Dr. Om Prakash Singh vs State Of U.P. And 2 Others
2021 Latest Caselaw 806 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4
 
Case :- WRIT - A No. - 12321 of 2019
 
Petitioner :- Dr. Om Prakash Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Arvind Kumar Singh,Durgesh Pratap Singh,Vijay Bahadur Singh (Sr. Advocate)
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla,J.

1. Heard learned counsel for the petitioner and Sri Surya Bhan Singh, learned Standing Counsel appearing for the State respondents.

2. Present petition has been filed for quashing the order dated 12.6.2019 passed by the respondent no. 1.

3. Submission of learned counsel for the petitioner is that the respondent no. 4 had again re-opened the matter of initial appointment of the petitioner, whereas the same was set at rest by the Hon'ble Division Bench of this Court and had illegally recalled the order dated 22.12.2014 by the order impugned herein dated 12.6.2019. He submitted that once the services of the petitioner were regularized by the respondent no. 1 on the recommendation of the Regularization Committee, therefore, there was no justification to recall the order and he, infact, had no jurisdiction to review its own order. It was further submitted that the petitioner had served almost 27 years of service being fully qualified for the post of Lecturer of Chemistry in Government Degree College. Even on merits, submission is that the respondent no. 1 while passing the impugned order has completely misinterpreted the Government Order dated 30.3.1987, which provides that when eligible candidate is not available as provided in Clause 2 then 5% relaxation would be given to those candidates, who possessed 50% marks in Intermediate and Graduation. He further submitted that at the time of appointment the petitioner was having Ph.D. degree in the year 1986 and as such Clause 3 of the Government Order would not be applicable to the reason assigned in the order impugned in the present case.

4. Attention was also drawn to various documents including the judgment of the Hon'ble Division Bench dated 28.8.2014 passed in Writ A No. 39686 of 2012. He further pointed out that in pursuance thereof the petitioner, vide order dated 22.12.2014, was recommended for regularization by the Regularization Committee (Annexure-10 to the petition). Thereafter, other persons claimed parity with the case of the petitioner. Thereafter, matter of the petitioner was re-considered by the State and after examination it was found that there was no reason to re-visit the Government Order dated 29.5.2016 (Annexure-12 to the petition). Submission, therefore, is that the impugned order is wholly illegal and is liable to be quashed.

5. Per contra, learned Standing Counsel has supported the impugned order and by drawing attention to paragraph 4 of the counter affidavit submitted that the petitioner does not fulfill the criteria of minimum eligibility of marks at the level of Intermediate and Graduation as provided in Higher Education Services Rules.

6. I have considered the rival submissions and have perused the record.

7. Before proceeding further it would be relevant to take note of the entire judgment dated 28.8.2014 passed in Writ A No. 39686 of 2012 for the purpose of deciding controversy, therefore, the entire judgment is quoted as under:-

"The petitioner has filed this writ petition on being aggrieved by the order dated 15.05.2012, passed by the Secretary, Higher Education, Government of Uttar Pradesh, rejecting the claim for regularization of his services as Lecturer(Chemistry) in Kashi Narain Government P.G. College, Gyanpur, Sant Ravidas Nagar, Bhadohi, in terms of the Government Order dated 13.10.1997.

Shorn of unnecessary details, the relevant background aspects of the matter are as follows: The petitioner, said to have been appointed as a Teacher in the said government college in the year 1986 under a voluntary employment scheme of the Government with several other similarly circumstanced persons, filed a joint writ petition in this Court bearing No.27683 of 1993, wherein the present petitioner, Dr. Om Prakash Singh was arrayed as petitioner no.5, claiming regular pay scale and regularization.

The said writ petition was considered and decided together with another writ petition, bearing No.4812 of 1988 by a common order dated 04.10.1996. This Court granted the petitioner and other similarly circumstanced persons the relief of grant of minimum of regular pay scale applicable to the lecturers; and it was also provided that the case for regularization of the petitioners would be considered in the light of the observations made in the order of this Court and in accordance with law. The operative part of the said order dated 04.10.1996 reads as under :-

"In the premise we are of the view that the Government Order dated 27.7.1985 is liable to be quashed and the petitioners are entitled atleast the minimum pay scale in the regular pay scale for lecturers teaching in same colleges. According to the petitioners is scale of pay of Rs.2200-4000/-. In the circumstances, we direct the petitioners be paid salary instead of per lecturer equivalent to Rs.15/-, if not already enhanced, in the scale minimum of the pay. In case the pay scale has been enhanced, then salary shall be paid in the enhanced pay scale. We further provide that the case of the petitioners for regularization be considered in the light of observations made above and in accordance with law.

The writ petition is allowed in terms mentioned above. Parties to bear their own costs."

A petition for special leave to appeal against the aforesaid order dated 04.10.1996 of this Court was also dismissed by the Hon'ble Supreme Court on 08.07.1997.

The petitioner has pointed out that the State Government had issued an order dated 01.04.2004, treating all the petitioners of the aforesaid writ petition as adhoc teachers from 1996 and they were given regular pay scale; and thereafter, on 16.04.2004, the State Government issued another order, whereby services of all 13 petitioners of the aforesaid writ petition were regularized under U.P. Regularization of Ad hoc Appointment(On posts within the purview of Public Service Commission) Rules, 1979.

The case of the petitioner is that he is possessed of the requisite qualification and fulfills the applicable conditions for regularization under the said Rules of 1979, but he has illegally been denied regularization on account of the laxity on the part of the Director of Education(Higher) inasmuch as the relevant papers of the petitioner were not sent to the concerned Secretary to the Government for regularization. The petitioner has referred to the letter of the Director to the State Government dated 05.10.2009 and the office note dated 11.01.2010(Annexure No.10) in this regard. According to the petitioner, he was similarly situated with the other 13 persons, who have been regularized on 16.04.2004 in terms of 1979 Regularization 3rd Amendment Rule 4(3).

When the petitioner felt that his case was not being considered by the respondents, he filed a writ petition, bearing No.58251 of 2010, which was finally disposed of by this Court on 20.04.2012, requiring the Secretary concerned to take a decision on the representation of the petitioner within the given time frame. Thereafter, the respondent no.1 proceeded to pass the impugned order dated 15.05.2012, rejecting the claim of the petitioner with reference to the U.P. Higher Education Group 'A' Service Rules, 1985 and the Government Order dated 13.03.1987. The respondent no.1 has, inter alia, observed as under :-

+^^bl laca/k esa Li"V djuk gS fd dk;kZy; Kki la[;k&[email protected]&5&2004&73 ¼7½@90] fnukad 04-04-2004 }kjk jktdh; egkfo|ky; esa dk;Zjr va'kdkfyd 37 izoDrkvksa dks fnukad 10-10-1996 ls rnFkZ ?kksf"kr fd;k x;k gSA mDr dk;kZy; Kki ds dzekad&31 ij MkW0 vkse izdk'k flag dk uke vofLFkr gSA mDr vkns'k }kjk rnFkZ ?kksf"kr f'k{kdksa dks fofu;fer fd;s tkus ds laca/k esa fnukad 08-04-2004 dks fofu;ferhdj.k lfefr dh cSBd vkgwr dh x;hA fofu;ferhdj.k lfefr }kjk ek0 mPp U;k;ky; ds fu.kZ; dh frfFk 10-10-1996 dks izo`Rr U;wure 'kS{kf.kd vgZrk,a] vfofNUu mRre vfHkys[k] fofu;ferhdj.k fu;ekoyh ds lqlaxr fu;eksa rFkk ek0 mPp U;k;ky; ds fu.kZ; fnukad 10-10-1996 ds izHkkoh va'k ds vkyksd esa fopkj djrs gq, Mk0 vkse izdk'k flag dks fofu;ferhdj.k gsrq vuqi;qDr ik;k x;kA iqu% Mk0 flag }kjk vuqjks/k fd;k x;k fd 'kklukns'k fnukad 16-04-2004 }kjk tc 13 izoDrkvksa dk fofu;fer fd;k rc Hkh os U;wure 'kSf{kd ;ksX;rk iw.kZ djrs FksA vr% mudk fofu;ferhdj.k fd;k tk;A bl dze esa fofu;ferhdj.k lfefr dh cSBd fnukad 09-03-2010 dks iqu% vkgwr dh x;h ftlesa ;g ik;k x;k x;k fd Mk0 flag mRrj izns'k mPprj f'k{kk ¼lewg d½ lsok fu;ekoyh 1985 ,oa 'kkluksn'k fnukad 30-03-1987 esa fu/kkZfjr 'kSf{kd vgZrk iw.kZ ugha djrs gSaA vr% fofu;ferhdj.k lfefr dh laLrqfr fnukad 08-04-2004 esa Mk0 flag ds lca/k esa fy;s x;s fu.kZ; esa fdlh ifjorZu dk vkSfpR; ughaa gSA

mDr of.kZr fLFkfr ds vkyksd esa Mk0 vkse izdk'k flag dk fofu;ferhdj.k fd;k tkuk lEHko ugha gSA vr% ,rn}kjk izdj.k fuLrkfjr fd;k tkrk gSA**

It is the contention of the petitioner that the sole ground on which his claim has been rejected is that he was not possessing the requisite qualification under the Rules of 1985 as well as G.O. dated 30.03.1987. According to the petitioner, the academic qualification for the post of lecturer having not been defined in 1985 Rules, the same was being fixed by means of Government Orders. The petitioner has referred to his academic qualifications including that of Ph.D in the year 1986 and the D.Sc. in 2001. The petitioner has contended that while passing the impugned order, the respondent no.1 has misread the provisions of the Government Order dated 30.03.1987. The petitioner has averred that the only impediment, as regard his qualification could be that he get 45% marks in Intermediate as against the requisite 50%, but then, in terms of Clause 3 of the G.O. Dated 30.03.1987, for his possessing Ph.D at the time of initial appointment, he was entitled for 5% relaxation and thereby, fulfilled all the terms and conditions of the Government Order dated 30.03.1987.

The petitioner has, thus, contended that he was possessing the essential qualifications and the persons similarly situated were indeed regularized and there was no reason that he was denied the same treatment.

The respondents in their counter would contend that the case of the petitioner was considered in a bona fide manner twice over as per the law applicable, but he was not found eligible to be regularized. The petitioner has filed a rejoinder and, while re-iterating that he possessed the necessary qualifications in terms of the Government Order dated 30.03.1987 as also the later Government Order dated 13.10.1997, has asserted on his claim for regularization. The petitioner has pointed out in the rejoinder affidavit that at no stage and nowhere the respondent authorities have spelt out as to what was the qualification he was found lacking and why was he not found eligible for regularization.

After having heard the learned counsel for the parties and having examined the material placed on record, we are clearly of the view that the impugned order dated 15.05.2012, as passed by the Secretary to the Government in its Higher Education Department cannot be approved when the same is found wanting in material particulars and reasonings; and the matter deserves to be re-examined by the Secretary concerned.

We find the grievance of the petitioner fully justified that while choosing to deny him regularization, though other 13 persons who were party together with him in the earlier litigation have been regularized, the respondents have failed to assign any cogent reason for their decision against him.

We find further a serious shortcoming in the order passed by the respondent no.1 that the contention of the petitioner that he was fulfilling all the requirements and was possessing the requisite qualifications has not even been attended at. The respondents have even failed to come out with a concrete reply to the assertion of the petitioner as made in this writ petition that he was fulfilling the relevant eligibility conditions. The respondents in their counter affidavit have only stated this much that the petitioner was not having the requisite qualification, but have failed to show as to what was that particular qualification which the petitioner was found lacking in; and as to what was the response in respect of the provisions of relaxation, as referred to by the petitioner.

It appears rather apposite to observe that when this Court expects of a concerned authority to take a decision on the representation, it inhers in such a proposition that the referred representation would be objectively and dispassionately considered; and it would be decided by a speaking order containing the reasonings of the concerned authority for arriving at a particular conclusion as also the discussion to demonstrate as to why the material contention of the aggrieved person was being rejected or dispelled.

In the present case, it is noticed that at nowhere the respondent no.1 has specified as to what were the requirements of the qualification; and as to what was found lacking in the claim of the petitioner. Moreover, the contention of the petitioner for relaxation in relation to the Intermediate marks has also not been dilated upon.

In view of the above, the impugned order dated 15.05.2012 is required to be set aside.

Though we would have considered issuance of mandamus for regularization in this matter, particularly when it appears that this matter has gone through several rounds of litigation, however, for the subject matter of the petition and in the overall circumstances, it appears just and proper to grant yet another opportunity to the respondents to take appropriate decision in the case of the petitioner after seriously attending on his representation dispassionately and objectively and after affording opportunity of personal hearing. Needless to observe that while disposing of the representation, the respondent no.1 ought to pass a speaking order on cogent reasons after dealing with all the relevant contentions of the petitioner.

Accordingly and in view of the above, this writ petition succeeds and is allowed to the extent indicated. The impugned order dated 15.05.2012 is quashed and set aside. The representation of the petitioner shall stand restored for reconsideration by the authority concerned, who shall pass an appropriate order keeping in view the observations made above. For the purpose, we allow the petitioner to appear before the Secretary on 12th September, 2014. It would be permissible for the Secretary concerned to fix another date for appearance with due notice to the petitioner. However, the decision afresh shall be taken on the petitioner's representation at the earliest, and in any case, within thirty days from the first date of appearance of the petitioner."

(emphasis supplied)

8. Perusal of the aforesaid judgment clearly reflects that this Court found that the impugned order dated 15.5.2012 under challenge before Hon'ble Division Bench was wanting in material particulars and reasonings and there were serious shortcomings in the order. The question that the petitioner was fulfilling all the requirements and was possessing the requisite qualifications has not even been attended at. It was further observed that even the Hon'ble Division Bench considered for issuing mandamus in view of the several round of litigation that had taken place, however, respondent was directed to take appropriate decision in the case of the petitioner after seriously attending on his representation.

9. It is only thereafter the Regularization Committee was formed and the representation / claim was decided in favour of the petitioner (Annexure-10 to the petition) by the Committee.

10. It is also pertinent to note that on some representation, the government looked into the matter again and passed the Government Order dated 19.5.2016 (Annexure-12 to the petition) holding that there is no justification or necessity to re-visit the issue of regularization of the petitioner. In such view of the matter, the order impugned herein setting aside regularization of the petitioner after his retirement for entirely different reason and appears to be not only illegal but also mala fide and appears to have been passed, as the record reflects, for the reason that certain other persons have claimed regularization claiming parity of their case with the case of the petitioner.

11. In the impugned order new ground that 5% relaxation was not available for the purpose of consideration of regularization but was available for the appointment towards Part Time Teachers (Anshkalik Swayamsevi) has been taken. The ground taken is neither here nor there.

12. I have considered Uchchatar Shiksha Sewa (Samooh Ka) Sewa Niyamawali annexed with the counter affidavit. Prima facie, I am of the opinion that the petitioner had already obtained degree of Ph.D. prior to his appointment, therefore, was not covered by the provisions of Clause 6 of the Schedule, which provides for relaxation, as he was having the higher qualification at the time appointment itself. In any view of the matter, the cancellation of regularization of the petitioner, which had already been considered and decided in favour of the petitioner by the Hon'ble Division Bench and on two occasions was considered by the Regularization Committee and was upheld repeatedly, there was no occasion to pass such cancellation order after retirement, therefore, the order impugned herein dated 12.6.2019 is illegal and is hereby quashed.

13. Present petition stands allowed.

14. In case, any amount of the petitioner has been withheld for the reason of passing the impugned order, the same shall be released by the authority concerned within a period of three months from today.

15. With the aforesaid observations, present petition stands allowed.

Order Date :- 13.1.2021

Lalit Shukla