Allahabad High Court
Sushil Kumar Dwivedi vs Basic Shiksha Adhikari And Ors. on 5 December, 2002
Equivalent citations: 2003(1)AWC259
Author: Janardan Sahai
Bench: Janardan Sahai
JUDGMENT Janardan Sahai, J.
1. The Committee of Management of Tilhar Junior High School, Oran district Banda, passed a resolution dated 4.3.2002 terminating the services of the petitioner, a Headmaster in the Institution. The Basic Shiksha Adhikari, Banda, by his order dated 9.8.2002 accorded approval to the termination of the services of the petitioner. The petitioner has prayed for quashing the order of the Basic Siksha Adhikari dated 9.8.2002 as well as the resolution of the Committee of Management dated 4.3.2002. The ground for terminating the services of the petitioner are two-fold, namely, that he did not have the requisite three years' experience and was also below the minimum eligibility age of 25 years.
2. Sri Ashok Khare learned senior counsel for the petitioner submitted that even though at the time of appointment of the petitioner, he may not have possessed the three years' experience and may have also been below the age of 25 years but with the passage of time, he had acquired the three years' experience as well as had attained the age of 25 years and as such, the disqualification which was ascribed against him had ceased to exist not only at the time when the resolution for termination was passed by the Committee of Management and approval granted by the Basic Shiksha Adhikari but even at the time when the Institution which was unaided at the time of the petitioner's appointment came under grant-in-aid on 1.12.1990. It is also submitted that the Committee of Management had itself made the appointment of the petitioner and was, therefore, estopped from terminating his services on the ground of any infirmity in his appointment. The appointment of the petitioner at best suffered from an irregularity and, therefore, when the petitioner had acquired the required experience and had completed the age of 25 years, the services of the petitioner could not have been terminated. It is lastly submitted that the opportunity of hearing as required was not given to the petitioner either by the Committee of Management or by the Basic Shiksha Adhikari and that the Basic Shiksha Adhikari abdicated his function by appointing a three member committee instead of himself taking the decision and as such the termination of the services of the petitioner is illegal.
3. Sri A. P. Shahi counsel for the respondent No. 3 the Committee of Management of the Institution submitted that the petition is not maintainable as the petitioner has an alternative remedy of an appeal which has been held to be available in such cases in view of the decision in Mohan Lal Maurya v. Committee of Management and Ors., 1987 UPLBEC 176. On merits it is submitted that the appointment of the petitioner was void and not merely irregular and that there was no question of estoppel operating against the Committee of Management as there can be no estoppel against the statute. As regards opportunity of hearing and the enquiry by a three member committee appointed by the Basic Shiksha Adhikari, it is submitted that opportunity was indeed given to the petitioner and the three member enquiry was constituted merely to assist the Basic Shiksha Adhikari,
4. The questions involved in the case are questions of law. There is no dispute that the petitioner did not, at the time of his appointment, have the required experience nor there is any dispute about the fact that the petitioner was below the minimum age of eligibility, i.e., he was below 25 years. The effect of not having these qualifications upon the appointment of the petitioner is the question which is primarily involved in the present case. The other questions relate to the jurisdiction of the Basic Shtksha Adhikari and breach of principles of natural justice. Counsel for the petitioner has placed reliance upon the decision of the Apex Court in Whirlpool Tool Corporation v. Registrar of Trade Marks, Mumbai, 1999 (2) AWC 2.54 (SC) (NOC) : AIR 1999 SC 22, in which it was held that the existence of alternative remedy does not affect the jurisdiction of the High Court. Looking to the nature of the questions involved and as counter and rejoinder-affidavits in this case have been exchanged, 1 do not propose to throw the petition out on the ground of alternative remedy.
5. We may now direct attention to the central issue involved in the case, i.e.. whether the appointment of the petitioner was void or merely irregular. Before adverting to the cases cited by the parties upon the point, it is necessary to refer to some of the provisions of the U. P. Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers), Rules, 1978. which are applicable to this case. Rules 4, 5, 7 and 8 of these Rules are quoted below :
"4 (1). The minimum qualifications for the post of assistant teacher of recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and teacher's training course recognised by the State Government or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training).
(2) The minimum qualification for the appointment to the post of headmaster of a recognised school shall be as follows :
(a) A degree from a recognised university or an equivalent examination recognised as such ;
(b) A teacher's training course recognisd by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate ; and
(c) Three years' teaching experience in a recognised school.
5. No person shall be appointed as headmaster or assistant teacher in substantive capacity, in any recognised school unless :
(a) he possesses the minimum qualification prescribed for such post ;
(b) he is recommended for such appointment by the selection committee.
7. (1) No vacancy shall be filled, except after its advertisement in at least one newspaper having adequate circulation in the locality and the intimation of such vacancy given to the District Basic Education Officer.
(2) in every advertisement and intimation under Clause (i), the management shall give particulars as to the name of the post, the minimum qualifications and age limit, if any, prescribed for such post and the last date for receipt of applications in pursuance of such advertisement.
8. The minimum age shall, on the first day of July of the academic year following next after the year in which the advertisement of the vacancy is made under Rule 7, be :
(i) in relation to the post of assistant teacher, 18 years ;
(ii) in relation to the post of headmaster, 25 years."
Rule 4 (2) lays down the minimum qualification for appointment to the post of Headmaster of a recognised school. It lays down three requirements ; that the candidate must have a degree from a recognised university, must have done a teachers' training course and three years' teaching experience in a recognised school. Rule 5 is important. It puts a statutory bar against the appointment of a person as a headmaster or assistant teacher in substantive capacity unless the candidate possesses the minimum qualifications prescribed for such post. Undisputedly one of the qualifications which are included in the list of minimum qualifications is the possession by a candidate of three years' teaching experience. Rule 7 (2) provides that the advertisement for the post shall give particulars about the minimum qualifications and age limit. Rule 8 (2) lays down the minimum age for appointment of Headmaster as 25 years. There is no provision under the rules providing for exemption or relaxation of the required qualifications. Under the scheme of the Rules, the requirement that the candidate must possess the minimum qualifications is inflexible. There is also a bar against making of any appointment of a candidate who does not possess the minimum qualification. Where a statute imposes a bar on appointment of a candidate not having minimum qualifications without any provision for relaxation, it would be inferred that an appointment made in breach of the statutory requirement would be void. In Ravinder Sharma v. State of Punjab, AIR 1995 SC 277, the Apex Court held that an appointment made in breach of the required minimum eligibility qualification is bad and the plea of estoppel is not available. It would be a different matter if the statute itself provides for relaxation of the minimum qualifications. In such a case, it would be open even to candidates who do not possess the necessary qualifications to apply for the post in view of the power of relaxation. In the absence of a provision for relaxation if a person who does not fulfil the necessary minimum qualification is permitted to apply, it would be violative of the rule of equality inasmuch as other persons similarly situate will be deprived of opportunity to apply.
6. The cases cited by the counsel for the petitioner may now be considered. In Ram Swaroop v. State of Haryana and Ors., 1979 (1) SCC 168, the appointment of a Labour-cum-Conciliation Officer was under challenge. The appellant did not possess 5 years" experience for appointment as Labour-cum-Conciliation Officer as required by Rule 4 (1) of the Punjab Labour Service Class I and II Rules, 1955, but with the passage of time, he had gained the experience and it was held that that appointment was merely irregular and was not void. The rules which were subject-matter of interpretation before the Apex Court in that case have not been quoted in the judgment but it appears that although minimum qualifications were prescribed, there was no express bar on making an appointment of a candidate who was not qualified. Ram Swaroop's case is, therefore, distinguishable. Such express bar is provided under Rule 5 of the rules applicable to this case. No doubt the Rule 4 (1) of the Punjab Rules did lay down experience of five years as one of the minimum qualifications and from that, an inference could be drawn that no appointment of a person who did not have the required experience could be made but in the present case there is a statutory bar. The scheme of the 1978 Rules applicable to this case, reference of which has been made above indicates that no departure from the rules is permissible as the bar has been specifically provided for in Rule 5 and, therefore, there is no provision for any relaxation of the minimum qualifications. In the case of Ram Swaroop, Rule 4 (2), which of course was applicable to appointment by promotion and not direct recruitment provided for relaxation of the minimum qualifications. Counsel for the petitioner also relied upon the decision in the case of J.C. Yadav v. State of Haryana, 1990 (2) SCC 189 and Smt. Shanti Devi Verma v. Dy. Director, 1982 UPLBEC 365. In the case of J. C. Yadav (supra), there was a provision for relaxation of the required qualifications and in the case of Shanti Devi (supra), the Court had interpreted the provisions of the Intermediate Education Act in terms that no inflexible rule about the candidate possessing the necessary minimum qualifications was laid down. The cases cited, therefore, are clearly distinguishable. The appointment of the petitioner in the present case was void and not merely voidable.
7. The question of applying the principle of estoppel does not arise. It is well-settled that there can be no estoppel against the statute. A distinction has to be made between void acts and voidable acts. In case the act is voidable, the principle of estoppel could be applied as the person who is pleading estoppel has changed his position. However, where the act is wholly void, there is no question of pressing the principle of estoppel.
8. So far as the submissions about the non-observance of principles of natural justice and the question of the Basic Shiksha Adhikari not having taken the decision himself in appointing the three member committee are concerned, these need not be gone into in the present case. As admittedly, the petitioner did not possess the necessary minimum qualifications and I have held that the appointment in such case would be void, it is not proper to quash the impugned order on the ground of want of opportunity as grant of opportunity would serve no purpose. Although it was submitted on behalf of the respondent that opportunity was granted, it is not necessary to go into this question. As it has been held that the appointment of the petitioner was void, the termination of the services of the petitioner cannot be said to be invalid. As a result the petition lacks merit and is dismissed.