Allahabad High Court
Avanish Kumar Singh vs The State Of U.P.Thro ... on 25 November, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 67 of 2018 Appellant :- Avanish Kumar Singh Respondent :- The State Of U.P.Thro Prin.Secy.Deptt.Of Secondary Edu.And Ors Counsel for Appellant :- Sanjay Kumar Singh, Akhilesh Kumar Singh Counsel for Respondent :- C.S.C.,Aseem Goswami,Parth Upadhyay,Som Kartik Shukla(1) Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Srivastava,J.
(C.M. APPLICATION NO.21914 of 2018-Application for Condonation of delay).
Office has reported a delay of 30 days in filing the special appeal.
Heard the learned counsel for the appellant- Dr. Sanjay Kumar Singh, learned State Counsel and Shri Som Kartik Shukla, learned counsel representing the respondent no.5.
Though notices were served upon the respondent no.4 and on his behalf appearance has also been put in by Shri Parth Upadhyay and Shri Aseem Goswami, Advocates, however, no one is present on his behalf.
Having gone through the averments made in the application seeking condonation of delay, we are satisfied that the delay has sufficiently been explained.
Accordingly, the application is allowed and the delay in filing the special appeal is hereby condoned.
Order on Appeal.
(1) This Intra-Court appeal filed under Chapter VIII Rule 5 of the Rules of the Court, questions the order dated 17.04.2017 passed by learned Single Judge in Writ Petition No.6709 (SS) of 2017, whereby the writ petition has been dismissed.
(2) Learned counsel appearing for the appellant while impeaching the order under appeal has vehemently submitted that the issue which arises in this case, has not been appropriately addressed by learned Single Judge which has resulted in denial of right of appointment to the appellant-petitioner as he had qualified in the selection and had secured more quality point marks than the respondent nos. 4 & 5. It has also been pointed out by the learned counsel for the appellant that so far as the finding returned by the learned Single Judge that percentage for purposes of quality point marks has to be calculated in the manner mentioned in the advertisement and not on the basis of aggregate arrived at by Gujarat University, is concerned, such finding appears to be out of place for the reason that so far as calculation of quality point marks is concerned it has to be necessarily made in terms of the provisions contained in the advertisement which is in conformity with the mode of calculation of quality point marks given in the service rules, however so far as the aggregate marks obtained by the appellant- petitioner in his Graduation is concerned it was not open to the State-respondents to have calculated it in the manner they wanted rather it has to be considered as per the aggregate depicted by the University concerned in the marksheet of the appellant- petitioner.
(3) In the aforesaid view, the submission is that the order passed by the learned Single Judge which is under appeal before us in this case, is not sustainable. On the other hand, learned State counsel as also the learned counsel representing respondent no.5 Shri Som Kartik Shukla, have vehemently argued that there being no deviation in the method of calculation of quality point marks from the mode provided for the said purpose in the service rules governing the recruitment etc. to the post in question, no interference in this special appeal is warranted for the reason that the order passed by the learned Single Judge does not suffer from any error. Thus, it has been prayed by learned State counsel as also Shri Som Kartik Shukla, that the appeal is liable to be dismissed.
(4) The Court on examining various aspects of the matter passed an order on 21.09.2022 which is extracted hereunder:-
"Subject matter of this special appeal relates to selection to the post of Assistant Teacher (L.T. Grade) in the Government Intermediate College in Lucknow Region.
As submitted by Dr. Sanjai Kumar Singh, learned counsel representing the appellant-petitioner, criteria for selection to the post in question was merit. He has also pointed out that in terms of appendix D appended to the Service Rules governing the service conditions, including the recruitment, merit of each candidate is to be calculated by reckoning quality point marks which are based on a formula as given in appendix D. As per the said formula, quality point marks are to be calculated on the following basis.
Sl. Nos.
Examination Quality Point Marks
1. High School Percentage of marks X 10
2. Intermediate Percentage of marks X 2/10
3. Graduation Percentage of marks X 4/10 The entire controversy revolves around the issue as to how the marks of the Graduation Course through which the petitioner had undergone are to be taken for the purposes of reckoning his quality point marks.
According to the learned counsel for the appellant-petitioner, he had obtained his Graduation Degree from Gujarat University and as per the statement of marks of B.A. First Year Course, he had secured 400 marks out of total marks 700. Similarly, in the B.A. Second Year, he had secured 404 marks out of total Marks of 700. It has also been pointed out by the learned counsel for the appellant-petitioner that so far as the Third Year B.A. Course is concerned, the appellant-petitioner had secured 490 marks out of total aggregate of 700, however, while issuing the marks-sheet of the Graduation, which is available at page 19 of the special appeal, apart from taking into account the marks obtained by the appellant-petitioner in B.A. Third Year, as per the norms of the Gujarat University certain credit marks obtained by the appellant-petitioner in his B.A First Year and Second Year were also reckoned and accordingly the total marks mentioned in the Graduation Marks-sheet of the petitioner is 606 out of 900.
The submission of the learned counsel for the appellant-petitioner further is that in case the percentage of marks obtained by the petitioner is calculated on the basis of marks which are reflected from his Graduation marks-sheet, the percentage of marks obtained by him comes out to be 73.42% and accordingly while reckoning the quality point marks, the percentage of marks in Graduation of the petitioner should be taken to be 73.42%.
However, as per the submission of the learned counsel for the appellant-petitioner, the respondents while reckoning the quality point marks of the appellant-petitioner in the selection in question, had completely ignored the marks as reflected in the Graduation marks-sheet of the petitioner i.e. 606/900 and has rather adopted a method contrary to what is reflected from the said marks-sheet, which is available at page 19 of the special appeal.
As to in what manner, the marks of the appellant-petitioner has been taken to have been obtained by him in his Graduation Course, thus, needs to be ascertained.
There can be another method to calculate the percentage of marks whereby the total marks obtained by the petitioner in each year of his B.A. Course are added and then percentage is calculated on the basis of such aggregate out of the total marks to be calculated by adding the total marks in each year, that is to say, total marks obtained by the appellant-petitioner to be divided by 2100 and thereafter to be multiplied by 100, which will give the percentage of marks.
In the aforesaid view of the matter, we call upon the State Counsel to seek complete instructions in writing and produce the records for ascertaining as to what method was adopted by the respondents in the course of selection to calculate the percentage of marks obtained by the appellant-petitioner in his Graduation Examination.
Learned State Counsel shall also seek instructions as to what was the quality point marks obtained by the last candidate selected in the category of the appellant-petitioner.
Learned State Counsel shall also seek instructions as to whether there was any difference in the method of calculating the quality point marks while selection for B.T.C. Training was made in case of the appellant-petitioner, as is reflected from the document annexed at page 17 of the rejoinder affidavit filed by the appellant-petitioner to the counter affidavit filed by the respondent no.5.
Let copy of the rejoinder affidavit be furnished to the learned State Counsel today itself by the learned counsel representing the appellant-petitioner.
List this case on 26.09.2022."
Pursuant to the said order dated 21.09.2022 certain instructions were obtained by the learned State counsel which are contained in the letter of the Joint Director of Education, Lucknow. According to which the last candidate who was selected to the post in question i.e. post of Assistant Teacher, LT Grade in Government Intermediate Colleges had obtained 72.638 quality point marks. The Court by the said order dated 21.09.2022 had also required the learned State counsel to seek instructions as to whether there was any difference in the method of calculating the quality point marks while selection for BTC training was made in case of the appellant-petitioner. In relation to the said query, it has been stated by the learned State counsel that so far as calculation of quality point marks for selection for BTC training is concerned, in respect of the appellant -petitioner quality point marks were calculated as is reflected from the documents annexed as Page-17 of the Rejoinder affidavit filed by the appellant- petitioner. That means that the method adopted by the State authorities while calculating the quality point marks of the appellant-petitioner for the purposes of selection for BTC training was different than the method/mode adopted for the said purpose in-respect of his candidature in the selection which is the subject matter of this special appeal. It is also clear that while calculating the quality point marks for BTC training the aggregate marks as reflected in the 3rd year final marksheet of BA course of the appellant-petitioner i.e, 606/900 was taken into account.
(5) So far as the selection which is the subject matter of present case is concerned, if the total marks as reflected in the final B.A. marksheet of the appellant-petitioner i.e, 606/900 is taken into account for the purposes of calculating the quality point marks, his quality point marks increases to 73.42. Undisputedly, the last candidate selected in the selection in question had obtained 72.638 quality points and accordingly the appellant-petitioner should have been selected to the post of Assistant Teacher L.T. Grade. The following chart will indicate as to how the quality point marks of the appellant-petitioner shall vary if the same are calculated by taking into account the marks indicated by Gujrat University in the marksheet issued to the appellant-petitioner for B.A. 3rd year course, which is the final year.
Sl. Nos.
Name of Examination Details mentioned in the application made by the petitioner Marks as per calculation made in the selection
1. High School (Percentage of marks /10) 491/700=70.14% Quality point 7.01 491/700=70.14% Quality Point 7.01
2. Intermediate (Percentage of marks X 2/10) 542/700=77.43% Quality point 15.48 542/700=77.43% Quality Point 15.48
3. Graduation (Percentage of marks X 4/10) 606/900=67.33% Quality point 26.93 1294/2100=61.61% Quality Point 24.64
4. Training (A) Principle (B) Functional 12 + 12 Quality Point 24.00 12 + 12 Quality Point 24.00
5. Aggregate Total Quality Point 73.42 Total Quality Point 71.14 (6) The question thus which falls for our consideration is as to whether the method adopted by the respondents for calculating the quality point marks of the appellant-petitioner can be said to be correct and lawful.
(7) The recruitment to the post of the Assistant Teacher, L.T. Grade in the Government High Schools/Intermediate Colleges are governed by the Rules framed under Article 309 of the Constitution of India known as Uttar Pradesh Subordinate Education (Trained Graduate Grade) Service Rules 1982. The 1983 Rules were amended by the State Government by promulgating Uttar Pradesh Subordinate Education (Trained Graduate Grade) Service (3rd Amendment) Rules 2014 which were notified on 28.4.2014. By the said amendment the Appendix-Gha was amended and the amended appendix now provides the method of calculation of quality point marks for the purposes of selection to be made through direct recruitment. The appendix amended by 3rd Amendment Rules is extracted hereinbelow.
Merit Points for Selection by Direct Recruitment Name of Examination - Quality Point Marks 1- High School .......Percentage of marks x 10 2-Intermediate ....... Percentage of marks x 2/10 3- Graduation ........ Percentage of marks x 4/10 Others:
4. Training First Class Second Class Third Class Theory Practical 12 12 06 10 03 03 From a perusal of the afore extracted Appendix-Gha as available in the 1983 Rules which was amended in the year 2014, what we find is that the said appendix though provides for method of calculation of quality point marks, however, the said appendix does not give any indication as to how the aggregate marks obtained by a candidate as awarded by the Examining Body or a University is to be reckoned. The appendix only gives a formula where particular quality point is to be awarded for each qualification and then aggregate of such quality point marks obtained by candidate in each examination is taken to be the final quality points marks obtained by the candidate concerned.
(8) As observed above, this appendix does not in any manner provide for any method as to how the marks obtained by a particular candidate as awarded by the Examining Body such as Secondary Education Board or a University is to be taken into account. In absence of any such stipulation in Appendix-Gha for the purposes of calculating the aggregate marks obtained by a candidate in his degree examination conducted by the University or in his High School or Intermediate Examination conducted by any other Examining Board, we are of the considered opinion that it is the method adopted by the University or the Examining Board for award of aggregate marks which is to be taken into account. Had any such provision for reckoning such marks been available in Appendix-Gha which is appended with the Service Rules 1983, situation would have been different. We do not find any provision in the 1983 Service Rules including in the Appendix-Gha appended thereto which reflects as to how the final marks obtained by a candidate in his educational qualification such as graduation or any other qualification is to be reckoned. At the cost of repetition, we may observe that in absence of any such stipulation in the Service Rules including in Appendix-Gha appended thereto, the method adopted by the University which is the academic body and is responsible for conduct of examination and award of degree, in our considered opinion, alone should be taken into account.
(9) For the reason aforesaid, we are of the opinion that the method of calculation of quality point marks of the petitioner-appellant as adopted by the respondent authorities in the selection for the post of Assistant Teacher in the Government Intermediate College/High School held pursuant to the advertisement dated 28.9.2014, is not sustainable.
(10) At this juncture itself we may also observe that the State authorities while calculating the quality point marks of the appellant-petitioner for the purposes of selection to BTC Training had resorted to the other method of calculation of the quality point marks where the marks indicated by Gujrat University of the appellant-petitioner in his B.A. 3rd year examination was taken into account.
(11) We find that all these relevant aspects of the matter have escaped the attention of learned Single Judge and accordingly we are of the opinion that the special appeal deserves to be allowed.
(12) Hence the prayer of the appellant-petitioner is allowed and accordingly a direction is issued to appoint him on any vacant post of Assistant Teacher-Hindi in a Government High School/Government Inter College. We are conscious of the fact that as a consequence of this direction for appointment of appellant-petitioner, the last candidate selected in the category to which the petitioner belongs, may be ousted. However, having regard to the facts and circumstances of the case and also having considered the fact that the last candidate selected was appointed and has worked on his post for about 5 years and further that so far as inaccurate calculation of quality point marks of the appellant-petitioner is concerned the last selected candidate cannot be saddled with any responsibility, we provide that his appointment shall not be disturbed. We are persuaded to issue this direction in relation to the last selected candidate having regard to the Judgment of Hon'ble Supreme Court in the Case of Vikas Pratap Singh and others vs. State of Chhatisgarh and others, 2013 (14) SCC 494. Paragraph-22 of the report in the case of Vikas Pratap Singh is extracted hereunder:-
"The pristine maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together) has never lost its temper over the centuries and it continues to dwell in spirit and body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or malafide. (See: District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another v. M. Tripura Sundari Devi, (1990) 3 SCC 655, P. Chengalvaraya Naidu v. Jagannath and others, (1994) 1 SCC 1 and Union of India and others v. M. Bhaskaran, 1995 Suppl. (4) SCC 100). It is also settled law that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardizing the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bonafide of the candidate in such appointment and length of service of the candidate after such appointment (See: Vinodan T. and Ors. v. University of Calicut and Ors.,(2002) 4 SCC 726; State of U.P. v. Neeraj Awasthi and Ors. (2006) 1 SCC 667). "
(14) The Special Appeal is, thus, allowed in the aforesaid terms and the order dated 17.04.2017 passed by learned Single Judge is set aside.
(15) There will be no order as to costs.
Order Date :- 25.11.2022 N.PAL