Allahabad High Court
Ravindra Kumar And Another vs C/M Co-Operative Cane ... on 8 November, 2013
Bench: Sheo Kumar Singh, Brijesh Kumar Srivastava-Ii
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
RESERVED
Special Appeal No. 1641 of 2013
Ravindra Kumar and another Vs. Committee of Management and others.
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Hon. Sheo Kumar Singh, J.
Hon. Brijesh Kumar Srivastava-II, J.
Heard Sri Ashok Khare, learned Sr. Advocate assisted by Sri Sharma in support of this appeal and Sri Ravindra Singh, learned Advocate who appeared for the respondents.
Challenge in the writ petition was the order dated 3.9.2002 passed by the respondent no. 3 by which promotion of the appellants on the post of Seasonal Clerk from the post of Seasonal Parchi Vitrak has been cancelled and thus the appellants are to work on their original post of Seasonal Parchi Vitrak.
The cancellation of promotion is on the ground that at the time of promotion appellants were having Prathma Degree with them issued by Hindi Sahitya Sammelan and that is not found to be equivalent to the High School Examination and thus they were not eligible for being promoted. When the appeal was taken up the main argument was advanced about equivalence of the Prathma Degree with the High School Examination and the judgment given by this Court in the case of Bishmbhar Singh and others in Writ Petition No. 135 of 1995 and Smt. Nirmal Rani Vs. State of U. P. and others reported in 2000 (1) ESC 187 was referred.
In alternate the submission is that there was no concealment or fraud on the part of the appellants in getting their promotion order and, therefore, having worked for about 6 - 7 years the cancellation of the promotion is not justified and the action of the respondents is barred by principles of estoppel.
Sri Ravindra Singh opposed the aforesaid submission and submits that the judgments on which reliance has been placed from the appellants' side has been considered and distinguished in the case of Babu Ram and another Vs. Deputy Cane Commissioner reported in 2000 (1) U.P.L.B.E.C. 422.
Learned Single Judge has dismissed the writ petition by taking the view that the relevant rule or regulation does not provide Prathma Certificate equivalent to the High School Examination and, therefore, that will not entitle the petitioners to get the promotion and as they lack in requisite qualification reversion from the post of Junior Clerk to the post of Parchi Distributor cannot be faulted.
The issue about Prathma Certificate equivalent to the High School has been decided by this Court in Special Appeal No. 1731 of 2010 Urmila Devi Vs. State of U. P. and another. Observation as made by this Court in para 16 of the judgment is hereby quoted :
"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 Prathma 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 (Visharad) is thus not equivalent to Intermediate Examination, and thus the petitioner was not qualified and eligible to be appointed as a clerk."
Thus it is clear that the appellants lack the requisite qualification for being promoted.
Counsel for the appellants placed reliance on the judgment of the Apex Court given in the case of Smt. Santosh Yadav Vs. State of Haryana reported in (1997) 1 U.P.L.B.E.C. 259 wherein the termination after several years of service on the ground of training diploma obtained from an unrecognized institution was found to be not justified. In the judgment referred above, the ban in respect to the training certificate from non recognized institution itself was withdrawn.
The issue that if a benefit has been provided without any fraud or misrepresentation on the part of the claimant and in due course if it is found to be faulty and the person is not entitled to get the same can be permitted to be withdrawn with the monetary benefits which he received has been answered against the claimant in recent judgment of the Apex Court. If a person is found to be not eligible and entitled to receive any benefit even if that has been provided can always be withdrawn and there is no question of estoppel in these matters.
Reference can be given to a judgment of the Apex Court in the case of Ravinder Sharma Vs. State of Punjab reported in 1995 SCC (1) 138. The observation as made in the aforesaid judgment which are relevant for our purpose is hereby quoted :
"6. Before the High Court, the argument was that inasmuch as the appellant did not conceal her qualification, she could not be blamed if she had been appointed. Therefore, no order adverse to her, could ever have been passed.
7. This was opposed on behalf of the Government stating that the petitioner (appellant herein) was not charged for concealing the qualifications. On the contrary, she did not possess the requisite qualifications as required under Regulation 7 of the Regulations at the time of her appointment. Though the Commission made a request for relaxation, that was not acceded to. The result of it would be, the initial appointment itself was bad. Therefore, the impugned order dated 26-4-1977 came to be passed. It is perfectly valid.
8. The High Court on a consideration of the above arguments dismissed the writ petition holding that the petitioners before it did not conceal the qualification per se would not validate their appointments when such appointments were not in conformity with Regulation 7 of the Regulations.
9. Aggrieved by the said order, the appellant filed Letters Patent Appeal No. 935 of 1983 before the High Court which was also dismissed. Hence, the present appeal.
10. The same point is reiterated in this appeal that the appellant cannot be blamed for the improper appointment. The Commission was conscious of the lack of qualification yet, it chose to appoint the appellant. Therefore, the principle of estoppel will apply. In any event, as of today, the appellant is fully qualified under Regulation 7 of the Regulations.
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Admittedly, the appellant did not possess this qualification. That being so, the appointment is bad. The Commission recommended to the Government for relaxation of the qualification under Regulation 7 of the Regulations. The Government rejected that recommendation. Where, therefore, the appointment was clearly against Regulation 7, it was liable to be set aside. That being so, no question of estoppel would ever arise. We respectfully agree with the view taken by the High Court."
In another judgment of this Court in the case of Vijay Kumar Singh Vs. State of U. P. decided on 23.2.2006, the observation as made by this Court in para 5, 11, 12 and 13 is hereby quoted :
"5. The petitioner-appellant has alleged in support of his contention that he possessed the qualification of technical drawing upto the Intermediate level and the certificate is annexed to the affidavit filed in support of the stay application. However, the aforesaid certificate shows that the appellant possessed Intermediate Examination Certificate of 1992 from the U. P., High School and Intermediate Education Board, Allahabad as a private candidate. Since the certificate is of 1992, evidently the appellant did not possess the requisite qualification when he was appointed against leave vacancy as Assistant teacher for a short period. The subsequent acquisition of qualification would not validate his appointment. It is evidently clear that the appellant lacked requisite qualification on the date on which he was appointed. In the case of Mohammad Sartaj and another Vs. State of U. p. and others, the Apex Court has held that a person lacking requisite qualification on the date of appointment, cannot derive any benefit out of such appointment since it is nullity, void ab-initio and does not confer any right upon the incumbent to hold the post. Relevant observations contained in paras 19 and 21 are reproduced as under:
In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post.
It is settled law that the qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard permit it.
11. The learned Counsel for the appellant lastly submitted that the appointment once approved by the District Inspector of Schools, he is estopped from refusing to give financial approval for subsequent period. We do not find any force in the aforesaid submission. Where necessary qualification is lacking, the appointment is illegal and void. Principle of estoppel would not apply in such case.
12. Before an estoppel can arise, there must be, firstly, a representation of an existing fact distinct from a mere promise made by one party to other, secondly, that the other party believing it must have been induced to act on the faith of it, and thirdly, that he must have so acted to his detriment. Besides, the estoppel is not a pure question of law but it has to be pleaded giving necessary facts and only thereafter the same can be considered. In the present case neither the petitioner has shown that the respondents at any point of time represented to him that qualification which he possessed is the valid qualification as required under the Rule nor there is any thing to show that he acted to his detriment on account of such representation. Further the relevant facts have not been pleaded either in the writ petition or in appeal.
13. In case of Smt. Ravinder Sharma and another Vs. State of Punjab and others, the Apex Court after recording a finding that the appellant did not possess the qualification, considering the principle of estoppel held as under:
Admittedly, the appellant did not possess this qualification. That being so, the appointment is bad. The Commission recommended to the Government for relaxation of the qualification under Regulation 17 of the Regulations. The Government rejected that recommendation. Where, therefore, the appointment was clearly against the Regulation-7, it was liable to be set aside. That being so no question of estoppel would ever arise. We respectfully agree with the view taken by the High Court."
In recent judgment given by the Apex Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012) 7 S.C.R. 307 the issue has been discussed in detail and on a reference of earlier judgment it has been clearly held that even in the absence of fraud and misrepresentation if a person is found to be not entitled to be appointed/ permitted or to receive particular pay scale he cannot resist the same on the ground of estoppel. The observation as made in para 15 and 16 of the aforesaid judgment is hereby quoted :
"15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."
Learned Single Judge having found that the appellants were not eligible and qualified for being promoted on the date of promotion are not entitled to get any relief against the order of cancellation of their promotion.
In view of the aforesaid discussion, we find no error in the judgment of the learned Single Judge.
Appeal fails and it is dismissed.
8.11.2013
Sachdeva.
