Rajendra Singh vs State Of U.P. Through Secy. Basic ...
2023 Latest Caselaw 884 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR
 
Court No. - 17
 

 
Case :- WRIT - A No. - 3042 of 2015
 

 
Petitioner :- Rajendra Singh
 
Respondent :- State Of U.P. Through Secy. Basic Edu. Lko. And Ors.
 
Counsel for Petitioner :- Som Kartik,Piyush Mishra
 
Counsel for Respondent :- C.S.C.,Abhishek Dwivedi,Ajay Kumar,Dileep Kumar Mishra,Jogendra Nath Verma
 

 
Hon'ble Pankaj Bhatia,J.

Heard learned Counsel for the petitioner, learned Standing Counsel for the respondent no.1, learned Counsel for the respondent no.2, Sri Ajay Kumar, learned Counsel appearing on behalf of the respondents no.3 and 4 and Sri Dileep Kumar Mishra, learned Counsel for the respondent no.5.

The present petition has been filed challenging the order dated 11.05.2015 whereby the appeal filed by the Committee of Management against the order of Basic Education Officer rejecting the resolution of termination of the petitioner's services was allowed.

Subsequently during the pendency of the writ petition, an amendment application was filed in view of the fact that in pursuance to the appeal being allowed, a fresh order had been passed on 19.09.2015 whereby the Basic Education Officer has accepted the resolution of the Committee of Management for removal of the petitioner from the institution in question.

The facts in brief are, that the petitioner claiming to have the requisite qualification applied for being appointed to the post of Headmaster with the College run by the respondent no.5. Initially, the appointment was granted to the petitioner and the appointment of the petitioner was also recognized by the Basic Education Officer and the petitioner continued to work in the institution, for almost 10 years.

It is argued that subsequent to the said period, proceedings were initiated against the petitioner for having obtained the appointment as well as the approval by concealing the material facts. The petitioner was served with the charge-sheet dated 10.11.2014 by the Committee of Management calling upon the petitioner to show cause as to why the appointment granted to him may not be cancelled in view of the fact that the same has been obtained by concealing the material facts.

In support of the said, the first charge as levelled against the petitioner was for obtaining the employment, the petitioner had placed reliance on two Experience Certificates having been issued by one Indian Public Inter College, Lucknow, where the petitioner had allegedly worked as an Assistant Teacher from July, 1998 to 10.03.2000 and the certificate issued by one Survodya Public Inter College, Lucknow, where the petitioner had admittedly served as an Assistant Teacher from July, 2000 to 10.08.2003. The petitioner gave a reply to the said show cause notice denying the allegations. The said show cause notice was held by the respondents to be without any merit and orders were passed holding that the appointment of the petitioner in both the said schools were without the requisite qualifications on the date of appointments. It was also recorded that although the Survodya Public Inter College, Lucknow had not responded to the efforts for finding the truth, Indian Public Inter College had given its report. Finding the explanation given by the petitioner to be unacceptable, a resolution came to be passed on 30.11.2014 terminating the services of the petitioner. The said order of termination passed through resolution by the respondent no.5 was sent for approval before the Basic Education Officer who by means of an order dated 16.01.2015 disapproved the resolution of the Committee of Management.

The said order rejecting the approval, was challenged in an appeal by the Committee of Management before the Secretary, Board of Basic Education, Prayagraj. The said appeal came to be allowed on 11.05.2015 whereby the disapproval order was set aside. Thereafter the Committee of Management passed an order dated 21.05.2015 stating that services of the petitioner stood terminated and the appointment order was cancelled. In terms of the said order, a fresh order came to be passed by the Basic Education Officer whereby the approval was granted to the resolution of the Committee of Management terminating the services of the petitioner on 19.09.2015. The said order is under challenge by means of filing an amendment application.

The contention of the Counsel for the petitioner is that the principles of natural justice were not followed, inasmuch as, from the perusal of the records, it is clear that subsequent to the filing of reply filed by the petitioner to the charge-sheet efforts were made to collect the evidence from the two schools and the petitioner was never confronted with the said evidences before passing of the final orders. He further argues that the provisions of The U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short 'the 1999 Rules'), applicable to the State Government employees, were never followed, inasmuch as, procedure prescribed under Rule 7 of the 1999 Rules was not followed as no inquiry was held and the mandatory requirement of Rule 7 was not followed in toto.

In support of the said submissions, the Counsel for the petitioner places reliance on the judgment of this Court in the case of Abhiram vs State of Uttar Pradesh and others; 2021 (2) ALJ 102 wherein this Court had the occasion to consider the applicability of U.P. Government Servant (Discipline and Appeal) Rules, 1999 and the Court was of the view that without holding of the inquiry as contemplated under the Rule 1999, the dismissal order could not be justified.

The Counsel for the petitioner further argues that even by passing the termination order, it has been merely recorded that the reply submitted by the petitioner is not satisfactory, which according to the petitioner is itself arbitrary and no reasons have been recorded for not accepting the contention of the petitioner. He thus argues that the order impugned is liable to be set aside.

The Counsel for the respondent no.5, on the other hand, specifically argues that the appointment to the Headmaster, at the relevant point of time, were governed under the provisions of U.P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (in short 'the 1978 Rules'). He places reliance on Rule 4 to argue that Rule 4(1) prescribes the manner in which an Assistant Teachers of a recognized school can be appointed and Rule 4(2) prescribes for the minimum qualification required for the appointment to the post of Headmaster of a recognized school. Rule 4 of the 1978 Rules is quoted below:

"4. Minimum qualifications. (1) The minimum qualifications for the post of assistant teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi) and a teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training,

(2) The minimum qualifications for the appointment to the post of Headmaster of a recognised school shall be as follows: (a) A degree from a recognised University or an equivalent examination recognised as such;

(b) A teacher's training course recognised by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and

(c) Three years' teaching experience in a recognised school."

This rule quoted above lays down the minimum qualifications both for the post of assistant teachers as well as for post of Headmasters. While a degree from recognised University, training certificate and teaching experience are necessary for being appointed as Headmaster, the essential qualification for the appointment as an assistant teacher is only Intermediate in addition to a teachers' training course.

He further draws my attention to the definition of 'Recognized School' as contained in Rule 2(g) to mean as under:

"2. Definitions. - In these rules, unless the context otherwise requires -

(a) ...

(b) ...

(c) ...

(d) ...

(e) ...

(f) ...

(g). 'Recognised School' means any Junior High School, not being an institution belonging to or wholly maintained by the Board or any local body, recognised by the Board as such."

The Counsel for the respondent no.5 argues that admittedly the petitioner had obtained the training in the year 2003 and thus, even as per the submission of the petitioner, he did not have the requisite qualification for being appointed as an Assistant Teacher of a recognized school which is specified under Rule 4(1) of the 1978 Rules. He further argues that once the petitioner did not have the requisite qualification to be appointed as an Assistant Teacher in terms of Rule 4(1) of the 1978 Rules, he could have produced the experience certificate of teaching in a recognized school, which is required specifically in Rule 4(2) of the 1978 Rules. He thus argues that the petitioner did not possess the requisite qualification for being appointed and had obtained the appointment as well as the recognition to the said appointment on the strength of certificates, which could not have been issued by the schools in question as the petitioner did not have the requisite qualification for appointment as Assistant Teacher. He places reliance on the judgment in the case of Sushil Kumar Dwivedi vs Basic Shiksha Adhikari, Banda and others; [(2003) 2 UPLBEC 1216] as well as in the case of Ram Surat Yadav and others vs State of U.P. and others [(2014) 1 UPLBEC 1].

From the submissions made at the bar, it is culled out that the petitioner got the appointment on the post of Headmaster placing reliance on two experience certificates which were obtained by the petitioner on his having worked on the post of Assistant Teacher from July 1998 to 10.03.2000 as well as the other certificate in which the petitioner claims to work from July, 2000 to 10.08.2003. The petitioner as per his own showing did not have the Teachers Training Course Certificate which is a sine qua non for appointment to the post of Assistant Teacher as specified under Rule 4(1) of the 1978 Rules. The experience certificates issued by the schools which had granted appointment to the petitioner on the post of Assistant Teacher will be of no consequence as the phrase "Teaching Experience" used in Rule 4(2) has to be interpreted to be 'teaching experience in a recognized school'. The three years teaching experience as specified in Rule 4(2)(c) has to be interpreted to mean an experience certificate issued from the recognized school where the appointment is made in accordance with Rule 4(1). Any other interpretation to Rule 4(2)(c) would militate against the whole scheme of providing the requisite qualification under Rule 4(2) and would render the entire purpose of providing qualification under Rule 4(2)(c) as nullity. This issue was dealt with the by the Full Bench of this Court in the case of Ram Surat Yadav and others vs State of U.P. and others [(2014) 1 UPLBEC 1] wherein the Full Bench in para 7 has observed as under:

"7. Before we deal with the submissions of the appellants, it is necessary to note that Rule 4 (1) provides minimum qualifications for appointment to the post of an Assistant Teacher. Rule 4 (1) as it existed prior to 12 June 2008 prescribed as qualifications of eligibility (i) Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an equivalent examination with Hindi; and (ii) a teachers' training course recognized by the State Government or the Board of Basic Education, such as Hindustani Teaching Certificate (HTC), Junior Teaching Certificate (JTC), Basic Teaching Certificate (BTC) or Certificate of Training (CT). The selection process was undertaken in pursuance of an approval which was received with reference to the Rules of 1978 as they stood prior to the amendment which took place on 12 June 2008 obviously because the selection process was initiated and completed before the amendment had taken effect. Where statutory Rules prescribe conditions of eligibility for appointment to a post, a person who does not possess the qualification which is prescribed cannot have a lawful entitlement to hold the post. The appointment of a person who does not fulfill the eligibility qualification would be unlawful, being contrary to the Rules."

The submission of the Counsel for the petitioner with regard to the violation of principles of natural justice, although on the first brush merit acceptance, however, considering the fact that the petitioner never had the requisite qualification for appointment, the non following of principles of natural justice would have no effect on outcome of the petition as it is well settled that in service jurisprudence the allegations of violation of principles of natural justice have to be fortified by the test of prejudice caused on account of violation of principles of natural justice, as such, the submission on that count by the Counsel for the petitioner merits rejection.

For all the reasons recorded above, the writ petition lacks merit and is accordingly dismissed.

The submission of Counsel for the petitioner with regard to the non-following of the 1999 Rules also merit rejection for the simple reasons that the appointment of the petitioner itself was found to be dehors the Rules and thus, once the appointment is obtained based upon the incorrect facts, the Rules need not to be followed.

Order Date :- 10.1.2023

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