Madhya Pradesh High Court
Ahmad Hussain Mansoori vs The State Of Madhya Pradesh on 4 March, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:10109
1 WP-10171-2013
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 4 th OF MARCH, 2025
WRIT PETITION No. 10171 of 2013
NAZEER KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Raj Kumar Tripathi- Advocate for the petitioner.
Shri K.V.S. Sunil Rao Panel Lawyer for the respondent-State.
WITH
WRIT PETITION No. 16691 of 2013
AHMAD HUSSAIN MANSOORI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
None for the petitioner.
Shri K.V.S. Sunil Rao Panel Lawyer for the respondent-State.
WRIT PETITION No. 7845 of 2014
CHHOTELAL SAKET
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
None for the petitioiner.
Shri K.V.S. Sunil Rao Panel Lawyer for the respondent-State.
ORDER
These petitions are on identical issues and on identical facts, they are
being decided by this common order. For the sake of convenience the facts
NEUTRAL CITATION NO. 2025:MPHC-JBP:10109
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and reference to the documents and pleadings is taken from W.P. No.
10171/2013.
2. The present petition has been filed challenging the order
Annexure P/8 dated 30.05.2013 whereby the promotion of the petitioner to
the post of Upper Division Teacher/ UDT has been cancelled.
3. Learned counsel for the petitioner submits that the petitioner was
initially appointed in the year 1983 as Lab Assistant and thereafter as per
policy of the State Government the post was re-designated as Assistant
Teacher (Science). Earlier there was no promotion channel to the said post
and for the first time promotion channel was opened up by amendment dated
03.08.2012 in M.P. Non- gazetted Class-III Education Service (Non-
Collegiate Service) Recruitment and Promotion Rules 1973 and the channel
of promotion to the post of Upper Division Teacher in Mathematics,
Science, Social Science and Languages was opened up for the first time.
4. The petitioner was considered for promotion and vide order
Annexure P/6 dated 22.05.2013 the petitioner was promoted to the post of
Upper Division Teacher. However, within eight days of passing of the order
Annexure P/6, the said order has been cancelled by the District Education
Officer which is without giving opportunity and in the ground that the
petitioner is not trained teacher. It is contended by learned counsel for the
petitioner that the promotion channel was opened up for the first time by
notification dated 03.08.2012 and then DPC was conducted in the year 2013
and there was no sufficient time for the petitioner to acquire qualification of
teacher's training. It is further contended that the aforesaid order has been
passed without giving any opportunity of hearing to the petitioner and
various judgments have been relied upon to contend that once a order
involved civil consequences then opportunity of hearing is must. It is further
contended that the cancellation has been ordered by District Education
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Officer who was the appointing authority of Assistant Teacher Science but
he is not the appointing authority of promotional post i.e. Upper Division
Teacher, therefore the order is also without jurisdiction.
5. Per contra, learned counsel for the State submits that the order
Annexure P/8 is validly passed because as per statutory rules the requisite
qualification for UDT is graduation in concerned subject with teacher's
training and 5 years experience of teaching. It is contended that though the
petitioner was having the qualification of graduation and teaching of 5 years
but he did not have any teacher's training certificate and therefore, the
promotion order was erroneously issued and has rightly been withdrawn.
6. Heard.
7. The petitioner has qualified Adeeb-E-Kamil from Jamia Urdu
Aligarh in the year 2002. As per the notification of the Government of India
Annexure P/11 dated 28.06.1978, the said examination has been recognized
equivalent to the knowledge of Urdu of BA standard. The promotion of the
petitioner has not been cancelled on the ground that he does not have
graduation in the subject of Urdu but it has been cancelled on the ground that
the petitioner does not have teacher's training certificate. Therefore reliance
on the certificate of Adeeb-E-Kamil vide Annexure P/10 is utterly misplaced.
It is admitted position that vide notification dated 03.08.2012 whereby Rules
of 1973 were amended by the State Government and for the first time
promotion channel to Assistant Teacher Science was opened up for those
Assistant Teachers who re-designated from Lab Assistant and there was a
requirement to acquire teacher's training before being considered for
promotion to the next higher post of Upper Division Teacher.
8. The promotion order Annexure P/6 dated 22.05.2013 clearly
mentions that the promotion of trained Assistant Teachers/ Assistant
Teachers (Science) are being made. Thus the promotion order Annexure P/6
was under a misconception that the petitioner is a trained teacher. The said
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order clearly seems to have been passed under a misconception that the
petitioner is a trained teacher and when the same fact came to knowledge that
the petitioner is not a trained teacher, then within eight days the said order
has been cancelled by the respondents.
9. There can be no estoppel against statute and once the petitioner
does not have requisite qualification for promotion to the post of Upper
Division Teacher, then the mere passing of promotion order Annexure P/6
under mistake of facts could not create any right in favour of the of the
petitioner.
10. So far as the contention regarding non grant of opportunity of
hearing is concerned, the cancellation order Annexure P/8 is on the sole
ground that the petitioner is not a trained teacher. During the course of
hearing, learned counsel for the petitioner fairly admitted that the petitioner
does not have any teacher's training. Therefore, the no real prejudice was
caused to the petitioner by not granting opportunity of hearing to the
petitioner. It is settled in law that requirement of opportunity of hearing is not
an unruly horse and once the petitioner could not have brought to notice any
difference even if he had been granted opportunity of hearing then the order
cannot be quashed solely on the ground of non-supply of prior notice. [See -
Mohd. Sartaz Vs. State of U.P. 2006(2) SCC 315].
11. So far as the issue of the order being without jurisdiction is
concerned, the District Education Officer is admittedly the appointing
authority for the feeder post of Assistant Teacher. The promotion order
Annexure P/6 was also issued under the signature of District Education
Officer and the cancellation order is also issued under the signature of
District Education Officer. The petitioner admittedly does not have the
requisite qualification for promotion and the authority which had granted the
promotion has withdrawn the promotion, and therefore, the ground that the
order Annexure P/8 is without jurisdiction is not available to the petitioner.
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12. Consequently, petition fails and stands dismissed.
13. At this stage, it is stated by counsel for the petitioner that in W.P.
10171/2013 and W.P. No. 16691/2013, there was stay order prevailing.
These petitioners seem to around 68 years of age as on date, therefore, it is
observed that if any excess payment has been made to petitioners on strength
of interim stay order of this Court, then the amount already paid shall not be
recovered, however, rest of the consequences like reduction of salary and
pension, etc, will follow without recovery of already paid amount.
(VIVEK JAIN)
JUDGE
MISHRA
