Suresh Chandra Pandey vs The State Of U.P Thru Secy. ...
2022 Latest Caselaw 3865 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- WRIT - A No. - 3553 of 2011
 

 
Petitioner :- Suresh Chandra Pandey
 
Respondent :- The State Of U.P Thru Secy. Madhyamik Edu. Lko And Ors.
 
Counsel for Petitioner :- Ramesh Kumar Srivastava,Dinesh Kumar Mishra,Rakesh Kumar Chaudhary,Santosh Mishra
 
Counsel for Respondent :- C.S.C,A.P. Mani Tripathi,Ashutosh Shahi,Ashwani Kumar,Devesh Pathak,Mukesh Mishra,Raj Kr Singh Suryvanshi,Ramesh Pandey,Som Kartik Shukla 
 
A N D 
 
Case :- WRIT - A No. - 6946 of 2012
 
Petitioner :- Raj Nath Yadav
 
Respondent :- State Of U.P. Through Prin. Secy. Secondary Edu. Lko. And Ors.
 
Counsel for Petitioner :- Ramesh Pandey,Ashutosh Shahi,Som Kartik Shukla
 
Counsel for Respondent :- C.S.C.,Raj Kr Singh Suryvanshi,Rakesh Kumar Chaudhary,Ramesh Kumar Srivastava
 

 
Hon'ble Rajan Roy,J.

Heard.

This petition was filed in the year 2011 challenging an order dated 11.5.2011/12.5.2011 passed by the Special Secretary, Government of U.P. in pursuance to an order passed by this court at Allahabad on 17.8.2010 in Writ-A No. 5771 of 2010, Sushil Kumar Singh & ors. v. State of U.P. & ors.

The dispute, in nutshell, is that the petitioner participated in a selection for the post of Principal of Intermediate College, i.e., Varg-1 College and also for the post of Principal of High School College, i.e., Varg-3 College. The advertisement No. 1 of 2002 was issued on 3.3.2002 and the last date for submission of application-form was 30.3.2002. The petitioner submitted the application-form within the stipulated period. The petitioner claims that he had the requisite experience as also the qualification. He also claims that he had the qualification of P.Hd. also. The petitioner was selected and given appointment. He joined on the post of Principal in the opposite party no. 5 Institution on 10.6.2009 wherein the opposite party no. 11 was at that time working as adhoc/officiating Lecturer. The selection and appointment of the petitioner was cancelled by the Board on 23.7.2010 on the ground that based on the same experience-certificates while for Varg 3 School/College he was given 25 marks, but for Varg-1 he was given 80 marks. The Board's stand is that after deducting 55 marks from the 80 marks given to the petitioner for Varg-1 school for experience, his total comes to 265.29, which is less than the merit for Varg-1 colleges which was 291.88.

It is not out of place to mention that the case at hand is confined to the claim of the petitioner for appointment as Principal of Varg-1 college, i.e., Intermediate College, and not with regard to Varg-3 college. This cancellation of petitioner's selection and appointment was on account of writ petition having been filed by the opposite party no. 11, as informed by the parties' counsel. In a same writ petition a direction was issued to the State Government to take a decision in the matter whereupon the matter was heard at the level of the State Government and the impugned order has been passed which is impugned herein. No interim order was passed in this case.

In the interregnum the petitioner had challenged the earlier order of the State Government dated 21.7.2010 by means of writ petition No. 5771 of 2010 which was set aside with liberty to pass a fresh order giving opportunity of hearing, whereupon the impugned order dated 11.5.2011/12.5.2011 was passed after dismissal of special appeal filed by the opposite No. 11.

On a perusal of the impugned order the court finds that only two aspects of the matter have been considered, one the grant of benefit of alleged experience of the petitioner on the post of Principal of Mahamana Sanskrit Vidyalaya. With regard to this aspect of the matter the impugned order says that the appointment of the petitioner on the post of Principal was quashed by the High Court on 21.9.1995 vide judgment rendered in Writ Petition No. 28219 of 1992, Sri Swami Nath Mishra v. Director, Higher Education & ors., therefore no benefit of alleged experience can be given to him. This aspect of the matter as dealt with in the impugned order has not been challenged by the petitioner and during course of arguments Sri Ramesh Kumar Srivastava, his counsel categorically submitted that he does not wish to press the challenge raised in this regard in the writ petition and confines his challenge only to the other aspect. The other aspect is with regard to the qualification of P.Hd. of the petitioner.

The dispute herein is, as is borne out from the impugned order, that while filling up the application-form for the aforesaid post in question, the petitioner did not submit the P.Hd. degree. An objection was raised before the Board in this regard. In spite of it the petitioner was appointed and subsequently the appointment was cancelled for the reasons aforesaid. By the impugned order the State Government has recorded a finding that P.Hd. degree was not submitted, though a letter of the Examination Controller was appended by the petitioner alongwith his application-form mentioning that he had successfully completed his P.Hd. In this regard, the counsel for the petitioner submitted that the result of his P.Hd. Thesis was declared in March 2001 prior to the expiry of last date for submission of form in pursuance to advertisement No. 1 of 2002 which was 30.3.2002, the practice is that on declaration of result, if successful, a provisional certificate is issued, which was issued to the petitioner and the same was appended alongwith the application-form, as is admitted by Board in its reply before the State Government and as is also mentioned in the impugned order of the State Government. This, according to him, was sufficient satisfaction of the requirement that he possesses the qualification of P.Hd. He submitted that it is common knowledge that degrees are issued much later, but issuance of degree subsequently is inconsequential, if otherwise the candidate has been declared successful, so far as the P.Hd. Thesis is concerned. He has invited attention of the court to a letter of the Examination Controller, Kameshwar Singh Darbhanga Sanskrit Vishwavidyalaya, Darbhanga, dated 20.3.2020 to the effect that the petitioner had succeeded in the Vidya Varidhi examination held under the supervision of Dr. Udai Shankar Pandey in March 2001. Before issuance of the Mool Pramanpatra the University informs the candidate about the provisional notification. Based on this the counsel submitted that it is the provisional notification to the candidate which was annexed alongwith the application-form.

Sri Suryavanshi, learned counsel for the Board has produced records before the Court which contain the said notification issued by the Controller of Examination of the University to the petitioner and it is dated 3.4.2001.

It is this which is annexed with the application-form and it mentions about the petitioner having successfully completed his P.Hd. Subsequently the P.Hd. degree was issued to him. Submission is that this aspect of the matter has escaped notice of the State Government.

At this stage, Sri Som Kartik, learned counsel appearing for the opposite party no. 11 submits that the petitioner in fact did not have the experience as per the Note to Rule 12(4) of the U.P. Secondary Education Services Selection Board Rules 1998.

The Stand of the Board before the State Government was with regard to the qualifications prescribed in Appendix-A of Chapter III of the Regulations made under the Intermediate Education Act.

Counter affidavit of the Board is silent as to whether the qualifications prescribed in Appendix-A of the Regulations referred hereinabove were applied to the selection in pursuance to the Advertisement No. 1 of 2002 or the qualifications, if any, prescribed in the Act 1982 or the Rules 1998 made thereunder were applied, as it cannot be that in the case of the petitioner a different Rule would be applied, whereas others who had got selected in pursuance to Advertisement No. 1 of 2002, some other qualification would be applied, subject, however, to the fact that the petitioner after joining on 30.6.2009 has not worked since 2010 when his appointment was cancelled.

In any case, so far as this objection raised by Sri Somkartik is concerned, this is not the ground on which the claim of the petitioner has been rejected, therefore, this court would not like to go into this aspect of the matter any further, leaving it open for the authority competent to take a decision in this regard.

At this stage, Sri Somkartik informs that under section 16(E)(10) the State Government is empowered to cancel the selection/appointment of a Teacher or Principal who may not be possessing the qualification for the post.

Having heard the learned counsel for the parties this court is of the opinion that there is no doubt that the petitioner had successfully completed his P.Hd. prior to the last date of submission of the application-form and had also annexed proof thereof in the form of a provisional notification communicating the aforesaid fact to him by the Controller of Examination, which is fortified by the subsequent letter dated 20.3.2020 issued by the Controller of the Examination of the concerned University. Merely because the degree was issued subsequently on account of which it could not be submitted with the application-form, by itself could not have been a ground for rejecting the claim of the petitioner, as such degrees are often issued belatedly. At best, the Board should have got aforesaid fact verified before allocating college to the petitioner or during the selection itself, therefore, so far as the impugned order denies the claim of the petitioner on this aspect, the same cannot be sustained.

Having said so the opposite party no. 1, i.e., the State Government is directed to revisit the matter only on the question as to whether the petitioner fulfilled the experience or qualification which was required as per the advertisement No. 1 of 2002 and as was required from other candidates who had appeared in the selection and had been appointed, or not. A decision in this regard shall be taken within 3 months. Consequences shall be followed accordingly. If the decision of the State Government goes in favour of the petitioner, then needless to say that his appointment shall be restored and he shall be allowed to join with continuity in service, but without any backwages/salary, however, if the conclusion arrived at is that he did not possess the requisite experience or qualification, as was mentioned in the advertisement and as was expected of other candidates who were successful in the said selection, then the matter shall rest and the petitioner would not have any claim. The order impugned is accordingly quashed, however, with a direction to the State Government to revisit the matter as aforesaid and take a final decision within three months' stipulated time.

As regards opposite party no. 11, he is only an adhoc Principal in the Institution and does not have any substantive right in the matter, if a regular selected candidate is sent to the college for joining, and as a decision has already been taken on the complaint of the opposite party no. 11, therefore, he need not be heard any further.

Original records produced by the Board are returned.

With the above observations/directions Writ-A No. 3553 of 2011, Suresh Chandra Pandey v. State of U.P. is disposed of.

In the connected writ petition bearing No. 6946(SS) of 2012 filed by Raj Nath Yadav, the opposite party no. 11 in the other writ petition which has been disposed of as above, the same had been filed to allow him to work as adhoc/officiating Principal of Trigunanand Janta Inter College, Bankata, Deoria, Sri Ramesh Kuamr Srivastava informed that in fact Raj Nath Yadav was caught taking bribe and was suspended and is not functioning as Principal of the Institution in question as of now. F.I.R. has also been lodged against him.

Counsel for the petitioner in this petition says that his client Sri Raj Nath Yadav is not working at present as adhoc/official Principal in the Trigunanand Janta Inter College, therefore, this is also the reason as to why no direction is required for his continuance on the said post. With these observations Writ-A No. 6946 of 2012 is also Disposed of.

.

(Rajan Roy, J.)

Order Date :- 24.5.2022/A.Nigam