Wahid Husain vs Pracharya Zila Shiksha Aur ...
2017 Latest Caselaw 4761 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 23.8.2017
 
Delivered on 21.9.2017
 

 
Case :- SPECIAL APPEAL No. - 400 of 2007
 
Appellant :- Wahid Husain
 
Respondent :- Pracharya Zila Shiksha Aur Prashikshan Sansthan & Another
 
Counsel for Appellant :- A.P. Paul,B.B. Paul
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Bharati Sapru,J.

Hon'ble Mrs. Sangeeta Chandra,J.

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. This special appeal has been filed challenging the judgment and order dated 21.2.2007 passed in Writ Petition No. 16976 of 1997, wherein the Hon'ble Single Judge has dismissed the writ petition filed by the petitioner challenging the order dated 8.4.1997 passed by the Principal, Institute of District Education and Training, Rampur (herein after referred to as the DIET, Rampur), whereby the petitioner's services had been dispensed with.

2. The grounds for terminating the services of the petitioner as given in the order dated 8.4.1997 were that:- (a) he had been appointed by an Incompetent Authority as Afzalurrahman Khan was only officiating as the Principal of DIET, Rampur and was only a substantively appointed L.T. Grade Teacher. (b) Before appointment on the post of Lab Assistant, no requisition was sent to the employment exchange. (c) The advertisement for the selection was not issued in two widely circulated newspapers, but was published only in one local daily "Vishwa Manav" which has circulation only in Bareilly. (d) The advertisement had called for applications from candidates through registered speed post within one week, and adequate number of applicants could not have sent their applications in such short time period. (e) The age requirement of the candidates as per the advertisement was between 18 years to 32 years on 1.7.1995, whereas appointment was made on 17 May, 1995, a selected candidate would have attained 18 years of age only on 1.7.1995 and therefore on 17.5.1995, he would have been less than 18 years of age, the minimum requirement for Government service, the advertisement was therefore misleading. (f) no procedure for appointment of Lab Assistants as prescribed under the Rule was followed (g) the petitioner, Wahid Husain himself had only done High School, Intermediate and B.A. with Art subjects, whereas the minimum educational qualification prescribed for a Lab Assistant is of having passed class 12 with Science subjects. Hence, it could not be said that the petitioner possessed the minimum educational qualifications require for the post.

3. The said termination order was passed after giving show cause notice to the petitioner to which the petitioner had also replied and he had mentioned that since the advertisement only prescribed minimum qualification as Intermediate without any specific mention of it being passed with Science subjects, the petitioner was rightly selected. Moreover, Afzalurrahman Khan was officiating Principal of the DIET and therefore he was competent to hold the selection. The reply of the petitioner to the show cause notice was considered and then the termination order dated 8.4.1997 was passed.

4. The Hon'ble Single Judge has found in the judgment impugned dated 31.2.2007 that the reasons given in the impugned order of termination were beyond reproach and an L.T. Grade Teacher while officiating as Principal was not competent to appoint the petitioner. The advertisement inviting applications was not made in two daily newspapers having wide circulation, besides, there was only a short period of time between issuance of advertisement and making of application by registered post. The advertisement itself was defective, as it did not mention necessary essential qualifications of Lab Assistant i.e. Intermediate with Science. A Lab Assistant having no knowledge of Science could not discharge the duties of the post properly. The writ petition was dismissed.

5. When this Special Appeal was filed, this Court on 3.4.2007 had directed the matter to be listed with record of Writ Petition No. 16880 of 1997 (Sher Singh Vs. Director, Rajya Shaikshik Anusandhan, Avam Prakshikshan Parisahd, U.P., Lucknow decided on 12.3.1999, and it was further directed that the appellant shall continue in service until further orders of the Court. On the basis of the interim order passed by this Court in appeal, the petitioner has continued in service.

6. At the time of argument, learned counsel for the petitioner challenged the order of the learned Single Judge on two main grounds; firstly, the advertisement did not mention the educational qualification of Intermediate pass with Science subjects and hence it was open for the petitioner to apply and his selection could not therefore be set aside on the ground that he had passed Intermediate only with Arts subjects; secondly, it has been argued that in the same selection, five posts of Junior Clerk, two posts of Lab Assistant, two posts of Teachers and two posts of Peons had also been filled up, and later all were terminated. The order dated 8.4.1997 had been assailed by all effected persons before this Court and interim orders were passed. In Writ Petition No. 17742 of 1997 (Zafar Atiq Vs. Principal, District Education & Training Sansthan, Rampur) interim order was passed on 26.5.1998, in Writ Petition No. 16091 of 1997 (Mohd. Zubaid Khan Vs. Pracharya Zila Shiksha Aur Prakshishan Sansthan, Rampur) interim order was passed on 9.10.1998, in Writ Petition No. 177421 of 1997 (Navin Kumar Pandey Vs. Joint Director Education, XIIth Division, Moradabad) interim order was passed on 26.5.1998, in Writ Petition No. 12837 of 1997 (Sanjay Kumar Sharma Vs. State of U.P. & others) interim order was passed on 14.5.1998. One peon appointed through the same selection, namely Sher Singh had challenged the order of termination dated 24.4.1997, in Writ Petition No. 16880 of 1997 which was allowed on 10.3.1999. All persons appointed through the same selection had approached this Court and were working on the basis of the interim orders and although their writ petitions were pending, the Hon'ble Single Judge decided the case of the petitioner against him.

7. It was argued that all writ petitions were liable to be heard and decided together.

8. Counsel for the petitioner / appellant has referred to the judgment passed in Writ Petition No. 16880 of 1997 (Sher Singh Vs. Director, Rajya Shakshik Anusandhan, Avam Prakshikshan Parishad, U.P., Lucknow) wherein the Hon'ble Single Judge found that the petitioner therein, Sher Singh, was appointed on class IV post after being recommended by the Employment Exchange and no effective denial of the said pleading had been made in the counter affidavit filed by the respondents. Therefore, the contention of the learned counsel for the State that under Rule 19 of Group 'D' Employee Service Rules, 1985, no selection was permissible without advertisement was brushed aside by the Hon'ble Single Judge.

9. At the time of argument, learned counsel for the petitioner / appellant had also relied upon judgment rendered in Writ Petition No. 2020 of 2014 Sanjay Kumar Sharma & five others Vs. State of U.P. & others, wherein selection held after the same advertisement dated 24.4.1995 issued by the Principal of DIET, Rampur for appointment against eight posts of Clerk was in question. It was found by the Hon'ble Single Judge that the petitioner appeared in the written examination and faced interview. The appointment of the petitioner was cancelled after issuance of show cause notice to him on the ground that the Principal was not the Appointing Authority. At the time of admission of the said writ petition on 14.5.1998, this Court had granted an interim order on the ground that the Principal is the Appointing Authority and when the recruitment was made the Principal was the Appointing Authority for class III & IV posts in DIET on the basis of a Government Order dated 3.12.1990, wherein the State Government had delegated the power of appointment to the Principal of the College. The Government Order dated 3.12.1990 was operative at the time of issuance of advertisement and holding of selection and issuance of appointment letters. The Hon'ble Court found that the Government Order dated 3.12.1990 had delegated the power to the Principal and the Principal had appointed the petitioners, and they were continuously working since their initial appointment on this post on 2.6.1995, and thereafter also, in terms of the interim order passed by this Court in their writ petition, therefore the order terminating their services was set aside.

10. We have gone through both the judgments of the Hon'ble Single Judge on which reliance has been placed by the petitioner with regard to selections held by the officiating principal of DIET, Rampur and we find that the case of the petitioner is different. Even if it is held that the advertisement was a publicly issued and names were requisitioned from the Employment Exchange and that the Principal was Appointing Authority of class III & IV posts, yet there is some amount of difficulty with regard to upholding the selection of the petitioner.

11. The petitioner was selected as a Lab Assistant although he had passed Intermediate examination and thereafter did his graduation only in Art subjects. The Hon'ble Single Judges, who had upheld appointments of Clerks and Peons made through the same selection process, were not considering appointment of Lab Assistant as the petitioner appellant herein. As per Rules, the candidate seeking appointment as Lab Assistant should have passed Intermediate examination with Science subjects, which was not the case of the petitioner as admittedly, he had passed Intermediate with Art subject.

12. It has been argued by Sri B.B. Paul that since the advertisement did not mention the educational qualifications correctly his appointment cannot be invalidated on this ground.

13. The argument stated by learned counsel for the petitioner / appellant is misconceived. The Hon'ble Supreme Court in the case of Malik Mazhar Sultan & another Vs. U.P. Public Service Commission & others 2006 (9) SCC 507 in paragraphs 21. "The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1st July, 2001 and 1st July, 2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.

(emphasis supplied)

14. The said judgment of the Supreme Court has been relied upon in Public Service Commission Vs. Arvind Singh Chauhan 2009 (9) SCC 135.

15. The Supreme Court in the case of State of Gujrat & others Vs. Arvind Kumar T. Tiwari AIR 2012 (9) SCC 545 has further held as under:-

"A person, who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules is, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointment such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the Court for any relief for the reason that he does not have a right which can be enforced through Court. (See: Prit Singh Vs. S.K. Mangal & others, 1993 (1) SCC (Supp.) 714; and Promod Kumar Vs. U.P. Secondary Education Services Commission & others, AIR 2008 SC 1817."

(emphasis supplied)

16. The contention of the learned counsel for the petitioner / appellant that similarly situated candidates have been allowed to function in pursuance of the interim orders and the petitioner also should be allowed to function as he was granted an interim order by this Court while admitting the appeal and he cannot be deprived of this benefit.

17. The Supreme Court in State of M.P. Vs. Dharmvir 1998 (6) SCC 165 rejected a similar plea on sympathetic grounds and has observed thus:-

"31.......... The Court as also the Tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the Statutory provisions made by the Government under Article 309 of the Constitution".

(emphasis supplied)

18. In view of law settled by Hon'ble Supreme Court in the case of Surendra Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad 2006 (7) SCC 784 relying upon the judgment in Secretary, State of Karnataka Vs. Uma Devi (3) 2006 (4) SCC 1, wherein the Hon'ble Supreme Court has held that a person cannot be allowed to continue in service when he was originally appointed de-hors the Rules only on the basis of long continuance, due to interim orders passed by the High Court, this argument is also liable to be rejected as misconceived.

19. The Hon'ble Supreme Court in the aforesaid Constitution Bench has observed that merely because an employee had continued under cover of an interim order of the Court which the Court prescribed as "litigious employment", he would not be entitled to any relief to be absorbed or made permanent in the service.

20. In the case of State of Orissa Vs. Mamata Mohanti 2011 (3) SCC 436, the Supreme Court examined the case of relaxation of eligibility criteria and has observed that it is trite law that strict compliance to the Rules must always be insisted upon and the discretionary power of relaxation as provided for in the Rules should be exercised within the four corners of the Rules themselves and cannot be exercised to de-hors the Rules. The power cannot be exercised arbitrarily only to favour an individual.

21. The Supreme Court in the case of State of Orissa Vs. Mamata Mohanti 2011 (3) SCC 436 has further observed that if an order is bad in its inception, it does not get sanctified at a later stage. Subsequent actions / developments cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It shall be beyond the competence of any authority to validate such an order. The concept of adverse possession or lien on a post or "holding over" are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on a post does not create any right in his favour.

22. Moreover, there cannot be any parity in illegality and Article 14 is a positive concept. Even after certain persons have been allowed to continue in identical circumstances on the basis of interim orders, such continuation of other persons similarly situated cannot give a right to petitioner / appellant, who was admittedly not qualified to hold the post of Lab Assistant at the time of his initial appointment.

23. The order of the Hon'ble Single Judge is affirmed. The termination of the petitioner is held to be correctly done. Since the petitioner has been allowed to continue by means of interim order passed by this Court, this Court does not think it proper for the Authorities to recover the amount paid as salary and other allowances to the petitioner. However the termination order passed by the Principal of DIET, Rampur having been upheld by us, as also the order passed by the Hon'ble Single Judge, the petitioner shall not be allowed any benefits of service rendered on the basis of said interim order, for example, gratuity and other dues.

24. This appeal is dismissed as devoid of merits. No order as to costs.

Order Date :- 21.9.2017

Arif