Urmila Devi vs State Of U.P. & Others
2011 Latest Caselaw 5639 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Judgment reserved on 20.08.2011
 
Judgment delivered on 11.11.2011
 

 
Special Appeal No.1731 of 2010
 
Urmila Devi Vs.  State of U.P. & Anr.
 

 

 
Hon. Sunil Ambwani, J.

Hon. Pankaj Mithal, J.

1. We have heard Shri B.N. Singh, learned counsel for the appellant. Shri J.K. Tiwari, learned Standing Counsel appears for the State respondents.

2. This intra court special appeal is directed against the short judgment of learned Single Judge dated 23.9.2010 by which he dismissed the writ petition filed by the petitioner-appellant against the order of the District Magistrate, Etah dated 25th September, 2008 cancelling the letter of her appointment dated 16th December, 1996, on the post of clerk on compassionate ground on the death of her husband, who died in harness, serving as a clerk in the Collectorate.

3. In the order dated 25th September, 2008 passed by the District Magistrate, he has observed that the petitioner-appellant was appointed on compassionate ground with the condition that she will learn typing within six months of her appointment dated 16th December, 1996. She did not produce any certificate of learning typing for a long period of time. Later on it was found that she was not eligible to be appointed as she did not have essential educational qualifications to be appointed on the post of Junior Clerk. She had passed High School examination in 1981 and had declared that she had passed Madhyama First Part (Visharad) and Madhyama Second Part (Visharad) examination conducted by the Hindi Sahitya Sammelan, Prayag, which is not equivalent to the Intermediate Examination.

4. The District Magistrate got her educational qualifications verified from the Secondary Education Board, U.P. through DIOS, Etah. The Secretary, Secondary Education Board by his letter dated 10th July, 2008 informed that the Prathama, Madhyama and any other examination conducted by the Hindi Sahitya Sammelan, Allahabad is not equivalent to the High School or the Intermediate Examination conducted by the Secondary Education Board, U.P. The petitioner-appellant was given a show cause notice by the District Magistrate on 2nd August, 2008 to establish that she holds educational qualifications to be appointed as Junior Clerk. In her reply dated 5th August, 2008 she requested for one month's time to reply to the notice on which she was allowed a week's time. On 13th August, 2008 she requested to extend time for one more week as her son was not keeping good mental health and that he had put all the documents including her educational certificates to fire. She finally submitted a reply on 2nd August, 2008 stating that she had passed High School examination in 1981; Madhyama Examination in Samvat 2052, which is equivalent to the Intermediate Examination, and annexed the marksheets of the Second Part of Visharad Examination of Samvat 2052. She also filed copy of the judgment of the High Court dated 10th July, 2008 in Writ Petition No.585 of 2008, Ranveer Singh Vs. State of U.P., which actually related to the dismissal of service on the basis of forged caste certificate.

5. The District Magistrate found that the petitioner does not hold educational qualifications of Intermediate conducted by the U.P. Secondary Education Board, Allahabad or any equivalent qualification and thus her appointment was not in accordance with law and was void.

6.	Learned Single Judge held that the petitioner was ineligible to be appointed as the  certificate produced by her was not equivalent   to the Intermediate Examination, upon verification    by the Board.  He also found that   the ineligibility   of the petitioner  cannot be cured by virtue of her long years of service as held by the Apex Court    in Mohd. Sartaz & Ors. v. State of U.P. & Ors., 2006 (1) UPLBEC 719.
 
7.	Learned Single Judge, thereafter,   considered the plea  that since the  petitioner did not make any mis-representation, she was entitled    for   compassionate appointment  against a post  commensurate to her qualification.  He  directed that even though the impugned order dated 25.9.2008  does not required interference, she is entitled    to a writ of mandamus directing  the District Magistrate   to appoint her against any Class-IV post or any post equivalent     and commensurate to her   qualification;  she would also be entitled to    relaxation  in age, if she has crossed the upper age limit for such employment.
 
8.	Shri B.N. Singh, learned counsel appearing for the petitioner-appellant submits that the examination of Madhyama First Part (Visharad) and Madhyama Second Part (Vishrad) of which marksheets were produced by the  petitioner-appellant, are equivalent to the Intermediate Examination conducted by the U.P. Secondary Education Board and thus the District Magistrate was not correct in cancelling   her appointment   letter.  He has relied upon the judgment of this Court  in Sompal Singh Vs. Regional Joint Director of Education, Saharanpur Region, Saharanpur  & Ors., Writ Petition No.3036 of 2001   dated 25.1.2001   by learned Single Judge of this Court in which it was held relying upon Government Order dated 22.8.1998  that the State Government has recognised the Prathama and Madhyama Examination conducted by the Hindi Sahitya Sammelan, Allahabad as equivalent  to the High School    and Intermediate Examination.  
 
9.	Learned Single Judge has relied upon  another judgment of this Court in Purshottam Das Agrawal v. DIOS, Allahabad (Writ  Petition No.18772 of 1993) decided on 5.7.1999, in which  it was held that Sahitya Ratan degree obtained from the Hindi Sahitya Sammelan is equivalent   to B.A. for Hindi and Sanskrit and approved    qualification for being appointed as teacher for  High School subjects.  Learned Judge had decided the  writ petition on a   concession made by learned Standing Counsel  that the Madhyama Examination conducted by the Hindi Sahitya Sammelan has been recognised as equivalent to Intermediate Examination and allowed   the writ petitions with directions  to the Joint Director of Education to decide all the grounds mentioned in the memo of appeal   filed before him and to verify the genuineness  of the certificates  produced  in respect of Madhyama  and Sahitya Ratna degree obtained   from Hindi Sahitya Sammelan, Prayag.  He observed as follows:-
 
	"The learned Standing Counsel had accepted the fact that the state government recognises the Prathama and Madhyama examinations conducted by the Hindi Sahitya Sammelan   as equivalent to High School and Intermediate Examinations and did not dispute the government order dated 22.8.1998 (filed as Annexure-8 to the writ petition)."
 

 
10.	Shri B.N. Singh  submits that the petitioner was appointed  on  compassionate ground   on the basis of the same  certificates, which have now been held   equivalent to Intermediate Examination   and served  for more than 10 years,  and thus it will extremely unjust and harsh to cancel her appointment.
 
11.	A counter affidavit of Shri J.K. Jain, Addl. District Magistrate, Etah has been filed  on behalf of the State respondents enclosing  the letter of the Secretary, Secondary Education Board U.P. Allahabad dated 10.7.2008  written to the DIOS, Etah in pursuance to his letter dated 18th June, 2008 and   informing     that the Prathama, Madhyama or any other examination held by the Hindi Sahitya   Sammelan, Allahabad are not equivalent to the High School and Intermediate Examination conducted by the Secondary Education Board, U.P. 
 
12.	The question whether the Madhyama examination  conducted by the Hindi Sahitya Sammelan  Prayag, Allahabad is equivalent to Intermediate Examination conducted    by the U.P. Secondary Education Board, Allahabad is no longer  res integra.   This Court has time and again considered this question and consistently returned the findings that the Madhyama (Visharad) examination of Hindi Sahitya Sammelan, Allahabad is not equivalent     to the Intermediate Examination conducted by the U.P. Secondary   Education Board, Allahabad.  The judgments of this Court  considering the question   are as follows:-
 

(1) In Sarojani Pandey (Smt.) v. State of U.P. & Ors., (2003) 2 UPLBEC 1129 learned Single Judge of this Court relied upon Government Order dated 28th October, 1998, wherein it was clearly stated that examinations of Prathama and Madhyama conducted by the Hindi Sahitya Sammelan, Allahabad are not equivalent to the High School and Intermediate examination conducted by the Board of High School and Intermediate Education U.P. Allahabad. The Court found that this is the latest order will prevail over the Government Order dated 22nd August, 1998 issued by the Joint Secretary U.P. Government addressed to Director of Education, Allahabad as well as order dated 26th July, 2001, of the Government of India.

(2) In Kunwar Herash Saran Saxena v. State of U.P. & Anr., Writ Petition No.8579 of 1992 decided on 6.12.2005 (MANU/UP/1890/2005) learned Single Judge of this Court observed in paras 3 and 6 as follows:-

"3. The controversy in the facts and circumstances of the present case is confined to the issue as to whether the certificate of Madhyma Visharad obtained by the petitioner from Hindi Sahitya Sammelan satisfies the minimum academic qualifications prescribed for appointment on the post of Junior Clerk. As provided for under the Adhinasth Karyalaya Lipik Vargiya Karmcharivarg (Seedhi Bharti) Niyamavali, 1985 or not. Hindi Sahitya Sammelan has been established under the Hindi Sahitya Sammelan Act, 1962 and Section 22 of the University Grants Commission recognises a right in the said Hindi Sahitya Sammelan to award degrees. As a matter of fact University Grants Commission has notified certain degrees awarded by Hindi Sahitya Sammelan vide notification dated 21.8.2003. However, on record there are various government orders issued by the Central Government recognising the certificate for the purposes of appointment in government service, reference (Notification dated 26.7.2001 Annexure-3 to Rejoinder Affidavit and Notification dated 16.9.1990 Annexure-5 to Rejoinder Affidavit). However, it may be noticed that Government of India had appended a note which reads as follows :

The recognition recorded above is not to be treated equivalent to the full fledged certificate/degree for which it has been equated (Annexure-6 to the Writ Petition).

6. The petitioner has not been able to bring on record any document for establishing that the certificate possessed by the petitioner from the Hindi Sahitya Sammelan was ever recognised as equivalent to intermediate examination by the Governor of the State. All the documents brought on record by the petitioner issued by the Central Government or any of the authority are of no consequence for determination of the issue concerned."

(3) In Pradeep Kumar son of Mukandi Lal v. State of U.P. & Ors., MANU/UP/0348/2008 this Court once again decided the issue on 23.1.2008 and held as follows:-

"8. Learned Counsel for the respondents has placed reliance on judgment of this Court reported in (2004) 2 UPLBEC 1716; Shailendra Kumar Singh v. State of U.P. and Ors. The question which was considered in the above case, was as to whether degree of Shiksha Visharad given by Hindi Sahitya Sammelan is equivalent to be treated as B.Ed, degree. This Court after considering the provisions of the National Council for Teachers Education Act, 1993 came to the conclusion that degree of Shiksha Visharad from Hindi Sahitya Sammelan being not recognised by National Council for Teacher Education, cannot be held to be equivalent to B.Ed.

9. The petitioner has not brought any material on record to establish that degree of Madhyama (Visharad) of Hindi Sahitya Sammelan has been treated to be equivalent to Intermediate by the State of U.P. It is not disputed that for sending a candidate for B.T.C. Correspondence Course training minimum eligibility is Intermediate. Learned Counsel for the petitioner at the time of hearing produced a booklet issued by Hindi Sahitya Sammelan, Allahabad containing various letters issued by the State of UP., Government of India and several institutions regarding degrees issued by Hindi Sahitya Sammelan. Reliance has been placed by Counsel for the petitioner on a press note dated 18^th February, 1970 issued by the Government of India along with which a list of organisations conducting different examinations have been issued.

10. A perusal of the above press note relied by Counsel for the petitioner, itself indicates that examination from Hindi organisations is recognised for standard of Hindi prescribed in the equivalent examination. The last paragraph of the press note issued by the Government of India, as quoted above, clearly clarifies that the recognition of this examination is in regard to standard of Hindi prescribed in the equivalent Hindi examination and it is not to be treated as equivalent to full fledged certificate of degree of examination. A copy of the Government order issued by the State of UP. dated 5^th December, 1989 has also been relied by Counsel for the petitioner, which was issued in reference to letter dated 12^th August, 1988 of the Government of India regarding examinations conducted by Hindi organisations. The Government order dated 5^th December, 1989 clearly clarifies that degree of Madhyama (Visharad) issued by Hindi Sahitya Sammelan is equivalent only for standard of Hindi up to that examination and not equivalent to degree or certificate. In this context it is also relevant to refer to provisions of Regulations framed under the UP. Intermediate Education Act, 1921. For the Intermediate examination, which is conducted by Madhyamik Shiksha Parishad, UP. several degrees from different organisation and Universities throughout the country have been mentioned in Chapter-XIV of the regulations and none of the degrees or certificate issued by Hindi Sahitya Sammelan, Prayag has been treated to be equivalent to High School so as to make such candidates eligible to take admission in the Intermediate examination whereas the Purva Madhyamik Examination of Sampurnanand Viswavidyalaya, Varanasi and the examination of Visharad from Kashi Vidya Peeth, Varanasi have been mentioned as equivalent to High School. The B.T.C. Correspondence Course training is imparted to untrained teachers so as to make them eligible for entitlement of trained grades of teachers. The qualification of Intermediate required is for purposes of appointment and the petitioner was required to fulfil the Intermediate qualification for purposes of appointment or imparting B.T.C. Correspondence Course training for becoming entitled to trained grade of Assistant Teacher. Thus the qualification required for appointment of Assistant Teacher is full fledged certificate of Intermediate and the degree of Madhyama (Visharad) issued by Hindi Sahitya Sammelan cannot be treated to be equivalent to Intermediate examination.

11. The petitioner, thus, has failed to substantiate that degree of Madhyama (Visharad) granted by Hindi Sahitya Sammelan to the petitioner in the year 1990 is equivalent to Intermediate Examination. One more fact which is relevant to be noticed, is that petitioner himself appeared in the Intermediate examination conducted by U.P. Madhyamik Shiksha Parishad and has passed the same in the year 1997. Had his degree of Madhyama (Visharad) from Hindi Sahitya Sammelan equivalent to Intermediate, there was no occasion for the petitioner to pass Intermediate examination of U.P. Madhyamik Shiksha Parishad in the year 1997."

In the aforesaid case learned Single Judge after going through all the relevant Government Orders clearly held that the Madhyama (Visharad) examination is equivalent only for standard of Hindi upto that examination and is not equivalent to any degree or certificate.

(4) In Manish Kumar v. State of U.P. & Ors., Writ Petition No.45866 of 2007 learned Single Judge of this Court by his judgment dated 29.9.2010 considered all the Government Orders and the judgments in this regard and reiterated that the Prathama certificate issued by the Hindi Sahitya Sammelan is not equivalent to High School certificate issued by the Madhyamik Shiksha Parishad, Allahabad. He quoted the letter of the Secretary of the Madhyamik Shiksha Parishad reporting that the Prathama, Madhyama or any other examination conducted by Hindi Sahitya Sammelan was not equivalent to High School/ Intermediate examination at any time in the past or in the present. The Government Orders produced to support the equivalence were found to be false. In the past the examination conducted by the Hindi Sahitya Sammelan were taken to be equivalent to Class-VIII for appearing in the High School examination of the U.P. Secondary Education Board, but now since it is compulsory for all the students appearing in the High School examination either from any institution or on private basis, to pass Class IX examination, the equivalence of the examinations conducted by the Hindi Sahitya Sammelan are not recognised. Learned Single Judge observed that Chapter XIV of the Regulation framed under the U.P. Intermediate Education Act, 1921 mentions as many as 71 certificates recognised by the U.P. Madhyamik Shiksha Parishad as equivalent to the High School examination for the purposes of appearing in the Intermediate Examination. There is no mention of the Prathama certificate issued by the Hindi Sahitya Sammelan in this list. Para 981 of Chapter 136 of Manual of Government Orders (Revised Edition 1981) also does not mention the equivalence given to Prathma or Madhyama examination to the High School and Intermediate examination conducted by the Secondary Education Board U.P. Learned Single Judge distinguished the judgment in Som Pal Singh v. Regional Joint Director of Education (referred as above) on the ground that it was based upon concession given by learned Standing Counsel, did not dispute the factum of Government Order dated 22.8.1998. The Government Order was thereafter superseded by another Government Order dated 28.10.1998. The factum of supercession has been mentioned in Sarojani Pandey (Supra); Shailendra Kumar Singh v. State of U.P. & Ors., (2004) 2 UPLBEC 1716. Learned Single Judge also noticed that in State of Rajasthan & Ors. v. Lata Arun, AIR 2002 SC 2642 it was noticed by the Supreme Court that the educational certificates of Madhyama issued by Hindi Sahitya Sammelan has been deleted from the recognised qualification vide notification dated 28.6.1985.

(5) In Rajasthan Pradesh V.S. Sardarshahar & Another v. Union of India & Ors., JT 2010 (6) SC 306 it was held by the Supreme Court in respect of examination conducted by Hindi Sahitya Sammelan as follows:-

"43. At the cost of repetition, it may be pertinent to mention here that in view of the above, we have reached to the following inescapable conclusions:

( I ) Hindi Sahitya Sammelan is neither a University/Deemed University nor an Educational Board.

( II) It is a Society registered under the Societies Registration Act.

( III) It is not an educational institution imparting education in any subject inasmuch as the Ayurveda or any other branch of medical field.

( IV) No school/college imparting education in any subject is affiliated to it. Nor Hindi Sahitya Sammelan is affiliated to any University/Board.

( V) Hindi Sahitya Sammelan has got no recognition from the Statutory Authority after 1967. No attempt had ever been made by the Society to get recognition as required under Section 14 of the Act, 1970 and further did not seek modification of entry No.105 in II Schedule to the Act,1970.

( VI) Hindi Sahitya Sammelan only conducts examinations without verifying as to whether the candidate has come elementary/basic education or has attended classes in Ayurveda in any recognized college.

(VII) After commencement of Act,1970, a person not possessing the qualification prescribed in Schedule II, III and IV to the Act, 1970 is not entitled to practice.

(VIII) Mere inclusion of name of a person in the State Register maintained under the State Act is not enough making him eligible to practice.

( IX ) The right to practice under Article 19 (1) (g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19 (6) of the Constitution.

( X ) Restriction on practice without possessing the requisite qualification prescribed in Schedule II, III, & IV to the Act, 1970 is not violative of Article 14 or ultra vires to any of the provisions of the State Act."

13. The equivalence to the examinations can only be allowed by the State Government after consulting experts looking into various factors such as the teaching facilities, syllabus and the other such candidates. The Courts do not have any authority to do the job of experts and grant such equivalence.

14. In the State of U.P., High School and Intermediate examination are conducted by statutory board namely the U.P. High School and Intermediate Board, Allahabad. Wherever the equivalence is granted, the State Government has to notify the same. Any Government Orders, which may have been issued in the past by way of clarification regarding the qualifications in respect to Hindi or Sanskrit language is concerned cannot be treated as examination equivalent to the examination conducted by the statutory Board.

15. There is another aspect to the matter namely that if the qualification conducted by private societies, in respect of language are treated as equivalent to the statutory boards, the candidates passing the examination from the statutory board will be seriously discriminated in appointments in Government Service, which is regulated by the statutory rules. The Court cannot permit the equivalence to be considered so casually. In Rajsthan Pradesh V.S. Sardarshahar & Anr. (Supra) the Supreme Court considered the legal status of Hindi Sahitya Sammelan and found that it is neither university/ deemed university nor an educational board. It is society registered under the Societies Registration Act and is not an educational institutions imparting education in any subject. There is no school/ college imparting education in any subject affiliated to it. It also does not have any recognition from any statutory authority, even in respect of medical qualifications after 1967.

16. In the aforesaid circumstances, we fully agree with the reasoning given by the learned Single Judge in the judgment cited as above and reiterate that the Prathama and Madhyama (Visharad) examination conducted by the Hindi Sahitya Sammelan are not equivalent to the High School and Intermediate Examination conducted by the Board of High School and Intermediate Education U.P. The petitioner's qualification of Madhyama (Vishrad) is thus not equivalent to Intermediate Examination, and thus the petitioner was not qualified and eligible to be appointed as a clerk.

17. In our view learned Single Judge did not commit any error in law in allowing the writ petition only to the extent that the District Magistrate may ensure that the petitioner is appointed on any Class-IV post.

18. The special appeal is dismissed.

Dt.11.11.2011

SP/