.02.2011 at Kasturba Gandhi Awasiya Balika Vidyalaya, Chraigon, Varanasi.
3. The petitioner's yearly contract was renewed up to 2014-2015 and she was paid regular honorarium also. It is further case of petitioner that her contact was not renewed for year 2015-2016 and in this regard an order dated 15.07.2015 was passed, by the District Level Committee with approval of its Chairman i.e. District Magistrate and the said order is reproduced hereinafter:
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
4. The petitioner challenged the aforesaid order by way of filing WritA No. 43482 of 2015 whereby the said order was set aside and the writ was disposed of by an order dated 14.08.2015 with a direction to pass a fresh order.
5. In above order this Court has taken note of Clause 8 (Sub-clause 4) of a Government Order dated 29.07.2013 Clause 8 thereof is mentioned hereinafter:
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
6. In the aforesaid circumstances, petitioner submitted a representation which was considered and rejected by an order dated 14.09.2015 passed by District Basic Shiksha Adhikari, Varanasi, and relevant part thereof is reproduced hereinafter:
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
7. At this stage it would be appropriate to mention that from perusal of above referred order dated 14.09.2016 it would be clearly evident that a notice dated 18.12.2014 was issued to petitioner whereby an explanation was sought on nine issues. The petitioner has replied to the said notice vide an explanation dated 20.12.2014 and it appears that it was not brought into the notice of this Court during the hearing, when the first writ petition was disposed of. The factum of notice and a reply to it is sufficient to observe that requirement of Clause 8(4), of Government Order dated 29.07.2013 was substantially complied with.
8. In second round of litigation the petitioner has challenged order dated 14.09.2015 by way of filing a Writ-A No. 61117 of 2015. This time the court has taken note that petitioner was granted an opportunity of hearing i.e. a notice was issued and a reply thereof was submitted, still the court found that the reply so submitted by the petitioner was not considered. Therefore the order dated 14.09.2015 was set aside by a coordinate bench of this Court by an order dated 17.12.2015 and the matter was again remitted to the concerned respondent and relevant part thereof is mentioned hereinafter:
“From a perusal of the impugned order it is manifestly clear that the detailed representation of the petitioner (annexure-8 to the writ petition) has not been considered in the impugned order. Learned counsel for the respondents has failed to point out from the impugned order that the issue raised by the petitioner in her objection/representation has been adverted to by the authority concerned, the fifth respondent i.e. District Basic Education Officer.
In view of the above, the impugned order dated 14th September, 2015 passed by the District Basic Education Officer is not sustainable and it is set aside. The matter is remitted to the District Basic Education Officer, Varanasi, the fifth respondent, to pass a fresh order after considering the grievance of the petitioner which she has raised in her representation dated 20th December, 2014, expeditiously, preferably within a period of two months from the date of communication of this order.
The writ petition, is accordingly, allowed. No order as to costs.“
(Emphasis supplied)
9. In the aforesaid circumstances, matter was again considered by District Basic Shiksha Adhikari, Varanasi, and this time each and every point raised in reply submitted by the petitioner dated 20.12.2014 was considered and it was held that prior conduct of petitioner was not fit for renewal of contract and accordingly representation was rejected and earlier order whereby contract was not renewed was restored and relevant part thereof is mentioned hereinafter:
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
10. In the aforesaid circumstances, petitioner has approached this Court third time by filing the present writ petition challenging the above referred order dated 17.02.2016.
11. Sri Prabhakar Awasthi, learned counsel for petitioner has reiterated his argument raised in earlier round of litigation that the procedure prescribed in the Government Order dated 19.07.2013 was not been complied with. He has also submitted that impugned order of Basic Shiksha Adhikari was not approved by the District Magistrate. Learned counsel also submitted that explanation given by the petitioner was self explanatory and no allegation against her was established, he referred Paragraph Nos. 15 and 20 of the writ petition which is reproduced hereinafter:
15- That against the order of the District Basic Education Officer, Varanasi dated 14.09.2015 the petitioner filed a writ petition bearing writ petition no. 61117 of 2015 and the said writ petition was entertained by this Hon’ble Court on 02.09.2015 and granted interim order in favour of petitioner.
20- That it is itself demonstrate that the said order has been passed by him without providing any opportunity of hearing to the petitioner and without issuing any notice to her and as such the order impugned violate the principle of natural justice, and as such the said order can not sustain in the eye of law.”
12. Per contra, learned counsel for respondent submitted that appointment of petitioner was only on basis of contract which required to be renewed on basis of her prior satisfactory conduct. The petitioner was granted opportunity to place her case and whatever procedure lacuna left in the procedure was considered in present impugned order, wherein explanation afforded by the petitioner was considered and it was rejected by reasons.
13. Learned counsel for respondent has drawn attention of this Court to observation made in the impugned order in regard to the conduct of the petitioner that she was not discharging her duties diligently and despite repeated cautions her conduct was not improved. There was complaints by the resident girls of the hostel that petitioner mistreated them as well as that she has not taken care of the food supplied to the students and it was not up to the mark.
14. Learned counsel for respondent also submitted that there were other complaints also. He further submitted that procedure prescribed in Government Order was substantially complied with. In the impugned order, a inspection report was also mentioned and considered wherein many irregularities were found. He referred following Paragraph Nos. 13, 14, 16 and 19 of Counter affidavit:
“13. That the contents of paragraph nos. 18,19,20,21 and 22 of the writ petition is totally misconceived and denied and in reply submitted that various stages opportunity of hearing was granted to the petitioner, it was she filed Writ Petition no. 61117 of 2015 with the specific allegation that her grievance as made in representation dated 28 December 2014 was not considered for said reasons the Hon’ble Court was pleased to pass order dated 17.12.2015 whereby it was specifically directed that the claim of the petitioner may be considered by way of passing a fresh order after considering grievance of the petitioner as was raised in writ representation dated 28.12.2014
The order dated 17.02.2016 has been passed adjudicating each and every grievance as to be raised by the petitioner in representation dated 28 December 2014.
14. That the contents of paragraph nos. 23,24,25 and 26 of the Writ petition is totally misconceived and denied and in reply it has been submitted that order dated 17.12.2015 was specific to the grievance as was raised by the petitioner that her representation dated 28 December, 2014 as was alleged not to be concerned by the Basic Education Officer whereby while passing order as has been challenged in the writ petition, each and every grounds point-wise has been considered and adjudicated in totality and therefore, allegation has made is totally unwarranted.
16. That the contents of paragraph no. 29 of the writ petition it is being submitted that the petitioner got the bank accounts opened of the students without verifying the same and as such the same was required to be cancelled and as such the petitioner is solely responsible. Copy of the proceeding of cancellation of the bank account is being enclosed herewith and is marked as Annexure no. CA-2 to this counter affidavit.
19. That the contents of paragraph no. 34,35,36,37,38 and 39 of the writ petition, it is submitted that in the annual assessment the work and conduct of the petitioner was not found satisfactory and therefore, the District Level Committee decided not to consider the claim of the petitioner for renewal and after getting the due approval from the chairman of the committee her claim was rejected. Copy of such proceedings in respect of enquiry the conduct of the petitioner and approval as was taken by the Chairman of the committee along with decision District Level Committee is being enclosed herewith and is marked as Annexure No. CA-4 to this counter affidavit.
That the order under challenged has been passed considering each and every grievance of the petitioner in light of the direction as was issued by this Hon’ble Court vide order dated 17.12.2015 and such in entire writ petition could not established an ambiguity and therefore, reasons as aforementioned the writ petition should be dismissed with cost.”
(Emphasis supplied)
15. Learned counsel for respondent also pointed out that the order impugned has already been approved by the District Magistrate.
16. Heard counsels for parties and perused the record. As referred above this is third round of litigation and it is not under dispute that nature of appointment of petitioner was contractual, which was renewed year to year on basis of past conduct of petitioner, therefore, she has no absolute right of renewal. Learned counsel for petitioner has placed much reliance on the following two parts of Government Order dated 29.07.2013 which are reproduced hereinafter:
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
17. From the records it is apparent that during first round of litigation, petitioner has not brought all relevant facts into notice of the Court, that a show cause notice was issued to her seeking reply on various points and she has submitted a reply to it way back in the year 2014. The said event was noticed by this Court in the second round of litigation, however, matter was remitted to concerned respondent that reply made by petitioner be also taken note of and by way of impugned order concerned respondent has considered, the reply submitted by the petitioner on each point in detail and expressed reasons for their rejection.
18. I have carefully perused the impugned order. Every explanation raised by petitioner to various queries was considered by the concerned respondent, however, since not found satisfactory, it was rejected with reasons. The impugned order also discloses that inspection was conducted of the girls hostel, wherein various irregularities were detected, even there were complaints by girl students that food was not properly prepared, petitioner’s behaviour was not good with students, there was charge of misappropriation of funds, relevant records were not properly prepared, furniture was found in dilapidated. Condition of hostel premises was found in bad shape, there were no lights in toilets and even scholarship accounts of all the students were not opened despite entire amount was forwarded. There were other complaints against the petitioner not only from students but from other employees also. The students have complained that they were forced to clean toilets also.
19. The aforesaid irregularities are very vaguely denied without any sufficient proof by petitioner in the writ petition, otherwise also the petitioner was only on contractual appointment, even no detailed inquiry is required to be undertaken, though certain procedure has been prescribed in the Government Order dated 29.07.2013, but it does not mean that a detailed inquiry is required as provided for the purpose of regular employees. As referred above, the procedure prescribed as referred in Government order was substantially complied with.
20. The petitioner was appointed as a warden and she has to discharge her duties diligently, however, she has miserably failed to do so. The aforesaid referred complaints and various short coming pointed out in inspection report could not be ignored. There are sufficient material on record that conduct of petitioner was not satisfactory and she was not diligent towards her duties. She has not improved herself despite her asussrance to do so.
21. It is well settled that this Court cannot sit as an Appellate Authority, even in a case of regular employee, whereas present case was arisen out of a contractual appointment, therefore, this Court has very limited jurisdiction to interfere. The material before this Court is sufficient to take a view that the petitioner was not diligent towards her duties. No satisfactory explanation was submitted to various serious allegation against the petitioner. Procedure prescribed has also been substantially complied with, therefore there is no irregularity or illegality in the impugned order.
22. the last argument of the petitioner was that according to Government Order dated 29.07.2013 rejection of the renewal of contract has to be approved by the District Magistrate and according to him it was not approved, however, it was contrary to record and for that the last paragraph of impugned order would be relevant to mention, wherein it was specifically mentioned that not only the earlier orders were approved by the District Magistrate but this order was also approved. Otherwise also on basis of above referred material in regard to unsatisfactory conduct of the petitioner, no case is made out for renewal of petitioner.
23. In the aforesaid circumstances this writ petition is dismissed and since there are sufficient material that the petitioner was not diligent towards her duties and she has not come earlier before this Court with clean hands, therefore this writ petition is dismissed with a cost of Rs. 5,000/- to be paid by petitioner in the bank account of High Court Legal Services Committee within two weeks. In default Registrar General is authorized to initiate proceedings to recover the cost.
