Km. Tasneem Fatima 3510 (S/S)2007 ... vs State Of U.P.Through Its Secy. ...
2014 Latest Caselaw 9267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved Judgement
 

 
Case :- SPECIAL APPEAL No. - 95 of 2012
 

 
Appellant :- Km. Tasneem Fatima 3510 (S/S)2007 Inre 153 (Revp)2009
 
Respondent :- State Of U.P.Through Its Secy. Deptt. Of Edu. Lko.And Ors.
 
Counsel for Appellant :- G.C.Verma
 
Counsel for Respondent :- C.S.C,Jogendra Nath Verma,Jotinjay Verma
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Aditya Nath Mittal,J.

This Appeal was admitted which questions the correctness of the judgment of the learned single Judge dated 26.5.2009 whereby the appellant's revocation of approval to her appointment on the post of Head-mistress has been upheld, and the writ petition has been dismissed and her further claim with regard to payment of salary and other consequential benefits have been denied.

From the facts as already recorded by the learned single Judge, it appears that the appellant was appointed as a Headmistress in a Junior High School on the basis of a selection that was approved by the competent authority vide letter dated 28.7.2003. The appellant joined and started functioning as Head-mistress in the Institution known as 'National Girls Junior High School, Lala Ka Purwa, Sultanpur, which is duly recognized and is receiving grant-in-aid from the State Government. The rules applicable for such appointments are U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and conditions of Service of Teachers) Rules, 1978. The appellant was not receiving salary and after making several representations, she filed Writ Petition No.111 of 2004, which was allowed by the Court vide order dated 7.5.2004 wherein directions were issued to pay salary together with arrears to the appellant. The appellant started getting salary and continued to function.

It appears that some times thereafter one Mr. Rajesh Kumar Singh filed a complaint against the appellant before the Lok Ayukt, Uttar Pradesh, alleging that the appellant did not possess the minimum qualification of experience as required under Rule 4 readwith Rule 5 of the 1978 Rules and thus was not eligible, hence her appointment and approval should be revoked. This complaint in the deficiency of qualification related to 3 years teaching experience in a Junior High School. The Lok Ayukt issued a letter to the Regional Assistant Director (Basic), Faizabad, to look into the matter and pursuant thereto the District Basic Education Officer, Sultanpur, issued a notice to the appellant calling upon her to explain as to why the approval to her appointment should not be revoked as she did not possess the minimum qualification of experience as prescribed under Rule 4 of the 1978 rules.

The appellant appears to have furnished her reply and vide order date 24.05.2007, her approval and appointment was revoked. Aggrieved the appellant filed writ petition no. 3510 of 2007, that has given rise to the present special appeal.

After the petition was entertained, a direction was issued by the learned single Judge to the petitioner to place her experience certificate before the concerned authority and if the same was found to be genuine, the appellant would be allowed to continue. This order dated 29.06.2007, passed by the single Judge was served on the District Basic Education Officer along with the representation by the appellant, who on 9.08.2007, passed an order holding that the appellant had secured the appointment on the basis of a totally wrong experience certificate, that was an experience in a primary school, and not in a junior high school as required under the 1978 Rules. The District Basic Education Officer, accordingly, held that the revocation of her approval and appointment was justified.

This communication dated 09.08.2007, was also assailed in the same writ petition which has been finally dismissed by the learned Single Judge by the impugned judgement, hence this appeal.

The learned single Judge has recorded that firstly, the experience certificate as relied on by the appellant, was in relation to a primary school and, therefore, the appellant misrepresented her experience to secure the appointment. The second ground taken is that appellant filed an Affidavit before the appointing authority to the effect that she had a teaching experience in a Junior High School and this recital in the Affidavit being false, the said statement dis-entitled her from seeking any benefit of appointment and hence the revocation order and subsequent disposal of the representation were justified. Consequently, the writ petition was dismissed.

Sri G.C. Verma assailing the said judgment of the learned single Judge has urged that firstly, there was no fraud or misrepresentation and, as such, once an approval has been granted, the same cannot be revoked that too even without giving any proper opportunity to the appellant. He further submits that, if a person who is found to be not possess of such experience but later on comes to acquire the same after recruitment, the same can be accepted as valid, and it cures any such deficiency of experience in the qualifications. Consequently, according to him on account of this factor as well the approval could not have been revoked and the appellant would be entitled to continue in service and receive salary.

Countering the said submissions, Sri Jogendra Verma, learned counsel for the Basic Education Officer, contents that once it is held that the minimum qualification for eligibility as per the statutory rules is not possessed by a candidate, then the appointment is void and no right can be claimed on the basis of any subsequent experience alleged to have been acquired by the appellant. He, therefore, in support of impugned judgment has invited the attention of the court to the relevant rules referred to herein above and has substantiated the submissions by his arguments.

Having heard learned counsel for the parties, it is evident that the relevant rule categorically prescribes 3 years experience to be possessed as minimum qualification which has already been extracted by the learned single Judge as rule 4 (2)(c) of the 1978 Rules in the impugned judgment itself.

Section 2 (e) of the 1978 Rules has also been extracted which defines a Junior High School and section 2(g) of the 1978 Rules has also been extracted to indicate the status of a Junior High School. Thus, the rules clearly require teaching experience from a recognized school which, according to the aforesaid definition, has necessarily to be a Junior High School.

Sri Verma, learned counsel for the appellant, could not successfully dispute this legal position that the experience as required under the Rules has to be to necessarily of a Junior High School.

On the facts as on record and the experience certificate dated 01.07.2001 that has been relied upon by the learned counsel for the appellant, and is Annexure-8 to the memo of appeal, also indicates that it is an experience certificate which does not state that it is in relation to a Junior High School. Sri G.C. Verma could not dispute the position that the Madarsa from where the experience certificate was issued, was itself a school of primary nature, namely class I to V, and not a Junior High School. In view of this factual position that has also been indicated in the judgment of the learned single Judge, there does not appear to be any error on facts to conclude that the experience certificate of the appellant was that of a primary school, and not a recognized Junior High School as per the 1978 Rules.

Thus, there is no scope of any further argument to contend that the appellant was possessed of the minimum qualification. The facts aforesaid clearly establish that the appellant was not in possession of a valid experience certificate as per the Rules aforesaid which was one of the minimum eligibility requirements for recruitment.

The second aspect is the Affidavit that was filed by the appellant before the authorities. Sri G.C. Verma contends that Affidavit has indicated that the appellant had the experience of teaching in a Junior High School. In our opinion as well the said Affidavit recites that the appellant has taught in Islamia Junior High School, Rudauli, from class VI to VIII. This recital has been found to be factually incorrect in the Affidavit inasmuch as the experience certificate was in relation to Madarsa Tablighul Quran, Rudauli, Barabanki, which admittedly is of the primary level. On this ground as well we are unable to find any reason to interfere with the findings recorded by the learned single Judge.

The third ground taken by the learned counsel for the appellant is about the experience having been acquired subsequently after recruitment for which reliance has been placed on the Apex Court judgment in the case of Buddhi Nath Chaudhary and others Vs. Abhai Kumar and others, 2001 AIR SCW 1025. Sri. Verma in addition thereto has invited the attention of the court to a Government Order dated 11.2.1998 in the individual case of one Kusum Devi, a lecturer of an Intermediate College, who was extended an exceptional relaxation by the State Government, on the basis whereof he urges that such a similar benefit ought to have been extended by the respondents in the present case as well.

Firstly, the said document does not appear to have been brought on record before the learned single Judge and even otherwise such a Government Order in an individual case granting relaxation to a teacher of an Intermediate College cannot be a matter of parity to be considered by this court while deciding this appeal. Even otherwise, learned counsel for the appellant has not been able to show any power vested with the State Government or its authorities that may be authorized to grant any such relaxation in the minimum qualifications under the 1978 Rules. The reference to such a Government Order is, therefore, absolutely misplaced and it does not come to the aid of the appellant.

The decision in the case of Bhuddhi Nath Chaudhary (supra) appears to be a decision where the Supreme Court in the exercise of its equitable jurisdiction coupled with Article 142 of the Constitution observed that the benefit was being extended on equitable considerations to selected candidates, who have worked on the post for a long period. There also the necessary experience was not possessed by the selected candidates but their long tenure of appointment was taken as an equitable consideration to extend such benefits.

In the instant case, the complaint was made within a very short period of a couple of years and was inquired into resulting in the revocation of the appointment of the appellant. The ratio of the aforesaid decision would, therefore, be not attracted inasmuch as firstly, the same was on equitable considerations and in exercise of powers under Section 142 of the Constitution; and secondly, the candidates therein had been in long years of service. Both these factors are absent in the present case and to the contrary the trend of decisions of the Apex Court in such matters of minimum qualification now is to the contrary. Reference may be had to the judgment in the case of Mohd. Sartaj and another Vs. State of U.P. and others, (2006) 2 SCC 315, and Pramod Kumar Vs. U.P. Secondary Education Services Commission and others, AIR 2008 SC 1817. The ratio of the aforesaid decisions is clearly to the effect that if a person lacks requisite qualification on the date of selection and appointment, no benefit can be derived even if such appointments may have continued, as it would be a void appointment. This issue has been dealt with by a learned single Judge in Writ Petition No.31263 of 2011 decided on 25.11.2011 which we find to be applicable on the facts of the present case as well.

Consequently for all the reasons aforesaid, the appeal lacks merits and is hereby dismissed.

Order Date :- Nov. 27, 2014

Irshad