Hari Chandra vs D.E. (Secondary), U.P. Alld, & ...
2018 Latest Caselaw 3486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 9802 of 1998
 

 
Petitioner :- Hari Chandra
 
Respondent :- Director of Education (Secondary), U.P. Allahabad & Others
 
Counsel for Petitioner :- Ashok Khare,S.A. Azmi,Satyaveer Singh,Y.K. Saxena
 
Counsel for Respondent :- C.S.C. Bhanu Pratap Singh,Vinod Kumar Singh
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Yogish Kumar Saxena, learned counsel for petitioner, learned Standing Counsel for respondents 1 and 3, Sri Bhanu Pratap Singh, learned counsel for respondent 4 and Sri Vinod Kumar Singh, learned counsel for respondent no.6.

2. This writ petition is directed against order dated 01.03.1998 passed by Manager of Sri Doorbeen Singh Rai Singh Uchchattar Madhyamik Vidyalaya, Mahmoodpur Pukhta, District Etah (hereinafter referred to as "School") restraining petitioner from working in the School on the ground that his appointment is beyond vacancies sanctioned and created in the School. The petitioner is also challenging the order dated 31.01.1998 passed by Director of Education (Secondary), U.P. Allahabad, holding that only 12 posts are recognized in the School whereagainst payment to staff (teaching and non-teaching) is permissible and not beyond that. The order says that documents prove creation of only eight posts of teachers, including Head Master; one post of Clerk and three Class IV posts.

3. School was initially established and recognized as Junior High School, receiving grant-in-aid from Government and governed by the provisions of Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") and Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as "Act, 1978"). It was brought on the list of institutions receiving grant-in-aid for the purpose of Act, 1978 in the year 1980. Board of High School and Intermediate, U.P., Allahabad granted recognition upto High School in 1994 but the said recognition was without any financial assistance (Vittviheen).

4. Petitioner claimed to have appointed as Assistant Teacher in the School pursuant to his selection made in 1991 and approval to his appointment was granted by District Basic Education Officer, Etah (hereinafter referred to as "D.B.E.O.") vide order dated 20.11.1991 with effect from 01.11.1991. However, vide order dated 01.3.1998, Manager of School restrained petitioner from functioning observing that his appointment was beyond sanctioned post in the School, which were only twelve. It is also admitted that at the time of appointment, petitioner's qualification was M.Sc. (Mathematics) and B.Ed.

5. Since petitioner's salary was also stopped, he filed Writ Petition No.35620 of 1996 wherein an interim order was passed on 06.11.1996 to the following effect :

"Meanwhile in view of the circular dated 7.11.88 and the judgment dated 9.2.93 respondents 1, 2, 3, are directed not to withhold salary of the petitioner staff merely on the ground that the institution has been upgraded from the level of Junior High School to the level of High School until it is brought within purview of payment of salary Act of 1971."

6. Pursuant to the said interim order petitioner was paid salary. It appears that another Writ Petition No. 9015 of 1997 was filed complaining that some illegal appointments have been made in the School and huge amount from public exchequer is being siphoned off by making illegal payment of salary to certain persons who are not appointed against sanctioned post or validly. Therein vide Court's order dated 18.3.1997, Director of Education (Secondary) was directed to conduct an inquiry and pass a reasoned order. Pursuant thereto, Director of Education (Secondary) has passed order dated 31.01.1998 holding that as per record of 1984, ten salaries were drawn for ten appointees i.e. one Head Master, five Assistant Teacher, one Clerk and three Class IV employees. Thereafter two posts of Assistant Teacher were sanctioned by Regional Assistant Director of Education (Basic), Agra vide order dated 11.8.1987 and therefore total sanctioned strength of teaching and non-teaching staff was only 12 though number of persons beyond aforesaid strength were working and getting salary, which was illegal and therefore, he directed to ensure payment to only 12 teaching and non-teaching staff and not beyond that. He has also directed to take appropriate action against persons responsible for such illegality.

7. Before proceeding further, it may be placed on record that Writ Petition No.35620 of 1996 filed by petitioner has already been dismissed by this Court vide order dated 06.12.2012 since none appeared to press the writ petition, hence Court dismissed it as infructuous.

8. Counsel for petitioner could not place any material to show that there were more than twelve sanctioned posts in the School.

9. However, it is also pointed out by learned counsel appearing for Basic Education Board that appointment of petitioner was not in accordance with Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "Rules, 1978") and therefore even otherwise it is void ab initio and petitioner is not entitled for any benefit. It is pointed out that qualification of petitioner admittedly at the time of appointment i.e. in 1991 was M.Sc., B.Ed. The minimum qualification prescribed in Rule 4 of Rules, 1978, as applicable in 1991, was as under :

"Minimum Qualification.-(1) The minimum qualifications for the post of assistant teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training).

(2) The minimum qualification for the appointment to the post of Headmaster of a recognised school shall be as follows :

(a) A degree from a recognised University or an equivalent examination recognised as such ;

(b) A teacher's training course recognized by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and

(c) Three years teaching experience in a recognised schools."

10. Rule 5 further provides that no person shall be appointed as Headmaster or assistant teacher unless he possesses the minimum qualification for such post. Rule 5 of Rules, 1978 reads as under :

"5. Eligibility for appointment.- No person shall be appointed as Headmaster or assistant teacher in substantive capacity, in any recognised school unless-

(a) he possesses the minimum qualification prescribed for such post ;

(b) he is recommended for such appointment by the Selection Committee."

11. Thus, combined reading of Rules 4 and 5 of Rules, 1978 makes it clear that unless a person possesses requisite qualification prescribed under the Rules, he could not have been appointed and there is a bar for such appointment. Therefore, the provision is mandatory and an appointment made contrary thereto is void ab initio and illegal.

12. Since petitioner did not possess requisite qualification at all, he could not have been appointed as Assistant Teacher in Junior High School in 1991 when the school was only upto Junior High School.

13. An appointment lacking statutory minimum qualification is void ab initio. In Dr. Bhanu Prasad Panda Vs. The Chancellor, Sambalpur University & Ors. AIR 2001 SC 3324 Court held that eligibility qualification cannot be ignored. It was reiterated in Mohd. Sohrab Khan Vs. Aligarh Muslim University & Ors. JT 2009 (2) SC 666.

14. In Mohd. Sartaj & Anr. Vs. State of U.P. & Ors. AIR 2006 SC 3492, Court said :

"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.

15. Court further held that if an appointment is void ab initio, an incumbent is neither entitled to hold the post nor claim salary.

16. In Rakesh Kumar Sharma Vs. Govt. of NCT of Delhi and Ors. (2013) 11 SCC 58 Court said :

"There is no obligation on the court to protect an illegal appointment. Extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible."

17. In State of Uttar Pradesh & Ors. Vs. Anand Kumar Yadav & Ors. 2017 (8) SCALE 220, Supreme Court affirmed judgment of this Court holding that essential qualification must be held by the person on the date of entering into service and experience gained by such persons can never be construed as a substitute for an essential qualification that is statutorily prescribed.

18. In Ashok Kumar Sonkar Vs. Union of India and others (2007) 4 SCC 54, Court said :

"Indisputably, the appellant herein did not hold the requisite qualification as on the said cut-off date. He was, therefore, not eligible therefore."

19. In Pramod Kumar Vs. U.P. Secondary Education Services Commission and Ors. (2008) 7 SCC 153, Court said :

"....Appellant, however, has filed a writ application for issuance of or in the nature of a writ of mandamus. He, therefore, must establish existence of a legal right in himself and a corresponding legal duty in the State. If he did not possess the requisite qualification to hold a post, he could not have any legal right to continue.

20. In view of the above, since the very appointment of petitioner is a nullity, I do not find that any relief in equitable jurisdiction under Article 226 of Constitution of India can be granted.

21. Writ petition lacks merit. Dismissed.

22. Interim order, if any, stands vacated.

Order Date :- 1.11.2018

KA