Dharmendra Kumar Srivastava vs District Magistrate And Others
2022 Latest Caselaw 11231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 16.08.2022
 
Judgment delivered on 25.08.2022
 
Court No. - 82
 

 
Case :- WRIT - A No. - 17008 of 1998
 

 
Petitioner :- Dharmendra Kumar Srivastava
 
Respondent :- District Magistrate And Others
 
Counsel for Petitioner :- Manish Nigam,Abhishek Bhushan,Yogesh Kumar
 
Counsel for Respondent :- S.C.,B.K. Shukla,K.R. Sirohi,P. Kumar,Sunil Ambwani
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This writ petition has been filed seeking following relief :-

"(i) To issue writ order or direction in the nature of certiorari quashing the impugned order dated 06.04.1998 passed by respondent No.1 (Annexure No.1 to the writ petition)"

2. This Court has passed an order on 25.07.2022 which is extracted hereinbelow :-

"The petitioner was terminated from the post of Driver on the ground that he had not passed High-School Examination as provided under the relevant Advertisement/Rules.

Learned counsel for the petitioner has admitted that the petitioner had not passed High-School Examination and was only passed upto Class-IX. The impugned termination order has been challenged before this Court by way of filing the present writ petition. In the year 1998, interim order was passed, whereby the impugned termination order was stayed and since then, the petitioner is working, i.e., almost 25 years under the interim order. Presently, the petitioner is aged about 55 years old and age of superannuation is 60 years. During pendency of the writ petition, the petitioner has passed High-School Examination in the year 2001.

In these circumstances, considering that the petitioner has already served more than 25 years of service of which, 24 years are under the interim order, therefore, at this stage if any adverse order is passed, it would prejudice the petitioner as well his family.

Therefore, being a welfare State, the respondents are directed to obtain fresh instructions that in peculiar facts and circumstances of case, that during pendency of this writ petition, petitioner has qualified High-School Examination (essential qualification) and has already worked for more than 25 years (about 24 years under interim order) and that he is presently 55 years old therefore whether the petitioner may be continue to work till he attains the age of superannuation.

List after two weeks."

3. Ms. Bushra Maryam, learned counsel for High Court submits that since the petitioner has not been regularised or granted other service benefits, this matter be heard on merits. In these circumstances, I heard Sri Anil Bhushan, learned Senior Counsel assisted by Sri Prateek Srivastava, for the petitioner.

4. Learned Senior Counsel submits that at the time of appointment in the year 1997, the petitioner has passed class 8th, however, he was failed in high school. Still the concerned authority in the Judgeship at Hamirpur appointed the petitioner on adhoc basis as driver on 08.05.1997.

5. Learned Senior Counsel submitted that high school was not an eligible qualification and different Judgeships have adopted different criteria to appoint drivers. The petitioner has not committed any fraud. He has submitted his mark sheet of class 10th (fail) and therefore the respondents, only after considering the petitioner to be eligible, appointed the petitioner as driver. No notice was issued to the petitioner before the impugned order of termination. The petitioner has already worked for 25 years under the interim order, therefore, equity is also in his favour.

6. Learned Senior Counsel has also pointed out that Rule 11 of the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955 (hereinafter referred to as "Rules, 1955") provides junior high school or equivalent examination to be essential qualification and not the high school, though petitioner has passed class 10th during the pendency of the writ petition. Learned Senior Counsel has also placed reliance upon the judgment of the Supreme Court in the case of Dr. M.S. Mudhol Vs. Shri S.D. Halegkar1 and submitted that in case the employee is continued to hold a post for a very long period, it would be inadvisable to disturb him from the said post at the late stage particularly when he was not at fault when his selection was made.

7. Ms. Bushra Maryam, learned counsel for High Court has pointed out that the advertisement in pursuance of which the petitioner applied clearly described that the essential educational qualification was class 10th. The said advertisement is not under challenge before this Court. Admittedly, the petitioner was not qualified in terms of the advertisement, however, he has attained that qualification during the pendency of the writ petition. She has also placed reliance on paragraph 17 of the judgment passed by Supreme Court in Civil Appeal No. 004901 of 2021 (Employers In Relation To The Management Of Bhalgora Area (NOW Kustore Area) Of M/S Bharat Coking Coal Ltd. Vs. Workmen Being Represented by Janta Mazdoor Sangh) decided on September 07, 2021 :-

"17. Fraudulent practice to gain public employment cannot be countenanced to be permitted by a court of law. The workmen here, having hoodwinked the government undertaking in a fraudulent manner, must be prevented from enjoying the fruits of their ill-gotten advantage. The sanctity of public employment, as a measure of social welfare and a significant source of social mobility, must be protected against such fraudulent process which manipulates and corrupts the selection process. Employment schemes floated by the State for targeted groups, can absorb a finite number of workmen. To abuse the legitimate process, therefore, would mean deprivation of employment benefits to rightful beneficiaries. The courts as sentinel of justice must strive to ensure that such employment programmes are not manipulated by deceitful middlemen, thereby setting up a parallel mechanism of Faustian Bargain. Often, desperate job aspirants resort to such measures to compete for limited vacancies, but this Court cannot condone false projections so as to circumvent the statutorily prescribed procedure for appointments. Such illegal practices must be interdicted by the courts."

8. She has also placed reliance on paragraph 9 of the judgment passed by Supreme Court in the case of The State of Bihar and others Vs. Madhu Kant Ranjan and another, 2022 0 AIR (SC) 1310.

"9. As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted alongwith the application form, which are required to be submitted as per the advertisement have to be considered. Therefore, when the respondent No. 1 - original writ petitioner did not produce the photocopy of the NCC ''B' certificate alongwith the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC ''B' certificate. In these circumstances, the Division Bench of the High Court has erred in directing the appellants to appoint the respondent No. 1 - original writ petitioner on the post of Constable considering the select list dated 08.09.2007 and allotting five additional marks of NCC ''B' certificate."

9. Heard learned counsel for both the parties and perused the records.

10. On the basis of above submissions and material on record, the petitioner was not having essential qualification of class 10th as required by the advertisement because the recruitment was based on class 10th and admittedly the petitioner has not passed 10th class when he applied for the post. Though in the form against education qualification, the petitioner had mentioned high school which was a false declaration.

11. As mentioned in paragraph 14 of the counter affidavit that the Rules, 1955 relied upon by the learned Senior Counsel for the petitioner were not applicable for the appointment of a driver and this Court does not find any legally sustainable reply to the said averment and for reference paragraph 14 of the counter affidavit is mentioned hereinbelow -:

"14. That the contents of the para 12 of the writ petition are not admitted as stated. The post of the Driver does not comes under Group ''D'. The driver of Judgeship Hamirpur/District Court is a technical post and salary which are paid to them is also of the Group of Technical post. So the qualification which has been shown for the group D is not for the post of Driver. Moreover, the advertisement itself spell out that the qualification of the Driver of Hamirpur will be High School or equivalent to it. The pay scale of the Judgeship of Group D employee is Rs. 2550/- to 3200/- but the pay scale of the Driver which is technical post is Rs. 3050/- to 4590/- which also payable to other class III employees of the Judgeship i.e. clerical, etc.

Thus, the petitioner has been rightly terminated from service as he does not fulfill the minimum qualification of the post of Driver."

12. Admittedly, the petitioner was not qualified, therefore, as held in judgment of Employers In Relation To The Management Of Bhalgora Area (supra), any appointment contrary to the advertisement would be void ab initio and the petitioner who has admittedly mentioned in the form that he was high school passed which factually incorrect, it was nothing but a fraud. Any qualification attained during the pendency of the writ petition would not condone the fraud played by the petitioner.

13. The argument of learned Senior Counsel that equity is in favour of the petitioner is also contrary to the well established law that equity follows law and law is against the petitioner as he was not qualified at the time when he initially appointed and subsequent fulfillment of educational qualification will not make the initial appointment legal.

14. This Court has specifically asked learned counsel for respondents to take instructions whether the petitioner can be continued as he has already worked for many years, however, the instructions were in negative.

15. Therefore, considering the above factual aspects and law, the appointment of the petitioner is void ab initio and the petitioner cannot be granted any benefit of the interim order as well as now he has attained eligible educational qualification.

16. In these circumstances, there is no illegality in the impugned order.

17. The writ petition is dismissed accordingly.

Order Date :- August 25, 2022

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]