Binod Kumar Roy, M.P.Singh - (1.) WHETHER the respondent who is a member of Higher Judicial Service of our State, for non-declaration of results of Intermediate Examination, 1997 of his own son could have initiated suo motu judicial proceedings in his own Court, proceeded to pass orders for production of answer books of his son and held guilty the Educational Authorities of the State after holding an enquiry of committal of alleged offences under Indian Penal Code, Section 340, Cr. P.C. and even guilty of committal of Contempt of Court Act and decided to make reference thereunder? And whether this Court will be justified in interfering with his acts and orders/directions under Article 226 of the Constitution of India ? are the core questions which have cropped up for adjudication in this writ proceedings. The Prayers :
(2.) THE petitioners, the State of Uttar Pradesh and the Director of Education (Secondary)-cum-Chairman, U. P. Board of High School and Intermediate Education, U. P., Allahabad, have come up with following prayers : (i) to quash directions issued by the respondent Sri R. S. Gupta, H.J.S., Special Judge (Dacoity Affected Areas), Jalaun at Orai to petitioner No. 2 as contained in his letter dated 6.6.1997 (copy appended as Annexure-1) to let him know about the result (Division, Marks obtained) of the Intermediate Examination, 1997 of his son named Alok Kumar Gupta bearing Roll No. 1094995 and clarify the relevant facts concerning the expression of the word 'C' as published in the newspaper 'Amar Ujala'. (ii) to quash his another direction as contained in Letter No. 469 of 1997 dated 29.7.1997 (copy appended as Annexure-2) to immediately produce answer books of his aforementioned son on 18.8.1997 which are required in Case No. 50 of 1997, State v. Laxmi Prasad Pandey and others pending in his Court ; (iii) to command the respondent not to proceed any further in Case No. 50 of 1997 aforementioned ; (iv) to transfer that case from his Court to any other Court of competent jurisdiction ; (v) to issue any other writ, order or direction, which may be deemed fit and proper, and (vi) to award cost of this litigation. THE Facts pleaded : The case of the petitioners is as follows : (i) Alok Kumar Gupta, the son of respondent, had appeared as a private candidate in the Intermediate Examination of 1997 for which he had applied from Acharya Narendra Deo Inter College, Orai, Jalaun ; (ii) The Transfer certificate accompanying his application mentioned him as having failed in the 1996, Intermediate Examination. His Roll Number was neither disclosed nor was furnished ; (iii) Vide letter No. 461 dated 28.2.1997, the petitioner No. 2 asked him to furnish details in that regard ; (iv) As he did not furnish the same, his result was shown as 'C' in the Newspaper which meant group of those examinees whose results had been cancelled due to various reasons ; (v) Thereafter respondent No. 1 sent the letter as contained in Annexure-1 ; (vi) The department enquired the matter. It was revealed that Alok Kumar Gupta had appeared from Gonda district, which fell within the territorial jurisdiction of the Divisional Office at Varanasi and from his result sheet, it was apparent that he had failed being unsuccessful in four subjects : Hindi, English, Civics and History out of five subjects, the 5th being Art Design in which he could pass. Vide letter No. 627 dated 4.7.1997 he was intimated to obtain his marks sheet which he received ; (vii) Thereafter the petitioners came to know for the first time on receipt of the letter dated 29.7.1997 as contained in Annexure-2 sent by the respondent that he has instituted a criminal case bearing Case No. 50 of 1997, State v. Laxmi Prasad Pandey and others in his own Court ; (viii) A special messenger was sent to receive copy of the case but it was not handed over on the ground that the records are in the personal custody of the respondent ; (ix) The impugned directions are wholly without jurisdiction, illegal, arbitrary, mala fide, unjust and contrary to law ; as nobody can act as a Judge in which his own interest is involved, the matter could not be entertained by the respondent ; (x) Since the petitioners have no other alternative and efficacious remedy they are approaching this Court ; This writ petition was placed before a Division Bench on 19th September, 1997, following order was passed by the Bench on that day : "Petitioners are permitted to serve the respondent personally in addition to normal mode of service steps for which shall be taken within three days. Office shall issue notice returnable within a month. Affidavit of service may be filed by the next date of listing. List this petition on 21.12.1997. Meanwhile, the operation of the order dated 29.7.1997, Annexure-2 to the writ petition, shall remain stayed."
(3.) DASTI was handed over to the learned standing counsel appearing for the petitioners for service on the respondent to whom notice by Registered Post was also sent on 24.9.1997. The petitioners also filed an affidavit dated 24.10.1997 in regard to service on the respondent, paragraphs 2 and 3 of which reads as follows : "2. That in pursuance of the directions of this Hon'ble Court dated 19.9.1997 passed by a Division Bench consisting of Hon'ble Mr. Justice R. R. K. Trivedi and Hon'ble Mr. Justice M. Katju passed in the present writ petition, the Assistant Clerk, Sri Ram Sewak Singh, personally approached the respondent Sri R. S. Gupta to effect the service of the present writ petition, etc. on the respondent, Sri R. S. Gupta on 25.9.1997. However, the respondent refused to accept the same. A copy of the report submitted by the aforesaid Assistant Clerk is being filed herewith and marked as Annexure-1. 3. That in view of the aforesaid fact, it is necessary in the interest of justice that the service of the notice on the respondent may be deemed to be sufficient." 6.1. The report (Annexure-1 to this Affidavit) shows, inter alia, that Ram Sewak Singh, Assistant contacted the respondent in his Chamber at 10.30 a.m. of 25.9.1997 and made available to him copy of the writ petition , the order dated 19.9.1997 and summon of this Court, after seeing them the respondent refused to accept them ; the Camp Assistant of the Joint Secretary, etc. were apprised of the aforesaid facts ; ultimately he was directed by the Secretary to send them by Registered Post to the respondent, which he sent vide registration No. 270 dated 26.9.1997. 6.2. The petitioners also sent a copy of their affidavit dated 24.10.1997 to the respondent through Registered Post No. 30678 dated 7.11.1997, which is evident from the registration receipt affixed on the aforesaid affidavit. ;