Allahabad High Court
Munishwar vs Deputy Commissioner ... on 12 July, 2021
Bench: Munishwar Nath Bhandari, Acting Chief Justice, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- SPECIAL APPEAL No. - 350 of 2018
Appellant :- Munishwar
Respondent :- Deputy Commissioner (Administration), Trade Tax
Counsel for Appellant :- Prakash Padia
Counsel for Respondent :- C.S.C.
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
Hon'ble Piyush Agrawal,J.
By this appeal, challenge is made to judgment dated 23.11.2017 whereby the writ petition preferred by the petitioner/appellant was dismissed. The petition was preferred against the order dated 23.11.2000 cancelling the appointment of the petitioner/appellant on Class III post in Sales Tax Department, Aligarh. The petitioner/appellant was appointed on the said post vide order dated 07.11.1989. The cancellation of appointment was mainly on the ground that the petitioner/appellant was in possession of the qualifiction of Madhyama from Hindi Sahitya Sammelan. The said qualification was not considered to be a recognized qualification pursuant to judgment of the Apex Court. Learned Single Judge accordingly refused to cause interference in the order of the cancellation of the appointment dated 23.11.2000.
Learned counsel for the petitioner/appellant submits that at the time of submission of the application, disclosure about qualification was made. The respondents considered the marks obtained by the petitioner/appellant in Madhyama and gave appointment. It is not a case where petitioner/appellant has suppressed his qualification or committed fraud. Once the appointment was given by the respondents with true disclosure of facts, the appointment could not have been cancelled pursuant to subsequent judgment of the Apex Court as the judgment applies prospectively.
It is also submitted that the petitioner/appellant was otherwise in possession of the required qualification. The equivalent qualification of intermediate was existing with the petitioner/appellant though it was not disclosed in the application form as Madhyama was also taken to be equivalent qualification for appointment on Class III post.
The petitioner/appellant has otherwise attained the age of superannuation in the year 2019 and prior to it, he continuously worked pursuant to the interim order passed in the writ petition and thereupon by the Division Bench except for a very small period when the interim order was not existing. The judgment of the learned Single Judge may accordingly be set aside as the petitioner/appellant was in possession of the required qualification having attained the age of superannuation extended the benefit of Provident Fund also.
Learned Standing Counsel appearing submits that pursuant to the judgment of the Apex Court holding Madhyama from Hindi Sahitya Sammelan to be not a recognized qualification, appointment of the petitioner/appellant was cancelled by the order dated 23.11.2000. It is, however, admitted that the petitioner/appellant was given appointment based on the qualification of Madhyama. It is not a case of suppression of any fact to seek appointment but cancellation of appointment is in pursuance to the judgment of the Apex Court.
Prayer is to dismiss the appeal.
We have considered the rival submissions made by the parties.
Facts on record shows that at the time of submission of the application form for appointment, the petitioner/appellant disclosed Madhyama to be one of the qualification. He was given appointment based on the disclosure made on the application form. The cancellation order dated 23.11.2000 was not on the pretext of non-disclosure or false disclosure of facts by the petitioner/appellant but due to qualification of Madhyama. It was otherwise considered to be a qualification for appointment at the relevant time. The petitioner/appellant was otherwise carrying the qualification required for the post though not disclosed as was not felt necessary in reference to the qualification of Madhyama. From the aforesaid facts, it becomes clear that the petitioner/appellant was in possession of the required qualification of intermediate though it may not have been disclosed in the application form in the given circumstances. Thus, we find reason to cause interference in the order dated 23.11.2000 so as the judgment of learned Single Judge. It is also when petitioner/appellant has already attained the age of superannuation and worked with the Department till then pursuant to the interim orders. He has already been extended the benefit of Provident Fund.
Thus, looking to all these facts, we set aside the order dated 23.11.2000 so as the judgment of the learned Single Judge dated 23.11.2017.
The petitioner having retired would be entitled to all retiral benefits after ignoring the period when he did not work but it would not be taken to be break in service rather the entire period of his service.
With the above directions, the appeal stands allowed.
Order Date :- 12.7.2021/Madhurima
