Shiv Sagar Mishra vs District Basic Education Officer ...
2023 Latest Caselaw 9922 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 38
 

 
Case :- WRIT - A No. - 1156 of 2009
 

 
Petitioner :- Shiv Sagar Mishra
 
Respondent :- District Basic Education Officer Kaushambi And Others
 
Counsel for Petitioner :- Prakash Padia,Dr. R.G. Padia,Kshitij Shailendra,Yash Padia
 
Counsel for Respondent :- C.S.C.,Hari Shankar Mishra,R.K.Jain,R.N. Singh,Rahul Jain,Raju Shanker,Ravi Shanker,Ravishanker Prasad,S.K. Gupta
 

 
Hon'ble Saurabh Srivastava,J.

1. Heard Sri Yash Padia, learned counsel for the petitioner and learned Standing counsel for the State respondents.

2. The present petition has been filed seeking following reliefs:

"a) issue a writ, order or direction, including a writ in the nature of certiorari quashing the order dated 11.12.2008 by which the services of the petitioner have been terminated by the respondent no. 1. The District Basic Education Officer, Kaushambi.

(b) issue a writ, order or direction, including a writ in the nature of mandamus restraining the respondents from taking further proceedings in pursuance of the letter dated 11.12.2008 referred by respondent no. 1 addressed to the Manager of the institution in question;

c) issue a writ, order or direction, including a writ in the nature of mandamus restraining the respondents from interfering in the functioning of the petitioner as Clerk;

d) issue a writ, order or direction, including a writ in the nature of mandamus directing the respondents to pay salary to the petitioner month-by-month as and when it fails due;"

3. It is the case of the petitioner that his services has been terminated vide order dated 11.12.2008 on the reference as made by the District Basic Education Officer, Kaushambi to the concerned manager of the Committee of the Management of the Institution where the petitioner was rendering his services since 01.11.1976. The basis of the termination of the services of the petitioner that at the time of seeking appointment as well as at the time of joining over the post of Chowkidar, the age of the petitioner was less than the minimum prescribed age i.e. 18 years for the post of Chowkidar, the same has been proved as per the class 10 certificate issued by the U.P.Board wherein the date of birth of the petitioner is mentioned as 20.04.1959 and as such at the time of joining the petitioner attained only 17 years 6 months and 11 days and as such he was not having the minimum prescribed age for seeking appointment over the post of Chowkidar.

4. This fact has been came into the knowledge of the responsible responding authorities first time in the year 2008 over the complaint as made by some outsider on 25.7.2008 complaint made by some Bhrashtachar Unmoolan Samiti whereupon the service records of the petitioner have been verified and the same has been found that he has not attained the minimum prescribed age at the time of joining over the post of Chowkidar.

5. The order of termination has been put under challenge in the present petition, whereupon at the admission stage the indulgence has been drawn by this Court by way of issuing the interim protection vide order dated 23.01.2009 through which the services of the petitioner has been continued and after receiving the interim order dated 23.01.2009 proper disciplinary proceedings has been initiated by the responding authorities which continued till attaining the age of superannuation of the petitioner and the same has never been finalised in spite of the full cooperation rendered by the petitioner.

6. It is the case of the petitioner that the fact which is apparent from record with regard to the age of the petitioner has never been denied and has been fairly conceded that at the time of joining over the post of Chowkidar, the petitioner was not eligible as per the minimum prescribed age mentioned in the rules for seeking appointment over the post of Chowkidar i.e. 18 years whereas at the time of joining the age of the petitioner was only 17 years 6 months and 11 days which is near about only less than 5 months and 19 days.

7. So far as the entire career of the petitioner is concerned, the services of the petitioner was highly satisfactory and the same was spotless, no disciplinary proceedings or any type of punishment has ever been initiated or fastened upon the petitioner.

8. Per contra, learned Standing counsel vehemently opposed the prayer as made in the petition by way of raising his arguments that the petitioner was not eligible at the time of seeking appointment over the post of Chowkidar since he was under age as per the minimum prescribed age mentioned in the statute for seeking appointment over the post of Chowkidar.

9. For substantiating the arguments as raised by the learned counsel for the petitioner he relied upon the judgement passed by Division Bench of this Court in Special Appeal No. 202 of 2021 decided on 16.07.2021 (Neelu Dwivedi vs. Artificial Limbs Manufacturing Corporation of India and others) 2021 (6) ADJ 637 (DB), wherein para 11 and 27 of the judgement has been heavily relied upon which are reproduced hereinbelow:-

"11. The learned counsel for the appellant submitted that out of the five charge-sheets that were served upon the appellant, charge-sheet dated 13.03.2020 (Reference No. GM(M)A-30/ND/01) was in respect of furnishing certain information in the year 2000 at the time of seeking initial appointment and therefore, initiating proceedings in respect thereof, after 20 years of service, amounts to persecution, undue harassment and, on that very ground, the said charge-sheet is liable to be quashed at the threshold. It was submitted that the said charge-sheet does not disclose that any of the documents submitted at the time of appointment were forged or false rather it questions the validity of the eligibility certificates even though the authority concerned had verified those certificates. It was argued that so long those certificates stand uncanceled and are verifiable, the employer has no jurisdiction to question the validity of those certificates, that too, after 20 years of service. It was urged that from the charge itself it appears the requirement of having work experience was relaxable and, therefore, once appointment was offered by relaxing the work experience requirement, the employer is estopped from questioning the eligibility on that ground, particularly, after 20 years of service. It was submitted that while addressing the prayer of the appellant to quash the said charge-sheet, the learned Single Judge failed to consider these vital aspects. Hence, the order of the learned Single Judge is liable to be set aside.

27. At this stage, it would be useful to refer to a decision of the Apex Court in Dr. M.S. Mudhol And Anr. vs S.D. Halegkar And Ors, (1993) 3 SCC 591. In that case, while dealing with a challenge to the appointment of a Principal of a Higher Secondary School on a petition for issuance of a writ of quo warranto, the Apex Court refused to interfere even though it found that the incumbent did not have the requisite qualifications at the time of appointment. While dismissing the writ petition, the Apex Court took the view that having held the post for 12 years the incumbent was not liable to be disturbed from office because he had placed all his cards before the Selection Committee and the Selection Committee, for some reasons or other, thought it fit to choose him for the post. The relevant observations of the Apex Court are contained in paragraphs 6 and 7 of the judgment, which are extracted below:-

"6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same.

7. Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the Court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the Court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ."

10. Learned Standing counsel although rebutted the claim of the petitioner but at the same time admitted the position that the disciplinary proceedings as initiated way back in the year 2009 is still pending to be finalised even after attaining the age of superannuation by the petitioner. The petitioner has already been retired on 30.04.2019 but in spite of cooperating with the departmental authorities the disciplinary proceedings as initiated in pursuance to the dispute of age at the time of joining could not be finalised at the behest of the responsible authorities of the responding department for which no fault can be attributed or saddled over the shoulders of the petitioners.

11. The case of the petitioner is squarely covered with the above mentioned ratio of the judgement dated 16.07.2021 and as such after attaining the age of superannuation way back in the year 2019, the petitioner cannot be held responsible only on the ground for shortening the minimum prescribed age limit which could not be attained at the time of joining. The respondent no. 1 (District Basic Education Officer Kaushambi) is hereby directed to treat the petitioner as regular incumbent of the department since the services as rendered by the petitioner was regular in nature without considering the order dated 11.12.2008 and 19.12.2008 by way of treating him as retired employee of the Institution and further be directed to extend all the retiral benefits along with the pending arrears of the pension admissible to him as per law. The above mentioned exercise shall be finalised as expeditiously as possible, preferably within a period of 2 months from the date of production of the certified copy of this order before the authority concerned. The order dated 11.12.2008 and corrigendum to the same i.e. order dated 19.12.2008 is hereby quashed and set aside.

12. The writ petition stands allowed accordingly.

Order Date :- 5.4.2023

Shaswat