Allahabad High Court
Anand Kumar Verma vs State Of U.P. And 2 Others on 12 March, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved- 01.03.2024 Delivered- 12.03.2024 Neutral Citation No. 2024:AHC:43510 Court No. - 36 Case :- WRIT - A No. - 19005 of 2021 Petitioner :- Anand Kumar Verma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Bharat Bhushan Paul,Saurabh Paul Counsel for Respondent :- C.S.C.,Ram Bilas Yadav Hon'ble Saurabh Shyam Shamshery,J.
1. This is second round of litigation. The petitioner has approach earlier by way of filing a Writ Petition No. 12888/2020 which was disposed of by following order dated 28th September 2021.
"Heard counsel for the parties and perused the record.
The present writ petition has been filed with the following prayers:
"(i) Issue a writ, order or direction in the nature of mandamus directing the respondent No. 3 to allow the counseling of the petitioner and issue appointment letter for the post Assistant Teacher held on 15-10-2020 on the basis of test declared by respondent for the 674 selected candidates in district Agra in which the petitioner was at serial No. 584 (Annexure No. 6 to this writ petition.
(ii) Issue a writ order or direction in the nature of mandamus directing the respondents to reserve the post of Assistant Teacher in pursuance of the counseling held on 15-10-2020 by the respondent No. 3 for the post of Assistant Teacher."
Supplementary affidavit has been filed stating that during the pendency of the writ petition, the petitioner was permitted for counseling and the counseling of the petitioner has taken place on 9.12.2020 in which the petitioner appeared for the counseling.
In view of the fact that the petitioner has already granted counseling, the first prayer made by the petitioner is rendered infructuous, however, with regard to second prayer, the writ petition is disposed off with a direction upon the respondents to consider the case of the petitioner in the light of the petitioner having completed counseling, as such, steps be taken as required to be taken with all expedition preferably within a period of two months from today.
The writ petition stands disposed off."
2. Sri Bharat Bhushan Paul, learned Advocate for petitioner has submitted that petitioner was qualified in Assistant Teacher Recruitment Examination 2019 and was figured in list issued on 12th October 2020 by the respondents and was called for counselling but when he was not allowed to participate, he approached this Court by way of filing above referred petition. During pendency of said writ petition, he was allowed to participate in counselling and as referred above, writ petition was disposed of with a direction to consider the case of petitioner on basis of counselling.
3. In above circumstances, claim of petitioner was considered but it was rejected on a ground that he has passed class 12th from Board of Higher Education, Delhi which is not an eligible qualification for purpose of Assistant Teacher in terms of amendments carried out in Chapter 12 in Intermediate Education Act, 1921.
4. In these circumstances, petitioner approached this Court again by way of filing present writ petition.
5. Learned Advocate for petitioner has submitted that recently this Court has considered similar controversy in Meena Kumari Dubey v. State of U.P. and others, 2024:AHC:31620 wherein above referred amendments were considered to be prospective, without having any adverse effect if a qualification which was earlier existed in the list but later on by way of amendment it was deleted. There is no dispute that earlier Class 12th passed from Board of Higher Education, Delhi was an eligible qualification.
6. Sri Ahish Kumar Singh, learned Advocate for respondents has not disputed about above referred judgement passed by this Court.
7. In these circumstances and that this Court has already considered similar controversy in above referred judgement, case of petitioner is considered. Relevant part thereof is mentioned hereinafter -:
"13. The petitioner has not challenged the aforesaid clause which is specific in regard to case of petitioner that since High School from Nepal is no longer equivalent to High School from State of U.P., therefore, appointment of petitioner was cancelled. The above Communication was issued specifically in regard to ambiguities occurred during appointment for 69000 posts of Assistant Teachers as such Rules of a game were changed after its commencement, but there is a legal hurdle that above referred clause of Communication dated 18.1.2021 is not under challenge in present writ petition.
14. Surprisingly averment of writ petition has though referred Circular dated 18.1.2021, but has vaguely assailed it, even without referring its relevant clause. The relevant page of Circular is even missing. Relevant paragraph 24 of writ petition is reproduced hereinafter:
"24.That so far as circular dated 18.01.2021 of the Director General School Education, U.P., Lucknow is concerned, it has nothing to do with the qualification of High School having acquired by the petitioner by passing School Leaving Certificate Examination conducted by Nepal Government which has already been granted equivalence under Chapter XIV intermediate Examination of U.P. Intermediate Education Act, 1921. Therefore, it appears that the District Basic Education Officer, Sant Kabir Nagar has misinterpreted the circular dated 18.01.2021 of Director General School Education, U.P., Lucknow. The copy of the circular dated 18.01.2021 of the Director General School Education, U.P., Lucknow is being annexed herewith and marked as ANNEXURE NO.16 to this Writ Petition."
15. At stage of rejoinder affidavit, petitioner had a chance to fill the lacuna but has failed to do so, as except that it was mentioned that relevant clause was contrary to law pronounced by a Division Bench, but it was not specifically challenged. Para 9 of rejoinder affidavit is reproduced hereinafter:
"9. That the contents of paragraph NO. 13 of the counter affidavit are vehemently denied, while the contents of paragraph 24 of the writ petition are reiterated, in reply it is hereby submitted that the circular dated 18.01.2021 insofar as it relates to point NO. 15 is against the law pronounced by the Full Bench Judgment of this Hon'ble Court, So far as the relevant page is concerned, it is missing in the circular dated 18.01.2021 due to inadvertence and oversight and there is nothing like the answering respondent has made an averment in para-under-reply the same is missing by the bonafide act which has no bearing upon any concealment."
16. Learned counsel for petitioner has placed reliance on a judgment passed by a Full Bench of this Court in Dhanpal and Others Vs. State of U.P. & Ors. 2013 (4) ESC 2299 (ALL) (FB), wherein following issues were referred:-
" (a) Whether Adhikari Pariksha Certificate issued by the Gurukul Viswavidyalaya, Vrindavan, Mathura, up to the year 2008 i.e. till it was recognized by the U.P. Board of High School and Intermediate Education as equivalent to High School, obtained with English as one of the subject and passed in one year is a valid qualification equivalent to High School, regardless of Gurukul having been declared a fake University by the UGC?
(b) Whether the decision of the division bench in Special Appeal No. 1990 of 2011 dated 13.10.2011 (Indrawati Devi v. State of U.P. and others), which holds that "Adhikari Pariksha" certificate obtained from Gurukul Viswavidyalaya, Vrindavan, Mathura cannot be held to be a valid degree, does not lay down the correct law?"
17. The Full Bench after deliberation, answered the reference in following terms:
"54 In view of the discussion made above, we answer the reference thus:
(a) Adhikari Pariksha Certificate issued by the Gurukul Viswavidyalaya, Vrindavan, Mathura, up to the year 2008 ie. till it was recognised by the U.P. Board of High School and Intermediate Education as equivalent to High School, obtained with English as one of the subject, and passed in one year, is a valid qualification equivalent to High School, regardless of Gurukul having been declared to fake University by the UGC.
(b) The decision of the division bench in Special Appeal No. 1990 of 2011 dated 13.10.2011 (Indrawati Devi V. State of U.P. and others), which holds that "Adhikari Pariksha" certificate obtained from Gurukul Viswavidyalaya, Vrindavan, Mathura cannot be held to be a valid degree, does not lay down the correct law.
Let the papers of this writ petition be placed before the appropriate Court for further orders."
18. Paragraph 53 of Dhanpal (supra) being relevant is also mentioned hereinafter:
"53. In the instant case, the revocation of the Entry No. 30 from Regulation 2 of Chapter XIV was made in deference to the order of this Court in Indrawati Devi's case (supra). From the document enclosed with the compilation, as has been noticed by us in paragraph 27 herein above, it does not appear that the Board carried out any independent exercise to ascertain that Gurukul, as an institution imparting education up to the secondary level, for which it had been accorded recognition, never existed. No material has been brought on record to suggest that Gurukul was a bogus or a fictitious institution. Thus in view of the law noticed herein above, providing retrospectivity to the amendment in the Regulations would be completely unjustified inasmuch as the equivalence earlier accorded to "Adhikari Pariksha", up to the year 2008, by the U.P. Board, in exercise of its power under Section 15 read with Section 7 of the Act, 1921, has conferred rights of enduring character on persons who pursued the course and obtained such certificates, and such right having vested in them cannot be extinguished by mere deletion of Entry No.30 from Regulation 2 of Chapter XIV of the Regulations framed under the Act, 1921, particularly, in absence of any statutory intendment to make it applicable from retrospective effect. Providing retrospectivity to such an amendment would play havoc with the life and career of innumerable persons who, on the strength of Adhikari Pariksha certificate, have pursued and obtained higher qualifications."
19. As referred above, neither amendment nor above referred subsequent circular specify that amendment has retrospective effect. Clause 15 of Circular dated 18.1.2021 does not envisage prospective or retrospective as well as prejudice caused to an existing right or obligation as held in Dhanpal (supra) would not be legal. No opportunity was granted to petitioner to submit his stand before impugned order was passed. Otherwise also rules of game have changed after game was over being adverse to petitioner which is also against settled principles of law.
20. The legal hurdle i.e. petitioner has not challenged Clause 15 of Circular dated 18.1.2021, though material, but in view of Dhanpal (supra), it could be ignored, therefore, basis of impugned order i.e. Clause 15 of Circular dated 18.1.2021 could not held to be enforced retrospectively i.e. could not be enforced in respect of such candidates who have passed Intermediate in State of U.P. after passing School Leaving Certificate from Nepal before the amendment issued by Notification dated 5.3.2014 and undisputedly petitioner has passed School Leaving Certificate from Nepal in 1996 and Intermediate Examination from State of U.P. in 1998 i.e. about 16 years before amendment came into existence, therefore impugned order could not legally survive and is accordingly set-aside and its legal consequence shall follow subject to principles of 'no work no pay."
8. In view of above discussion, this Court is of a considered opinion that this writ petition could be allowed in terms of above referred judgement of Meena Kumar Dubey (supra).
9. As discussed above, effect of the Amendment carried out in the year 2014 would not be implemented retrospectively and the petitioner has passed Senior Secondary Examination in the year 2009 when it was an eligible qualification, therefore, impugned order is set aside and it is directed that the respondents shall proceed further to appoint petitioner, subject to availability of any clear vacant seat.
10. Accordingly, writ petition is allowed.
Order Date :- March 12, 2024 N. Sinha [Saurabh Shyam Shamshery, J.]