Allahabad High Court
Syed Bilal Husain vs State Of U.P. And 4 Others on 27 January, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - A No. - 22476 of 2014
Petitioner :- Syed Bilal Husain
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Vinod Sinha,Firoz Haider,Mahesh Sharma,Rajiv Sisodia,Siddharth Khare
Counsel for Respondent :- C.S.C.,Harinder Prasad
Hon'ble Neeraj Tiwari,J.
Heard Mr. Siddharth Khare, learned counsel for the petitioner, learned standing counsel for the State-respondents, Sri S.P. Singh, learned counsel for the respondent No. 4 and Sri Harinder Prasad, leaned counsel for the respondent No. 5.
Present petition has been filed for quashing the order dated 05.04.2014 passed by respondent No. 2, by which, appointment of petitioner has been cancelled on the ground that he had obtained two degrees in the same academic session as regular student.
Learned counsel for the petitioner submitted that advertisement for the post of Assistant Teacher in Science in Islamia Inter College, Muzaffar Nagar was published in the news paper "Amar Ujala" on 25.06.2013 and in English Edition of "Time of India" on 28.07.2013. The petitioner being fully qualified, submitted an application and, accordingly, he was finally selected for the said post. Selection was also sent for approval to respondent No. 3 and said approval was granted on 03.09.2013. The petitioner was issued appointment letter on 05.09.2013 and he joined on the said post on 07.09.2013. He also started receiving salary. Respondent No. 5 made a complaint against the petitioner that he had obtained two degrees as regular student in same academic session and considering the said fact respondent no.2 vide impugned order dated 05.04.2014 cancelled the appointment of petitioner.
The case was heard at length on 24.01.2023 and Court passed the following order:
"Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Sri S.P. Singh, learned counsel for the respondent no.4 and Sri Harinder Prasad, learned counsel for the respondent no.5.
Learned counsel for the petitioner submitted that by the impugned order dated 5.4.2014, appointment of petitioner was cancelled only on the ground that he had obtained two degrees in one academic session. He further submitted that the present controversy is squarely covered with the judgment and order of this Court dated 4.7.2022 & 14.9.2021 passed in Writ-A No. 3254 of 2021 &5394 of 2021, which was allowed and also affirmed by the Division Bench of this Court dated 19.11.2022 passed in Special Appeal No.37 of 2022. Therefore, under such facts and circumstances, the present petition may also be allowed on the same terms and conditions.
Learned counsel for the respondents prays for and is granted two days time to go through the aforesaid judgment and assist the Court.
List this case on 27.1.2023."
Pursuant to the aforesaid order, Sri S.P. Singh, learned counsel for the respondent No. 4, by filing affidavit supported the case of the petitioner whereas learned Standing Counsel fairly submitted that the controversy involved in the present case is squarely covered with the judgment and order of this Court dated 04.07.2022 & 14.09.2021 passed in Writ-A No. 3254 of 2021 (Himanshi Yadav vs. State of U.P. and others) and 5394 of 2021 (Laxmi Shanker Yadav Vs. State of U.P. & 4 others), so referred in the order of this Court dated 24.01.2023, which was allowed and also affirmed by the Division bench of this Court dated 19.11.2022 passed in Special Appeal No. 37 of 2022 (The Basic Education Board U.P. Prayagraj and another vs. Laxmi Shankar Yadav).
Mr. Siddharth Khare, learned counsel for the petitioner also pointed out that in the impugned order, it is mentioned that at the time of appointment of the petitioner, his uncle was working as Principal in the aforesaid college. This is factually incorrect. He further submitted that approval for the selection was granted on 03.09.2013 by respondent No. 3, while appointment letter was issued on 05.09.2013 and petitioner joined his services on 07.09.2013, whereas, uncle of the petitioner joined as Principal on 28.09.2013. This fact also, could not be denied in the counter affidavit filed by the State Government. Therefore, under such facts and circumstances, the present petition may also be allowed on the same terms and conditions.
Sri Harinder Prasad, learned counsel for the respondent No. 5 disputed the aforesaid fact, but could not demonstrate from the judgment, as to how the present controversy is not covered with the aforesaid judgments and orders passed by this Court. He further submitted that as the petitioner has obtained two degrees in one academic session, therefore, he cannot be permitted to join on the post of Assistant Teacher and his appointment can also be cancelled.
I have considered the rival submissions made by the parties and perused the detail judgment having reference of judgment of Apex Court in the case of Kuldeep Kumar Pathak Vs. State of U.P. & Ors (2016) 3 SCC 521 and another judgment of this Court in the case of Board of Basic Education & Anr. Vs. Arvind Prakash Dwivedi & Ors passed in Special Appeal Defective No. 898 of 2020.
This Court in the matter of Laxmi Shankar Yadav (Supra), while considering in detail, has held that appointment of the petitioner cannot be cancelled merely on the ground that petitioner has obtained two degrees in one academic session as regular student, unless there is specific bar in service rules and rules for appointment. The said judgment and order was challenged before the Division Bench of this Court in the matter of Basic Education Board U.P. Prayagraj (supra), which also stands affirmed. In the matter of Himanshi Yadav (Supra) the Court has taken the very same view.
In the present case, Sri Harinder Prasad, learned counsel for the respondent No. 4 could not demonstrate any provision which prohibits the petitioner to obtain two degrees in one academic session. Apart from that, he could not also demonstrate that such person is disqualified to participate in the selection process pursuant to advertisement dated 25.06.2013.
Therefore, under such facts and circumstances as well as law laid down by the Apex Court as well as this Court, the impugned order dated 05.04.2014 passed by respondent No. 2 is hereby quashed and writ petition is allowed. Respondent no.2 and 4 are directed to permit the petitioner to join his services again on the post of Assistant Teacher.
Order Date :- 27.1.2023
ADY
