Madhya Pradesh High Court
Dinesh Kumar Tiwari vs Joint Director Of Technical Education on 7 February, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 7 th OF FEBRUARY, 2024
WRIT PETITION No. 4971 of 2003
BETWEEN:-
1. DINESH KUMAR TIWARI S/O SHRI MADAN
GOPAL TIWARI, AGED ABOUT 40 YEARS,
OCCUPATION: LAB TECHNICIAN GOVERNMENT
POLYTECHNIC COLLAGE BAIDHAN DISTRICT
SIDHI (MADHYA PRADESH)
2. KRISHAN PRASHAD SHARMA S/O SHRI B.R.
SHARMA, AGED ABOUT 46 YEARS, OCCUPATION:
LAB TECHNICIAN GOT. POLYTECHNIC COLLAGE
BAIDHAN DISTRICT SIDHI (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.K. SAMAIYA - ADVOCATE)
AND
1. JOINT DIRECTOR OF TECHNICAL EDUCATION
SATPURA BHAWAN, BHOPAL (MADHYA
PRADESH)
2. PRINCIPAL GOVT. POLYTECHNIC COLLEGE
BAIDHAN, DISTT. SIDHI (MADHYA PRADESH)
3. STATE OF M.P. THROUGH THE SECRETARY
TECHNICAL EDUCATION VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
4. ARUN PRATAP SINGH S/O SHRI AKHAND PRATAP,
AGED ABOUT 42 YEARS, OCCUPATION: LAB
TECHNICIAN GOVT. POLYTECHNIC COLLEGE
BAIDHAN DISTRICT SIDHI (MADHYA PRADESH)
5. SUKH NANDAN PRASAD KUMHAR S/O SHRI B.
PRASAD KUMAR, AGED ABOUT 43 YEARS,
OCCUPATION: LAB TECHNICIAN GOVT.
POLYTECHNIC COLLAGE BAIDHAN DISTRICT
SIDHI (MADHYA PRADESH)
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 08-02-2024
18:12:44
2
6. B.D. PATEL S/O SHRI BHEEM SEN PATEL, AGED
ABOUT 46 YEARS, OCCUPATION: L.D.C. GOVT
POLYTECHNIC COLLAGE BAIDHAN DISTRICT
SIDHI (MADHYA PRADESH)
7. SURESH PRASAD SAKET S/O SHRI BANSH DHARI
SAKET, AGED ABOUT 45 YEARS, OCCUPATION:
L.D.C. GOVT. POLYTECHNIC COLLAGE BAIDHAN
DISTRICT SIDHI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SOURABH SONI - PANEL LAWYER FOR RESPONDENT/STATE)
This petition coming on for hearing this day, th e court passed the
following:
ORDER
This petition is filed by the petitioners-Dinesh Kumar Tiwari and Krishan
Prasad Sharma being aggrieved of action of the respondents whereby
respondent-Joint Director, Technical Education issued impugned order dated
18/07/2003 (Annexure-P/10) thereby petitioners who were given promotion
from the post of Peon to the post of Laboratory Assistant wherein certain
objections were taken by the departmental audit team and that report was
forwarded to the concerned Principal, Govt. Polytechnic College, Baidhan,
Distt. Sidhi.
2. Petitioner's contention is that in the audit objection, it is mentioned that
petitioners could not have been promoted from the post of Lab Assistant to the
Lab Technician by the Principal. Petitioner's contention is that petitioners were
initially appointed as Peon vide order dated 01/11/1983 (Annexure-P/1) and they
were promoted from the post of Peon to the post of Laboratory Assistant as is
apparent from Annexure-P/6 dated 13/07/2001.
3. Petitioner's contention is that cancellation of order of promotion of the
petitioners is arbitrary and illegal and could not have been passed on the basis
of improper report by the audit.
4. Shri Sourabh Soni, learned Panel Lawyer for the State, in his turn,
submits that order of promotion reveals that petitioners were promoted from the
post of Peon to the post of Laboratory Assistant in the pay scale of Rs.3050-
75-3950-80-4590/-. This appointment was made on the recommendation of the
DPC but fact of the matter is that the minimum qualification prescribes for
appointment either by promotion or direct recruitment to the post of
Laboratory Assistant is Higher Secondary with Science subject. Admittedly,
petitioners have produced their B.A Part-III mark sheet showing that they had
completed B.A. in third division from Awdhesh Pratap Singh University, Rewa
as is evident from Annexure-P/3.
5. Petitioners have not produced their Higher Secondary certificate on
record. Thus, it is submitted that since petitioners do not possess requisite
qualification for appointment on the post of Laboratory Assistant, their
promotion which was given de hors the provisions contained in the Recruitment
Rules has been rightly withdrawn by the competent authority. It is pointed out
that in the Recruitment Rules of 1980 qualification prescribed for appointment
to the post of Laboratory Assistant is Higher Secondary School Certificate with
Science Subject.
6. Learned counsel for the petitioners admits that petitioners were not
possessing Higher Secondary School Certificate with Science subject, but,
places reliance on the judgment of Hon'ble Supreme Court in the case of
Mohinder Singh Gill and another Vs. The Chief Election Commissioner,
New Delhi and others, AIR 1978 SC 851 wherein it is held that validity of
the order will be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or otherwise.
7. Reliance is also placed on the judgment of Supreme Court in the case of
Durga Devi and another Vs. State of H.P. and others, AIR 1997 SC 2618
wherein it is held that function of judging of comparative merits of the
candidates and fitness for post is a function of duly constituted selection
committee and Tribunal cannot sit as an appellate Court and quash selection by
itself scrutinising comparative merits of candidates.
8. Reliance is also placed on the judgment of Hon'ble Supreme Court in the
case of Nutan Arvind (Smt.) Vs. Union of India and another, (1996) 2
SCC 488 wherein it is held that while selecting the candidates on merit basis
whether the confidential report of the appellant taken into consideration by the
DPC had been written by an officer not competent to review the appellant's
performance and to write the confidential is a matter which is not subject to
judicial review.
9. Reliance is also placed on the judgment of Hon'ble Supreme Court in the
case of Rakesh Bakshi and another Vs. State of Jammu and Kashmir and
others, (2019) 3 SCC 511, wherein it is held that under what circumstances
qualification attained after the cut-off date can be said to be valid.
10. As far as judgment in the case of Rakesh Bakshi (supra) is
concerned, admittedly, petitioners did not obtain any qualification as prescribed
in the Rules of 1980 as has been enclosed by the respondents as Annexure-R/1,
therefore, this judgment will have no application to the facts of the case since
the qualification could not be attained by the petitioners, the question of cut-off
date will not arise.
11. As far as the law laid down in the case of Nutan Arvind (Smt.) is
concerned, the ratio of the judgment is that authority of the person who had
reviewed the ACRs will not be subject-matter of judicial review. This judgment
too has no application to the facts and circumstances of the case inasmuch as
here the comparative merit is not in question but the question is as to whether
petitioners possess necessary qualification for appointment to the post of
Laboratory Assistant as is prescribed in the relevant Recruitment Rules of 1980,
therefore, this judgment too has no application to the facts and circumstances
of the case.
12. The judgment in the case of Durga Devi and another (supra) is in
regard to judging of the comparative merits. In the present case also, this
Court is not called to judge the comparative merit which has been deprecated
by Hon'ble Supreme Court. This Court has to see as to whether petitioners, at
the time of their promotion or appointment to the post of Laboratory Assistant,
fulfilled the necessary qualification as prescribed in the Recruitment Rules or
not. An ancillary issue which has not been argued by Shri R.K. Samaiya,
learned counsel for the petitioners, but which can be answered simultaneously is
that whether there was any condition to relax the qualifications and whether that
relaxation was given to the petitioners. When tested, then in the Recruitment
Rules no material is brought to the notice of this Court granting power of
relaxation of the mandatory educational qualification and secondly, it is not the
case of the petitioners that condition could have been relaxed by the Principals.
Therefore, this judgment in the case of Durga Devi and another (supra) too
has no application to the facts and circumstances of the case.
13. As far as judgment in the case of Mohinder Singh Gill and another
(supra) is concerned, that judgment is in the realm of statutory function of
statutory functionality. It is held that once an order is passed, then the reasons
mentioned in the order are required to be read in totality and subsequent
affidavit cannot be allowed to be taken into consideration so to supplement the
reasons which are mentioned in the order of the statutory authority.
14. In the present case, however, facts are different. Though it is true that
the auditor made a mention and that to incorrectly that Principal had no
authority to promote a Laboratory Assistant to the post of Laboratory
Technician, but fact of the matter is that if petitioners did not possess the
qualifications for appointment as Laboratory Assistant as is prescribed in the
Recruitment Rules (Annexure-R/1), then their appointment as Laboratory
Assistant was void ab initio and an order which is void ab initio cannot be
regularized subsequently. Therefore, when tested on all these grounds and the
judgements cited by Shri Samaiya, learned counsel for the petitioners are taken
into consideration, then there is no substance in the petition calling for
interference.
15. Accordingly, this petition fails and the same is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
ts
