Surendra Singh vs Satyendra Singh And Ors.
2023 Latest Caselaw 3938 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 
Case :- SPECIAL APPEAL No. - 162 of 2020
 
Appellant :- Surendra Singh
 
Respondent :- Satyendra Singh And Ors.
 
Counsel for Appellant :- Meenakshi Singh Parihar,Prashant Kumar Singh
 
Counsel for Respondent :- C.S.C.,Rajiv Singh Chuahan,Som Kartik Shukla,Vijay Dixit
 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri H.G.S. Parihar, Senior Advocate assisted by Ms. Meenakshi Singh Parihar, learned counsel for appellant, Sri Vijay Dixit, learned counsel for respondent No.1, Sri Som Kartik Shukla, learned counsel for respondent No.5, Sri Rajiv Singh Chauhan, learned counsel for respondent No.4, Sri Anand Kumar Singh, learned Standing Counsel for State/respondent No.2 and perused the material brought on record.

2. By means of instant intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952, the appellant has challenged the judgment and order dated 06.03.2020 passed by the Hon'ble Single Judge allowing the Writ Petition No.5959 (S/S) of 2015: Satyendra Singh vs. State of U.P. Through Prin. Secy. Basic Edu. Lko & Ors.

3. Briefly, stated, the facts of the case are that an advertisement was issued by the Committee of Management of Sardar Patel Purva Madhyamik Vidyalay Chamiyani, District Unnao (hereinafter referred to as "Institution"), inviting applications for making appointment to the post of Headmaster in the Institution. The eligibility qualification mentioned in the advertisement was Graduation with B.Ed. and a certificate of having passed the Teacher Eligibility Test (hereinafter referred to as "T.E.T.") was not shown as an essential qualification in the advertisement. The interviews were held on 03.04.2010 and the Selection Committee had prepared a selection panel placing the candidates according to their respective merit, wherein the name of one Sri Rakesh Singh was mentioned at serial no.1 and the name of the respondent No.1-Satyendra Singh was mentioned at serial no.2. On 12.04.2010, an appointment letter was issued to Sri Rakesh Singh but subsequently by an order dated 08.09.2010, the District Basic Education Officer, cancelled the appointment of Sri Rakesh Singh on the ground that he did not possess the eligibility qualification.

4. Sri Rakesh Singh had filed Writ Petition No.3543(S/S) of 2011 challenging the cancellation of his appointment, which was dismissed by means of a judgment and order dated 26.04.2013. Sri Rakesh Singh had filed Special Appeal No.347 of 2013 which was dismissed by means of order dated 03.07.2013.

5. The respondent No.1 had filed Writ Petition No.8001 (S/S) of 2011 claiming appointment to the post of Headmaster, consequent to cancellation of appointment of Rakesh Singh, as the respondent No.1 was placed at serial no.2 of the selection panel. Writ Petition No.8001 (S/S) of 2011 was disposed of directing the District Basic Education Officer and the Committee of Management of the Institution to give effect to the selection panel in accordance with law and considering the case of the respondent No.1, who was placed at serial no.2 of the select list.

6. However, the District Basic Education Officer rejected the claim of the respondent No.1 by means of an order dated 11.12.2013, for the reason that the respondent No.1 did not possess the T.E.T. certificate. The respondent No.1 challenged the order dated 11.12.2013 and issuance of a fresh advertisement dated 26.09.2015 inviting an application for making appointment to the post of Headmaster in the Institution by filing Writ Petition No.5959 (S/S) of 2015 and on 12.10.2015, an interim order was passed in the writ petition staying the advertisement dated 26.09.2015 and permitting the Institution to issue a fresh advertisement for filling up the post of Headmaster from amongst the persons possessing T.E.T. as one of the eligibility qualification and it was further provided that the appointment made shall be subject to the final outcome of the writ petition and this fact was directed to be mentioned in the advertisement and also in the appointment letter to be issued to the selected candidate.

7. The Committee of Management had challenged the interim order dated 12.10.2015 by filing Special Appeal (D) No.567 of 2015, which was dismissed by means of an order dated 04.12.2015.

8. Instead of issuing an advertisement as provided by this Court in the interim order dated 12.10.2015, the Committee of Management issued an appointment letter to the appellant as a result of the selection held in pursuance of the earlier advertisement dated 26.09.2015. However, subsequently, the appointment letter was withdrawn and a fresh advertisement was published on 26.05.2016, in which, it was categorically mentioned that any appointment made in pursuance of the advertisement shall be subject to the final order to be passed in Writ Petition No.5959 (S/S) of 2015.

9. The appellant was selected in the selection held in pursuance of the advertisement issued on 26.05.2016 and he was issued an appointment letter on 27.06.2016.

10. On 29.08.2016, an order was passed in Writ Petition No.5959 (S/S) of 2015 clarifying that the selection and appointment held in furtherance of the re-advertisement issued on 26.05.2016 shall abide by the final result of the writ petition. The writ petition was amended and the appellant was impleaded as respondent No.5 and his appointment order was challenged by way of amendment in the writ petition.

11. The Hon'ble Single Judge allowed the writ petition by means of a judgment and order dated 06.03.2020 holding that T.E.T. was included as an essential qualification by means of a Notification dated 23.08.2010, which operated only prospectively. The advertisement in question was issued on 15.02.2010 i.e. prior to issuance of the Notification dated 23.08.2010 and, therefore, the qualification of T.E.T. was not essential at the time of issuance of that advertisement and it was not mentioned in the advertisement as an eligibility qualification.

12. The Hon'ble Single Judge further held that the respondent No.1 had applied in furtherance of the advertisement issued on 15.02.2010, in furtherance of which Sri Rakesh Singh was selected and appointed wrongly. By means of an order dated 26.04.2013 passed in Writ petition No.8001 (S/S) of 2011, this Court had directed District Basic Education Officer to consider the claim of respondent No.1, who was at serial no.2 of the selection panel and to give effect to the selection penal. The aforesaid order dated 26.04.2013 has not been set aside and, therefore, the respondent No.1 had the right to be considered for being appointed in pursuance of the advertisement dated 15.02.2010.

13. The Hon'ble Single Judge directed the District Basic Education Officer, Unnao to issue an appointment letter to the respondent No.1 in pursuance of the selection penal recommended by the Selection Committee in the selection process that had commenced with issuance of the advertisement dated 15.02.2010.

14. The appellant has challenged the aforesaid order dated 06.03.2020 passed by the Hon'ble Single Judge. Sri H.G.S. Parihar, learned Senior Advocate for the appellant has submitted that the respondent No.1 does not possess the prescribed eligibility qualification of T.E.T. He also submitted that the selection penal prepared in furtherance of the advertisement issued on 15.02.2011 stood exhausted with the appointment of Sri Rakesh Singh and, therefore, no appointment could have been made from the aforesaid selection penal and appointments can only be made after issuance of a fresh advertisement. Sri Parihar has further submitted that the appellant possesses a T.E.T. certificate and having been duly selected for the post, the appellant has been appointed and is working on the post.

15. The Hon'ble Single Judge has dealt with the issue of essential qualification in detail and he has held that the advertisement was issued on 15.02.2010 whereas the Notification prescribing T.E.T. as an essential qualification was issued on 23.08.2010. It is settled law that eligibility qualification is to be considered on the last date of submission of application in furtherance of the advertisement, which date, in the present case, was 02.03.2010. Therefore, the eligibility qualification of T.E.T. prescribed by the notification dated 23.08.2010, would not be applicable in the selection held in furtherance of the advertisement issued on 15.02.2010.

16. In reply to the aforesaid submission, Sri Vijay Dixit, the learned counsel for respondent No.1 has submitted that eligibility of a candidate has to be seen on the last date of submission of the application form, which in the present case was 02.03.2010. He has placed upon the decision of the Supreme Court in the case of Rekha Chaturvedi (Smt.) vs. University of Rajasthan & Ors : (1993) Supp (3) SCC 168. The relevant paragraph no.10 is reproduced hereunder:-

"10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Sri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad & Anr. v. B. Sarat Chandra & Ors., (1990) 4 SLR 235 and The District Collector & Chairman, Vizianagaram Social Welfare Residential School Society Vidanagaram v. M. Tripura Sundari Devi, (1990) 4 SLR 237."

17. Sri Dixit has next submitted that T.E.T. is an essential qualification only for the selection which commenced after 23.08.2010, the date on which a notification prescribing T.E.T. as an essential qualification was issued. In this regard, he has placed reliance upon judgment of the Apex Court in the case of Shiv Kumar Sharma vs. State of U.P. and others: 2013 (6) ALJ 366.

18. So far as the question that the appellant has already been appointed on the aforesaid post and he is working on the said post, Sri Vijay Dixit has submitted that the appointment was made in furtherance of the interim order dated 12.10.2015 passed by this Court in Writ Petition No.5959 (S/S) of 2015, wherein it was specifically provided that the selection made will be subject to further orders to be passed in the writ petition. It was specifically mentioned in the advertisement dated 26.05.2016 that the appointment made shall be subject to further orders to be passed in Writ Petition No.5959 (S/S) of 2015. Even after completion of the entire process, the selection process will be subject to the final orders to be passed when the advertisement was being published in compliance of the order dated 12.10.2015 passed by this Court in Writ Petition No.5959 (S/S) of 2015 and even after completion of the selection process, the selection process would be subject to the final orders to be passed in the aforesaid writ petition. Therefore, the appointment order issued in favour of the appellant in furtherance of the aforesaid advertisement, has been made subject to the aforesaid interim order and it would not create any right in favour of the appellant.

19. In Vithal and others vs. State of Karnataka and others: (2004) 10 SCC 162, the Hon'ble Supreme Court has held that:

"10. We have already made it clear that the High Court's reading of the clarification was entirely incorrect. Indeed, it is not in dispute that each of the persons who have got the benefit of the second notification was appointed during the pendency of the appeal before the High Court and all of them had given undertakings in terms of the interim order passed by the High Court. They, therefore, knew that their appointments were precarious and subject to the outcome of the appeal. The decision in the appeal having gone against them, they are bound by the undertaking given to the Court and cannot now contend otherwise.

14. We are unable to accede to the submissions of the State Government, the High Court and the "interim appointees". The decision of this Court rendered on 11.10.2001 cannot be rendered nugatory by allowing the very persons in respect of whose appointment this Court has held that the Division Bench should not have allowed them to continue in service. If the subsequent clarification has been misunderstood by the High Court and the State, we can only say that it was unfortunate and surprising as it could not reasonably be accepted that on a review application which was being dismissed the Court had in fact allowed the review and redecided the matter in a diametrically opposite manner. Where the rule has been declared to be unconstitutional the consequences must apply to all the services. The rule could not be taken to be good in part and bad in part. Therefore, only to the extent that appointments had been specifically and expressly protected by this Court the striking down of the rule would operate against all persons who were otherwise not so protected. The question of continuing the "interim appointees" in service, therefore, does not arise. The second notification is therefore quashed."

20. In Sreedhara's vs. State of Karnataka and another: (2004) 10 SCC 170, the Hon'ble Supreme Court has held that:-

"9. For the foregoing reasons, we do not find any case having been made out for interference with the impugned judgment of the High Court and the same is upheld. The appeals are dismissed."

21. In view of the aforesaid law laid down by the Hon'ble Supreme Court, it is clear that the appointment of the appellant was made in furtherance of the interim order dated 12.10.2015 passed in Writ Petition No.5959 (S/S) of 2015, and it was categorically provided in the aforesaid interim order that his appointment would be subject to the final order passed in the writ petition. As the writ petition has been allowed and a direction has been issued to appoint the respondent No.1, the appellant's appointment made in furtherance of the interim order passed by this Court would automatically come to an end.

22. Sri Rakesh Singh had wrongly been selected and appointed in the selection process initiated by issuance of advertisement dated 15.02.2010, his appointment was cancelled by the order dated 18.09.2010 and by means of order dated 26.04.2013 passed in Writ Petition No.8001 (S/S) of 2011, this Court had directed the District Basic Education Officer to consider the claim of the respondent No.1, who was placed at serial no.2 of the selection panel and to give effect to the selection penal and to consider the case of the respondent No.1 in accordance with the rules. The aforesaid order dated 26.04.2013 was not challenged and it has attained finality. Therefore, the respondent No.1 is entitled to be appointed in furtherance of the advertisement issued on 15.02.2010 and we are in agreement with the view taken by the Hon'ble Single Judge.

23. We do not find force in the submission of the learned counsel for appellant that the respondent No.1 is not entitled to be appointed to the post of Headmaster for the reason that he does not possess T.E.T. qualification, as T.E.T. was not an eligibility qualification in the Advertisement issued on 15.02.2010.

24. For the reasons stated hereinabove, the instant special appeal lacks merit and the same is, accordingly, dismissed.

(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

Order Date :- 8.2.2023

Shubhankar