Awadhesh Singh vs State Of U.P. And Others
2012 Latest Caselaw 1359 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 28
 

 
Case :- WRIT - A No. - 70056 of 2006
 

 
Petitioner :- Awadhesh Singh
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Neeraj Tripathi
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

By means of this writ petition the petitioner is challenging the order dated 31.10.2006 passed by Zila Basic Shiksha Adhikari, Etawah, holding the payment of the petitioner on Group 'D' post to be invalid and cancelling the approval granted earlier on 30.08.2001.

The facts of the case in brief are that there is an institution known as Madhymik Vidyalaya, Ritaur, Vikas Khand Bharthana, District Etawah. The said institution is duly recognized under the Basic Education Act and the Regulations and Rules framed thereunder. The institution also receives grant-in-aid from the State Government and payment of salary of teachers and other employees is governed by the U.P. Junior High Schools (Disbursement of Salary of Teachers and other Employees) Act, 1978.

The case of the petitioner is that a post of Clerk fell vacant in the institution on the death of one Sri Krishna Kumar Chaudhary. The Committee of Management decided to fill up the vacancy and permission was sought from the District Basic Education Officer by the Manager's letter dated 26.06.2001. By his order dated 17.07.2001, the Zila Basic Shiksha Adhikari, Etawah granted permission to the Committee of Management to proceed to fill up the vacancy.

An advertisement was issued in a local newspaper (Danik Din-Rat) on 29.07.2001. Thereafter the Manager of the Institution requested the District Basic Education Officer, Etawah to recommend a name as the nominee by the District Basic Education Officer. The District Basic Education Officer, Etawah named one Smt. Sarla Verma, Assistant District Basic Education Officer as his nominee as part of the selection committee. It is stated that interview was held on 26.08.2001 and the petitioner along with several other candidates appeared in the interview. The selection committee found the petitioner to be the best candidate and recommended his name for appointment.

The Committee of Management forwarded the recommendation of the selection committee to the District Basic Education Officer for his approval along with the resolution dated 26.08.2001 under covering letter dated 27.08.2001. Approval was granted by the District Basic Education Officer, Etawah vide order dated 30.08.2001. In pursuance of the said order of approval, appointment letter was issued in favour of the petitioner on 31.08.2001 and the petitioner joined the Institution on 5.9.2001.

In the mean time some complaints were made to the District Basic Education Officer to the effect that on the date of his selection the petitioner was not eligible being over-age as his age was above 30 years. On this complaint an inquiry was instituted to be held by the S.D.M. Bhartana. The S.D.M. Bhartana in his report stated that the petitioner, on the date of his selection, was more than 30 years of age and therefore, was over-age. Accordingly, the District Basic Education Officer passed order dated 16.02.2002, cancelling the approval granted on 30.08.2001. Aggrieved by the aforesaid action, the petitioner filed Writ Petition No.9369 of 2003. His contention was that the aforesaid order has been passed ex parte on the basis of an inquiry held behind his back and he was never given any opportunity of being heard. Counter affidavit was invited and after hearing the parties, this Court vide order dated 21.10.2005 quashed the order dated 16.02.2002 and remitted the matter back to the District Basic Education Officer to pass a fresh order after giving notice and opportunity of hearing to the petitioner.

In compliance of the order of this Court, the District Basic Education Officer issued notice to the petitioner to appear before the authority concerned on 14.08.2006 along with all the evidentiary material in his favour but the petitioner did not appear before the concerned authority on that day. Another opportunity to appear before the District Basic Education Officer was given and 29.09.2006 was fixed as the date for the petitioner to appear before the Authority. On this date, the petitioner is stated to have appeared but only gave an application with a request that the order of the High Court dated 21.10.2005 be complied with and the petitioner may be given all consequential benefits. No representation was submitted by the petitioner with evidentiary proof to show that on the date of selection he was not over-age i.e. beyond the age of 30 years. Accordingly, the District Basic Education Officer proceeded to decide the matter on the basis of the material on record and ultimately passed the impugned order dated 31.10.2006.

I have heard Sri Y.D. Saxena for the petitioner, Sri K. Shahi appearing for Respondent Nos.2 and 3. Learned Standing Counsel is present on behalf of the Respondent No.1. None appears for the Respondent No.4. Order is dictated in open Court.

So far as the basic facts are concerned, it is not disputed to the authorities that a vacancy on the post of Clerk occurred which was duly advertised by the Committee of Management. Permission was sought from the District Basic Education Officer on 26.06.2001 to make appointment and the permission was granted on 17.07.2001. It is also not disputed that one Smt. Sarla Verma, Assistant Basic Education Officer was appointed as the nominee by the District Basic Education Officer to form part of the Selection Committee. The interview was held on 26.08.2001. Among the several other candidates who appeared, the petitioner was found to be the best candidate and was selected for appointment. Thereafter the resolution accompanied by the letter of the Manager of the Committee of Management was forwarded to the District Basic Education Officer for his approval. The District Basic Education Officer granted the approval to the appointment of the petitioner on 30.08.2001 and in pursuance thereof the petitioner was issued an appointment letter dated 31.08.2001 and he joined the Institution on 5.9.2001. He also received salary after his appointment. However, this appointment came to be cancelled by the District Basic Education Officer and the District Basic Education Officer passed order dated 16.02.2002 cancelling his approval granted on 30.08.2001. The effect was that the services of the petiitoner stood terminated as will be evidenced from the earlier order of this Court dated 21.10.2005.

The earlier writ petition was filed by the petitioner challenging the order dated 16.02.2002 and the Court after calling for a counter affidavit and being satisfied  that the said order was an ex parte order quashed the same and remitted the matter back to the District Basic Education Officer to pass a fresh order after giving an opportunity of hearing to the petitioner.

Rule 6 of the Uttar Pradesh Recognized Basic School ( Junior High School) (Recruitment and Condition of Services of Ministerial Staff and Group "D" Employee) Rules, 1984, prescribes the minimum age of a candidate for recruitment to be not less than 18 years and maximum not more than 30 years. There is a relaxation of five years in the upper age limit in the case of Scheduled Castes, Scheduled Tribes and dependents of Freedom Fighter. The petitioner is neither a scheduled caste nor a scheduled tribe nor a dependent of a freedom fighter and therefore the upper age limit to be eligible for appointment in the case of the petitioner can not exceed 30 years.

The learned counsel for the petitioner has drawn the attention of the Court to the approval letter dated 30.08.2001, wherein approval was granted to the appointment of the petitioner as Clerk. He further points out that in the said letter, the date of birth of the petitioner was clearly shown as 12.07.1962. He further submits that he had neither tried to conceal his age nor had he tried to misrepresent before the authorities concerned and that even in the advertisement, no maximum upper age limit was prescribed and in these circumstances his appointment could not have been held to be invalid or contrary to rules and thereby cancellation only on the sole ground that he was over-age being more than 30 years of age on the date of appointment is arbitrary.

Taking the date of birth of the petitioner to be 12.07.1962, his age on the date of selection/ appointment in the year 2001 was 39 years and 2 months. The petitioner was neither a scheduled caste nor scheduled tribe candidate nor a dependent of a freedom fighter and therefore, he was not entitled to a further relaxation of 5 years in the matter of upper age limit.

Even assuming that the petitioner honestly disclosed his date of birth to be 12.07.1962 and there was no concealment of the age nor any misrepresentation on his part, the fact cannot be overlooked that in terms of provisions of Rule 6 which prescribes the upper age limit as 30 years, the petitioner was clearly over-age on the date he was appointed as Clerk in the institution in question.

May be, on the first occasion when approval was granted by the District Basic Education Officer, on 30.08.2001 this fact may have been overlooked by all the authorities that the petitioner was over-age. The fact still remains that the appointment of the petitioner was in violation of specific provisions of Rule 6 of Rules 1984.

Nothing has been pointed out by the learned counsel for the petitioner to show that the upper age limit was subject to relaxation or that he was entitled to get the relaxation. The learned counsel has placed reliance upon a Division Bench decision of this Court reported in 2005 AWC (Vol. 5) 4843; U.P. Power Corporation Ltd.Vs. Satya Narayan. That was a case in which a higher date of birth was recorded in the service book of Satya Narayan. Some times later, it was discovered that the date of birth recorded in the service book was incorrect because if it was accepted as was recorded, Satya Narayan would be hardly 16 years of age i.e. a minor at the time of his appointment. The learned Division Bench in Para 12 of the said judgment has noted that in the 1960s and 1970s, it was not uncommon for underage boys to be given employment as cleaners of vehicle and it is in that context that the Court held that since there was no misrepresentation on the part of Satya Narayan, his appointment could not be said to be bad.

Shri K. Shahi, learned counsel appearing on behalf of the Respondent Nos. 2 and 3 placed reliance upon a decision of this Court in Special Appeal No.1633 of 2010, Ravindra Kumar Vs. Sachiv Basic Shiksha Board, U.P.at Allahabad & others. In this case more or less a similar question came up for consideration before the Division Bench and it was sought to be argued on behalf of the employee that even though, Rule 6 provided the upper age limit as 30 years but the same stood to be enhanced up to 35 years by virtue of the provisions of the Uttar Pradesh Recruitment to Services ( Age limit ) Rules 1972. Learned Division Bench held that the Rules 1972 did not apply in the case of the respondents therein and by application of the said Rule it could not be conceded or construed that Rule 6 of the Rules framed in exercise of the orders under Section 19 of the U.P. Basic Education Act stood amended. The contention of the employee was thus repelled.

It has next sought to be submitted by the learned counsel for the petitioner that the District Basic Education Officer once having given its approval to the appointment of the petitioner on 30.08.2001, he could not cancel the same by the order dated 16.02.2002 as that would amount to a review of his own order.

The argument of the learned counsel is absolutely fallacious and has no legs to stand. If the appointment of the petitioner suffered from the basic debility of his being over-age on the date of appointment and thus the appointment itself was in violation of provisions of Rule 6, the approval in respect of said appointment could always be cancelled by the District Basic Education Officer. The law is well settled that there is no estoppel against the law and no person can be heard to claim a benefit which is contrary to law and the rules. Even otherwise the petitioner has challenged the earlier cancellation order dated 16.02.2002 by filing Writ Petition No. 9369 of 2002 and this Court has been pleased to remit the matter back to the District Basic Education Officer to consider the matter afresh after giving an opportunity of hearing to the petitioner. It is in compliance of the said order of this Court dated 21.10.2005 that the District Basic Education Officer has reconsidered the matter relating to the selection and appointment of the petitioner.

Even before passing the impugned order dated 31.10.2006, the District Basic Education Officer, Etawah gave adequate notice to the petitioner to appear before the authority on 14.08.2006 but the petitioner for reasons best known to him chose not to appear before the said authority. The learned counsel for the petitioner states that on the said date he went to the office but the authority concerned was not present and he gave the application to the Clerk. However, nothing much is going to turn around on this submission of the learned counsel because the District Basic Education Officer fixed another date i.e. 29.09.2006 for the petitioner to appear before him with all his records and testimonials and evidentiary material in his support. In the impugned order, the authority has stated that on this date the petitioner appeared before him but instead of submitting any representation or evidentiary material or documents in his favour, he submitted an application with a prayer that the order of the High Court dated 21.10.2005 be complied with.

It is therefore, in the totality of the circumstances and the unshaken evidence on record that the date of birth of the petitioner was 12.07.1962 and on the date of his selection/appointment, he was more than 39 years and 2 months of age and therefore, clearly over-age for the purposes of Rule 6 of the Rule 1984, the District Basic Education Officer has rightly passed the impugned order and cancelled the approval in favour of the petitioner.

In view of the above facts and circumstances, I do not find any error or irregularity or infirmity in the order dated 31.10.2006.

The writ petition fails and is accordingly, dismissed.

Order Date :- 4.5.2012

Arun K. Singh