Allahabad High Court
District Basic Education Officer ... vs Vipul Agarwal And Another on 17 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:100751-DB
Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 131 of 2024
Appellant :- District Basic Education Officer Bijnor
Respondent :- Vipul Agarwal And Another
Counsel for Appellant :- Kushmondeya Shahi
Counsel for Respondent :- C.S.C.,Sanjay Singh
CONNECTED WITH
Case :- SPECIAL APPEAL No. - 181 of 2024
Appellant :- District Basic Education Officer Bijnor
Respondent :- Vipul Agarwal And Another
Counsel for Appellant :- Kushmondeya Shahi
Counsel for Respondent :- C.S.C.,Sanjay Singh
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
(Ref: Civil Misc. Delay Condonation Application No.01 of 2024 filed in Special Appeal Defective No.131 of 2024)
Heard.
Cause shown for the delay in filing of the Special Appeal is to the satisfaction of the Court. The delay in filing of the special appeal is condoned.
The delay condonation application is, accordingly, allowed.
(Ref: Special Appeals)
1. Heard Sri K. Shahi, learned counsel for the appellant; Sri Sanjay Singh, learned counsel for the petitioner-respondent no.1 and learned Standing Counsel for the State respondent no.2.
2. Both Special Appeals under Chapter VII Rule 5 of the High Court Rules, 1952 have been filed by District Basic Education Officer Bijnor (appellant) against the judgement and order dated 31.5.2023 passed by learned Single Judge in Writ A No.9761 of 2023 (Vipul Agarwal vs. State of UP and another) and against the judgement and order dated 17.01.2024 passed in Writ A No.16705 of 2023 (Vipul Agarwal vs. State of UP and another).
3. As the parties are same in both the instant intra court appeals, therefore, with the consent of parties the same are heard together and decided by a common judgement.
4. In brief, the facts of the instant appeals are as follows. In exercise of powers conferred by Section 23 (1) of the "Right of Children to Free and Compulsory Education Act, 2009" (in short, the 'Act, 2009') and in pursuance of the Government of India's Notification dated 31st March, 2010, the "National Council for Teacher Education" (in short 'NCTE') issued the notification dated 23rd August, 2010 laying down the minimum qualifications for appointment as a teacher in Classes I to VIII in a School referred to in Section 2 (n) of the Act,2009, which also provides that the candidate should pass the Teachers Eligibility Test (TET), which is to be conducted by an appropriate Government in accordance with the guidelines of the NCTE for the said purpose. The NCTE framed exhaustive guidelines for holding the TET and accordingly, the Intermediate Education Board also issued information Brochure and invited application forms from the candidates for holding the UP-TET. The State Government had entrusted the Intermediate Education Board to hold UP-TET and accordingly, an advertisement was issued on 22.09.2011.
5. The petitioner-respondent had set up his claim on the basis of UP-TET, 2011, wherein he was successful and accordingly, a certificate dated 25.11.2011 was also issued to him. It is suffice to indicate that in the foot note of the certificate, there was categorical information that the said certificate would be valid only for five years from the date of issuance (with effect from 25.11.2011 to 25.11.2016). It transpires from the record that the petitioner had applied for Assistant Teachers Recruitment Examination, 2018 on the basis of TET certificate dated 25.11.2011. Even though on the date of said advertisement he was not eligible as the TET certificate of 2011 was valid only till 2016. In the said selection process the petitioner was selected and an appointment letter dated 05.09.2018 was accorded to him as Assistant Teacher in Primary School Mahmadabad, Block Noorpur, District Bijnor. Consequently, he joined in the said school on 07.09.2018. During the verification of the testimonials and other documents it was found that on the date of recruitment process, the petitioner was not having the TET certificate, which was mandatory as the same was valid only upto 25.11.2016. Therefore, his appointment was void and the same has been obtained on the basis of concealment of material fact. Consequently, his appointment was cancelled after giving notice vide an order dated 11.12.2018 and the said order was not challenged.
6. Later on, the State Government had issued a notification dated 16.6.2021, wherein it had been clarified that the TET certificate shall remain valid for line time. Based upon the said clarification/notification, the petitioner had re-agitated his claim in the year 2023 and made a representation in the light of the notification dated 16.6.2021 and started claiming that he has not obtained the appointment on the basis of concealment of fact as his TET certificate of 2011 is valid for life long and, therefore, the termination order is liable to be recalled. The petitioner's representation was rejected by the appellant-respondent on 31.1.2023. Thereafter, the petitioner had preferred Writ A No.9761 of 2023 interalia with following reliefs:-
"i. Issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the impugned order dated 11.12.2018 passed by the District Basic Education Officer, Bijnor alongside the impugned order dated 31.01.2023 passed by District Basic Education Officer, Bijnor (Annexure Nos.3 & 6 to the writ petition).
ii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to permit the petitioner to continue to discharge his duties on the post of Assistant Teacher.
iii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay him current salary alongwith arrears with 18% interest therein.
iv. Issue any other suitable writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case.
v. Award cost of petition to the petitioner."
7. The said writ petition was partly allowed by learned Single Judge vide impugned order dated 31.5.2023. The operative portion of the judgement is reproduced herein under:-
"10. There is no dispute about the fact that the petitioner passed TET examination in November, 2011, i.e., after the cut-off-date 11.2.2011, as mentioned in the clarification dated 16.6.2021.
11. In view of the above, I find that merely because the appointment of the petitioner was cancelled in 2018, his request based upon the clarification dated 16.6.2021 could not and should not have been turned down by the District Basic Education Officer.
12. Accordingly, the writ petition is allowed in part. Second impugned order dated 31.1.2023 passed by the District Basic Education Officer is hereby quashed.
13. The District Basic Education Officer is directed to reexamine the claim of the petitioner in the light of the clear observations recorded in this order regarding clarification made by the State Government which, in the opinion of the Court, is fully applicable to the case of the petitioner. Such decision shall be taken within a period of two months from the date, a certified copy of this order is produced before him and its impact on the cancellation order of 2018 shall also be discussed in the order to be passed by the District Basic Education Officer."
8. In compliance of the aforesaid order, the appellant-respondent had issued a notice to the petitioner-respondent on 08.08.2023, which was responded by the petitioner on 10.08.2023. The reply of the petitioner was rejected by the appellant-respondent on 10.08.2023. Aggrieved with the said rejection order, the petitioner-respondent again filed Writ A No.16705 of 2023 seeking following reliefs:-
"i. Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and to quash the impugned order dated 11.12.2018 passed by the District Basic Education Officer, Bijnor alongwith the impugned order dated 10.08.2023 passed by District Basic Education Officer, Bijnor (Annexure Nos.3 & 11 to the writ petition).
ii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to forthwith permit the petitioner to join his duties as Assistant Teacher.
iii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay him current salary alognwith arrears of salary with 18% interest therein.
iv. Issue any other suitable writ, order or direction as this Court may deem fit and proper in the facts and circumstances of the case."
9. Finally, learned Single Judge vide an order dated 17.01.2024 had disposed of the writ petition. The relevant portion of the judgement is reproduced herein under:-
"10. I find merit in the argument of learned counsel for petitioner that observation made by this Court in earlier round has not even considered or taken note of, therefore, impugned order is set aside and matter is remitted to concerned Officer to pass a fresh order, after taking note of above referred observation made by this Court in earlier round of litigation, within 8 weeks, if there is no legal impediment.
11. Since petitioner has rushed to this Court only due to default of respondent, therefore, District Basic Shiksha Adhikari is liable to pay Rs. 5000/- to petitioner within three weeks.
12. Accordingly, this writ petition is disposed of with aforesaid observation and direction."
10. Sri K. Shahi, learned counsel for the appellant-respondent had vehemently submitted that the petitioner's claim, that he is duly qualified the TET Examination, 2011 and, therefore, he was entitled to apply in Assistant Teachers Recruitment Examination 2018, is without any basis. The TET certificate of 2011 was valid only for five years, which was expired in the year 2016. Therefore, on the basis of the said qualification he was not even entitled to apply in Assistant Teachers Recruitment Examination 2018. He submits that the appellant-respondent had rejected the claim of the petitioner-respondent in the year 2018 and since then he has not agitated or preferred any writ petition but only when the State Government had made a notification on 16.06.2021, which provides that the TET certificate shall remain valid for life time, the petitioner started re-agitating and claimed that his appointment was valid as the TET certificate of the year 2011 is valid for life time. Said claim is also unacceptable as the petitioner had applied in response to the Assistant Teachers Recruitment Examination 2018 and at the time of filling up the form, his TET certificate, 2011 was not valid as the same was already expired in the year 2016 itself. On the basis of misrepresentation he succeeded in obtaining the appointment and after the verification of his testimonials, it was found that he was not having the TET certificate and accordingly, after giving an opportunity his services were terminated. Learned Single judge has erred in law and had not appreciated the correct facts that at the time of applying in the Assistant Teachers Recruitment Examination 2018, the petitioner was not eligible as the TET certificate is mandatory, and therefore, his appointment could not be re-validated. In support of his submission, he has placed reliance on a Division Bench judgement of this Court dated 23.1.2020 passed in Special Appeal No.1 of 2019 (Rajendra Kumar and ors vs. State of UP through Principal Secretary (Basic Education), Lucknow and ors.) wherein in the similar selection of Assistant Teachers Recruitment Examination 2019 the Division Bench has considered the TET certificate of the year 2011 and dismissed the Special Appeal.
11. Per contra, Sri Sanjay Singh, learned counsel for the respondent-petitioner has vehemently opposed the appeals and submits that once the petitioner qualified the TET Examination 2011 then it is for all practical purpose and he had right to apply in the recruitment proceeding of Assistant Teacher to be appointed in Primary School run and managed by the Board of Basic Education. Therefore, in the light of the State Government's notification dated 16.06.2021 he was having the TET certificate, which was valid on the said date and it cannot be said that the petitioner was having no TET certificate at the time of applying for the post of Assistant Teacher in Primary School. As such, there is no illegality or infirmity in the order of learned Single Judge and both the Special Appeals are liable to be dismissed.
12. We have heard rival contentions advanced by learned counsel for the parties and also perused the guidelines issued under the Government order No.1263/68-4-2018-2750/2012 dated 14.09.2018, wherein it has been provided as under:-
"11. ??. ??. ??. ?. ??. ?????? ???? ?? ????? ????? ???? ? ???? -
11.1 ???????? ?? ??? ??. ??. ??. ?. ??. ????? ?????? ???? ?? ??? ??? ????????? ?? ??? ???? ?????? ?? ????? ?? ???? ?? ???? ???? ?? ???? ?? ???? |"
13. On perusal of the said guidelines it is established that the TET Examination qualified candidates are required to apply for the recruitment within five years from the date of TET qualification. After lapse of five years they have to again appear in the TET examination and have to qualify the same which shall be valid for next five years.
14. In the present matter, it is admitted case of the petitioner that he has qualified the TET Examination 2011, which was valid for a period of five years from the date of passing of the said examination and the said period was expired in the year 2016. Therefore, no relief can be accorded to the petitioner to apply for Assistant Teachers Recruitment Examination 2018. The petitioner has set up his claim merely on the basis of the notification dated 16.6.2021, by which now the State Government has taken a decision that the TET certificate would be valid for life time but the said notification would not help the petitioner. He was not entitled to apply in Assistant Teachers Recruitment Examination 2018 as on the said date he was not having the requisite qualification fixed under the advertisement and the rules and he was not possessing the TET certificate.
15. We have also considered very carefully the contents of the impugned judgments and the case set up by the petitioner in context of the law laid down by the Hon'ble Supreme Court of India in Rakesh Kumar Sharma Vs. Govt. of NCT of Delhi 2013 SCC Online SC 674, wherein the following observations have been made by Hon'ble Supreme Court in Paras 6, 16 and 17:-
"6. There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said vacancy provided he fulfils the requisite qualification.
16. In the instant case, the appellant did not possess the requisite qualification on the last date of submission of the application though he applied representing that he possessed the same. The letter of offer of appointment was issued to him which was provisional and conditional subject to the verification of educational qualification, i.e., eligibility, character verification etc. Clause 11 of the letter of offer of appointment dated 23.2.2009 made it clear that in case character is not certified or he did not possess the qualification, the services will be terminated. The legal proposition that emerges from the settled position of law as enumerated above is that the result of the examination does not relate back to the date of examination. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court.
17. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement.
There is no obligation on the court to protect an illegal appointment. Extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. The process of verification and notice of termination in the instant case followed within a very short proximity of the appointment and was not delayed at all so as to even remotely give rise to an expectancy of continuance.
The appeal is devoid of any merit and does not present special features warranting any interference by this court. The appeal is accordingly dismissed."
(Emphasis supplied)
16. In the case of Dipitimayee Parida Vs. State of Orissa 2008 (10) SCC 687 Hon'ble Supreme Court has held as under:-
"16. Even otherwise, ordinarily the qualification or extra qualification laid down for the recruitment should be considered as on the last date for filing of the application. This has been so held in Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234] stating: (SCC p. 175, para 10):
"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."
(Emphasis supplied)
17. We have also considered the judgement in the case of Rajendra Kumar (supra), wherein the Division Bench has considered the guidelines issued by the Government order dated 14.09.2018 and dismissed the appeal. Relevant portion of the judgement is reproduced herein below:-
"From the perusal of facts as pleaded in para-31 of the affidavit, the position which emerges out is that said point although was pleaded in writ petition but not argued before learned Single Judge.
Once the said point was not argued before learned Single Judge, the same cannot be a ground for filing the special appeal challenging the judgment passed by learned Single Judge, so keeping in view of the said facts as well as the law as laid down by Hon'ble the Apex Court in the case of Oriental Insurance Company Limited Vs. Ram Nath (2005) 10 SCC 596 as under:-
" In the facts and circumstances of the case, we are not inclined to to into the merit of this appeal so far as the quantum of compensation is concerned. So far as the payment of sum of Rs. 50,000/- to the claimant is concerned, it appears that the said sum was awarded by the State Commissioner. Though the same was challenged in the ground of appeal filed before the National Forum but during the course of arguments, the point was not pressed. This being the position, we do not permit the appellant to raise this question before this Court."
Hon'ble the Apex Court in the case of S.N.S. ( Minerals ) Ltd. and another Vs. Union of India and another ( 2007) 12 SCC, 132 has held as under:-
" But the question is whether such a plea was in fact urged. From a reading of the order of the High Court and the Counter affidavit filed before this Court in which it has been specifically urged at paras 9 and 10 that no such argument was advanced, we do not consider this to be a fit case where any interference is called for , considering the limited scope of review.(See: Ganesh Sugar Milla Vs. State of U.P. and others (1986) 1 SCC 623, Life Insurance Corporation of India and others Vs. Jyothish Chandra Biswas (2000) 6 SCC 562 and Rajashthan Agriculture University Vs. Ram Krishna Vyas (1999) 4 SCC 720)"
In the case of Transmission Corporation of A.P Ltd. And others Vs. P. Surya Bhagavan (2003) 6 SCC 353 , the Hon'ble Apex Court has held as under:-
"Question as to whether the respondent was overaged for entry into the service was neither raised in the written statement nor was it argued before the High Court. Under the circumstances the appellant cannot be permitted to raise this point for the first time in this Court. The second point regarding the delay in filing the petition though was raised in the written statement , but, it seems the same was not pressed before the Bench at the time of argument. It has not been stated in th ground of appeal that this point was raised and argued before the Bench during the course of arguments and the Bench had failed to notice the same. In view of this we decline to go into this question as well."
For the foregoing reasons the special appeal lacks merit and is dismissed."
18. We find that the present matter is squarely covered with the Division Bench judgement of this Court in the case of Rajendra Kumar (supra) and we are not inclined to take a different view in the present matter. Admittedly, at the time of applying in the Assistant Teachers Recruitment Examination 2018 the petitioner-respondent was not having the valid TET certificate and as such, he was not eligible to be appointed as Assistant Teacher in the Primary School run and managed by the Basic Education Board.
19. In view of above, we are of the opinion that the impugned judgement and order dated 31.5.2023 passed by learned Single Judge in Writ A No.9761 of 2023 as well as the judgement and order dated 17.01.2024 passed in Writ A No.16705 of 2023 cannot sustain in the eyes of law and the same are accordingly set aside.
20. Consequently, these Special Appeals are allowed and both the writ petitions are dismissed.
Order Date :- 17.5.2024
RKP
