Dr. Haidar Ali vs Akhilesh Kumar Singh And 4 Others
2023 Latest Caselaw 6963 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42
 

 
Case :- SPECIAL APPEAL No. - 32 of 2023
 

 
Appellant :- Dr. Haidar Ali
 
Respondent :- Akhilesh Kumar Singh And 4 Others
 
Counsel for Appellant :- T. Islam,A.B.N.Tripathi,Syed Ali Murtaza
 
Counsel for Respondent :- Shashank Shekhar Singh,Shailesh Upadhyay
 

 
Hon'ble Suneet Kumar,J.

Hon'ble Rajendra Kumar-IV,J.

Suneet Kumar, J.

1. Heard Sri T. Islam, learned Counsel for the petitioner and Sri Shashank Shekhar Singh, learned Counsel for the respondent-University.

2. The instant intra Court appeal has been filed by the fifth respondent of the writ petition challenging the order of the learned Single Judge dated 08 December, 2022, whereby, the writ petition instituted by the petitioner / first respondent, herein, was allowed, setting aside the appointment of the appellant on the post of Trained Graduate Teacher (Agriculture), at Aligarh Muslim University/School, for want of essential qualification i.e. B.Ed. degree.

3. Learned Counsel for the appellant submits that appellant came to be appointed on temporary basis as a Trained Graduate Teacher (Agriculture), (for short TGT), vide appointment letter dated 20 November, 2010. The appointment was for an academic session which continued on year to year basis and finally an advertisement dated 20 May, 2022, came to be issued by the third respondent - Directorate of School Education, Aligarh Muslim University, Aligarh, (for short, "AMU"). The advertisement sought applications for various posts including TGT (Agriculture) for the session 2022 - 23. The qualification of the post, inter-alia, mandated that the candidate should have B.Ed. degree or equivalent from a recognized University. The advertisement further provided for age relaxation as per Kendriya Vidyalaya Sanghathan (KVS) norms, to various categories. It is agreed between the parties that the relaxation does not pertain to qualification for TGT (Agriculture). Pursuant to the advertisement, the first respondent / writ petitioner had applied for the post and it is not in a dispute that he fulfills the educational qualifications duly notified in the advertisement i.e. he was having B.Ed. degree. In any case, the appellant came to be selected on 16 July, 2022, on the recommendation made by the Local Selection Committee, despite not having B.Ed. degree. The validity of the selection / appointment of the fifth respondent was challenged in writ petition.

4. Learned Single Judge in the impugned judgment noted that appellant is not having requisite minimum qualification i.e. B.Ed. degree and no relaxation with regard to the qualification was notified in the advertisement. Further, the counsel appearing for AMU submitted that there is no order with regard to relaxation of the eligibility conditions and neither, any relaxation was granted to the appellant. The writ petition accordingly came to be allowed. The relevant portion of the impugned order, reads as under :-

"10. Also, submission advanced by learned counsel for the respondent that the selection made is wholly temporary, carries no weight. Once the selection was required to be made in accordance with law, irrespective of the term for which it may have been made, that law must be seen to be fully applied. In any case, it is apparent that the respondent no.5 has continued on temporary basis for some time i.e. since 2020 against annual renewal/re-appointment.

11. In view of the above, present petition succeeds. It is allowed. ..........."

5. In this backdrop, learned Counsel appearing for the appellant submits that since the appellant has continued on temporary basis from the academic session 2010-11, and being an internal candidate of the University is entitled to relaxation in qualification which was duly exercised by the Vice-Chancellor in exercise of power under Section 19 of the Aligarh Muslim University Act, 1920, (for short "Act, 1920"). Section 19 (3) of the Act, 1920, which is relevant for the case, reads as under :-

19. The Vice-Chancellor :-

(1) .......................

(2) ................

(3) The Vice-Chancellor may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority the action taken by him on such matter;

Provided that if the authority concerned is of opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final;

Provided further that any person in the service of the University who is aggrieved by the action taken by the Vice-Chancellor under this sub-section shall have the right to appeal against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the Vice-Chancellor.

6. On a bare reading of Sub Section (3) of Section 19 of the Act, 1920, it does not transpire, nor can be inferred, that any specific power has been conferred upon the Vice-Chancellor to relax the qualification which has duly been adopted by such authority of the University after approval of the Executive Council. Sub Section (3) confers emergency / removal of difficulty power upon the Vice-Chancellor to take immediate action on any matter conferred on any authority of the University or under the Act, 1920, and thereafter shall report to such authority the action taken by the Vice-Chancellor on such matter. The authority of the University may agree / disagree with decision of the Vice-Chancellor, then in that event matter would be referred to the Visitor for final decision.

7. It is not the case of the appellant that the decision with regard to qualification of TGT (Agriculture) was yet to be taken by the competent authority of the University, therefore, the Vice-Chancellor had to take ''immediate action' thereon. On the contrary the Executive Council had already approved the qualification for TGT which was to be followed while making appointment for the post. This fact is admitted to the parties.

8. Attention of the Court has been drawn to Office Memo dated 16 January, 2016, issued by the Deputy Registrar (Councils), (annexure CA-7 to the writ petition), wherein, it has been noted that the proposal of the Director, Directorate of School Education, relating to University Schools, the Vice-Chancellor in supersession of the earlier qualification approved by the Executive Council, has accorded approval to the Recruitment Rules / Qualifications for Selection and Promotion of AMU Schools Teachers, as per KVS norms, under Section 19(3) of the AMU Act, 1920. In other words, the Rules relating to qualification of TGT (Agriculture) came to be approved which was binding upon the Selection Committee.

9. It is not in dispute that B.Ed. degree was included as an essential qualification for the post of TGT (Agriculture) in the Rules. In other words the qualification prescribed for the post of TGT (Agriculture) was in place on the date of advertisement.

10. Reliance has been placed by the learned counsel for the appellant on Office Memo dated 30 April, 2016, which provides for exemption in age limit and the mandated qualification to be granted only to those temporary teachers who were eligible at the time of their first appointment and thereafter appointed time and again subsequently for a period of three months with break.

11. It is on the strength of the aforenoted Office Memo dated 30 April, 2016, issued with the approval of the Vice-Chancellor, the learned counsel for the appellant submits that appellant was entitled to relaxation in the qualification being an internal candidate continuing as TGT (Agriculture) since 2010. It is submitted that the Office Memo dated 30 April, 2016, was not under challenge before the writ Court.

12. Learned Counsel appearing for the respondent-University had taken a categorical stand that no such relaxation was granted to the appellant pursuant to Office Memo dated 30 April, 2016. No document to that effect is available on the record of the University. In other words, it is urged that the University had not granted relaxation in qualification to the appellant.

13. In any case, learned counsel appearing for the appellant submits that since the Office Memo dated 30 April, 2016, is available and it grants relaxation in qualification to temporary teachers, appellant was rightly appointed after relaxation being granted to him.

14. The short question that arises for consideration is as to whether the appellant was entitled to relaxation in qualification against the Rules.

15. It is not being disputed by the learned Counsel for the respective parties that the University had framed Rules in 2016, making B.Ed. degree an essential qualification for the post of TGT (Agriculture). The Rules incorporating the qualification came to be duly approved by the Executive Council of the University. In the circumstances, Office Memo dated 30 April, 2016, relaxing the qualification for internal candidate bypassing the Rules is nullity being in teeth of the statutory Rules. It is beyond the jurisdiction, power and authority of the Vice-Chancellor to bypass the Rules, as relaxation in qualification is not referable to Section 19(3) of the Act, 1920. Office Memo dated 30 April, 2016, could not have been issued by the Vice-Chancellor as that would not fall within the expression "immediate action is necessary on any matter", for the reason that the competent authority of the University i.e. Executive Council had duly approved the Rules mandating minimum qualification for the post of TGT (Agriculture). Accordingly, Office Memo dated 30 April, 2016, being issued in violation of the statutory provisions is unsustainable in the eye of law and cannot be given effect to. An appointment which is contrary to the statutory Rules / statues would be void in law.

16. Void has been defined as: ineffectual; nugatory; having having no legal force or legal effect: unable in law to support the purpose for which it was untended; nugatory and ineffectual so that nothing can cure it; not valid1. "Void" means a contract entirely devoid of legal effect or it is devoid of main result contemplated.

17. In Kalawati versus Bisheshwar2,the Supreme Court held that "void" means non-existent from its very inception and a ban again its recognition. It also means merely a nullity and may be ignored even in collateral proceeding as if it never were. "Void" does not have any legal force or effect, the validity of which may be ascertained by any person whose rights are affected at any time or at any place directly or indirectly. "Void" means - without any legal force, effect or consequence; invalid; null; worthless; sipher; useless and ineffectual. [Vide: Nutan Kumar versus II Additional District Judge3].

18. The educational qualification for recruitment to a post cannot ordinarily be condoned. In Pramod Kumar versus U.P. Secondary Education Services Commission and others4, the Court has held as under :-

"18. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be. {See Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others [(2006) 4 SCC 1], National Fertilizers Ltd. and Ors. Vs. Somvir Singh [(2006)5SCC493] and Post Master General, Kolkata and Ors. Vs. Tutu Das (Dutta) [(2007)5SCC317] }"

19. An appointment should be made strictly, in accordance with the statutory provisions, a candidate entitled to appointment should not be denied appointment on any pretext. In Purshottam versus Chairman, Maharashtra State Electricity Board5, the Supreme Court has held that appointment should be made strictly in accordance with the statutory provisions and a candidate who is entitled for appointment, should not be denied the same on any pretext whatsoever as usurpation of the post by somebody else in any circumstances is not possible.

20. Article 14 is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment made in violation of the mandate of Article 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by Supreme Court in Delhi Development Horticulture Employees' Union versus Delhi Administration, Delhi6; State of Haryana versus Piara Singh7; Prabhat Kumar Sharma versus State of Uttar Pradesh8; J.A.S. Inter College, Khurja, U.P. versus State of Uttar Pradesh9; M.P. Housing Board versus Manoj Shrivastava10; M.P. State Agro Industries Development Corporation Ltd. versus S.C. Pandey11; and State of Madhya Pradesh versus Ku. Sandhya Tomar12.

21. In view thereof, the appellant cannot take advantage of an Office Memo which was issued bypassing the mandate of the Executive Council approving the Rules governing the qualification of TGT (Agriculture). The document is void ab-initio, hence, nullity in the eye of law.

22. In so far it relates to the qualification of TGT (Agriculture), we are in agreement with the reasoning assigned by the learned Single Judge that since University had adopted the Rules and determined the minimum qualification for the post of TGT (Agriculture), inter-alia, mandating B.Ed. as an essential qualification, it was not open for the University to have approved selection of a candidate who admittedly, lacks the essential qualification. It is of no relevance that the candidate was an internal candidate working since 2010. Admittedly, on the date of application, pursuant to the advertisement for session 2022 - 2023, appellant lacked the essential qualification for the post of TGT (Agriculture), hence, was not qualified.

23. There cannot be relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved in the relevant statutory Rules. Even if the power of relaxation is provided in the Rules, it must still be mentioned in the advertisement, which was not the case in the case in hand. In Bedanga Talukdar versus Saifudaullah Khan and others13, the Court has held as under :-

"29. .......... In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure............ There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India."

24. The record reflects that the writ petitioner / first respondent was the sole candidate fulfilling the essential qualification for the post of TGT (Agriculture), all other candidates, including the appellant, did not have B.Ed. degree. The candidature of the other two external candidates was rejected by the Selection Committee for the said reason, but, appellant was selected even though he did not have B.Ed. degree. The advertisement rightly did not grant any relaxation in the minimum qualification to internal candidate, as that would be hit by the Rules governing selection / appointment of TGT (Agriculture), duly approved by the Executive Council. The Vice-Chancellor lacked power, authority and jurisdiction to bypass the Executive Council on a subject (qualification) which came to be duly approved by Executive Council and the Vice-Chancellor as per the statutes. The Rules thus framed was binding upon all the authorities of the University and could not have been diluted by an administrative order. The selection and appointment of the appellant is perse illegal and violative of Article 14 and 16 of the Constitution of India.

25. The employee has absolute right to determine and decide the qualifications for any post, once such an exercise is undertaken under the rules, the same would bind the authorities and cannot be diluted even by the Courts. In Punjab National Bank Vs. Anit Kumar Das14, the Court observed as under:

21. "it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications......"

26. Learned Counsel for the appellant is unable to point out any illegality, infirmity or perversity in the impugned order.

27. We are unable to persuade ourselves to take an opinion different from that taken by the learned Single Judge.

28. The appeal being devoid of merit, is accordingly, dismissed.

Order Date :- 3.3.2023

I.A.Siddiqui