Allahabad High Court
Indresh Kumar Chaturvedi vs State Of U.P. And 3 Others on 3 April, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 34 Case :- WRIT - A No. - 44261 of 2016 Petitioner :- Indresh Kumar Chaturvedi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rajesh Kumar Mishra,Brij Bhushan Mishra,Radha Kant Ojha,Rajeev Kumar Mishra,Satyendra Chandra Tripathi Counsel for Respondent :- C.S.C.,Ashok Kumar Singh Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Ashok Khare learned Senior Counsel assisted by Sri Rajeev Kumar Mishra learned counsel for the petitioner, Sri Ashok Kumar Singh learned counsel for the District Basic Education Officer and the learned Standing Counsel for the State respondents.
2. Challenge has been raised to the order dated 06.7.2016 passed by the District Basic Education Officer, Siddharth Nagar affirming the earlier view expressed by his predecessor in the order dated 26.10.2012 dispensing with the services of the petitioner as Assistant Teacher (Primary). The impugned order has been passed in compliance of an earlier order passed by this Court in Writ-A No. 65437 of 2012 (Indresh Kumar Chaturvedi Vs. State of U.P. and Others), decided on 12.4.2016.
3. The petitioner was earlier appointed as Assistant Teacher (Primary) in the year 2009. He was posted at Primary School, Semari, Block Khuniyaon, District Siddharth Nagar. Upon completion of probation period, petitioner further claims to have been confirmed on that post. It is also not in dispute that the petitioner obtained the above engagement on the strength of educational qualifications set up by him being Purva Madhyama (equivalent to High School) from Sampurnanand Sanskrit Vishvidyalaya and Shastri (equivalent to Graduation) from the said university. There is no dispute to the fact that the petitioner had qualified BTC 2007.
4. In the year 2010, certain notices came to be issued to the petitioner alleging that he had wrongly obtained appointment. At that stage, twin allegations were levelled of the petitioner having pursued High School as also Purva Madhyama simultaneously from two different institutions and similarly of having pursued B.A. and Shastri courses from two different institutions at the same time. The above proceeding resulted in the earlier order dated 26.10.2012 cancelling the petitioner's appointment dated 09.2.2009.
5. The above order was challenged by the petitioner in Writ-A No. 65437 of 2012. The same was allowed vide order dated 12.4.2016 and the matter was remitted to the respondents to pass afresh order in accordance with law.
6. It is in pursuance of the earlier order of this Court, present impugned order has been passed.
7. Having heard learned counsel for parties and having perused the record, in the first place, it may be noted, after the order of remand though a detailed impugned order has been passed as has been assailed in the present writ petition, no clear finding has been recorded by the respondent authority on the allegation of two graduation courses having been pursued simultaneously. Thus, though in the early part of the order the factual allegation of the petitioner having pursued Shastri course from Sampurnanand University and of having pursued B.A. course from Chaudhary Mahavir Prasad Memorial Degree College, Siddharth Nagar exists, yet in the discussion and the operative portion, there is no finding as to that.
8. Therefore, it does appear that the said allegation was practically dropped keeping in mind the other undisputed fact that the petitioner did not pass B.A. examination. According to the respondents, he failed in B.A. Part-I examination itself and only succeeded in obtaining Shastri Degre from the Sampurnanand Sanskrit Vishvidyalaya.
9. Thus, the present impugned order appears to have been passed solely on the allegation of the petitioner having obtained both High School pass certificate from Queens Intermediate College, Varanasi in the year 1997 and having obtained Purva Madhyama certificate which is equivalent to High School, from Sampurnanand University.
10. Here the discussion and the observation made by the learned Single Judge of the Court in the earlier leg of litigation does become relevant. Paragraph 8, 9 and 10 of the earlier decision of the Court read as below:-
"8. As per record, this much is reflected that the petitioner had proceeded to appear in High School examination as a regular student from Queens Intermediate College, Varanasi in the year 1997 and had also appeared in Purwa Madhyama, equivalent to the High School, from Sampurnanand University as a private student in the same year. In this background, the petitioner had proceeded to make a detailed reply stating that he had appeared in the Purva Madhyama examination as a private student on the basis of letters issued by the Registrar of Sampurnand Sanskrit University, Varanasi dated letters dated 11.8.2011 and 14.5.2012 (Annexure RA-1 to the rejoinder affidavit). The petitioner himself had proceeded to submit in categorical terms that he had appeared in the High School examination from Queens Intermediate College, Varanasi as a regular student and Purva Madhyama examination equivalent to High School from Sampurnand Sanskrit University as a private student and the mark sheet, which was issued by the Sampurnanand Sanskrit University, Varanasi, clearly make a mention that the petitioner appeared as a private student. The petitioner cannot be said to be guilty of any concealment and he cannot be penalised for the same.
9. In support of his submission, the petitioner has indicated the mark sheet, which was issued by Sampurnanand Sanskrit University (2003-04) wherein in column 'Sthan' the petitioner had mentioned his residence and on the basis said certificate, he has submitted that no doubt in the mark sheet nowhere it is mentioned as private but as per letter dated 11.8.2011, if the address of the examinee is mentioned in the mark sheet/certificate, the applicant is private. At no point of time, the petitioner has claimed any benefit of the mark sheet of High School examination issued by the U.P. High School and Intermediate Board as regular student and even in the mark sheet the petitioner had claimed the benefit of only Purwa Madhyama degree, which is equivalent to High School from Sampurnanand Sanskrit University, Varanasi and as such, this is not the case of respondents that the petitioner at any point of time had utilised both the marksheets. As per the record it is reflected that throughout he had submitted the mark sheet of High School examination as private student and as such this is not the case of concealment of any material fact.
10. It is relevant to indicate that in similar circumstances one claim of Shri S.N. Mishra has been decided by Hon'ble Chancellor, Sampurnanand Sanskrit Vishvavidyalaya, Varanasi on 10.7.1991 (Annexure-14 to the writ petition) wherein it has been averred that there does not exist any provision under the Statutes and Ordinances of Sampurnanand Sanskrit University, which may debar a candidate from passing an examination of the University alongwith some other examination. In this regard, the University had already passed a resolution in the year 1968 wherein a policy decision was taken while appearing in other examinations, that there is no requirement of migration certificate and both the degrees would be valid till one degree is declared as illegal by a competent authority. In the present matter, this much is admitted situation that at no point of time the competent authority has proceeded to cancel any of the degrees."
11. Once the Court had clearly recorded its observation upon perusal of the record that the petitioner had appeared as a regular student only in the High School examination and that he had appeared as a private student in the Purva Madhyama examination conducted by Sampurnanand University, it never became open to the respondent authorities to make any observation or to record any finding contrary to the same.
12. While remitting the matter, the writ Court may choose either to allow an order of open remand to arise wherein all issues before the writ Court may be kept open to be adjudicated afresh or as has been done in the present case, writ Court may make an order of limited remand.
13. In the present case, while remitting the matter to the authorities the writ Court clearly recorded its observation that the petitioner had appeared as a private student in the Purva Madhyama in the year 1997. That observation is contained in paragraph-8 of the order, as extracted above. It is binding.
14. The said observation cannot be treated to be a stray observation appearing in the order of this Court. It has been backed with reason contained in paragraph-9 of that order (as extracted above).
15. Thereafter the Court has further observed that present is not a case where the petitioner may have utilised both High School and Purva Madhyama certificate but the petitioner had only utilised Purva Madhyama certificate. Therefore, no extra benefit had been claimed by the petitioner. Being a private student he may have obtained Purva Madhyama while pursuing his regular High School course. In absence of any law prohibiting the petitioner to obtain his Purva Madhyama certificate as a private student while simultaneously pursing the High School certificate as a regular student, no inherent illegality may have arisen as may have rendered the petitioner ineligible to apply for the post of Assistant Teacher (Primary).
16. Even after remand, it is not the case of the respondents that the petitioner ever made use of the High School certificate. Then learned Senior Counsel appearing for the petitioner relied on a recent decision of this Court in Writ-A No. 3254 of 2021 (Himanshi Yadav Vs. State of U.P. and Others), decided on 04.7.2022. Referring to the precedent namely Kuldeep Kumar Pathak Vs. Stat of U.P. and Others, (2016) 3 SCC 521, Civil Appeal No. 1301 of 2022 A. Dharmraj Vs. The Chief Educational Officer, Pudukkottai and Others and a division bench decision of this Court in Special Appeal (Defective) No. 898 of 2020, Board of Basic Education and Another Vs. Arvind Prakash Dwivedi and Others, it has been strenuously urged, merely because the petitioner may have earned his Purva Madhyama certificate as a private student in the same year as he may have been awarded High School certificate as a regular student did not create any inherent ineligibility in the petitioner. The above submission does appear to be correct in view of the decisions noted above. It may be noted here itself that the Special Appeal (Defective) No. 168 of 2023 filed against the order of the learned Single Judge has been dismissed vide order dated 28.3.2023.
17. In Kuldeep Kumar Pathak (supra), it was observed as under:
"6. Before us, Mr. Pradeep Kant, learned senior counsel for the appellant has made a neat legal argument. He submits that though the impugned judgment proceeds on the basis that appearing in two examinations simultaneously for the same year is violation of the Regulations of the Board, this reason given by the High Court is clearly unsustainable inasmuch as no such Regulation is shown by the Board which prohibited any such candidate to appear in two examinations in the same year. The learned senior counsel further argued that the impugned order passed by the respondents for confiscating his Certificate of Intermediate exam was, otherwise also, contrary to the principles of natural justice inasmuch as no show cause notice and opportunity of hearing was given to the appellant before passing such an order, which was passed belatedly after a period of nine years from the passing of the said examination by the appellant.
7. We are of the opinion that both the submissions of the learned senior counsel are valid in law and have to prevail. The High Court has been influenced by the argument of the respondents that simultaneous appearance in two examinations by the appellant in the same year was 'contrary to the Regulations'. However, no such Regulation has been mentioned either by the learned Single Judge or the Division Bench. Curiously, no such Regulation has been pointed out even by the respondents. On our specific query to the learned counsel for the respondents to this effect, he expressed his inability to show any such Regulation or any other rule or provision contained in the U.P. Intermediate Education Act, 1921 or Supplementary Regulations of 1976 framed under the aforesaid Act or in any other governing Regulations. Therefore, the entire foundation of the impugned judgment of the High Court is erroneous.
8. It is also pertinent to note that the appellant's intermediate examination and result thereof was not in question before the U.P. Board. No illegality in the admission in that class has been pointed out by the respondents. The alleged charge of simultaneously appearing in two examinations, one of the U.P. Board and other of the Sanskrit Board, was with respect to Class X and equivalent examination which did not relate to admission in intermediate course. The only provision for canceling the said admission is contained in Regulation (1) of Chapter VI-B. It details the procedure for passing the order of punishment canceling intermediate results and, inter alia, prescribes that a committee consisting of three different members is to be constituted and entrusted with the responsibility of looking into and disposing of cases relating to unfair means and award appropriate penalty as specified in the Regulations itself. However, there is no allegation of any unfair means adopted by the appellant in the instant case and, therefore, that Regulation has no applicability. Even otherwise, no such committee was constituted. Therefore, having taken admission in Intermediate on the basis of past certificate issued by a separate Board, which was recognised, and not on the basis of the result of Class X of the U.P. Board, the appellant derived no advantage from his examination of the U.P. Board while seeking admission in Intermediate course. Thus, from any angle the matter is to be looked into, the impugned orders dated April 20, 2011 and May 10, 2011 passed by the respondents are null and void, apart from the fact that they are in violation of the principles of natural justice."
18. Again in A. Dharmraj (supra) it has been observed as under:
"5. Having heard the learned counsel appearing on behalf of the respective parties and on perusal of the judgment and order passed by the learned Single Judge as well as the Division Bench, it appears that the promotion of the appellant to the post of B.T. Assistant (English) has been set aside by the High Court on the ground that the appellant obtained two degrees namely B.A. (English) and M.A. (Tamil) simultaneously and therefore as per Rule 14 he was ineligible for promotion. However, considering Rule 14, it can be seen that the bar was against teachers who have obtained B.A./B.Sc./B.Ed degree simultaneously during the same academic year. In the present case it cannot be said that the appellant obtained the degree of B.A. (English) and M.A. (Tamil) during the same academic year. The appellant pursued his B.A. (English) during January, 2012 to December, 2014. He pursued his M.A. (Tamil) which was a two years distance education course between the academic years 2013-2014 to 2014-2015. Therefore, as such Rule 14 is not applicable to the facts of the case on hand stricto senso. The degree of M.A. (Tamil) cannot be equated with B.A./B.Sc./B.Ed.
5.1 Assuming that the subsequent degree obtained by the appellant namely M.A. (Tamil) is ignored, in that case also, considering his degree in B.A. (English) he could have been promoted to the post of B.T. Assistant (English). That both the degrees secured by the appellant cannot be ignored. It is not in dispute that the degree of B.A. (English) was sufficient as per the eligibility criteria for promotion to the post of B.T. Assistant (English)."
19. Unless it had been shown by the respondents that the petitioner could not have pursued Purva Madhyama as a private student while pursuing his High School as a regular student, no infirmity could have arisen.
20. As to the other objection being cited with respect to the graduation course, suffice it to note, undisputedly according to the respondents, the petitioner never passed B.A. course as a regular student. In fact, he failed at the first step itself i.e in part-I examination. He did not pursue the same any further. More crucially, as noted above, the impugned order is not based on that reasoning. It is a settled principle in law that in the course of judicial review parties may not support the impugned order on any ground other than that arising therefrom. Thus, counter affidavits and submissions being advanced not supported by the reasoning contained in the impugned order may never be cited as a ground to reject the writ petition. To allow that would be to allow the respondents to improve their case now.
21. In view of the above, the impugned order is set aside. Writ petition is allowed with all consequential effect.
Order Date :- 3.4.2023 Faraz