Uttarakhand High Court
Smt. Suniti Singh ... vs Managing Director And Another on 12 March, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 2 of 2005
Smt. Suniti Singh .....Appellant/plaintiff.
Versus
Managing Director and another .... Respondents/defendants
Present :
Mr. M.C. Kandpal, Senior Advocate assisted by Mr. Chitrarth Kandpal, Advocate for
appellant/plaintiff.
Mr. Yogesh Kumar Pacholia, Advocate for the respondents/defendants.
Dated: 12th March, 2021
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
This is plaintiff/appellant's, Second Appeal, which has
been preferred by her, being aggrieved as against the judgment and
decree dated 8th September, 2004, which was rendered by the Court of
Civil Judge (Junior Division), Almora, in Civil Suit No. 4 of 1998,
Smt. Suniti Singh Vs. Management Committee, Adams Girls
Intermediate College, Almora and others. By virtue of the judgment
impugned dated 8th September, 2004, and the consequential decree of
14th September, 2004, the Suit, which was preferred by the
plaintiff/appellant, for treating her degree of M.A. (Psychology), as a
regular candidate, as to be one of the essential qualifications for the
purposes of considering, her claim for the grant of promotion in the
Institution of the defendant No.1, which was an aided recognised
Minority Institution, having the protection of Article 30 of the
Constitution of India.
2. Brief facts, which engage consideration in the present
Second Appeal, are that as per the plaint averments, in a plaint, which
was instituted by the plaintiff/appellant on 18th March, 1998, the
plaintiff/appellant, herein, had sought a decree for declaration, to the
effect that the defendant No. 2, by way of a decree of mandatory
injunction may be directed to treat her degree of MA (Psychology), as
to be a valid degree, for the purposes of consideration of her
promotion in the Institution of defendant No.1, therein, to be valid.
3. Her contention in the Suit was that the plaintiff/appellant,
herein, had completed her graduation with B.A. (Psychology), as one
of the subjects, and later on was inducted as a Lecturer in the
Institution of the respondents, which was an aided recognized
Minority Institution and since she intended to pursue her further
studies of completing her M.A. (Psychology), for which, admittedly
plaintiff/appellant, case was that she had moved an appropriate
application on 27th May, 1996, through the Principal of defendant
No.1, for getting a prior permission to pursue her studies and
complete her post graduation in the aforesaid subject.
4. Her foundation of pleading in the plaint was that the said
application dated 27th May, 1996, remained pending and no order as
such was ever passed as such on it. Rather the plaint averment reveals
that the plaintiff/appellant has claimed a parity, on the basis of the
earlier permission, which had been granted to other identically placed
Teachers, working with the respondent No.1, and the example of
some of the names was also referred to in para 3 of the plaint.
5. Her plaint contention was that she took her admission in
M.A. (Psychology), as a regular candidate, even without waiting for
the permission to be granted on her application of 27th May, 1996, by
respondent No.1, and to justify to consider the said qualification thus
obtained by her, as to be one of the basis for being considered for
promotion, since the respondents, she presumed on her own, had
permitted and granted leave to the plaintiff/appellant to take the said
examination, hence, the qualification acquired by her ought to be
treated as to be eligible qualification for being considered to be
promoted to the next superior post. But, however, as per the plaint
averments, the Management of respondent No.2, vide its
communication dated 12.12.1997, declined to accept qualification of
M.A. degree, obtained by the plaintiff/appellant, as to be the basis for
the grant of promotion, the decree as sought for in the plaint, which
was modulated by the plaintiff/appellant in the following manner :-
"1. fd izfroknh u02 dk fn0 12-12-97 dk i= okfnuh dh ,e0,0
lkbDykSth dh fMxzh izfroknhx.k dh vekU; gS] voS/k gS vkSj izfroknhx.k ds
fo:} okfnuh dh ,e0,0 lkbDykSth dh fMxzh ekU; /kksf'kr gksA
2- fd okfnuh dh bl ,e0,0 lkbDykSth dh fMxzh ds QyLo:i
okfnuh dks feyus okyh lc lqfo/kk,sa izfroknhx.k ls izkIr djokbZ tk;A
3- fd ekuuh; U;k;ky; okfnuh dks dksbZ vU; vuqrks'k mfpr le>s]
nsus dh d`ik djsaA"
6. On the institution of the Suit on 18.03.1998, the
defendants were noticed and they have filed their written statement,
being paper No. 20 Ka dated 01.06.1998, and in the written statement,
the defendants have taken a stand that as per the Government Orders,
which were in vogue and issued from time to time, it contemplated
that the Teachers who are already employed in the Institution, before
he or she ventures to go for a higher education/studies, there has had
to be a prior permission granted in her / his, favour by the
Management, with which the Teacher was working, permitting
him/her to take higher qualification and since in the instant case, no
such written permission was ever granted to her for enabling her for,
availing of a degree of M.A. (Psychology), it cannot be taken into
consideration for the purposes of grant of promotion, and hence, the
defendant's case was that merely the submission of the application
form in 1996, for taking her first year examination of post graduation
classes as a regular candidate was in contravention to the Government
Orders issued from time to time, which were covering the field of
higher education procurement, during the course of employment.
7. He has further submitted that the plaintiff/appellant, has
not approached the Court with the clean hands for the reason being
that after applying for the grant of permission and even after
completing her post graduation, in fact, no information was ever
parted by her till at the later stage, when the claim for promotion was
raised by her on the basis of the qualification acquired by her without
there being a prior permission granted to her.
8. The learned Trial Court, after the exchange of the
pleadings, had framed the following issues :-
"1- D;k okfnuh us ,e-,- euksfoKku dh fMxzh fof/kiwoZd izkIr dh gS \
2- D;k okfnuh ,e-,- euksfoKku dh fMxzh fcuk izcU/k lfefr ls
vuqefr fy;s gq;s izkIr dj ldrh gS \ ;fn gkW rks izHkko \
3- okfnuh fdl vuqrks'k dks ;fn dksbZ gks] ikus dh vf/kdkfj.kh gS \"
9. Primarily, the issues No. 1, which would be of a much
concern, its not that the degree, which is the subject matter of
challenge, but it was rather the mode of its procurement during
employment in contravention to the Government Orders, the issue of
consideration, was as to whether if a candidate, who acquires a
qualification even from a recognized institution, whether it could be
still taken into consideration by overriding the provisions of the
guidelines framed by the State Government for procurement of a
qualification, in relation to those candidates who are already
employed and are working and it could be considered as a satisfaction
of a qualification required for being promoted.
10. The plaintiff/appellant before the Court below, apart
from recording her oral testimony as PW1, had also supported her
case by recording the statement of one S.M. Bhatt as PW2. She had
also placed on record, paper No. 11 Ga, i.e. the application submitted
by her on 15th July, 1996, before the Management of the defendant,
for getting the permission and various other documents, in support of
her contention.
11. On the contrary, the defendants had also adduced their
oral witnesses by way of DW1 by producing Mr. Vinod Kumar
Sharma, who recorded his oral testimony by making the reference to
the decision taken by the Committee of Management and its minutes,
which were on record as paper No. 44 Ga/1 and 47 Ga/1, staff
statement and various other documents, thereby they have contended
that in a decision which was taken by the Committee of Management
on 25th September, 1996, the qualification procured by the
plaintiff/appellant, which was one of the essential qualifications
required, to be considered for promotion on the next higher post
cannot be considered, because it was not acquired after due process,
as it had been contemplated under the guidelines and directives issued
by the State Government, governing the aided Institutions.
12. The issue No. 2, was with regard to the permission,
which was a condition precedent for procurement of the qualification,
which was contemplated by the Government Order. The Management
concurrently before the Courts below have placed reliance on the
circulars which were issued by the Education Departments, and
particularly, that the letter No. 1/173/14-58-59 dated 11th September,
1958, wherein, it has provided that in all the Educational Institutions,
which are aided and recognized, for the purposes of procurement of
the higher qualification, by the teachers already working, there has
had to be a prior permission to be granted by the Management before
an employee or a Teacher is permitted to take her higher qualification.
13. Accordingly, on an appreciation of the evidence, the
learned Trial Court while dealing with the finding on issue No.2,
about the mandatory condition as per the guidelines, issued from time
to time, has observed that the qualification procured by the
plaintiff/appellant, could not have been taken into consideration for
promotion, since it was in violation of the Government Order of 1958.
14. Accordingly, the Court held that the degree obtained
cannot be taken into consideration, since it was obtained without the
prior permission. The learned Trial Court while dealing with the issue
No.1 pertaining to the procurement of the post graduation
qualification, admittedly, which was procured by the
plaintiff/appellant from Kumaon University, the issue No.1, has been
decided on the ground that the stand taken by the plaintiff/appellant,
that since the permission has been granted to other such employees,
she claimed parity, the details of which, was solicited by her to be
placed on record by way of interrogatories contemplated under Order
11 Rule 2 of the CPC and the same was not supplied by the
defendants. The learned Trial Court has observed, while deciding
the issue No.1, also that grant of permission to the other Teachers and
deriving its benefit from the permission which were already granted,
cannot be relied and be treated as an exemplar, if the higher
qualification was permitted to be acquired by other teachers, only
after grant of permission, as the plaintiff/appellant case would be
standing on a different pedestal altogether, where she herself by
submitting her application, rather had submitted to the terms and
conditions of the Government Order and she even without waiting for
the grant of permission had taken up the examination of M.A.
(Psychology), and that too as a regular candidate.
14. Hence, the Trial Court, has held that the examples quoted
by the plaintiff/appellant for grant of permission to other candidates
earlier, cannot be considered to be an example to justify her
qualification which was acquired by her without a prior permission
and as far as the promotion aspect is concerned where the post
graduation is a condition mandatory, hence, the denial made by the
Management on 12.12.1996, was held to be justified. Consequently,
the Suit was dismissed by the judgment of the Trial Court dated 8th
September, 1994.
15. The plaintiff/appellant being aggrieved against the said
judgment of the Trial Court dated 08.09.1994, had approached the
Appellate Court by invoking the provisions contained under Section
96 of the C.P.C., by filing of an Appeal, and the Appellate Court too,
while considering the points of determination as framed by it, on the
basis of the issues modulated by the Trial Court had considered the
implications of the aforesaid Government Order of 1958, as referred
above, and had ultimately observed that though the plaintiff/appellant
might have qualified her M.A. (Psychology) from Kumaon
University, but that in itself exclusively since being without a prior
permission granted to her as contemplated under the Government
Order, it cannot be taken as to be the foundation for consideration of
the plaintiff/appellant for promotion and the finding in that regard has
been recorded in para 17 and 18 of the Appellate Court's judgment.
16. Being aggrieved against the aforesaid two judgments,
which were rendered by both the Courts below, the present Second
Appeal was preferred, and in the Second Appeal the plaintiff/appellant
had formulated the following substantial questions of law to be
decided :-
"(I) Whether the M.A. (Psychology) degree can be
declared as invalid by the Committee of Management for the
purposes of promotion and other benefits in the institution.
(II) Whether not presenting the documents by the
Committee of Management before the Court is against under
Section 114 of the Evidence Act & Order 11 Rule 21 of the
Civil Procedure Code.
(III) Whether in granting the permission to teacher to
appear in the exam on the different consideration.
(IV) Whether the regulation of under Intermediate
Education Act 1927 followed by the Committee of
Management is granting the permission to teacher to appear in
the Examination."
17. The Coordinate Bench of this Court vide its order dated
15th February, 2005, has admitted the Second Appeal on the aforesaid
substantial questions of law.
18. The learned Counsel for the plaintiff/appellant has had to
extend his argument in the context of the substantial questions of law
as framed in the memo of appeal, based on which, the Second Appeal
was admitted; but while travelling beyond the substantial question of
law, which was not even framed in the Second Appeal or even
attempted to be framed, by submitting that the
defendant/Management, at times have been taking stand that since
they being the Minority institution are protected by Article 30 of the
Constitution of India, and hence the State's Government Orders would
not be applicable. But with all due reverence at my command for the
learned Senior Counsel, this is not the substantial question of law,
which was either agitated before both the Courts below or even
pressed before this Court, for the purposes of deriving the
implications of the Government Orders which were issued by the
State, on the minority institutions, as the one which was relied by both
the Courts below for not considering the qualification of M.A.
(Psychology) of the plaintiff/appellant as to be the essential
qualification, limited to the purposes of its consideration for
promotion.
19. Hence, as far as the said limb of argument is concerned
that the Government Order would not apply on Minority Institutions,
which was creating a bar of procuring the higher qualification without
there being a prior permission is not a plea available to him at this
stage of the proceedings, to be argued beyond the scope of the Trial
itself and even beyond the scope of the Second Appeal itself.
20. Secondly, the learned Senior Counsel for the
plaintiff/appellant, had tried to impress upon the Court, as if M.A.
Degree, which was obtained by her from Kumaon University have
been sought to be nullified or declared to be invalid by the
Management vide its communication, denying it to consider the
plaintiff/appellant, claim for promotion based on the said qualification
is yet again contrary to the case which was pleaded before the Court
below or even before this Court.
21. There is a marked distinction, which is to be considered
by this Court. It is not the declaration of MA degree of Psychology,
which was obtained by the plaintiff/appellant, which has been held to
be invalided and it could not be so otherwise also, because as per the
opinion of this Court the procurement of a degree from the recognized
University, created under the Statute, would always remain a valid
degree and hence, this contention that the Management has declared
the degree to be invalid and void is absolutely preposterous and
beyond the pleading of the Suit itself. The consideration made by the
Management, was with regard to, as to whether and which was also
the bone of contention; that whether a degree which was obtained
even from the recognized University, could at all be considered for the
purposes of promotion, particularly, when it is dehors to the
procedures as it has been contemplated for procurement of the higher
qualification degree by an employee, who is already in service in the
Institution and too as a regular student. As far as this limb of
argument is concerned, which is being sought to be attempted to be
confusing the two issues are entirely distinct and it hereby held that
the degree itself is not invalid, but I am of the view that the manner in
which, the degree has been obtained by the plaintiff/appellant, as a
foundation for being considered for promotion, it cannot be
considered, since it runs contrary to the Government Order itself, the
denial to consider the same does not mean that it was invalidating the
degree which was obtained by the plaintiff/appellant from a statutory
University crated under Law.
22. His argument now that no decision was taken on her
application, which she had submitted on 27th May, 1996, for the grant
of prior permission and since there was no communication made to
the contrary, either accepting or rejecting the application for
permission sought for does not entitle her to avail the benefit of non
decision of the same to make the degree obtained by her valid to be
considered as a eligible qualification for promotion, for the reason
being that if there was any inaction on the part of the respondents, by
sitting over the application dated 27th May, 1996, it was at that stage
itself, the plaintiff/appellant ought to have agitated the claim before
the competent Court or authority, she was not remediless to approach
the competent authority for the consideration of her application for the
grant of permission.
23. Non granting of a permission and then even taking of an
admission on her own as a regular post graduate candidate, during the
course of employment, the plaintiff/appellant had to face the
consequences once it runs contrary to the Government Order, where
the attainment of the qualification, without a procedure provided
under the Government Order of 1958, will not make the respondents
liable to consider the same for the purpose of grant of promotion,
which stood denied by the decision of the Committee of Management,
which was taken as to be the basis for institution of the suit, as its
cause of action.
24. Another argument, which has been extended by the
learned Senior Counsel for the appellant, that other Teachers were
granted permission and the plaintiff/appellant has been discriminated
in that regard, for that purpose, would still be an argument which is
now not available to the plaintiff/appellant, because grant or denial of
a permission as per the Government Order was the prerogative of the
Management. Its inaction to grant permission to pursue studies, will
not validate the degree as to be satisfying the condition of the
eligibility of being a qualification for promotion. Hence, the reason
which has been assigned by both the Courts below for denial to
consider the plaintiff/appellant qualification of M.A. (Psychology) for
promotion on account of there being absence of a prior permission is
not unjustified, as per the facts and law, which has been concurrently
considered.
25. Accordingly, the substantial question of law Nos. 1 and 3
is answered against the plaintiff/appellant, as it doesn't engages
consideration to be involved, under the facts and circumstances of the
present case.
26. The second substantial question of law pertaining to the
provisions contained under Section 114 of the Evidence Act, to be
read with Order 11 Rule 21 of the CPC., if the finding which has been
recorded by the Trial Court itself is taken into consideration, where
the impact of filing of an application under Order 11 Rule 12, was
dealt with while deciding issue No.1. If the said finding is taken into
consideration, it does not reflect that non decision on the same, the
plaintiff/appellant has ever ventured to fulfil that procedural lacunae
by approaching the superior authorities or Courts for placing on
record the permission granted by the Management to the other
candidates, who had taken their respective higher qualification after
the grant of due prior permission.
27. The grievance raised is that during the course of
proceedings of the Suit, the provisions of Order 11 Rule 12 of the
CPC, which was sought to be invoked, was not addressed upon by the
learned Trial Court, but then this Court being conscious of its
limitation as statutory provided under Section 100 of the CPC, cannot
venture into that aspect for the reason being that inaction on the part
of the Court, to take an appropriate cognizance or decision to the
provisions of Order 11 Rule 12 of the CPC, since being not in issue,
which was a question even raised before the First Appellate Court by
the plaintiff/or even before any superior Court, as against the non
consideration of the application under Order 11 Rule 12 of the CPC,
would yet again be not a substantial question of law, which is
available to the plaintiff/appellant to be raised before this Court, under
Section 100 of the C.P.C., attempting to overcome her own inaction in
diligently pursuing her case.
28. Lastly, the substantial question, which has been framed
was in consonance to the provisions contained under the U.P.
Intermediate Education Act of 1921. As far as the said substantial
question of law is concerned, it would be laying down only a
condition, as had been made applicable to the qualifications, which
are required to be imparted under the said Act and as per the opinion
of this Court, it would not apply in the case, where a post graduation
degree is being sought for as per the provisions of the University Act,
which is applicable and hence, the substantial question of law does not
at all involves consideration in the present Second Appeal from that
perspective.
29. In that view of the matter, this Court is of the view that
the Management's reasoning for non consideration of the
plaintiff/appellant qualification of M.A. (Psychology), as to be a
qualification satisfying the conditions for being considered for
promotion, cannot be kept on a common pedestal, as if the
Management has held the qualification of M.A. (Psychology), to be
invalid, because validity as per my view, of the said qualification
stands absolutely justified, since having been obtained from the
recognized University, created under the Statute. It may hold good
from other perspectives, except for the purposes for being considered
as a qualification for promotion since being in violation of the
Government order of 1958.
30. Accordingly, this Court is of the view that the Second
Appeal and the substantial questions of law as framed are not
involved consideration. Hence, the Second Appeal lacks merit and
the same is accordingly dismissed.
(Sharad Kumar Sharma, J.)
12.03.2021
Shiv
