R. A. Sharma, J. - (1.) PETITIONER, who was working as Senior Assistant, was promoted to the post of Senior Assistant (Superintendent Grade II) in his office, by the District Inspector of Schools therein after referred to as D.I.O S. vide order dated 16-7-1991, on officiating basis. This order has been cancelled by the impugned order dated 28 -9-1992, passed by the Deputy Director of Education, Agra, on the ground that the D.I.O. S. has no jurisdiction, under the service Rules, to promote the petitioner. By the same order the respondent no. 2 was promoted to the pott of Senior Assistant (Supdt. Grade II) In place of the petitioner. It is against this order that this writ petition has been filed.
(2.) RESPONDENT no. 2 has filed counter-affidavit and the petitioner has filed rejoinder-affidavit in reply thereto. We have heard the learned counsel for parties. Learned counsel for the petitioner has challenged the Impugned order on six grounds viz. (1) The D.I OS. is the authority under law to promote the petitioners ; (ii) the order has been passed without giving any opportunity of being heard to the petitioner ; (iii) the respondent no. 2 is junior to the petitioner and the finding recorded, in the order declaring the respondent no. 2 as senior is unjustified and wrong.; (iv) the Deputy Director of Education has no jurisdiction to promote the respondent no. 2 ; (v) the order has been passed at the Instance of Dr. Yadavendra Amoriya, and (vi) the order has been passed in defiance of the interim order, passed by this Court on 39-9-1991 in another writ petition filed by the petitioner. Learned counsel for the respondent no. 2 has disputed the above submissions and has supported the Impugned order. Under the U. P. Directorate of Education Ministerial Service Rules, 1983 (hereinafter referred to as the Rules) the Additional Director of Education (Secondary) is the appointing authority and it is he and he alone who can make temporary or officiating appointment/promotion to the post of Senior Assistant (Office Superintendent Grade II). It is thus apparent that the D.I.O.S., who has granted promotion to the petitioner, was not the appointing authority and he has no jurisdiction to promote him. Learned counsel for the petitioner, however, in this connection, has invited attention to the order dated 13-3-1989, issued by the Director of Education (Basic) to the Additional Director of Education (Basic) requiring him to take steps for appointment to the posts of Head clerks and the Senior Clerks in the regional and district offices. Copies of this order were circulated to the Deputy Director of Education (Boys and Girls) and D.I.O.S. of all the districts in the State of U. P., with endorsement to the effect that they will take immediate steps in accordance with Education Code and relevant Rules, for filling up the vacancies on officiating basis. On the basis of the above order the learned counsel for petitioner has argued that power has been delegated to the D.I.O.S. for making promotion to the post to which the petitioner was promoted. It is not possible to agree with the learned counsel. The said order neither delegates power to the D I.O.S nor such delegation is permissible under the rules. That apart, the endorsement itself says that steps should be taken for filling up the vacancies in accordance with rules, which do not empower the D I.O.S. to make promotion. He cannot appoint or promote any person to a post of which he is neither appointing authority nor has any such power been conferred on him. The first submission of the learned counsel as such, is not liable to be accepted.
(3.) THE second submission of the learned counsel cannot be accepted. It is true that if an order of appointment/promotion is revoked, the person who was appointed/promoted is entitled to a notice and reasonable opportunity of being heard before passing of such an order. But if on the indisputable facts only one conclusion is possible and under law only one penalty is permissible, this Court Is not bound to interfere under Article 226 of the Constitution of India. In this connection reference may be made to the decision of Supreme Court in S. L. Kapoor v. Jagmohan, AIR 1981 SC 136, relevant extract from which is reproduced below : "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. THE non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has been denied justice that the person who has been denied justice is not prejudiced As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it Is not necessary to observe natural justice but because Courts do not issue futile writs." As mentioned hereinbefore the D.I.O.S. had no power to promote the petitioner under the rules and it is futile to direct the respondents to pass the order of revocation of promotion of the petitioner afresh in accordance with the principles of natural justice because the same order is bound to be passed again. The question as to whether the respondent no. 2 is junior or senior to the petitioner is a question of fact and both the parties have disputed each other's claim and have filed various papers in support of their respective case. There being serious disputes on the question of fact on this point this Court is not proper forum for deciding such factual controversy. The proper forum is U. P. Public Services Tribunal);