Allahabad High Court
Umesh Kumar Mishra vs State Of U.P. & Others on 9 December, 2011
Bench: Sunil Hali
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- WRIT - A No. - 59611 of 2008
Petitioner :- Umesh Kumar Mishra
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Manoj Kr. Singh
Respondent Counsel :- C.S.C.,Anuj Kumar,B.R. Maurya,Birendra S. Pandey
Hon'ble Sunil Hali,J.
Petitioner came to be appointed on the post of Shiksha Mitra on 27.12.2007. On a complaint being filed by the respondent no. 6 that the petitioner had obtained certificate of Intermediate Examination from two different boards in the same year., his appointment has been cancelled. It is contended that petitioner has obtained certificate of Intermediate Examination as private students from U.P. Board in the year 2002 and in the same year he appeared in Uttar Madhyama Examination which is an equivalent degree conducted by the UP Madhyamik Sanskrit Shiksha Parishad as a regular student. On this complaint being filed in addition to other grounds, respondent no. 6 has also set up his claim of preferential right for being appointed on the said post on the ground that he has working experience of Instructor. District Magistrate on coming to know all these facts cancelled the appointment of the petitioner on the ground that this was in violation of the Chapter XII of Regulation 14 appended to the Intermediate Examination Act 1921 vide order dated 6.5.2008. Aggrieved against this order petitioner preferred a Civil Misc Writ Petition No. 25348 of 2008 which was finally disposed of vide order dated 1.7.2008 and petitioner was directed to approach the District Magistrate concerned by moving detailed representation in this behalf and on the representation being moved impugned order dated 13.8.2008 has been passed by the learned District Magistrate. It is under these circumstances, the present writ petition has been filed.
Impugned order has been passed by invoking the Regulations 14 and 19 A of the Chapter XII of the Intermediate Education Act 1921. Regulation 14 of the Act provides that a candidate who wants to appear as private candidate in any examination of the Board and in any equivalent examination conducted by other body, he cannot be allowed to appear in Board Examination. Thus, a person cannot be allowed to appear as regular student if he has already appeared as private student for the same degree.
Petitioner's contention is that he has obtained certificate/degree of Intermediate Examination from U.P. Board in the year 2002 and in the same year he obtained Uttar Madhyama Examination which is an equivalent degree conducted by the UP Madhyamik Sanskrit Shiksha Parishad as a regular student. It is admitted case of the parties that certificate in respect of both the examinations qualified by the petitioner from the two different boards have been issued in his favour. On the basis of these certificate petitioner has applied for the post aforesaid and stood appointed in this behalf.
Stand of the respondents is that by operation of Regulation 19 A of the Chapter XII of the Intermediate Education Act petitioner could not have appeared as private student for the Intermediate Class when he had already appeared as regular student by the UP Madhyamik Sanskrit Shiksha Parishad in the same year. As a result of which, his appointment has been cancelled.
While examining the import of both the Regulations it clearly emerges that a person who wants to appear as private candidate in any examination of the Board and in any equivalent examination conducted by the any other board he could not be allowed to appear in the board examination. Regulation 19-A of the Act provides that a candidate shall not be allowed to fill up his application form and to appear in the examination in a year simultaneously as private candidate in any of the board examination. These provisions clearly are prohibitory in nature. They are couching in negative language inasmuch as both the provisions prohibits a candidate from appearing int he same year for the same class either from the same board or from different board.
In the present case, this Court is required to examine the validity of the certificate issued by the respective board in favour of the petitioner. Both the rules do not indicate the consequence of violation of Regulation 14 & 19-A of the Act. It only contains a prohibitive clause in not allowing a person to appear in the same examination from two different boards in the same year. It does not contemplate the consequence where a person has been permitted to appear in the examination and has obtained the degree in this behalf. There is nothing before the Court to suggest that examination of the petitioner has been cancelled or degree has been cancelled which would dis-entitled the petitioner from seeking employment. This is not the issue in the present case. Merely, invoking Regulation 14 & 19-A of the Act cannot be a ground to cancel the appointment of the petitioner and if any such certificate has been obtained its consequence would be cancellation of that certificate or degree which has not been done in the present case. I do not find any stipulation in either of the two provisions in this behalf that violation of the rule will tantamount cancellation of the degree.
I find force in the contention of the petitioner and hereby quash the order impugned of the District Magistrate dated 13.8.2008. However, respondent no. 6 will be at liberty to question the selection and appointment of the petitioner on merits before the District Magistrate concerned. Learned counsel for the respondent no. 6 has contended that he has raised this objection before the learned District Magistrate but the same has not been dealt with in the impugned order. In case any objection relating to selection and appointment of the petitioner is made by the respondent no. 6 same shall be heard and disposed of in accordance with law after affording an opportunity of hearing to either of the parties within a period of six weeks from the date of production of certified copy of this order. However, any observation made hereunder will not preclude the authority concerned to apply its independent mind.
With aforesaid observation, the writ petition is finally disposed of.
Order Date :- 9.12.2011
RKS/
