Allahabad High Court
Ram Ujagar Mishra vs State Of U.P. Thru Secy.Secondary ... on 19 July, 2018
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 23 Case :- SERVICE SINGLE No. - 23409 of 2016 Petitioner :- Ram Ujagar Mishra Respondent :- State Of U.P. Thru Secy.Secondary Edu.Deptt.Govt.Of Up &Ors. Counsel for Petitioner :- Meenakshi Singh Parihar Counsel for Respondent :- C.S.C.,Virendra Singh with Case :- SERVICE SINGLE No. - 13 of 2014 Petitioner :- Ram Ujagar Mishra Respondent :- State Of U.P. Through Secy. Deptt. Of Secondary Edu. Lko. & Counsel for Petitioner :- Apoorva Tiwari,Meenakshi Singh Parihar,Prakhar Mishra,Shashank Shekhar Parihar Counsel for Respondent :- C.S.C.,Pt S Chandra,R.K. Srivastava,Virendra Singh with Case :- SERVICE SINGLE No. - 7415 of 2014 Petitioner :- Ram Ujagar Mishra Respondent :- State Of U.P. Through Secy. Secondary Edu. Deptt. Lko. & Ors Counsel for Petitioner :- Meenakshi Singh Counsel for Respondent :- C.S.C.,Anurag Srivastava,Pt.S.Chandra,Raj Kr Singh Suryvanshi,Rakesh Kumar Srivastava,Virendra Singh with Case :- SERVICE SINGLE No. - 4016 of 2011 Petitioner :- Smt.Khusnuda Parveen Respondent :- State Of U.P. Thorugh Principal Secy.Madhyamik Edu.Lucknow Counsel for Petitioner :- Farooq Ahmad, Pt.S.Chandra, Virendra Singh Counsel for Respondent :- C.S.C.,Manish Kumar,Nripendra Mishra. With Case :- SERVICE SINGLE No. - 3969 of 2013 Petitioner :- Smt. Khushnuda Parveen Respondent :- The State Of U.P. Thru The Secy.Of Mahdyamik Edu. & Others Counsel for Petitioner :- Pt. S. Chandra Counsel for Respondent :- C.S.C.,Apoorva Tiwari,Shobhit Kumar Hon'ble Irshad Ali, J.
(1) Heard Sri H.G.S. Parihar, learned Senior Counsel assisted by Ms. Minakshi Singh Parihar, learned counsel appearing on behalf of the petitioner (Sri Ram Ujagar Mishra) and learned Standing Counsel appearing on behalf of State-respondents, Sri Virendra Singh, learned counsel appearing on behalf of respondent No.6 (Smt. Khusnuda Parveen) and learned counsel appearing on behalf of respondent No.5.
(2) The matrix of the case is that there is a society registered under the Societies Registration Act, 1860. The society runs and manages an educational institution in the name of Saadat Inter College, Nanpara, District Behraich (hereinafter referred to as the "Institution"). The Institution is recognized under the provisions of U.P. Intermediate Education Act, 1921 and is receiving grant-in-aid from the State Government, therefore, the provisions of U.P. High School and Intermediate Colleges (Payment of Salary to the Teachers and other Employees) Act, 1971 and the provisions of U.P. Secondary Education Services Selection Board Act, 1982 and rules framed thereunder are also applicable to the said Institution.
(3) The Committee of Management of the said Institution comprises of the District Magistrate as ex-officio Chairman, Sub-Divisional Magistrate-Nanpara as ex-officio Vice Chairman and Tehsildar-Nanpara as ex-officio Manager. Sri Ram Ujagar Mishra (the petitioner) was initially appointed on the post of Assistant Teacher (LT. Grade) in the year 1981 on ad-hoc basis and his services were regularized w.e.f. 06.04.1991 vide order dated 02.08.1992.
(4) One Sri Bismillah Khan-Lecturer in Mathematics retired on 30.06.1991 and in consequence thereof the post of Lecturer in Mathematics fell vacant. The Committee of Management vide resolution dated 02.08.1992 decided to promote Sri Ram Ujagar Mishra (the petitioner) on the said post of Lecturer in the Mathematics on ad-hoc basis under 50% promotion quota. The Committee of Management submitted papers to the District Inspector of Schools (for short the ''D.I.O.S.') and the D.I.O.S. vide order dated 15.12.1992 granted approval to the ad-hoc promotion of the petitioner-Sri Ram Ujagar Mishra.
(5) The respondent-Board vide letter dated 20.04.1998 intimated the decision of the Selection Board to the District Inspector of Schools, Bahraich in regard to the regular promotion of Sri Ram Ujagar Mishra (the petitioner) on the post of Lecturer in Mathematics.
(6) The case of the petitioner-Sri Ram Ujagar Mishra is that from the letter dated 20.04.1998, it transpires that the decision of the Board for regular promotion of the petitioner was made in pursuance to a letter of the Deputy Director of Education, Faizabad dated 29.11.1991. The order of the U.P. Secondary Education Services Selection Commission (now ''Board') was communicated by the District Inspector of Schools vide letter dated 27.05.1998 to the respondent No.5 (Committee of Management).
(7) So far as Smt. Khushnuda Parveen (respondent No.6) is concerned, she was selected by U.P. Secondary Education Services Selection Board by direct recruitment and was appointed on the post of Lecturer in Urdu on 07.06.1996. The selection of respondent No.6-Smt. Khusnuda Parveen was made under reserved quota for Scheduled Castes on the basis of caste certificate submitted by her.
(8) The caste certificate of Smt. Khushnuda Parveen (respondent No.6) was found to be invalid by the District Audit Officer, Local Fund Audit Department vide letter dated 26.08.2009. He found that as per the Government Order, the benefit of reservation can be extended only on the basis of caste of a lady before her marriage and she will not get the benefit of reservation of scheduled caste only for the reason that she married a scheduled caste person.
(9) The D.I.O.S. vide letter dated 01.10.2009 required the Manager to cancel the appointment of Smt. Khushnuda Parveen (respondent No.6). When action was not taken, the D.I.O.S. sent a reminder letter dated 05.11.2009 to the Manager to take necessary action and to send the proposal for her removal. The Manager vide letter dated 20.10.2009 sought explanation from the respondent No.6-Smt. Khusnuda Parveen on the issue of reservation. Smt. Khushnuda Parveen (respondent No.6) vide letter dated 26.10.2009 replied submitting that her appointment has been made under General category. Therefore, the Manager did not take any further action in the matter.
(10) The Assistant Director, Local Fund Audit Department, Faizabad region, Faizabad wrote a letter dated 18.04.2011 and sent a copy of the same to the educational authorities to take necessary action with regard to illegal appointment of respondent No.6-Smt. Khusnuda Parveen. As action was not taken for long, the Director of Education issued a letter dated 23.02.2012 to the D.I.O.S. asking reason for delay in taking action against the respondent No.6-Smt. Khusnuda Parveen and called for a report. In spite of letters from senior officer, no action whatsoever was taken against the respondent No.6.
(11) Meanwhile, a dispute in regard to the seniority arose, which was decided by the Joint Director of Education, Faizabad region, Faizabad vide order dated 02.06.2011, wherein the petitioner-Sri Ram Ujagar Mishra was treated to be senior to the respondent No.6-Smt. Khusnuda Parveen.
(12) Sri Shyam Das Maurya, Principal of the said Institution retired on attaining the age of superannuation on 30.06.2011. The Committee of Management passed a resolution on 29.06.2011 resolving to appoint the petitioner-Sri Ram Ujagar Mishra as ad-hoc/officiating Principal of the Institution. Thereafter, Sri Ram Ujagar Mishra was appointed as officiating/ad hoc Principal. The Manager issued a letter to the D.I.O.S. for attestation of the signature of the petitioner-Sri Ram Ujagar Mishra as Principal and also passed order for payment of salary to the petitioner on the post of Principal.
(13) The respondent No.6-Smt. Khusnuda Parveen vide Writ Petition No.4016 of 2011 challenged the order dated 02.06.2011, passed by the Regional Joint Director of Education, Faizabad region, Faizabad deciding the dispute of seniority with the further prayer to handover the charge of the post of Principal of the Institution to her. She further prayed that the order be passed for reverting the petitioner-Sri Ram Ujagar Mishra to the post of Assistant Teacher (LT. Grade) from that of Lecturer. Hon'ble High Court vide order dated 14.07.2011 stayed the order passed by the Regional Joint Director of Education dated 02.06.2011.
(14) On the basis of stay order dated 14.07.2011, the respondent No.6-Smt. Khusnuda Parveen started claiming for joining on the post of Principal on ad-hoc/officiating basis but was not allowed. Thus, she filed Contempt Petition No.3144 of 2011, which was disposed of on 14.02.2013 with a liberty to the respondent No.6 to raise the issue in her writ petition.
(15) The respondent No.6-Smt. Khusnuda Parveen filed another Writ Petition No.41 (S/S) of 2013. The writ petition was finally disposed of vide order dated 27.05.2013 with a direction to the D.I.O.S. to consider and dispose of the representation of respondent No.6. In compliance of the order dated 27.05.2013, passed by this Court, the parties appeared before the D.I.O.S. After hearing the parties, the claim setup by respondent No.6 was rejected by the District Inspector of Schools vide order dated 28.06.2013 by recording finding that since the matter regarding seniority is pending before the Hon'ble Court, thus there is no requirement for any action at this stage.
(16) Smt. Khusnuda Parveen filed Writ Petition No.3969 (S/S) of 2013, challenging the order passed by the District Inspector of Schools on 28.06.2013, wherein no interim order was granted.
(17) The Committee of Management comprising of Tehsildar-Manager, the District Inspector of Schools-Vice President and the Sub-Divisional Magistrate-President, took a decision on 26.12.2014, by which the representation made by the respondent No.6-Smt. Khusnuda Parveen for promotion on the post of Principal on ad-hoc basis was disposed of stating therein that decision will be taken after disposal of the writ petition, which is pending in regard to the post of ad hoc Principal.
(18) The decision taken by the Committee of Management has not been challenged by the respondent No.6-Smt. Khusnuda Parveen before any competent Court of law.
(19) The respondent No.6-Smt. Khusnuda Parveen also approached to the State Government vide letter dated 13.05.2015 wherein 15.05.2015 was fixed for hearing in the matter but no information was given to the petitioner-Sri Ram Ujagar Mishra in regard to any decision taken in the matter at the level of State Government.
(20) The District Inspector of Schools, on telephonic instruction from the Director of Secondary Education, sent a letter dated 17.08.2016, in regard to the dispute on the post of Principal to the Director of Education (Secondary). The Director of Education (Secondary), on the basis of the letter sent by the District Inspector of Schools, has passed the impugned order dated 19.09.2016, by which he has directed to ensure the joining of respondent No.6-Smt. Khusnuda Parveen on the post of ad-hoc/officiating Principal of the Institution in question by exercising power under Section 18 (2) of the U.P. Secondary Education Services Selection Board Act, 1982.
(21) In pursuance to the order of Director, Secondary Education dated 19.09.2016, the District Inspector of Schools has also passed an order on 20.09.2016, whereby he has directed for handing over the charge of ad-hoc Principal to respondent No.6-Smt. Khusnuda Parveen.
(22) Writ Petition No.23409 (S/S) of 2016 has been filed by Sri Ram Ujagar Mishra challenging the order dated 19.09.2016 and consequential order dated 20.09.2016, passed by the Director of Education and the District Inspector of Schools respectively. After hearing, this Court stayed the operation of order dated 19.09.2016 and 20.09.2016 vide order dated 28.12.2016. The Writ Petition No.23409 (S/S) of 2016 is treated to be main writ petition for deciding the controversy involved in the present case.
(23) Writ Petition No.13 (S/S) of 2014 has been filed by Sri Ram Ujagar Mishra. The order of the Regional Joint Director of Education re-determining the seniority, by passing an order dated 17.12.2013, was subject matter of challenge in this petition, in which no interim order was granted and now the same is connected along with the leading writ petition.
(24) Smt. Khusnuda Parveen moved an application before the Manager/Tehsildar for giving placement in the seniority list of 2013-14 at serial No.1, which has been decided by the Committee of Management comprising Tehsildar-Manager, the District Inspector of Schools-Vice President and the Sub-Divisional Magistrate-President and after considering the entire matter recorded that since the matter regarding the seniority and appointment on the post of Principal is pending before this Court, the same will be decided accordingly after the order passed by this Court.
(25) Writ Petition No.7415 (S/S) of 2014 has been filed by Sri Ram Ujagar Mishra challenging the validity of the orders dated 05.04.1996 and 30.05.1996, whereby respondent No.6-Smt. Khusnuda Parveen was selected and appointed as Lecturer in Urdu.
(26) Writ Petition No.4016 (S/S) of 2011 has been filed by Smt. Khusnuda Parveen challenging the order dated 02.06.2011, whereby her representation claiming seniority and prayer for handing over the charge on the post of Principal to her by reverting Sri Ram Ujagar Mishra on the post of Assistant Teacher (LT. Grade) was rejected and seniority determined earlier was held to be valid. In the writ petition, the order determining the seniority dated 02.06.2011 was kept in abeyance.
(27) Writ Petition No.3969 (S/S) of 2013 has been filed by Smt. Khusnuda Parveen challenging the order of the District Inspector of Schools dated 28.06.2013 rejecting her representation, wherein no interim order was granted and the same is also connected along with the leading writ petition No.23409 (S/S) of 2016.
(28) Smt. Khusnuda Parveen has filed Contempt Petition No.3144 of 2011 due to her non joining on the post of officiating Principal and due to non payment of salary on the said post. The contempt petition was dismissed holding that there was no direction regarding the joining and making of payment of salary to her and opportunity was given to her to raise the issue in the writ petition challenging the order dated 02.06.2011 determining the seniority.
(29) Writ Petition No.41 (S/S) of 2013 was filed by Smt. Khusnuda Parveen on the following prayer:
(i) Issue a writ, order or direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties No.3 to 5 i.e. to the District inspector of Schools Bahraich, the District Magistrate Bahraich as the Ex-Officio Chairman and to the Tahsildar of Tahsil Nanpara District Bahraich as the Ex-Officio Manager of the Committee of Management of the Saadat Inter College Nanpara District Bahraich to promote to the petitioner on the post of the ad-hco principal of the college under the mandatory provisions of the Section-18 of the Uttar Pradesh Secondary Education Services Selection Board Act 1982.
(ii) Issue a writ, order or direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties i.e. to the District Inspector of Schools Bahraich to take the necessary steps in the matter and pass the statutory order of ad-hoc promotion of the petitioner on the post of the principal of the Saadat Inter College nanpara District Bahraich under provisions of the Section-18[2] of the Uttar Pradesh Secondary Education Services Selection Board Act 1982, with effect from 01.09.2011 and ensure payment of salary of the petitioner as the principal of the College in the prescribed grade.
(iii) issue a writ, order or direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties to allow to the petitioner to work as the ad-hoc principal of the Saadat Inter College Nanpara District Bahraich and pay the salary of the petitioner as the ad-hoc principal of the college in accordance with the provisions of law with effect from 01-09-2011.
(iv) Issue any other Writ, Order or Direction in favour of the petitioner, which this Hon'ble High Court may deem fit, just and proper under circumstances of this case in the interests of justice.
(v) Allow the instant writ petition of the petitioner with appropriate costs in the interests of justice.
(30) The writ petition was finally disposed of vide judgment and order dated 27.05.2013 directing the District Inspector of Schools to consider the representation filed by Smt. Khusnuda Parveen. After considering her grievance, the D.I.O.S. rejected the representation on the ground that the seniority dispute is still engaging attention of this Court in Writ Petition No.4016 (S/S) of 2011, therefore, there is no justification on the part of the District Inspector of Schools to take decision in the matter.
(31) The writ petitions on the issue were engaging attention of this Court, in spite of that a representation was filed by Smt. Khusnuda Parveen before the Regional Joint Director of Education on 01.11.2012 and the Regional Joint Director of Education, in spite of the fact that in pursuance to the direction issued on 27.05.2013, directed the District Inspector of Schools to decide the issue, which was accordingly decided but in purporting compliance of the judgment and order dated 27.05.2013 the Regional Joint Director of Education held Smt. Khusnuda Parveen to be senior to Sri Ram Ujagar Mishra.
(32) While entertaining the writ petition, this Court was pleased to pass the following order in Writ Petition No.23409 (S/S) of 2016 on 28.09.2016:
"Thus, order dated 19.09.2016, passed by the Director of Secondary Education, U.P., Lucknow as is contained in Annexure No.1 to the writ petition shall remain stayed. The consequential order passed by the District inspector of Schools dated 20.09.2016, as is contained in Annexure No.33 to the writ petition shall also remain stayed."
(33) Learned Senior Counsel appearing on behalf of Sri Ram Ujagar Mishra, assailing the aforesaid orders dated 19.09.2016 and 20.09.2016, has made three submissions:
(I) That the impugned orders have been passed without notice and without affording an opportunity of hearing to Sri Ram Ujagar Mishra either by the Director of Secondary Education or by the District Inspector of Schools, therefore, the orders, being violative of principles of natural justice, are per se illegal.
(II) His next submission is that in the impugned order there is recital that the District Inspector of Schools was directed to appear before the Director of Education (Secondary) with the required information but neither the information was made available nor he appeared before the Director of Secondary Education. The submission of the learned Senior counsel appearing on behalf of Sri Ram Ujagar is that the finding recorded in the order passed by the Director of Secondary Education is based on incorrect statement of fact. He further submits that the District Inspector of Schools vide letter dated 17.08.2006 submitted the report narrating the entire facts, which was ignored while passing the impugned order. Therefore, his submission is that due to non consideration of the report of the District Inspector of Schools, the order suffers from apparent illegality.
(III) He next submitted that since Smt. Khusnuda Parveen has obtained appointment in the college in question on the post of Lecturer in Urdu on the basis of certificate of Scheduled Castes, which was not valid to be considered for the appointment under the reserved category of Scheduled Castes, as the same was obtained after her marriage with the Scheduled Caste person. Therefore, once the appointment of Smt. Khusnuda Parveen is based on the certificate, which was not valid, the impugned order would not have been passed. Therefore, his submission is that due to non consideration of the aforesaid aspect of the matter, the impugned orders vitiate in law.
(34) Further submission of learned Senior Counsel is that so far as the question of seniority is concerned, since Sri Ram Ujagar Mishra was promoted on ad-hoc basis on the post of Lecturer on 16.12.1992 and on the basis of requisition sent for his regular promotion, that was communicated to the Commission in the year 1992 itself, the Commission passed order for regular selection/promotion in the year 1998 after lapse of more than nine years. Thus, Sri Ram Ujagar Mishra should be treated as substantively appointed/promoted Lecturer since 16.12.1992. Therefore, he is entitled for seniority from 16.12.1992 over and above Smt. Khusnuda Parveen appointed in the year 1996.
(35) His next submission is that, at the time of promotion, Sri Ram Ujagar Mishra had not concealed any material fact and, being found eligible and qualified, he was granted promotion. Therefore, after the lapse of so many years, while determining the seniority, the promotion of Sri Ram Ujagar Mishra cannot be challenged Smt. Khusnuda Parveen.
(36) In support of his submission, learned Senior counsel has relied upon certain case laws, which are as follows:
(i) Santosh Kumar Dubey and another Vs. State of U.P. and others [(2010) 1 UPLBEC 156]. In the present judgment it has been held that in case the regular promotion has been granted taking into consideration the ad hoc services rendered by the teacher, then in determination of seniority, the services rendered on ad hoc basis shall not be ignored.
(ii) Secretary, Minor Irrigation Department and others Vs. Narendra Kumar Tripathi [(2015) 11 SCC 80]. In the present judgment, it has been held that while challenging the seniority of an employee, the validity of the appointment cannot be challenged.
The same principles have been followed in the judgments referred herein below:
(i) Vijay Narain Sharma Vs. State of U.P. and others [(1986) UPLBEC 44].
(ii) Sughar Singh Vs. State of U.P. and others [2010 (2) ADJ 214].
(iii) Prem Prakash Vs. State of U.P. and others [2011 (2) ADJ 320].
(iv) Ram Sarup Vs. State of Haryana and others [(1979) 1 SCC 168].
(37) Learned Senior Counsel appearing for Sri Ram Ujagar Mishra has placed reliance upon the following judgments, wherein the Hon'ble Supreme Court as well as this Court have held that the appointment obtained on the basis of Scheduled Castes Certificate by a candidate who does not belong to the said category, the selection and appointment of such candidate is not valid as the same is based on fraud by filing the caste certificate for which he/she is not entitled. Therefore, on the basis of said certificate, a teacher or Government Servant cannot claim seniority over and above a teacher appointed validly in the institution. Therefore, his submission is that the teacher, who has been granted appointment on the basis of fraudulent certificate of Scheduled Castes, has no locus to challenge the validity of the appointment and seniority of Sri Ram Ujagar Mishra, who has been granted promotion on the post of Lecturer, however, Sri Ram Ujagar Mishra has the right to challenge the appointment obtained by fraud by Smt. Khusnuda Parveen:
(i) Valsamnea Paul Vs. Cochin University [AIR 1996 SC 1101].
(ii) Lakhi Ram Vs. State of Haryana [(1981) 2 SCC 674].
(iii) M.S. Jayaraj Vs. Commissioner of Excise, Kerala and others [(2000) 7 SCC 552].
(iv) People's Union for Democratic Rights and others Vs. Union of India and others [(1982} 3 SCC 235].
(v) Dr. R.K. Saraswat Vs. Chancellor [2003 (21) LCD 1144].
(38) Learned Senior Counsel appearing for Sri Ram Ujagar Mishra has further placed reliance on the following judgments, wherein the appointment was obtained on the basis of Scheduled Castes Certificate, which was not valid, wherein the Hon'ble Supreme Court has held that the appointment is void ab initio from the very inception:
(i) R. Vishwanatha Pillai Vs. State of Kerala and others [(2004) 2 SCC 105].
(ii) Bank of India and another Vs. Avinash Mandivikar and others [(2005) 7 SCC 690].
(iii) State of Orissa and another Vs. Bibhisan Kanhar [(2017) 8 SCC 608].
(39) He further placed reliance upon the following Full Bench judgments of this Court, wherein Full Bench of this Court, while deciding the dispute of seniority, has held that in case the seniority has been determined by the Committee of Management and continuing for a considerable period, the same will not be disturbed after a long period :
(i) Smt. Shanti Kunwar Choudhary Vs. The Manager, Committee of Management, Vidyawati Darbari Girls Inter College, Allahabad and others [(1991) 1 UPLBEC 588].
(ii) Dr. Asha Saxena Vs. Smt. S.K. Chaudhary and others [(1991) 17 ALR 267].
(40) Per-contra, Sri Virendra Singh, learned counsel appearing on behalf of Smt. Khusnuda Parveen has made the following submissions:
(i) The orders dated 19.09.2016 and 20.09.2016 do not suffer from any infirmity or illegality and are just and valid orders. The order of the Joint Director of Education dated 17.12.2013, deciding the dispute of seniority and to handover the charge of the post of Principal to Smt. Khusnuda Parveen was intact and no interim order was granted by this Court in the writ petition. Therefore, the order of the Joint Director of Education (Secondary) dated 19.09.2016 cannot be termed to be illegal.
(ii) His next submission is that the promotion of Sri Ram Ujagar Mishra on the post of Lecturer in Mathematics was made dehors the rules applicable at the relevant point of time, therefore, his appointment is void ab initio and is liable to be declared as null and void.
(iii) His further submission is that the seniority is determined from the date of substantive appointment. Smt. Khusnuda Parveen was substantively appointed in the year 1996 while Sri Ram Ujagar Mishra was granted promotion in the year 1998, therefore, Sri Ram Ujagar Mishra is junior to Smt. Khusnuda Parveen and the illegality continuing has been corrected under the impugned orders, therefore, do not require interference by this Court. The writ petition filed by Sri Ram Ujagar Mishra being misconceived, is liable to be dismissed.
(41) I have heard rival contentions advanced by the learned counsel for the parties and perused the material on record, in as much as, the law reports cited by the learned counsel for the parties.
(42) In the Writ Petition No.23409 (S/S) of 2016, which is the leading writ petition, the order dated 19.09.2016, passed by the Director of Secondary Education and the order dated 20.09.2016, passed by the District Inspector of Schools are under challenge. The main ground of challenge is that prior to passing of the impugned orders, Sri Ram Ujagar Mishra has not been provided any opportunity of hearing. In paragraph Nos.51 and 52 of the writ petition, it is stated that the impugned order dated 19.09.2016 and 20.09.2016 have been passed without affording any opportunity of hearing to the petitioner. Reply to the aforesaid paragraphs of the writ petition is given in paragraph Nos.75 and 76 of the counter affidavit, wherein there is no specific denial of the statement of fact made in the aforesaid paragraphs of the writ petition.
(43) It is well established law that if an order has consequences to take rights from an individual, then under the doctrine of legitimate expectation, he should be provided an opportunity of hearing prior to passing of the order. In the present case, the petitioner-Sri Ram Ujagar Mishra has been deprived to hold the post of officiating Principal. Due to non providing of opportunity of hearing, great prejudice has been caused to the petitioner to put up his claim before the respondents in regard to his entitlement to hold the post.
(44) In view of the fact that there is no denial regarding the statement of fact made in paragraph Nos.75 and 76 of the writ petition in regard to providing of opportunity of hearing to Sri Ram Ujagar Mishra and on perusal of the impugned orders dated 19.09.2016 and 20.09.2016, it transpires that any notice or opportunity of hearing was not provided to Sri Ram Ujagar Mishra. Therefore, this Court holds that the impugned orders dated 19.09.2016 and 20.09.2016 have been passed in utter disregard of the principles of natural justice. Accordingly, the orders dated 19.09.2016 and 20.09.2016 are hereby set-aside. The Writ Petition No.23409 (S/S) of 2016 succeeds and is allowed.
(45) In regard to the challenge of an order of Regional Joint Director of Education dated 17.12.2013 in Writ Petition No.13 (S/S) of 2014, redetermining the seniority of the petitioner-Sri Ram Ujagar Mishra and respondent No.6-Smt. Khusnuda Parveen, submission of learned counsel for the petitioner is that the Regional Joint Director of Education has nowhere considered that since 1996 the petitioner was held to be senior to the respondent No.6 and the same was not challenged by respondent No.6 till 30.06.2011. When the petitioner was handed over the charge of the post of officiating Principal being placed in the seniority list at Serial No.1, the respondent No.6 came forward to challenge the placement of the petitioner in the seniority list. Therefore, the submission of learned counsel for the petitioner is that long standing seniority cannot be challenged at such a belated stage. In support of his submission, he relied upon a Full Bench judgment in the case of Dr. Asha Saxena Vs. Smt. S.K. Chaudhary (Supra), wherein this Court has recorded the finding in the following manner:
"19. For the reasons stated above, in our opinion, firstly the provisions of Clause 3 (1)(bb) of Chapter II are not retrospective in operation and, in our opinion, the view on this question taken in the case of Radhey Shyam Pandey v. Dist. Inspector of Schools 1983 UPLBEC 297 does not lay down the correct law. If that be so, the controversy regarding seniority of the three lecturers was determined by the Managing Committee on 29.4.1976. The aforesaid seniority list had remained in existence since then. The argument raised by the learned counsel for Dr. Asha Saxena that she got a right to file objections only when the seniority list was prepared in the year 1985-86 is not tenable. This argument is also not tenable because it has come on the record that the seniority list gradewise was prepared even earlier to the year 1985 and no objection had been filed. The law is well settled that the Court will not interfere with a seniority list which had remained in existence for a long time and which had become final. In the present case the Management had determined the seniority on 29.4.1976. This decision had been taken after affording opportunity to Dr. Asha Saxena. She did not file any appeal against the decision of the Committee of Management even though an appeal may have been preferred. Objections by Dr. Asha Saxena had been filed after a lapse of nearly 15 years. In the objections, which have been filed an Annexure "3" to the writ petition, of Dr. Asha Saxena, she has not taken a ground that seniority list was not prepared every year. The only objection raised was that she did not know about the insertion of provisions of Section 3(l)(bb) in Chapter II and she filed the objections after coming to know of the aforesaid provisions. The seniority list has been existing since the year 1975-76 and we are not prefared to quash seniority list after a lapse of nearly 15 years. The Supreme Court in the case of Malcom Lawrence Cecil D'Souza v. Union of India A.I.R. 1975 SC 1269 = 1975 LIC 816 (Paras 8 and 9) has held:
"The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971. The petitioner, in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in the year 1971 in pursuance of the decision of this Court in Karnik's case, AIR 1970 SC 2092 (supra), would not cloth the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority fist of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting one's seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent, ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress.
Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of seniority. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of the party who has during the intervening period chosen to keep quiet. Baking of old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
(46) On perusal of the impugned order dated 17.12.2013 and the judgments relied upon by learned counsel for the parties, it is established that the Full Bench of this Court has recorded that long standing seniority cannot be disturbed to create chaos in the institution. The petitioner-Sri Ram Ujagar Mishra is continuing to be senior in the institution since 1996, which has not been challenged by the teachers working in the institution including Smt. Khusnuda Parveen, therefore, the ratio of the judgment relied upon by learned counsel for the petitioner is fully applicable to the facts and circumstances of the present case. In view of that, the respondent No.6-Smt. Khusnuda Parveen cannot be allowed to challenge the seniority of the petitioner-Sri Ram Ujagar Mishra after lapse of almost 15 years. The Regional Joint Director of Education, while passing the impugned order dated 17.12.2013, has nowhere considered this aspect of the matter. Therefore, due to non consideration of the aforesaid aspect of the matter, the order of Regional Joint Director of Education vitiates in law and is liable to be set-aside. Accordingly, the order dated 17.12.2013, is hereby set-aside. The Writ Petition No.13 (S/S) of 2014 succeeds and is allowed.
(47) The petitioner-Ram Ujagar Mishra has challenged the validity of the appointment of respondent No.6-Smt. Khusnuda Parveen and has challenged the orders dated 05.04.1996 and 30.05.1996, whereby the respondent No.6 was selected and appointed as Lecturer in Urdu. Challenging the aforesaid two orders, learned Senior Counsel appearing on behalf of the petitioner submits that the appointment of the respondent No.6- Smt. Khusnuda Parveen was made on the basis of forged and fabricated certificate obtained after the marriage with the person who belongs to the Scheduled Caste category. Therefore, the selection on the basis of said certificate cannot be termed to be valid selection. Therefore, his submission is that the appointment being based on in-genuine certificate, which has been obtained by suppression of material fact, is de hors the rules, thus, the same is void ab initio. His further submission is that the selection and appointment obtained by playing fraud can be challenged at any stage. The petitioner-Sri Ram Ujagar Mishra is a most aggrieved party in view of the fact that the respondent No.6- Smt. Khusnuda Parveen is challenging the placement of the petitioner on the post of officiating Principal.
(48) The Writ Petition No.7415 (S/S) of 2014 filed by the petitioner-Sri Ram Ujagar Mishra challenging the orders dated 05.04.1996 and 30.05.1996 was connected along with record of the Writ Petition No.23409 (S/S) of 2016. This Court while examining the validity of the appointment of Smt. Khusnuda Parveen in the connected matter, summoned the original records from U.P. Secondary Education Services Selection Board, Alenganj, Allahabad and after perusal of the record, passed the order on 21.09.2017, which is being quoted below:
"The original records have been produced which indicate that the petitioner was selected against the reserved category of Scheduled Caste and not under the General Category.
Let an affidavit be filed by the Commission annexing therewith the relevant documents.
List this case on 06.10.2017."
(49) On perusal of the order passed by this Court on 21.09.2017 and the submission advanced by learned counsel for the parties, it is well established that Smt. Khusnuda Parveen was selected against reserved category of Scheduled Caste and not under the General category. It is not disputed by learned counsel for respondent No.6- Smt. Khusnuda Parveen that the certificate of Scheduled Caste category was issued in her favour after marriage with the person of Scheduled Caste category. It is also not disputed that the respondent No.6 is a Muslim lady, who does not belongs to the Scheduled Caste category.
(50) In regard to the locus of the petitioner-Sri Ram Ujagar Mishra to challenge the selection and appointment of respondent No.6-Smt. Khusnuda Parveen, learned counsel for the petitioner submits that at this stage the petitioner is the aggrieved party. Therefore, he has right to challenge the selection and appointment of respondent No.6 obtained on the basis of fraudulent certificate. In this regard, he placed reliance upon the following judgments:
i) AIR 1996 SC 1101, Valsamnea Paul Vs. Cochin University; paragraph Nos.33, 34, 36 and 37:
"33. However, the question is : Whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be? It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and was sought to bring them in the mainstream of the nation's life by providing them opportunities and facilities.
34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu and R. Chandevarappa v. State of Karnataka , this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo have had same the handicaps, and must have been subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) and 16(4), as the case may be. Acquisition of the Status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.
36. The recognition of the appellant as a member of the Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4), for the reason that she, as a member of the forward caste, had an advantageous start in life and after her completing education and becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class.
37. The learned single Judge and the Division Bench in Dr. Kunjamma's case proceeded solely on basis of Canon Law, celebration of the marriage in accordance with Latin Catholic rites and acceptance of her as member of that community. Unfortunately they did not advert to the constitutional mandate adverted to hereinbefore. Consequently, the learned single Judge and the Division Bench did not correctly decide the law. Equally, in Khazan Singh's case the learned single Judge of the Delhi High Court too did not lay the law correctly. The Full Bench, for the aforesaid reasons, had rightly concluded that the appellant is not entitled to the benefit of reservation under Article 16(4) as a lecturer which post was reserved for the backward class Latin Catholic community."
ii) (1981) 2 SCC 674, Lakhi Ram Vs. State of Haryana; paragraph Nos.1 and 2:
"1. The only ground on which the writ petition filed by the appellant has been dismissed by the High Court is that the appellant has no locus stand to maintain the writ petition. The appellant filed the writ petition challenging the action of the Government expunging the adverse remarks made in the annual confidential report of respondent No. 6. The High Court took the view that the appellant was not entitled to complain against the expungement of adverse remarks made in the confidential report of another officer. But this view is, in our opinion, erroneous because the effect of expungement of adverse remarks in the confidential report of respondent No. 6 is to prejudice the chances of promotion of the appellant and if the appellant is able to show that the expungement of the remakes was illegal and invalid, the adverse remarks would continue to remain in the confidential report of respondent No. 6 and that would improve the chances of promotion of the appellant vis-a-vis respondent No. 6. The appellant was, therefore, clearly entitled to show that the Government acted beyond the scope of its power in expunging the adverse remarks in the confidential report of respondent No. 6 and that the expungement of the adverse remarks should be can celled. The appellant had, in the circumstances, locus stand to maintain the writ petition and the High Court was in error in rejecting it on the ground that the appellant was not entitled to maintain the writ petition.
2. This was the reason why we allowed the appeal and, setting aside the Order of dismissal passed by the High Court, remanded the writ petition to the High Court for disposal on merits."
iii) (2000) 7 SCC 552, M.S. Jayaraj Vs. Commissioner of Excise, Kerala and others; paragraph Nos.12, 13 and 14:
"12. In this context we noticed that this court has changed from the earlier strict interpretation regarding locus standi as adopted in Nagar Rice & Flour Mills and ors. vs. N. Teekappa Gowda & Bros. and ors.{1970(1) SCC 575} and Jasbhai Motibhai Desai vs. Roshan Kumar Haji Bashir Ahmed & ors.{1976(1) SCC 671} and a much wider convass has been adopted in later years regarding a persons entitlement to move the High Court involving writ jurisdiction. A four Judge Bench in Jasbhai Motibhai Desai (supra) pointed out three categories of persons vis-à-vis the locus standi: (1) a person aggrieved; (2) a stranger; (3) a busybody or a meddlesome interloper. Learned Judges in that decision pointed out that any one belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The Judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. Then their Lordships observed the following: (SCC p.683, para 38)
38. The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of persons aggrieved. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be persons aggrieved.
13. A recent decision delivered by a two Judge Bench of this Court (of which one of us is a party Sethi, J.) in Chairman Railway Board & ors. vs. Chandrima Das & ors. {2000 (2) SCC 465} after making a survey of the later decisions held thus: (SCC pp. 478-79, para 17)
17. In the context of public interest litigation, however, the Court in its various judgments has given the widest amplitude and meaning to the concept of locus standi. In Peoples Union for Democratic Rights v. Union of India {1982 (3) SCC 235} it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to court. [See also Bandhua Mukti Morcha v. Union of India {1984 (3) SCC 161} and State of H.P. v. A Parent of a Student of Medical College {1985 (3) SCC 169} on the right to approach the court in the realm of public interest litigation.] In Bangalore Medical Trust v. B.S. Muddappa {1991(4) SCC 54} the Court held that the restricted meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation. The Court further observed that public spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi of the absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere busybody.
14. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits."
iv) (1982) 3 SCC 235, People's Union for Democratic Rights & others Vs. Union of India and others; paragraph Nos.2 and 9:
"2. Before we proceed to deal with the facts giving rise to this writ petition, we may repeat what we have said earlier in various orders made by us from time to time dealing with public interest litigation. We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their purses by exploiting the consuming public, have the 'chamars' belonging to the lowest strata of society no Fundamental Right to earn an honest living through their sweat and toil ? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right to exploit is upheld against the government under the label of Fundamental Right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But, if the Fundamental Right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do not exist for the vast masses of our people. Large numbers of men, women and children who constitute the bulk of our population are today living a sub-human existence in conditions of abject poverty: utter grinding poverty has broken their back and sapped their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce ? This was brought out forcibly by W. Paul Gormseley at the Silver Jubilee Celebrations of the Universal Declaration of Human Rights at the Banaras Hindu University:
"Since India is one of those countries which has given a pride of place to the basic human rights and freedoms in its Constitution in its chapter on Fundamental Rights and on the Directive Principles of State Policy and has already completed twenty-five years of independence, the question may be raised whether or not the Fundamental Rights enshrined in our Constitution have any meaning to the millions of our people to whom food, drinking water, timely medical facilities and relief from disease and disaster, education and job opportunities still remain unavoidable. We, in India, should on this occasion study the Human Rights declared and defined by the United Nations and compare them with the rights available in practice and secured by the law of our country."
The only solution for making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights. There is indeed close relationship between civil and political rights on the one hand and economic, social and cultural rights on the other and this relationship is so obvious that the International Human Rights Conference in Tehran called by the General Assembly in 1968 declared in a final proclamation:
"Since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible."
Of course, the task of restructuring the social and economic order so that the social and economic rights become a meaningful reality for the poor and lowly sections of the community is one which legitimately belongs to the legislature and the executive, but mere initiation of social and economic rescue programmes by the executive and the legislature would not be enough and it is only through multidimensional strategies including public interest litigation that these social and economic rescue programmes can be made effective. Public interest litigation, as we conceive it, is essentially a co-operative or collaborative effort on the part of the petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as the petitioner who brings the public interest litigation before the Court. The state or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or the public authority.
9. The first preliminary objection raises the question of locus standi of the petitioners to maintain the writ petition. It is true, that the complaint of the petitioners in the writ petition is in regard to the violations of the provisions of various labour laws designed for the welfare of workmen and therefore from a strictly traditional point of view, it would be only the workmen whose legal rights are violated who would be entitled to approach the court for judicial redress. But the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by this Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo-Saxon System of jurisprudence have been broken and a new dimension has been given to the doctrine of locus standi which has revolutionised the whole concept of access to justice in a way not known before to the Western System of jurisprudence. This Court has taken the view that, having regard to the peculiar socioeconomic conditions prevailing in the country where there is, considerable poverty, illiteracy and ignorance obstructing and impeding accessibility to the judicial process, it would result in closing the doors of justice to the poor and deprived sections of the community if the traditional rule of standing evolved by Anglo-Saxon jurisprudence that only a person wronged can sue for judicial redress were to be blindly adhered to and followed, and it is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may became easily available to the lowly and the lost. It has been held by this Court in its recent judgment in the Judges Appointment and Transfer case, in a major break-through which in the years to come is likely to impart new significance and relevance to the judicial system and to transform it into as instrument of socio-economic change, that where a person or class of persons to whom legal injury is caused or legal wrong is done is by reason of poverty, disability or socially or economically disadvantaged position not able to approach the Court for judicial redress, any member of the public acting bona fide and not out of any extraneous motivation may move the Court for judicial redress of the legal injury or wrong suffered by such person or class of persons and the judicial process may be set in motion by any public spirited individual or institution even by addressing a letter to the court. Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of poverty, disability or socially or economically disadvantaged position are unable to approach the court and the court is moved for this purpose by a member of a public by addressing a letter drawing the attention of the court to such legal injury or legal wrong, court would cast aside all technical rules of procedure and entertain the letter as a writ petition on the judicial side and take action upon it. That is what has happened in the present case. Here the workmen whose rights are said to have been violated and to whom a life of basic human dignity has been denied are poor, ignorant, illiterate humans who, by reason of their poverty and social and economic disability, are unable to approach the courts for judicial redress and hence the petitioners, have under the liberalised rule of standing, locus standi to maintain the present writ petition espousing the cause of the workmen. It is not the case of the respondents that the petitioners are acting mala fide or out of extraneous motives and in fact the respondents cannot so allege, since the first petitioner is admittedly an organisation dedicated to the protection and enforcement of Fundamental Rights and making Directive Principles of State Policy enforceable and justiciable. There can be no doubt that it is out of a sense of public service that the present litigation has been brought by the petitioners and it is clearly maintainable."
v) 2003 (21) LCD 1144, Dr. R.K. Saraswat Vs. Chancellor; paragraphs Nos.33, 34 and 35:
"33. The Constitution Bench of the Hon'ble Supreme Court in State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12, held that the existence of a legal right in favour of the writ petitioner is the foundation for the exercise of jurisdiction under Article 226 of the Constitution. In Kalyan Singh Vs. State of U.P. & ors., AIR 1962 SC 1183, the Hon'ble Apex Court enunciated the proposition that the right to maintain a writ postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested. The existence of a legal right is a condition precedent to approach the Court/ Tribunal. (Vide Calcutta Gas Co. (Proprietary) Ltd. Vs. State of West Bengal & ors., AIR 1962 SC 1044; Mani Subrat Jain & ors. Vs. State of Haryana, AIR 1977 SC 276; State of Kerala Vs. Smt. A. Lakshmikutty, AIR 1987 SC 331; State of Kerala Vs. K.G., Madhavan Pillai & ors., AIR 1989 SC 49; Rajendra Singh Vs. State of M.P. & ors., AIR 1996 SC 2736; and Ravi Lakshmibai Akshetriya Gramin Bank Vs. Chand Bihari Kapoor & ors., (1998) 7 SCC 469).
34. The term "person aggrieved" was considered and explained in Re Sidebotham, 1880 (14) Ch.D. 458, observing as under:-
"The words ''person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A ''person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."
35. In Nagar Rice & Flour Mills Vs. N. Teekappa Gowda & Bros, AIR 1971 SC 246 and Jasbhai Motibhai Desai Vs. Roshan Kumar, AIR 1976 SC 578 there has been strict interpretation regarding locus standi as it had been held therein that a rival businessman cannot have any grievance against the grant of promotion permitting the installation on a new site. However, that interpretation had subsequently been diluted and wherever it is found that an order which cannot be sustained in the eyes of law, if challenged, the Court may entertain the petition without insisting on the issue of locus standi. (Vide M/S Jayraj Vs. Commissioner of Excise Kerala & ors, 2000 (7) SCC 552)."
(51) On perusal of the relevant paragraphs of the law reports referred hereinabove, it is evident that the respondent No.6- Smt. Khusnuda Parveen has obtained appointment on the basis of certificate obtained by fraudulent exercise. The fraud and manipulation in getting employment can be challenged at any stage. Therefore, on the dispute created by respondent No.6-Smt. Khusnuda Parveen, the petitioner-Sri Ram Ujagar Mishra has right to challenge the selection and appointment of respondent No.6.
(52) The respondent No.6-Smt. Khusnuda Parveen has claimed appointment under General category. The aforesaid fact is not established from the records, which were produced before this Court. After examining the aforesaid records, this Court recorded finding that the selection and appointment of respondent No.6-Smt. Khusnuda Parveen was made under the Reserved category of Scheduled Caste and not under the General category. In support of the submission advanced, learned counsel for the petitioner relied upon the following judgments:
i) (2004) 2 SCC 105, R. Vishwanatha Pillai Vs. State of Kerala and others; paragraph No.15:
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all."
ii) (2005) 7 SCC 690, Bank of India and another Vs. Avinash Mandivikar and others; paragraph Nos.6, 7, 11 and 12:
"6. Respondent no.1-employee obtained appointment in the service on the basis that he belonged to Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eyes of law. There is absolutely no justification for his claim in respect of post he usurped, as the same was meant for reserved candidate.
7. It was urged by learned counsel for the respondent no.1-employee that there was no fraud practiced and it was, in fact, under a bona fide belief that the claim was made and there is no finding about any fraud A.F.R. Court No. - 23 Case :- SERVICE SINGLE No. - 23409 of 2016 Petitioner :- Ram Ujagar Mishra Respondent :- State Of U.P. Thru Secy.Secondary Edu.Deptt.Govt.Of Up &Ors.
Counsel for Petitioner :- Meenakshi Singh Parihar Counsel for Respondent :- C.S.C.,Virendra Singh with Case :- SERVICE SINGLE No. - 13 of 2014 Petitioner :- Ram Ujagar Mishra Respondent :- State Of U.P. Through Secy. Deptt. Of Secondary Edu. Lko. & Counsel for Petitioner :- Apoorva Tiwari,Meenakshi Singh Parihar,Prakhar Mishra,Shashank Shekhar Parihar Counsel for Respondent :- C.S.C.,Pt S Chandra,R.K. Srivastava,Virendra Singh with Case :- SERVICE SINGLE No. - 7415 of 2014 Petitioner :- Ram Ujagar Mishra Respondent :- State Of U.P. Through Secy. Secondary Edu. Deptt. Lko. & Ors Counsel for Petitioner :- Meenakshi Singh Counsel for Respondent :- C.S.C.,Anurag Srivastava,Pt.S.Chandra,Raj Kr Singh Suryvanshi,Rakesh Kumar Srivastava,Virendra Singh with Case :- SERVICE SINGLE No. - 4016 of 2011 Petitioner :- Smt.Khusnuda Parveen Respondent :- State Of U.P. Thorugh Principal Secy.Madhyamik Edu.Lucknow Counsel for Petitioner :- Farooq Ahmad, Pt.S.Chandra, Virendra Singh Counsel for Respondent :- C.S.C.,Manish Kumar,Nripendra Mishra.
With Case :- SERVICE SINGLE No. - 3969 of 2013 Petitioner :- Smt. Khushnuda Parveen Respondent :- The State Of U.P. Thru The Secy.Of Mahdyamik Edu. & Others Counsel for Petitioner :- Pt. S. Chandra Counsel for Respondent :- C.S.C.,Apoorva Tiwari,Shobhit Kumar Hon'ble Irshad Ali, J.
(1) Heard Sri H.G.S. Parihar, learned Senior Counsel assisted by Ms. Minakshi Singh Parihar, learned counsel appearing on behalf of the petitioner (Sri Ram Ujagar Mishra) and learned Standing Counsel appearing on behalf of State-respondents, Sri Virendra Singh, learned counsel appearing on behalf of respondent No.6 (Smt. Khusnuda Parveen) and learned counsel appearing on behalf of respondent No.5.
(2) The matrix of the case is that there is a society registered under the Societies Registration Act, 1860. The society runs and manages an educational institution in the name of Saadat Inter College, Nanpara, District Behraich (hereinafter referred to as the "Institution"). The Institution is recognized under the provisions of U.P. Intermediate Education Act, 1921 and is receiving grant-in-aid from the State Government, therefore, the provisions of U.P. High School and Intermediate Colleges (Payment of Salary to the Teachers and other Employees) Act, 1971 and the provisions of U.P. Secondary Education Services Selection Board Act, 1982 and rules framed thereunder are also applicable to the said Institution.
(3) The Committee of Management of the said Institution comprises of the District Magistrate as ex-officio Chairman, Sub-Divisional Magistrate-Nanpara as ex-officio Vice Chairman and Tehsildar-Nanpara as ex-officio Manager. Sri Ram Ujagar Mishra (the petitioner) was initially appointed on the post of Assistant Teacher (LT. Grade) in the year 1981 on ad-hoc basis and his services were regularized w.e.f. 06.04.1991 vide order dated 02.08.1992.
(4) One Sri Bismillah Khan-Lecturer in Mathematics retired on 30.06.1991 and in consequence thereof the post of Lecturer in Mathematics fell vacant. The Committee of Management vide resolution dated 02.08.1992 decided to promote Sri Ram Ujagar Mishra (the petitioner) on the said post of Lecturer in the Mathematics on ad-hoc basis under 50% promotion quota. The Committee of Management submitted papers to the District Inspector of Schools (for short the ''D.I.O.S.') and the D.I.O.S. vide order dated 15.12.1992 granted approval to the ad-hoc promotion of the petitioner-Sri Ram Ujagar Mishra.
(5) The respondent-Board vide letter dated 20.04.1998 intimated the decision of the Selection Board to the District Inspector of Schools, Bahraich in regard to the regular promotion of Sri Ram Ujagar Mishra (the petitioner) on the post of Lecturer in Mathematics.
(6) The case of the petitioner-Sri Ram Ujagar Mishra is that from the letter dated 20.04.1998, it transpires that the decision of the Board for regular promotion of the petitioner was made in pursuance to a letter of the Deputy Director of Education, Faizabad dated 29.11.1991. The order of the U.P. Secondary Education Services Selection Commission (now ''Board') was communicated by the District Inspector of Schools vide letter dated 27.05.1998 to the respondent No.5 (Committee of Management).
(7) So far as Smt. Khushnuda Parveen (respondent No.6) is concerned, she was selected by U.P. Secondary Education Services Selection Board by direct recruitment and was appointed on the post of Lecturer in Urdu on 07.06.1996. The selection of respondent No.6-Smt. Khusnuda Parveen was made under reserved quota for Scheduled Castes on the basis of caste certificate submitted by her.
(8) The caste certificate of Smt. Khushnuda Parveen (respondent No.6) was found to be invalid by the District Audit Officer, Local Fund Audit Department vide letter dated 26.08.2009. He found that as per the Government Order, the benefit of reservation can be extended only on the basis of caste of a lady before her marriage and she will not get the benefit of reservation of scheduled caste only for the reason that she married a scheduled caste person.
(9) The D.I.O.S. vide letter dated 01.10.2009 required the Manager to cancel the appointment of Smt. Khushnuda Parveen (respondent No.6). When action was not taken, the D.I.O.S. sent a reminder letter dated 05.11.2009 to the Manager to take necessary action and to send the proposal for her removal. The Manager vide letter dated 20.10.2009 sought explanation from the respondent No.6-Smt. Khusnuda Parveen on the issue of reservation. Smt. Khushnuda Parveen (respondent No.6) vide letter dated 26.10.2009 replied submitting that her appointment has been made under General category. Therefore, the Manager did not take any further action in the matter.
(10) The Assistant Director, Local Fund Audit Department, Faizabad region, Faizabad wrote a letter dated 18.04.2011 and sent a copy of the same to the educational authorities to take necessary action with regard to illegal appointment of respondent No.6-Smt. Khusnuda Parveen. As action was not taken for long, the Director of Education issued a letter dated 23.02.2012 to the D.I.O.S. asking reason for delay in taking action against the respondent No.6-Smt. Khusnuda Parveen and called for a report. In spite of letters from senior officer, no action whatsoever was taken against the respondent No.6.
(11) Meanwhile, a dispute in regard to the seniority arose, which was decided by the Joint Director of Education, Faizabad region, Faizabad vide order dated 02.06.2011, wherein the petitioner-Sri Ram Ujagar Mishra was treated to be senior to the respondent No.6-Smt. Khusnuda Parveen.
(12) Sri Shyam Das Maurya, Principal of the said Institution retired on attaining the age of superannuation on 30.06.2011. The Committee of Management passed a resolution on 29.06.2011 resolving to appoint the petitioner-Sri Ram Ujagar Mishra as ad-hoc/officiating Principal of the Institution. Thereafter, Sri Ram Ujagar Mishra was appointed as officiating/ad hoc Principal. The Manager issued a letter to the D.I.O.S. for attestation of the signature of the petitioner-Sri Ram Ujagar Mishra as Principal and also passed order for payment of salary to the petitioner on the post of Principal.
(13) The respondent No.6-Smt. Khusnuda Parveen vide Writ Petition No.4016 of 2011 challenged the order dated 02.06.2011, passed by the Regional Joint Director of Education, Faizabad region, Faizabad deciding the dispute of seniority with the further prayer to handover the charge of the post of Principal of the Institution to her. She further prayed that the order be passed for reverting the petitioner-Sri Ram Ujagar Mishra to the post of Assistant Teacher (LT. Grade) from that of Lecturer. Hon'ble High Court vide order dated 14.07.2011 stayed the order passed by the Regional Joint Director of Education dated 02.06.2011.
(14) On the basis of stay order dated 14.07.2011, the respondent No.6-Smt. Khusnuda Parveen started claiming for joining on the post of Principal on ad-hoc/officiating basis but was not allowed. Thus, she filed Contempt Petition No.3144 of 2011, which was disposed of on 14.02.2013 with a liberty to the respondent No.6 to raise the issue in her writ petition.
(15) The respondent No.6-Smt. Khusnuda Parveen filed another Writ Petition No.41 (S/S) of 2013. The writ petition was finally disposed of vide order dated 27.05.2013 with a direction to the D.I.O.S. to consider and dispose of the representation of respondent No.6. In compliance of the order dated 27.05.2013, passed by this Court, the parties appeared before the D.I.O.S. After hearing the parties, the claim setup by respondent No.6 was rejected by the District Inspector of Schools vide order dated 28.06.2013 by recording finding that since the matter regarding seniority is pending before the Hon'ble Court, thus there is no requirement for any action at this stage.
(16) Smt. Khusnuda Parveen filed Writ Petition No.3969 (S/S) of 2013, challenging the order passed by the District Inspector of Schools on 28.06.2013, wherein no interim order was granted.
(17) The Committee of Management comprising of Tehsildar-Manager, the District Inspector of Schools-Vice President and the Sub-Divisional Magistrate-President, took a decision on 26.12.2014, by which the representation made by the respondent No.6-Smt. Khusnuda Parveen for promotion on the post of Principal on ad-hoc basis was disposed of stating therein that decision will be taken after disposal of the writ petition, which is pending in regard to the post of ad hoc Principal.
(18) The decision taken by the Committee of Management has not been challenged by the respondent No.6-Smt. Khusnuda Parveen before any competent Court of law.
(19) The respondent No.6-Smt. Khusnuda Parveen also approached to the State Government vide letter dated 13.05.2015 wherein 15.05.2015 was fixed for hearing in the matter but no information was given to the petitioner-Sri Ram Ujagar Mishra in regard to any decision taken in the matter at the level of State Government.
(20) The District Inspector of Schools, on telephonic instruction from the Director of Secondary Education, sent a letter dated 17.08.2016, in regard to the dispute on the post of Principal to the Director of Education (Secondary). The Director of Education (Secondary), on the basis of the letter sent by the District Inspector of Schools, has passed the impugned order dated 19.09.2016, by which he has directed to ensure the joining of respondent No.6-Smt. Khusnuda Parveen on the post of ad-hoc/officiating Principal of the Institution in question by exercising power under Section 18 (2) of the U.P. Secondary Education Services Selection Board Act, 1982.
(21) In pursuance to the order of Director, Secondary Education dated 19.09.2016, the District Inspector of Schools has also passed an order on 20.09.2016, whereby he has directed for handing over the charge of ad-hoc Principal to respondent No.6-Smt. Khusnuda Parveen.
(22) Writ Petition No.23409 (S/S) of 2016 has been filed by Sri Ram Ujagar Mishra challenging the order dated 19.09.2016 and consequential order dated 20.09.2016, passed by the Director of Education and the District Inspector of Schools respectively. After hearing, this Court stayed the operation of order dated 19.09.2016 and 20.09.2016 vide order dated 28.12.2016. The Writ Petition No.23409 (S/S) of 2016 is treated to be main writ petition for deciding the controversy involved in the present case.
(23) Writ Petition No.13 (S/S) of 2014 has been filed by Sri Ram Ujagar Mishra. The order of the Regional Joint Director of Education re-determining the seniority, by passing an order dated 17.12.2013, was subject matter of challenge in this petition, in which no interim order was granted and now the same is connected along with the leading writ petition.
(24) Smt. Khusnuda Parveen moved an application before the Manager/Tehsildar for giving placement in the seniority list of 2013-14 at serial No.1, which has been decided by the Committee of Management comprising Tehsildar-Manager, the District Inspector of Schools-Vice President and the Sub-Divisional Magistrate-President and after considering the entire matter recorded that since the matter regarding the seniority and appointment on the post of Principal is pending before this Court, the same will be decided accordingly after the order passed by this Court.
(25) Writ Petition No.7415 (S/S) of 2014 has been filed by Sri Ram Ujagar Mishra challenging the validity of the orders dated 05.04.1996 and 30.05.1996, whereby respondent No.6-Smt. Khusnuda Parveen was selected and appointed as Lecturer in Urdu.
(26) Writ Petition No.4016 (S/S) of 2011 has been filed by Smt. Khusnuda Parveen challenging the order dated 02.06.2011, whereby her representation claiming seniority and prayer for handing over the charge on the post of Principal to her by reverting Sri Ram Ujagar Mishra on the post of Assistant Teacher (LT. Grade) was rejected and seniority determined earlier was held to be valid. In the writ petition, the order determining the seniority dated 02.06.2011 was kept in abeyance.
(27) Writ Petition No.3969 (S/S) of 2013 has been filed by Smt. Khusnuda Parveen challenging the order of the District Inspector of Schools dated 28.06.2013 rejecting her representation, wherein no interim order was granted and the same is also connected along with the leading writ petition No.23409 (S/S) of 2016.
(28) Smt. Khusnuda Parveen has filed Contempt Petition No.3144 of 2011 due to her non joining on the post of officiating Principal and due to non payment of salary on the said post. The contempt petition was dismissed holding that there was no direction regarding the joining and making of payment of salary to her and opportunity was given to her to raise the issue in the writ petition challenging the order dated 02.06.2011 determining the seniority.
(29) Writ Petition No.41 (S/S) of 2013 was filed by Smt. Khusnuda Parveen on the following prayer:
(i) Issue a writ, order or direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties No.3 to 5 i.e. to the District inspector of Schools Bahraich, the District Magistrate Bahraich as the Ex-Officio Chairman and to the Tahsildar of Tahsil Nanpara District Bahraich as the Ex-Officio Manager of the Committee of Management of the Saadat Inter College Nanpara District Bahraich to promote to the petitioner on the post of the ad-hco principal of the college under the mandatory provisions of the Section-18 of the Uttar Pradesh Secondary Education Services Selection Board Act 1982.
(ii) Issue a writ, order or direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties i.e. to the District Inspector of Schools Bahraich to take the necessary steps in the matter and pass the statutory order of ad-hoc promotion of the petitioner on the post of the principal of the Saadat Inter College nanpara District Bahraich under provisions of the Section-18[2] of the Uttar Pradesh Secondary Education Services Selection Board Act 1982, with effect from 01.09.2011 and ensure payment of salary of the petitioner as the principal of the College in the prescribed grade.
(iii) issue a writ, order or direction in the nature of the mandamus thereby commanding and directing to the concerned opposite parties to allow to the petitioner to work as the ad-hoc principal of the Saadat Inter College Nanpara District Bahraich and pay the salary of the petitioner as the ad-hoc principal of the college in accordance with the provisions of law with effect from 01-09-2011.
(iv) Issue any other Writ, Order or Direction in favour of the petitioner, which this Hon'ble High Court may deem fit, just and proper under circumstances of this case in the interests of justice.
(v) Allow the instant writ petition of the petitioner with appropriate costs in the interests of justice.
(30) The writ petition was finally disposed of vide judgment and order dated 27.05.2013 directing the District Inspector of Schools to consider the representation filed by Smt. Khusnuda Parveen. After considering her grievance, the D.I.O.S. rejected the representation on the ground that the seniority dispute is still engaging attention of this Court in Writ Petition No.4016 (S/S) of 2011, therefore, there is no justification on the part of the District Inspector of Schools to take decision in the matter.
(31) The writ petitions on the issue were engaging attention of this Court, in spite of that a representation was filed by Smt. Khusnuda Parveen before the Regional Joint Director of Education on 01.11.2012 and the Regional Joint Director of Education, in spite of the fact that in pursuance to the direction issued on 27.05.2013, directed the District Inspector of Schools to decide the issue, which was accordingly decided but in purporting compliance of the judgment and order dated 27.05.2013 the Regional Joint Director of Education held Smt. Khusnuda Parveen to be senior to Sri Ram Ujagar Mishra.
(32) While entertaining the writ petition, this Court was pleased to pass the following order in Writ Petition No.23409 (S/S) of 2016 on 28.09.2016:
"Thus, order dated 19.09.2016, passed by the Director of Secondary Education, U.P., Lucknow as is contained in Annexure No.1 to the writ petition shall remain stayed. The consequential order passed by the District inspector of Schools dated 20.09.2016, as is contained in Annexure No.33 to the writ petition shall also remain stayed."
(33) Learned Senior Counsel appearing on behalf of Sri Ram Ujagar Mishra, assailing the aforesaid orders dated 19.09.2016 and 20.09.2016, has made three submissions:
(I) That the impugned orders have been passed without notice and without affording an opportunity of hearing to Sri Ram Ujagar Mishra either by the Director of Secondary Education or by the District Inspector of Schools, therefore, the orders, being violative of principles of natural justice, are per se illegal.
(II) His next submission is that in the impugned order there is recital that the District Inspector of Schools was directed to appear before the Director of Education (Secondary) with the required information but neither the information was made available nor he appeared before the Director of Secondary Education. The submission of the learned Senior counsel appearing on behalf of Sri Ram Ujagar is that the finding recorded in the order passed by the Director of Secondary Education is based on incorrect statement of fact. He further submits that the District Inspector of Schools vide letter dated 17.08.2006 submitted the report narrating the entire facts, which was ignored while passing the impugned order. Therefore, his submission is that due to non consideration of the report of the District Inspector of Schools, the order suffers from apparent illegality.
(III) He next submitted that since Smt. Khusnuda Parveen has obtained appointment in the college in question on the post of Lecturer in Urdu on the basis of certificate of Scheduled Castes, which was not valid to be considered for the appointment under the reserved category of Scheduled Castes, as the same was obtained after her marriage with the Scheduled Caste person. Therefore, once the appointment of Smt. Khusnuda Parveen is based on the certificate, which was not valid, the impugned order would not have been passed. Therefore, his submission is that due to non consideration of the aforesaid aspect of the matter, the impugned orders vitiate in law.
(34) Further submission of learned Senior Counsel is that so far as the question of seniority is concerned, since Sri Ram Ujagar Mishra was promoted on ad-hoc basis on the post of Lecturer on 16.12.1992 and on the basis of requisition sent for his regular promotion, that was communicated to the Commission in the year 1992 itself, the Commission passed order for regular selection/promotion in the year 1998 after lapse of more than nine years. Thus, Sri Ram Ujagar Mishra should be treated as substantively appointed/promoted Lecturer since 16.12.1992. Therefore, he is entitled for seniority from 16.12.1992 over and above Smt. Khusnuda Parveen appointed in the year 1996.
(35) His next submission is that, at the time of promotion, Sri Ram Ujagar Mishra had not concealed any material fact and, being found eligible and qualified, he was granted promotion. Therefore, after the lapse of so many years, while determining the seniority, the promotion of Sri Ram Ujagar Mishra cannot be challenged Smt. Khusnuda Parveen.
(36) In support of his submission, learned Senior counsel has relied upon certain case laws, which are as follows:
(i) Santosh Kumar Dubey and another Vs. State of U.P. and others [(2010) 1 UPLBEC 156]. In the present judgment it has been held that in case the regular promotion has been granted taking into consideration the ad hoc services rendered by the teacher, then in determination of seniority, the services rendered on ad hoc basis shall not be ignored.
(ii) Secretary, Minor Irrigation Department and others Vs. Narendra Kumar Tripathi [(2015) 11 SCC 80]. In the present judgment, it has been held that while challenging the seniority of an employee, the validity of the appointment cannot be challenged.
The same principles have been followed in the judgments referred herein below:
(i) Vijay Narain Sharma Vs. State of U.P. and others [(1986) UPLBEC 44].
(ii) Sughar Singh Vs. State of U.P. and others [2010 (2) ADJ 214].
(iii) Prem Prakash Vs. State of U.P. and others [2011 (2) ADJ 320].
(iv) Ram Sarup Vs. State of Haryana and others [(1979) 1 SCC 168].
(37) Learned Senior Counsel appearing for Sri Ram Ujagar Mishra has placed reliance upon the following judgments, wherein the Hon'ble Supreme Court as well as this Court have held that the appointment obtained on the basis of Scheduled Castes Certificate by a candidate who does not belong to the said category, the selection and appointment of such candidate is not valid as the same is based on fraud by filing the caste certificate for which he/she is not entitled. Therefore, on the basis of said certificate, a teacher or Government Servant cannot claim seniority over and above a teacher appointed validly in the institution. Therefore, his submission is that the teacher, who has been granted appointment on the basis of fraudulent certificate of Scheduled Castes, has no locus to challenge the validity of the appointment and seniority of Sri Ram Ujagar Mishra, who has been granted promotion on the post of Lecturer, however, Sri Ram Ujagar Mishra has the right to challenge the appointment obtained by fraud by Smt. Khusnuda Parveen:
(i) Valsamnea Paul Vs. Cochin University [AIR 1996 SC 1101].
(ii) Lakhi Ram Vs. State of Haryana [(1981) 2 SCC 674].
(iii) M.S. Jayaraj Vs. Commissioner of Excise, Kerala and others [(2000) 7 SCC 552].
(iv) People's Union for Democratic Rights and others Vs. Union of India and others [(1982} 3 SCC 235].
(v) Dr. R.K. Saraswat Vs. Chancellor [2003 (21) LCD 1144].
(38) Learned Senior Counsel appearing for Sri Ram Ujagar Mishra has further placed reliance on the following judgments, wherein the appointment was obtained on the basis of Scheduled Castes Certificate, which was not valid, wherein the Hon'ble Supreme Court has held that the appointment is void ab initio from the very inception:
(i) R. Vishwanatha Pillai Vs. State of Kerala and others [(2004) 2 SCC 105].
(ii) Bank of India and another Vs. Avinash Mandivikar and others [(2005) 7 SCC 690].
(iii) State of Orissa and another Vs. Bibhisan Kanhar [(2017) 8 SCC 608].
(39) He further placed reliance upon the following Full Bench judgments of this Court, wherein Full Bench of this Court, while deciding the dispute of seniority, has held that in case the seniority has been determined by the Committee of Management and continuing for a considerable period, the same will not be disturbed after a long period :
(i) Smt. Shanti Kunwar Choudhary Vs. The Manager, Committee of Management, Vidyawati Darbari Girls Inter College, Allahabad and others [(1991) 1 UPLBEC 588].
(ii) Dr. Asha Saxena Vs. Smt. S.K. Chaudhary and others [(1991) 17 ALR 267].
(40) Per-contra, Sri Virendra Singh, learned counsel appearing on behalf of Smt. Khusnuda Parveen has made the following submissions:
(i) The orders dated 19.09.2016 and 20.09.2016 do not suffer from any infirmity or illegality and are just and valid orders. The order of the Joint Director of Education dated 17.12.2013, deciding the dispute of seniority and to handover the charge of the post of Principal to Smt. Khusnuda Parveen was intact and no interim order was granted by this Court in the writ petition. Therefore, the order of the Joint Director of Education (Secondary) dated 19.09.2016 cannot be termed to be illegal.
(ii) His next submission is that the promotion of Sri Ram Ujagar Mishra on the post of Lecturer in Mathematics was made dehors the rules applicable at the relevant point of time, therefore, his appointment is void ab initio and is liable to be declared as null and void.
(iii) His further submission is that the seniority is determined from the date of substantive appointment. Smt. Khusnuda Parveen was substantively appointed in the year 1996 while Sri Ram Ujagar Mishra was granted promotion in the year 1998, therefore, Sri Ram Ujagar Mishra is junior to Smt. Khusnuda Parveen and the illegality continuing has been corrected under the impugned orders, therefore, do not require interference by this Court. The writ petition filed by Sri Ram Ujagar Mishra being misconceived, is liable to be dismissed.
(41) I have heard rival contentions advanced by the learned counsel for the parties and perused the material on record, in as much as, the law reports cited by the learned counsel for the parties.
(42) In the Writ Petition No.23409 (S/S) of 2016, which is the leading writ petition, the order dated 19.09.2016, passed by the Director of Secondary Education and the order dated 20.09.2016, passed by the District Inspector of Schools are under challenge. The main ground of challenge is that prior to passing of the impugned orders, Sri Ram Ujagar Mishra has not been provided any opportunity of hearing. In paragraph Nos.51 and 52 of the writ petition, it is stated that the impugned order dated 19.09.2016 and 20.09.2016 have been passed without affording any opportunity of hearing to the petitioner. Reply to the aforesaid paragraphs of the writ petition is given in paragraph Nos.75 and 76 of the counter affidavit, wherein there is no specific denial of the statement of fact made in the aforesaid paragraphs of the writ petition.
(43) It is well established law that if an order has consequences to take rights from an individual, then under the doctrine of legitimate expectation, he should be provided an opportunity of hearing prior to passing of the order. In the present case, the petitioner-Sri Ram Ujagar Mishra has been deprived to hold the post of officiating Principal. Due to non providing of opportunity of hearing, great prejudice has been caused to the petitioner to put up his claim before the respondents in regard to his entitlement to hold the post.
(44) In view of the fact that there is no denial regarding the statement of fact made in paragraph Nos.75 and 76 of the writ petition in regard to providing of opportunity of hearing to Sri Ram Ujagar Mishra and on perusal of the impugned orders dated 19.09.2016 and 20.09.2016, it transpires that any notice or opportunity of hearing was not provided to Sri Ram Ujagar Mishra. Therefore, this Court holds that the impugned orders dated 19.09.2016 and 20.09.2016 have been passed in utter disregard of the principles of natural justice. Accordingly, the orders dated 19.09.2016 and 20.09.2016 are hereby set-aside. The Writ Petition No.23409 (S/S) of 2016 succeeds and is allowed.
(45) In regard to the challenge of an order of Regional Joint Director of Education dated 17.12.2013 in Writ Petition No.13 (S/S) of 2014, redetermining the seniority of the petitioner-Sri Ram Ujagar Mishra and respondent No.6-Smt. Khusnuda Parveen, submission of learned counsel for the petitioner is that the Regional Joint Director of Education has nowhere considered that since 1996 the petitioner was held to be senior to the respondent No.6 and the same was not challenged by respondent No.6 till 30.06.2011. When the petitioner was handed over the charge of the post of officiating Principal being placed in the seniority list at Serial No.1, the respondent No.6 came forward to challenge the placement of the petitioner in the seniority list. Therefore, the submission of learned counsel for the petitioner is that long standing seniority cannot be challenged at such a belated stage. In support of his submission, he relied upon a Full Bench judgment in the case of Dr. Asha Saxena Vs. Smt. S.K. Chaudhary (Supra), wherein this Court has recorded the finding in the following manner:
"19. For the reasons stated above, in our opinion, firstly the provisions of Clause 3 (1)(bb) of Chapter II are not retrospective in operation and, in our opinion, the view on this question taken in the case of Radhey Shyam Pandey v. Dist. Inspector of Schools 1983 UPLBEC 297 does not lay down the correct law. If that be so, the controversy regarding seniority of the three lecturers was determined by the Managing Committee on 29.4.1976. The aforesaid seniority list had remained in existence since then. The argument raised by the learned counsel for Dr. Asha Saxena that she got a right to file objections only when the seniority list was prepared in the year 1985-86 is not tenable. This argument is also not tenable because it has come on the record that the seniority list gradewise was prepared even earlier to the year 1985 and no objection had been filed. The law is well settled that the Court will not interfere with a seniority list which had remained in existence for a long time and which had become final. In the present case the Management had determined the seniority on 29.4.1976. This decision had been taken after affording opportunity to Dr. Asha Saxena. She did not file any appeal against the decision of the Committee of Management even though an appeal may have been preferred. Objections by Dr. Asha Saxena had been filed after a lapse of nearly 15 years. In the objections, which have been filed an Annexure "3" to the writ petition, of Dr. Asha Saxena, she has not taken a ground that seniority list was not prepared every year. The only objection raised was that she did not know about the insertion of provisions of Section 3(l)(bb) in Chapter II and she filed the objections after coming to know of the aforesaid provisions. The seniority list has been existing since the year 1975-76 and we are not prefared to quash seniority list after a lapse of nearly 15 years. The Supreme Court in the case of Malcom Lawrence Cecil D'Souza v. Union of India A.I.R. 1975 SC 1269 = 1975 LIC 816 (Paras 8 and 9) has held:
"The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971. The petitioner, in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in the year 1971 in pursuance of the decision of this Court in Karnik's case, AIR 1970 SC 2092 (supra), would not cloth the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority fist of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting one's seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent, ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress.
Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of seniority. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of the party who has during the intervening period chosen to keep quiet. Baking of old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
(46) On perusal of the impugned order dated 17.12.2013 and the judgments relied upon by learned counsel for the parties, it is established that the Full Bench of this Court has recorded that long standing seniority cannot be disturbed to create chaos in the institution. The petitioner-Sri Ram Ujagar Mishra is continuing to be senior in the institution since 1996, which has not been challenged by the teachers working in the institution including Smt. Khusnuda Parveen, therefore, the ratio of the judgment relied upon by learned counsel for the petitioner is fully applicable to the facts and circumstances of the present case. In view of that, the respondent No.6-Smt. Khusnuda Parveen cannot be allowed to challenge the seniority of the petitioner-Sri Ram Ujagar Mishra after lapse of almost 15 years. The Regional Joint Director of Education, while passing the impugned order dated 17.12.2013, has nowhere considered this aspect of the matter. Therefore, due to non consideration of the aforesaid aspect of the matter, the order of Regional Joint Director of Education vitiates in law and is liable to be set-aside. Accordingly, the order dated 17.12.2013, is hereby set-aside. The Writ Petition No.13 (S/S) of 2014 succeeds and is allowed.
(47) The petitioner-Ram Ujagar Mishra has challenged the validity of the appointment of respondent No.6-Smt. Khusnuda Parveen and has challenged the orders dated 05.04.1996 and 30.05.1996, whereby the respondent No.6 was selected and appointed as Lecturer in Urdu. Challenging the aforesaid two orders, learned Senior Counsel appearing on behalf of the petitioner submits that the appointment of the respondent No.6- Smt. Khusnuda Parveen was made on the basis of forged and fabricated certificate obtained after the marriage with the person who belongs to the Scheduled Caste category. Therefore, the selection on the basis of said certificate cannot be termed to be valid selection. Therefore, his submission is that the appointment being based on in-genuine certificate, which has been obtained by suppression of material fact, is de hors the rules, thus, the same is void ab initio. His further submission is that the selection and appointment obtained by playing fraud can be challenged at any stage. The petitioner-Sri Ram Ujagar Mishra is a most aggrieved party in view of the fact that the respondent No.6- Smt. Khusnuda Parveen is challenging the placement of the petitioner on the post of officiating Principal.
(48) The Writ Petition No.7415 (S/S) of 2014 filed by the petitioner-Sri Ram Ujagar Mishra challenging the orders dated 05.04.1996 and 30.05.1996 was connected along with record of the Writ Petition No.23409 (S/S) of 2016. This Court while examining the validity of the appointment of Smt. Khusnuda Parveen in the connected matter, summoned the original records from U.P. Secondary Education Services Selection Board, Alenganj, Allahabad and after perusal of the record, passed the order on 21.09.2017, which is being quoted below:
"The original records have been produced which indicate that the petitioner was selected against the reserved category of Scheduled Caste and not under the General Category.
Let an affidavit be filed by the Commission annexing therewith the relevant documents.
List this case on 06.10.2017."
(49) On perusal of the order passed by this Court on 21.09.2017 and the submission advanced by learned counsel for the parties, it is well established that Smt. Khusnuda Parveen was selected against reserved category of Scheduled Caste and not under the General category. It is not disputed by learned counsel for respondent No.6- Smt. Khusnuda Parveen that the certificate of Scheduled Caste category was issued in her favour after marriage with the person of Scheduled Caste category. It is also not disputed that the respondent No.6 is a Muslim lady, who does not belongs to the Scheduled Caste category.
(50) In regard to the locus of the petitioner-Sri Ram Ujagar Mishra to challenge the selection and appointment of respondent No.6-Smt. Khusnuda Parveen, learned counsel for the petitioner submits that at this stage the petitioner is the aggrieved party. Therefore, he has right to challenge the selection and appointment of respondent No.6 obtained on the basis of fraudulent certificate. In this regard, he placed reliance upon the following judgments:
i) AIR 1996 SC 1101, Valsamnea Paul Vs. Cochin University; paragraph Nos.33, 34, 36 and 37:
"33. However, the question is : Whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be? It is seen that Dalits and Tribes suffered social and economic disabilities recognised by Articles 17 and 15(2). Consequently, they became socially, culturally and educationally backward; the OBCs also suffered social and educational backwardness. The object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and was sought to bring them in the mainstream of the nation's life by providing them opportunities and facilities.
34. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu and R. Chandevarappa v. State of Karnataka , this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also undergo have had same the handicaps, and must have been subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) and 16(4), as the case may be. Acquisition of the Status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.
36. The recognition of the appellant as a member of the Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4), for the reason that she, as a member of the forward caste, had an advantageous start in life and after her completing education and becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class.
37. The learned single Judge and the Division Bench in Dr. Kunjamma's case proceeded solely on basis of Canon Law, celebration of the marriage in accordance with Latin Catholic rites and acceptance of her as member of that community. Unfortunately they did not advert to the constitutional mandate adverted to hereinbefore. Consequently, the learned single Judge and the Division Bench did not correctly decide the law. Equally, in Khazan Singh's case the learned single Judge of the Delhi High Court too did not lay the law correctly. The Full Bench, for the aforesaid reasons, had rightly concluded that the appellant is not entitled to the benefit of reservation under Article 16(4) as a lecturer which post was reserved for the backward class Latin Catholic community."
ii) (1981) 2 SCC 674, Lakhi Ram Vs. State of Haryana; paragraph Nos.1 and 2:
"1. The only ground on which the writ petition filed by the appellant has been dismissed by the High Court is that the appellant has no locus stand to maintain the writ petition. The appellant filed the writ petition challenging the action of the Government expunging the adverse remarks made in the annual confidential report of respondent No. 6. The High Court took the view that the appellant was not entitled to complain against the expungement of adverse remarks made in the confidential report of another officer. But this view is, in our opinion, erroneous because the effect of expungement of adverse remarks in the confidential report of respondent No. 6 is to prejudice the chances of promotion of the appellant and if the appellant is able to show that the expungement of the remakes was illegal and invalid, the adverse remarks would continue to remain in the confidential report of respondent No. 6 and that would improve the chances of promotion of the appellant vis-a-vis respondent No. 6. The appellant was, therefore, clearly entitled to show that the Government acted beyond the scope of its power in expunging the adverse remarks in the confidential report of respondent No. 6 and that the expungement of the adverse remarks should be can celled. The appellant had, in the circumstances, locus stand to maintain the writ petition and the High Court was in error in rejecting it on the ground that the appellant was not entitled to maintain the writ petition.
2. This was the reason why we allowed the appeal and, setting aside the Order of dismissal passed by the High Court, remanded the writ petition to the High Court for disposal on merits."
iii) (2000) 7 SCC 552, M.S. Jayaraj Vs. Commissioner of Excise, Kerala and others; paragraph Nos.12, 13 and 14:
"12. In this context we noticed that this court has changed from the earlier strict interpretation regarding locus standi as adopted in Nagar Rice & Flour Mills and ors. vs. N. Teekappa Gowda & Bros. and ors.{1970(1) SCC 575} and Jasbhai Motibhai Desai vs. Roshan Kumar Haji Bashir Ahmed & ors.{1976(1) SCC 671} and a much wider convass has been adopted in later years regarding a persons entitlement to move the High Court involving writ jurisdiction. A four Judge Bench in Jasbhai Motibhai Desai (supra) pointed out three categories of persons vis-à-vis the locus standi: (1) a person aggrieved; (2) a stranger; (3) a busybody or a meddlesome interloper. Learned Judges in that decision pointed out that any one belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The Judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. Then their Lordships observed the following: (SCC p.683, para 38)
38. The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of persons aggrieved. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be persons aggrieved.
13. A recent decision delivered by a two Judge Bench of this Court (of which one of us is a party Sethi, J.) in Chairman Railway Board & ors. vs. Chandrima Das & ors. {2000 (2) SCC 465} after making a survey of the later decisions held thus: (SCC pp. 478-79, para 17)
17. In the context of public interest litigation, however, the Court in its various judgments has given the widest amplitude and meaning to the concept of locus standi. In Peoples Union for Democratic Rights v. Union of India {1982 (3) SCC 235} it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to court. [See also Bandhua Mukti Morcha v. Union of India {1984 (3) SCC 161} and State of H.P. v. A Parent of a Student of Medical College {1985 (3) SCC 169} on the right to approach the court in the realm of public interest litigation.] In Bangalore Medical Trust v. B.S. Muddappa {1991(4) SCC 54} the Court held that the restricted meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation. The Court further observed that public spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi of the absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere busybody.
14. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits."
iv) (1982) 3 SCC 235, People's Union for Democratic Rights & others Vs. Union of India and others; paragraph Nos.2 and 9:
"2. Before we proceed to deal with the facts giving rise to this writ petition, we may repeat what we have said earlier in various orders made by us from time to time dealing with public interest litigation. We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their purses by exploiting the consuming public, have the 'chamars' belonging to the lowest strata of society no Fundamental Right to earn an honest living through their sweat and toil ? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right to exploit is upheld against the government under the label of Fundamental Right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But, if the Fundamental Right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do not exist for the vast masses of our people. Large numbers of men, women and children who constitute the bulk of our population are today living a sub-human existence in conditions of abject poverty: utter grinding poverty has broken their back and sapped their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce ? This was brought out forcibly by W. Paul Gormseley at the Silver Jubilee Celebrations of the Universal Declaration of Human Rights at the Banaras Hindu University:
"Since India is one of those countries which has given a pride of place to the basic human rights and freedoms in its Constitution in its chapter on Fundamental Rights and on the Directive Principles of State Policy and has already completed twenty-five years of independence, the question may be raised whether or not the Fundamental Rights enshrined in our Constitution have any meaning to the millions of our people to whom food, drinking water, timely medical facilities and relief from disease and disaster, education and job opportunities still remain unavoidable. We, in India, should on this occasion study the Human Rights declared and defined by the United Nations and compare them with the rights available in practice and secured by the law of our country."
The only solution for making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights. There is indeed close relationship between civil and political rights on the one hand and economic, social and cultural rights on the other and this relationship is so obvious that the International Human Rights Conference in Tehran called by the General Assembly in 1968 declared in a final proclamation:
"Since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible."
Of course, the task of restructuring the social and economic order so that the social and economic rights become a meaningful reality for the poor and lowly sections of the community is one which legitimately belongs to the legislature and the executive, but mere initiation of social and economic rescue programmes by the executive and the legislature would not be enough and it is only through multidimensional strategies including public interest litigation that these social and economic rescue programmes can be made effective. Public interest litigation, as we conceive it, is essentially a co-operative or collaborative effort on the part of the petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as the petitioner who brings the public interest litigation before the Court. The state or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or the public authority.
9. The first preliminary objection raises the question of locus standi of the petitioners to maintain the writ petition. It is true, that the complaint of the petitioners in the writ petition is in regard to the violations of the provisions of various labour laws designed for the welfare of workmen and therefore from a strictly traditional point of view, it would be only the workmen whose legal rights are violated who would be entitled to approach the court for judicial redress. But the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by this Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo-Saxon System of jurisprudence have been broken and a new dimension has been given to the doctrine of locus standi which has revolutionised the whole concept of access to justice in a way not known before to the Western System of jurisprudence. This Court has taken the view that, having regard to the peculiar socioeconomic conditions prevailing in the country where there is, considerable poverty, illiteracy and ignorance obstructing and impeding accessibility to the judicial process, it would result in closing the doors of justice to the poor and deprived sections of the community if the traditional rule of standing evolved by Anglo-Saxon jurisprudence that only a person wronged can sue for judicial redress were to be blindly adhered to and followed, and it is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may became easily available to the lowly and the lost. It has been held by this Court in its recent judgment in the Judges Appointment and Transfer case, in a major break-through which in the years to come is likely to impart new significance and relevance to the judicial system and to transform it into as instrument of socio-economic change, that where a person or class of persons to whom legal injury is caused or legal wrong is done is by reason of poverty, disability or socially or economically disadvantaged position not able to approach the Court for judicial redress, any member of the public acting bona fide and not out of any extraneous motivation may move the Court for judicial redress of the legal injury or wrong suffered by such person or class of persons and the judicial process may be set in motion by any public spirited individual or institution even by addressing a letter to the court. Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of poverty, disability or socially or economically disadvantaged position are unable to approach the court and the court is moved for this purpose by a member of a public by addressing a letter drawing the attention of the court to such legal injury or legal wrong, court would cast aside all technical rules of procedure and entertain the letter as a writ petition on the judicial side and take action upon it. That is what has happened in the present case. Here the workmen whose rights are said to have been violated and to whom a life of basic human dignity has been denied are poor, ignorant, illiterate humans who, by reason of their poverty and social and economic disability, are unable to approach the courts for judicial redress and hence the petitioners, have under the liberalised rule of standing, locus standi to maintain the present writ petition espousing the cause of the workmen. It is not the case of the respondents that the petitioners are acting mala fide or out of extraneous motives and in fact the respondents cannot so allege, since the first petitioner is admittedly an organisation dedicated to the protection and enforcement of Fundamental Rights and making Directive Principles of State Policy enforceable and justiciable. There can be no doubt that it is out of a sense of public service that the present litigation has been brought by the petitioners and it is clearly maintainable."
v) 2003 (21) LCD 1144, Dr. R.K. Saraswat Vs. Chancellor; paragraphs Nos.33, 34 and 35:
"33. The Constitution Bench of the Hon'ble Supreme Court in State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12, held that the existence of a legal right in favour of the writ petitioner is the foundation for the exercise of jurisdiction under Article 226 of the Constitution. In Kalyan Singh Vs. State of U.P. & ors., AIR 1962 SC 1183, the Hon'ble Apex Court enunciated the proposition that the right to maintain a writ postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested. The existence of a legal right is a condition precedent to approach the Court/ Tribunal. (Vide Calcutta Gas Co. (Proprietary) Ltd. Vs. State of West Bengal & ors., AIR 1962 SC 1044; Mani Subrat Jain & ors. Vs. State of Haryana, AIR 1977 SC 276; State of Kerala Vs. Smt. A. Lakshmikutty, AIR 1987 SC 331; State of Kerala Vs. K.G., Madhavan Pillai & ors., AIR 1989 SC 49; Rajendra Singh Vs. State of M.P. & ors., AIR 1996 SC 2736; and Ravi Lakshmibai Akshetriya Gramin Bank Vs. Chand Bihari Kapoor & ors., (1998) 7 SCC 469).
34. The term "person aggrieved" was considered and explained in Re Sidebotham, 1880 (14) Ch.D. 458, observing as under:-
"The words ''person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A ''person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."
35. In Nagar Rice & Flour Mills Vs. N. Teekappa Gowda & Bros, AIR 1971 SC 246 and Jasbhai Motibhai Desai Vs. Roshan Kumar, AIR 1976 SC 578 there has been strict interpretation regarding locus standi as it had been held therein that a rival businessman cannot have any grievance against the grant of promotion permitting the installation on a new site. However, that interpretation had subsequently been diluted and wherever it is found that an order which cannot be sustained in the eyes of law, if challenged, the Court may entertain the petition without insisting on the issue of locus standi. (Vide M/S Jayraj Vs. Commissioner of Excise Kerala & ors, 2000 (7) SCC 552)."
(51) On perusal of the relevant paragraphs of the law reports referred hereinabove, it is evident that the respondent No.6- Smt. Khusnuda Parveen has obtained appointment on the basis of certificate obtained by fraudulent exercise. The fraud and manipulation in getting employment can be challenged at any stage. Therefore, on the dispute created by respondent No.6-Smt. Khusnuda Parveen, the petitioner-Sri Ram Ujagar Mishra has right to challenge the selection and appointment of respondent No.6.
(52) The respondent No.6-Smt. Khusnuda Parveen has claimed appointment under General category. The aforesaid fact is not established from the records, which were produced before this Court. After examining the aforesaid records, this Court recorded finding that the selection and appointment of respondent No.6-Smt. Khusnuda Parveen was made under the Reserved category of Scheduled Caste and not under the General category. In support of the submission advanced, learned counsel for the petitioner relied upon the following judgments:
i) (2004) 2 SCC 105, R. Vishwanatha Pillai Vs. State of Kerala and others; paragraph No.15:
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all."
ii) (2005) 7 SCC 690, Bank of India and another Vs. Avinash Mandivikar and others; paragraph Nos.6, 7, 11 and 12:
"6. Respondent no.1-employee obtained appointment in the service on the basis that he belonged to Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eyes of law. There is absolutely no justification for his claim in respect of post he usurped, as the same was meant for reserved candidate.
7. It was urged by learned counsel for the respondent no.1-employee that there was no fraud practiced and it was, in fact, under a bona fide belief that the claim was made and there is no finding about any fraud having been practiced by the employee. The Scrutiny Committee examined the various documents and came to a definite conclusion that documents were manipulated to present false claim.
11. We find the conclusions of the High Court to be contradictory. On one hand the High Court faulted the reference which was made after about ten years and on the other hand accepted the findings of the Scrutiny Committee that the respondent no.1 did not belong to Scheduled Tribe as was held by the Scrutiny Committee. Mere delay in making a reference does not invalidate the order of the Scrutiny Committee. If the High Court felt that the reference was impermissible because of long passage of time, then that would have made the reference vulnerable. By accepting the findings of the Scrutiny Committee that the respondent no.1- employee did not belong to Scheduled Tribe, the observations about the delayed reference loose significance. The matter can be looked into from another angle. When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. (JT 2005 (7) SC 530) dealt with effect of fraud. It was held as follows in the said judgment:
"14. .............Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false'.
15. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal (2002 (1) SCC 100) Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 (8) SCC 311), Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another (2004 (3) SCC 1).
16. Suppression of a material document would also amount to a fraud on the court. (see Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 310) and S.P. Chengalvaraya Naidu's case (supra).
17. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's case (supra).
18. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 & 713, "No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (page 722)
19. These aspects were recently highlighted in the State of Andhra Pradesh and Anr. v. T. Suryachandr Rao (2005 (5) SCALE 621)"
Therefore, mere delayed reference when the foundation for the same is alleged fraud does not in any way affect legality of the reference.
12. Looked from any angle the High Court's judgment holding that the respondent no.1-employee was to be reinstated in the same post as originally held is clearly untenable. The order of termination does not suffer from any infirmity and the High Court should not have interfered with it. By giving protection for even a limited period, the result would be that a person who has a legitimate claim shall be deprived the benefits. On the other hand, a person who has obtained it by illegitimate means would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment."
iii) (2017) 8 SCC 608, State of Orissa and another Vs. Bibhisan Kanhar; paragraph No.5, 6 and 7:
"5. We have examined the material on record and the 3 submissions made by the learned counsel appearing for the parties. We are not in agreement with the judgment of the Tribunal as confirmed by the High Court that the Respondent is entitled for reinstatement for the following reasons:
5.1) It is clear from the record that the Respondent was sponsored by the Employment Exchange as a candidate belonging to a Schedule Tribe community. His name would not have been sponsored but for the certificate which showed that he belongs to Schedule Tribes community.
5.2) The State Level Scrutiny Committee recorded a finding that the Respondent indulged in fraud in obtaining a certificate showing that he belongs to a Schedule Tribe. The Committee recommended action to be taken against the officer who had issued the certificate. The order passed by the State Level Scrutiny Committee has become final as it has not been set aside by any Court.
5.3) Though he was appointed in a post not reserved for Schedule Tribes, he would not have been in the zone of consideration if he did not produce the certificate showing that he belongs to Schedule Tribes.
5.4) The Tribunal has committed a serious error in recording a finding that there is no evidence to show 4 that the Respondent has obtained the certificate only to procure employment.
5.5) It is clear from the facts that the Respondent fraudulently obtained a certificate showing that he belongs to Schedule Tribes community which stands cancelled by the order passed by the State level scrutiny committee.
6. It was held by Denning, L. J. in Lazarus Estates, Ltd. v. Beasley (1956) 1 All E.R. 341, 345 that "No Court will allow a person to keep an advantage which he has obtained by fraud. [...] Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever".
7. For the foregoing reasons, the Appeal is allowed and the judgments of the Tribunal and the High Court are set aside. No costs."
(53) On perusal of the relevant paragraphs quoted above of the judgments relied upon by learned counsel for the petitioner, it is well established that the certificate of reserved category obtained on the basis of marriage cannot be termed to be a valid certificate. Therefore, the respondent No.6-Smt. Khusnuda Parveen being applied under reserved category of Scheduled Caste on the basis of certificate obtained fraudulently, the selection cannot be termed to be valid selection. Therefore, the appointment of the respondent No.6 on the post of Lecturer (Urdu) being obtained on the basis of fraud, is not permissible in law. In view of the above, this Court holds that the selection and appointment of respondent No.6-Smt. Khusnuda Parveen on the post of Lecturer (Urdu) on the basis of certificate obtained by fraud is illegal and cannot be sustained. Therefore, the orders dated 05.04.1996 and 30.05.1996 are hereby quashed. The Writ Petition No.7415 (S/S) of 2014 succeeds and is allowed.
(54) In Writ Petition No.4016 (S/S) of 2011, Smt. Khusnuda Parveen has challenged the order of the Regional Joint Director of Education dated 02.06.2011, whereby Sri Ram Ujagar Mishra (the respondent in the present case) was held to be senior to Smt. Khusnuda Parveen. Learned counsel for Smt. Khusnuda Parveen assailing the order, holding Sri Ram Ujagar Mishra to be substantively appointed on 16.12.1992, submitted that at the time of grant of appointment Sri Ram Ujagar Mishra was lacking qualification. Therefore, he was not eligible and qualified for grant of appointment on the post of Lecturer. He further submitted that on the date of occurrence of vacancy i.e. 30.06.1991, Sri Ram Ujagar Mishra was not having post graduate degree on 13.01.1992. Therefore, his submission is that holding Sri Ram Ujagar Mishra to be senior to Smt. Khusnuda Parveen is illegal. His further submission is that the Regional Joint Director of Education ignoring the claim setup by the Smt. Khusnuda Parveen has proceeded to pass the impugned order dated 02.06.2011. Therefore, the order being illegal is liable to be set-aside.
(55) On the other hand, learned counsel appearing on behalf of Sri Raj Ujagar Mishra submitted that the Regional Joint Director of Education, while passing the order dated 02.06.2011, has not committed any illegality or infirmity and the order is a just and valid order. He further submitted that the promotion on the post of Lecturer, on the principle of seniority subject to rejection of unfit, is to be applied and such promotion, recommended by the Committee of Management, is ultimately approved by the competent authority. In case in between approval is granted by the District Inspector of Schools to the promotion on ad hoc basis pending regular approval by the Commission (Board) or Regional Level Committee concerned, then such promotion for all practical purposes, has to be treated as substantive in nature. He further submitted that in case taking into consideration the ad hoc appointment the services has been regularized, the seniority shall be counted from the date of appointment. Therefore, Sri Ram Ujagar Mishra could not be deprived of the past services rendered by him w.e.f. 16.12.1992.
(56) In so far as, the submission advanced on the determination of seniority of Sri Ram Ujagar Mishra is concerned, it is recorded that he was granted ad hoc appointment on the post of Lecturer on 16.12.1992 and requisition for grant of regular promotion on the post of Lecturer was sent to the U.P. Secondary Education Services Selection Board, Allahabad in the year 1992 itself. The Selection Board on the basis of papers made available, granted regular promotion to Sri Ram Ujagar Mishra in the year 1998 w.e.f. 16.12.1992. The Regional Joint Director of Education while passing the order dated 02.06.2011, has recorded finding that the date of substantive appointment of Sri Ram Ujagar Mishra is 16.12.1992, as he was granted regular promotion on the post of Lecturer w.e.f. 16.12.1992.
(57) Sri H.G.S. Parihar, learned Senior Counsel appearing on behalf of Sri Ram Ujagar Mishra submitted that at the time of grant of promotion, Sri Ram Ujagar Mishra was having essential qualification, as required under the relevant rules. Therefore, the submission advanced on behalf of Smt. Khusnuda Parveen is based on misconceived grounds. In support of his argument, he relied upon the following judgments:
i) (2010) 1 UPLBEC 156, Santosh Kumar Dubey Vs. State of U.P. and others; paragraph No.28:
"28. In view of the aforesaid, this Court has no hesitation to hold that if a recommendation is made by the Committee of Management for regular promotion of a teacher against a post within the promotion quota on the principle of seniority subject to rejection of unfit and such promotion recommended by the Committee of Management is ultimately approved by the competent authority, and in between approval is granted by the District Inspector of Schools to promotion on ad-hoc basis pending regular approval by the Commission (Board) or Regional Level Committee concerned, then such promotion, for all practical purposes, has to be treated as substantive in nature, subject however, to the final approval of the promotion by the Competent Authority."
ii) (2015) 11 SCC 80, Secretary Minor Irrigation Department and others Vs. Narendra Kumar Tripathi; paragraph No.15:
"15. The scheme of the working of the Rules in the Department shows that right from 1979, the Department has been making direct recruitment after due selection and by applying the 1979 Rules which rules have been extended from time to time to subsequent recruitments, services were regularized. Validity of the scheme of these recruitments is not under challenge. In such circumstances, when the rules provide that such ad hoc appointments have to be regularized and seniority counted from the date of appointment, the writ petitioner could not be deprived of the past service rendered by him from 12th June, 1985 till the date of regularization. It is not a case of appointments made without due selection or without vacancy or without qualification or in violation of rules. The larger Bench failed to observe that the appointment of the writ petitioner was not dehors the rules nor by way of stop gap arrangement. The rules had the effect of treating the appointment as a regular appointment from initial date of appointment. In these circumstances, the principle laid down in K.C. Joshi was not applicable. It is not a case where service rendered is either fortuitous or against rules or by way of stop gap arrangement. Applying the principle laid down in Direct Recruit Class II Engineering Officers' Association, the writ petitioner is entitled to count service from 12th June, 1985. Moreover, the department has allowed the benefit of past service to other similarly placed incumbents as observed in the judgment giving rise to the appeal of the department."
(58) The ratio of the judgment relied upon by Sri H.G.S. Parihar, learned Senior Counsel and the point involved for determination clearly supports the claim of Sri Ram Ujagar Mishra. It is relevant to point out that the law in regard to the challenge of validity of appointment while challenging the seniority is very much settled in the following judgments:
i) 1986 UPLBEC 44, Vijay Narain Sharma Vs. State of U.P. and others; paragraph Nos.25, 26 and 27:
"25. On a reading of Regulation 3 of Chapter II, it is clear that it now-where contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. That dispute can be taken in appeal under Clause (f) of Regulation 3, quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute.
27. In this view of the matter, I am of the opinion that the contention raised by the learned counsel for the respondent is well founded. In proceedings for determining the validity of the seniority list prepared by the colleague, it is not open to a teacher of the said college to challenge the appointment or promotion of any other teacher in the same college."
ii) 2010 (2) ADJ 214, Sughar Singh Vs. State of U.P. and others; paragraph Nos.4, 5, 8, 9, 10, 11, 12 and 13:
"4. It is not in dispute that since the date of appointment, on Class-IV post respondent no. 6 is continuously working in the College and at no point of time his appointment was ever disputed by petitioner in any proceedings. It is only for the first time when a representation was filed on 30.10.2009 while the appointment of respondent no. 6 on Class-IV post made on 20.01.2000 was challenged by the petitioner on the above ground only for the purpose of depriving him promotion under the Regulations.
5. In fact the order of appointment of respondent no. 6 has not been challenged even in this writ petition and there is no relief seeking writ of certiorari for quashing the appointment letter of respondent no. 6. When certain persons are eligible to be considered for promotion, in order to deny a promotion or right to be considered for promotion, their appointment made long back cannot be disputed particularly when no steps were taken by the person concerned assailing the appointment before the competent authority in accordance with law within a reasonable time. Once the appointment is made and continue for a sufficient time, the appointee is entitled for all consequences flowing by virtue of such appointment as are permissible under the Rules and Regulations, governing conditions of service which includes promotion etc.
8. In Vijay Narain Sharma Vs. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44, this Court in paragraphs 25 and 26 of the judgment held as under:
"25. On a reading of Regulation 3 of Chapter II, it is clear that it nowhere contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. The dispute can be taken in appeal under Clause (1) of Regulation 3 quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute."
9. Similar View was taken in Smt. Manju Keshi Dixit Vs. State of U.P. and others, 2004(5) ESC (All) 234 and in paragraph 13 this Court held:
"13. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities."
10. Both the above judgements have been followed recently in Smt. Bharti Roy Vs. Deputy Director of Education, II, Kanpur and others, 2008(2)ESC 911.
11. Moreover, no reason has been assigned by learned counsel for the petitioner as to why for the last almost 9 years the appointment of respondent no. 6 on Class-IV post was not challenged in a proper forum.
12. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 the Apex Court held that it is well settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sir Barnes Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. . . . . . . Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
13. Once it is not in dispute that the respondent no. 6 is senior to the petitioner as a Class-IV employee and he is otherwise eligible for promotion, I do not find it a fit case warranting interference at this stage in extraordinary equitable jurisdiction under Article 226 of the Constitution. The writ petition lacks merit, and, is accordingly dismissed in limine."
iii) 2011 (2) ADJ 320, Prem Prakash Vs. State of U.P. and others; paragraph Nos.10, 11, 12, 13, 14, 15, 16, 17 and 18:
10. In Vijay Narain Sharma Vs. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44, this Court in paragraphs 25 and 26 of the judgment held as under:
"25. On a reading of Regulation 3 of Chapter II, it is clear that it nowhere contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. The dispute can be taken in appeal under Clause (1) of Regulation 3 quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute."
11. In the case of Smt. Rani Srivastava Vs. State of U.P. and others, 1990(1) UPLBEC 425 this Court has held as under:
"5. Principle infirmity in appointment of petitioner, that could be pointed out, was that it was made without issuing any advertisement and recommendation by Selection Committee. May be but could the management which appointed petitioner in 1984 and the Basic Shiksha Adhikari who did not raise any objection to payment of salary for five years raise this objection in 1989. The appointing authority under rules is the committee of Management. And the approving authority is the Basic Shiksha Adhikari, who under U.P. Act No. 6 of 1979 is also to supervise the payment of salary and is empowered to inspect and check. For five years no objection was raised by him. And then suddenly when one of the members desired that a male principal, should be appointed, he also raised an objection. The petitioner had raised objection as far back as 1985 against her being treated as temporary employee. No action was taken on it. Nor any decision was given. For procedural irregularity the petitioner should not be made to suffer. Normally it is to be presumed that Management must have sent papers for appointment of petitioner to Basic Shiksha Adhikari who must have granted approval unless it is rebutted either by placing any communication by Management from record of Basic Shiksha Adhikari to show that things did not proceed as they are provided in the Act. In absence of any material there is no reason to doubt that Committee of Management would have appointed without intimating Basic Shiksha Adhikari and would have even issued letter appointing petitioner permanently and Basic Shiksha Adhikari would not have raised any objection in respect of payment of salary etc. from 1984 to 1989. Change of Secretary or Basic Shiksha Adhikari should not be permitted to create any difference otherwise it shall result in creating arbitrariness and expose teachers of being thrown out of employment on one or the other pretext and shall never have security which is necessary for efficient discharge of duty. Equity stands in her favour and prevents both the appointing and approving authority from taking recourse to their own mistakes, for causing prejudice to petitioner. Estoppel, the principle of equity, is the shield for such unjust and unfair actions."
12. In the case of Dr. Asha Saxena v. Smt. S.K. Chaudhary and others, 1991(2) UPLBEC 1202 a Full Bench of this Court has held as follows:
"16. .....In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16-E (10) of the Act and we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointment had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time."
13. This Court in the case of Smt. Manju Keshi Dixit Vs. State of U.P. and others reported in 2004(4) AWC 3758 reiterated the aforesaid view by following observations:
"13. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities."
14. Both the above judgements have been followed recently in Smt. Bharti Roy Vs. Deputy Director of Education, II, Kanpur and others, 2008(2)ESC 911 and Sughar Singh Vs. State of U.P. and others, Civil Misc. Writ Petition No. 67796 of 2009, decided on 15.12.2009.
15. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities.
16. It is evident from the record that respondent no. 5 was appointed in the institution concerned in 1979 and at no point of time he ever challenged the appointment of petitioner or anybody else before the competent authority. The representation made by respondent no. 5 for the first time after occurrence of vacancy on 15.08.2002 also basically relates to question of seniority and not that of appointment of petitioner. In view of the exposition of law laid down in the above cases in a dispute relating to seniority the validity of appointment cannot be looked into and hence it was not open to respondent no. 5 to challenge the validity of appointment of petitioner in an incidental and ancillary question which is basically relates to seniority. Moreover, nothing has been placed on record to show as to how and why the repsondent no. 5could not challenge the appointment of petitioner for more than two decades and, therefore, the respondent no. 5 could not have been allowed to raise this issue after such a long time. It is however not disputed that the institution in question was brought to grant-in-aid in 1974 as also admitted by repsondent no. 5 in para 18 of his counter affidavit and, therefore, salary from the State Exchequer was allowed to petitioner only w.e.f. 01.07.1974 and earlier thereto a meager sum of Rs. 25/- per month was paid to petitioner which became Rs. 165/- per month on application of regular pay scale.
17. In the circumstances and as discussed above, in my view, the petitioner's appointment could not have been allowed to be disputed in the garb of raising dispute of seniority and respondent no. 5 having been joined only in 1979 could have claimed seniority over petitioner who is working on that day.
18. In the result, the writ petition is allowed. The impugned order dated 07.04.2007 is hereby quashed. There shall be no order as to costs.
(59) Upon thoughtful consideration of the law reports relied upon by the learned counsel for the parties, this Court holds that the order of the Regional Joint Director of Education dated 02.06.2011 does not suffer from any infirmity or illegality. The Regional Joint Director of Education while deciding the substantive date of appointment of Sri Ram Ujagar Mishra has not committed any illegality. Thus, the Writ Petition No.4016 (S/S) of 2011 lacks merit and is hereby dismissed.
(60) It is further held that the law is settled that while examining the validity of the determination of seniority, a teacher has no right to challenge the validity of the appointment. The controversy in this regard was examined by the Full Bench of this Court in the case of Dr. Asha Saxena Vs. Smt. S.K. Chaudhary and others (Supra), wherein it was held in the following manner:
"20. Learned counsel appearing for Dr. Asha Saxena has also urged before us that the Regional Inspectress of Girls Schools has found the appointment of the three teachers invalid as on the date of appointment none of them had the requisite qualifications for being promoted to the post of lecturer in the College. It has been urged that the Full Bench on an earlier occasion relying on the decision of the Supreme Court in the case of Ram Sarup v. State of Haryana AIR 1978 SC 1536 = 1978 L.L.C. 1535 has held that the three teachers should be deemed to have been appointed from the date on which they would acquire qualifications for being promoted to the post of lecturers. At the very outset it may be mentioned that the earlier writ petition of Dr. Asha Saxena had been allowed inasmuch as complete material had not come before the Full Bench regarding the fact that Dr. Asha Saxena had filed objections immediately after her promotion which had been rejected and had become final. It has also not been brought to the notice of the Full bench that seniority list grade-wise was prepared every year after the incorporation of Chapter III in the year 1976. It may also be noted that Dr. Asha Saxena has not challenged the validity of the appointment and had only made a challenge to the seniority list. One fails to understand that after a lapse of nearly 17 years the Regional Inspectress of Girls Schools referred the matter to the Director of Education for adjudicating the question as to whether the appointments were valid or not. In our opinion, the exercise of power by the Regional Inspectress of Girls Schools on the facts and circumstances of the case is wholly arbitrary as that power could not be exercised after lapse of 17 years. The objections filed by Dr. Asha Saxena in the year 1986 which are contained in Annexure "3" to the writ petition are liable to be rejected inasmuch as the ground that she did not know the provision of Clause 3(1)(bb) in Chapter II was of no avail to her. The seniority lists were being prepared year after year after 1975-76 and the objection filed by Dr. Asha Saxena after the lapse of nearly 11 years was not liable to be entertained as has been held by the Supreme Court in the case of Malcom Lawrence Cecil D'Sousa (1975 L.I.C. 816) (supra). In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16-E(10) of the Act we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 year by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time. In our opinion, the order of the Regional Inspec-tress of Girls Schools referring the matter to the Director of Education under Section 16-E(10) is thus liable to be quashed."
(61) Smt. Khusnuda Parveen has filed another Writ Petition No.3969 (S/S) of 2013, challenging the order of the District Inspector of Schools dated 28.06.2013, whereby her claim for grant of ad hoc promotion on the post of officiating Principal was rejected on the ground that the dispute of seniority is pending consideration before the Lucknow Bench of Allahabad High Court. Therefore, the power under Section 18 (2) of U.P. Secondary Education Services Selection Board Act, 1982 cannot be exercised.
(62) The controversy involved in regard to the seniority has been decided by means of the common judgment passed in the connected writ petition, wherein Sri Ram Ujagar Mishra has been held to be senior to Smt. Khusnuda Parveen and the appointment of Smt. Khusnuda Parveen has been held to be illegal being obtained on the basis of fraudulent certificate of Scheduled caste. Therefore, the order of the D.I.O.S. dated 28.06.2013, does not require interference. The Writ Petition No.3969 (S/S) of 2013 is hereby dismissed.
(63) Accordingly, the issue of seniority between Sri Ram Ujagar Mishra and Smt. Khusnuda Parveen are set at rest. The respondents are directed to permit Sri Ram Ujagar Mishra to continue on the post of ad hoc Principal of the institution-Saadat Inter College, Nanpara, District Bahraich till regularly selected candidate comes and joins and to pay him regular monthly salary month by month accordingly, in as much as, the arrears of salary, if found due, be paid within three months' from the date of production of a certified copy of this order.
No order as to costs.
Order Date :- 19.07.2018 Adarsh having been practiced by the employee. The Scrutiny Committee examined the various documents and came to a definite conclusion that documents were manipulated to present false claim.
11. We find the conclusions of the High Court to be contradictory. On one hand the High Court faulted the reference which was made after about ten years and on the other hand accepted the findings of the Scrutiny Committee that the respondent no.1 did not belong to Scheduled Tribe as was held by the Scrutiny Committee. Mere delay in making a reference does not invalidate the order of the Scrutiny Committee. If the High Court felt that the reference was impermissible because of long passage of time, then that would have made the reference vulnerable. By accepting the findings of the Scrutiny Committee that the respondent no.1- employee did not belong to Scheduled Tribe, the observations about the delayed reference loose significance. The matter can be looked into from another angle. When fraud is perpetrated the parameters of consideration will be different. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. (JT 2005 (7) SC 530) dealt with effect of fraud. It was held as follows in the said judgment:
"14. .............Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false'.
15. This aspect of the matter has been considered by this Court in Roshan Deen v. Preeti Lal (2002 (1) SCC 100) Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 (8) SCC 311), Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another (2004 (3) SCC 1).
16. Suppression of a material document would also amount to a fraud on the court. (see Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 310) and S.P. Chengalvaraya Naidu's case (supra).
17. "Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's case (supra).
18. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 & 713, "No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (page 722)
19. These aspects were recently highlighted in the State of Andhra Pradesh and Anr. v. T. Suryachandr Rao (2005 (5) SCALE 621)"
Therefore, mere delayed reference when the foundation for the same is alleged fraud does not in any way affect legality of the reference.
12. Looked from any angle the High Court's judgment holding that the respondent no.1-employee was to be reinstated in the same post as originally held is clearly untenable. The order of termination does not suffer from any infirmity and the High Court should not have interfered with it. By giving protection for even a limited period, the result would be that a person who has a legitimate claim shall be deprived the benefits. On the other hand, a person who has obtained it by illegitimate means would continue to enjoy it notwithstanding the clear finding that he does not even have a shadow of right even to be considered for appointment."
iii) (2017) 8 SCC 608, State of Orissa and another Vs. Bibhisan Kanhar; paragraph No.5, 6 and 7:
"5. We have examined the material on record and the 3 submissions made by the learned counsel appearing for the parties. We are not in agreement with the judgment of the Tribunal as confirmed by the High Court that the Respondent is entitled for reinstatement for the following reasons:
5.1) It is clear from the record that the Respondent was sponsored by the Employment Exchange as a candidate belonging to a Schedule Tribe community. His name would not have been sponsored but for the certificate which showed that he belongs to Schedule Tribes community.
5.2) The State Level Scrutiny Committee recorded a finding that the Respondent indulged in fraud in obtaining a certificate showing that he belongs to a Schedule Tribe. The Committee recommended action to be taken against the officer who had issued the certificate. The order passed by the State Level Scrutiny Committee has become final as it has not been set aside by any Court.
5.3) Though he was appointed in a post not reserved for Schedule Tribes, he would not have been in the zone of consideration if he did not produce the certificate showing that he belongs to Schedule Tribes.
5.4) The Tribunal has committed a serious error in recording a finding that there is no evidence to show 4 that the Respondent has obtained the certificate only to procure employment.
5.5) It is clear from the facts that the Respondent fraudulently obtained a certificate showing that he belongs to Schedule Tribes community which stands cancelled by the order passed by the State level scrutiny committee.
6. It was held by Denning, L. J. in Lazarus Estates, Ltd. v. Beasley (1956) 1 All E.R. 341, 345 that "No Court will allow a person to keep an advantage which he has obtained by fraud. [...] Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever".
7. For the foregoing reasons, the Appeal is allowed and the judgments of the Tribunal and the High Court are set aside. No costs."
(53) On perusal of the relevant paragraphs quoted above of the judgments relied upon by learned counsel for the petitioner, it is well established that the certificate of reserved category obtained on the basis of marriage cannot be termed to be a valid certificate. Therefore, the respondent No.6-Smt. Khusnuda Parveen being applied under reserved category of Scheduled Caste on the basis of certificate obtained fraudulently, the selection cannot be termed to be valid selection. Therefore, the appointment of the respondent No.6 on the post of Lecturer (Urdu) being obtained on the basis of fraud, is not permissible in law. In view of the above, this Court holds that the selection and appointment of respondent No.6-Smt. Khusnuda Parveen on the post of Lecturer (Urdu) on the basis of certificate obtained by fraud is illegal and cannot be sustained. Therefore, the orders dated 05.04.1996 and 30.05.1996 are hereby quashed. The Writ Petition No.7415 (S/S) of 2014 succeeds and is allowed.
(54) In Writ Petition No.4016 (S/S) of 2011, Smt. Khusnuda Parveen has challenged the order of the Regional Joint Director of Education dated 02.06.2011, whereby Sri Ram Ujagar Mishra (the respondent in the present case) was held to be senior to Smt. Khusnuda Parveen. Learned counsel for Smt. Khusnuda Parveen assailing the order, holding Sri Ram Ujagar Mishra to be substantively appointed on 16.12.1992, submitted that at the time of grant of appointment Sri Ram Ujagar Mishra was lacking qualification. Therefore, he was not eligible and qualified for grant of appointment on the post of Lecturer. He further submitted that on the date of occurrence of vacancy i.e. 30.06.1991, Sri Ram Ujagar Mishra was not having post graduate degree on 13.01.1992. Therefore, his submission is that holding Sri Ram Ujagar Mishra to be senior to Smt. Khusnuda Parveen is illegal. His further submission is that the Regional Joint Director of Education ignoring the claim setup by the Smt. Khusnuda Parveen has proceeded to pass the impugned order dated 02.06.2011. Therefore, the order being illegal is liable to be set-aside.
(55) On the other hand, learned counsel appearing on behalf of Sri Raj Ujagar Mishra submitted that the Regional Joint Director of Education, while passing the order dated 02.06.2011, has not committed any illegality or infirmity and the order is a just and valid order. He further submitted that the promotion on the post of Lecturer, on the principle of seniority subject to rejection of unfit, is to be applied and such promotion, recommended by the Committee of Management, is ultimately approved by the competent authority. In case in between approval is granted by the District Inspector of Schools to the promotion on ad hoc basis pending regular approval by the Commission (Board) or Regional Level Committee concerned, then such promotion for all practical purposes, has to be treated as substantive in nature. He further submitted that in case taking into consideration the ad hoc appointment the services has been regularized, the seniority shall be counted from the date of appointment. Therefore, Sri Ram Ujagar Mishra could not be deprived of the past services rendered by him w.e.f. 16.12.1992.
(56) In so far as, the submission advanced on the determination of seniority of Sri Ram Ujagar Mishra is concerned, it is recorded that he was granted ad hoc appointment on the post of Lecturer on 16.12.1992 and requisition for grant of regular promotion on the post of Lecturer was sent to the U.P. Secondary Education Services Selection Board, Allahabad in the year 1992 itself. The Selection Board on the basis of papers made available, granted regular promotion to Sri Ram Ujagar Mishra in the year 1998 w.e.f. 16.12.1992. The Regional Joint Director of Education while passing the order dated 02.06.2011, has recorded finding that the date of substantive appointment of Sri Ram Ujagar Mishra is 16.12.1992, as he was granted regular promotion on the post of Lecturer w.e.f. 16.12.1992.
(57) Sri H.G.S. Parihar, learned Senior Counsel appearing on behalf of Sri Ram Ujagar Mishra submitted that at the time of grant of promotion, Sri Ram Ujagar Mishra was having essential qualification, as required under the relevant rules. Therefore, the submission advanced on behalf of Smt. Khusnuda Parveen is based on misconceived grounds. In support of his argument, he relied upon the following judgments:
i) (2010) 1 UPLBEC 156, Santosh Kumar Dubey Vs. State of U.P. and others; paragraph No.28:
"28. In view of the aforesaid, this Court has no hesitation to hold that if a recommendation is made by the Committee of Management for regular promotion of a teacher against a post within the promotion quota on the principle of seniority subject to rejection of unfit and such promotion recommended by the Committee of Management is ultimately approved by the competent authority, and in between approval is granted by the District Inspector of Schools to promotion on ad-hoc basis pending regular approval by the Commission (Board) or Regional Level Committee concerned, then such promotion, for all practical purposes, has to be treated as substantive in nature, subject however, to the final approval of the promotion by the Competent Authority."
ii) (2015) 11 SCC 80, Secretary Minor Irrigation Department and others Vs. Narendra Kumar Tripathi; paragraph No.15:
"15. The scheme of the working of the Rules in the Department shows that right from 1979, the Department has been making direct recruitment after due selection and by applying the 1979 Rules which rules have been extended from time to time to subsequent recruitments, services were regularized. Validity of the scheme of these recruitments is not under challenge. In such circumstances, when the rules provide that such ad hoc appointments have to be regularized and seniority counted from the date of appointment, the writ petitioner could not be deprived of the past service rendered by him from 12th June, 1985 till the date of regularization. It is not a case of appointments made without due selection or without vacancy or without qualification or in violation of rules. The larger Bench failed to observe that the appointment of the writ petitioner was not dehors the rules nor by way of stop gap arrangement. The rules had the effect of treating the appointment as a regular appointment from initial date of appointment. In these circumstances, the principle laid down in K.C. Joshi was not applicable. It is not a case where service rendered is either fortuitous or against rules or by way of stop gap arrangement. Applying the principle laid down in Direct Recruit Class II Engineering Officers' Association, the writ petitioner is entitled to count service from 12th June, 1985. Moreover, the department has allowed the benefit of past service to other similarly placed incumbents as observed in the judgment giving rise to the appeal of the department."
(58) The ratio of the judgment relied upon by Sri H.G.S. Parihar, learned Senior Counsel and the point involved for determination clearly supports the claim of Sri Ram Ujagar Mishra. It is relevant to point out that the law in regard to the challenge of validity of appointment while challenging the seniority is very much settled in the following judgments:
i) 1986 UPLBEC 44, Vijay Narain Sharma Vs. State of U.P. and others; paragraph Nos.25, 26 and 27:
"25. On a reading of Regulation 3 of Chapter II, it is clear that it now-where contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. That dispute can be taken in appeal under Clause (f) of Regulation 3, quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute.
27. In this view of the matter, I am of the opinion that the contention raised by the learned counsel for the respondent is well founded. In proceedings for determining the validity of the seniority list prepared by the colleague, it is not open to a teacher of the said college to challenge the appointment or promotion of any other teacher in the same college."
ii) 2010 (2) ADJ 214, Sughar Singh Vs. State of U.P. and others; paragraph Nos.4, 5, 8, 9, 10, 11, 12 and 13:
"4. It is not in dispute that since the date of appointment, on Class-IV post respondent no. 6 is continuously working in the College and at no point of time his appointment was ever disputed by petitioner in any proceedings. It is only for the first time when a representation was filed on 30.10.2009 while the appointment of respondent no. 6 on Class-IV post made on 20.01.2000 was challenged by the petitioner on the above ground only for the purpose of depriving him promotion under the Regulations.
5. In fact the order of appointment of respondent no. 6 has not been challenged even in this writ petition and there is no relief seeking writ of certiorari for quashing the appointment letter of respondent no. 6. When certain persons are eligible to be considered for promotion, in order to deny a promotion or right to be considered for promotion, their appointment made long back cannot be disputed particularly when no steps were taken by the person concerned assailing the appointment before the competent authority in accordance with law within a reasonable time. Once the appointment is made and continue for a sufficient time, the appointee is entitled for all consequences flowing by virtue of such appointment as are permissible under the Rules and Regulations, governing conditions of service which includes promotion etc.
8. In Vijay Narain Sharma Vs. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44, this Court in paragraphs 25 and 26 of the judgment held as under:
"25. On a reading of Regulation 3 of Chapter II, it is clear that it nowhere contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. The dispute can be taken in appeal under Clause (1) of Regulation 3 quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute."
9. Similar View was taken in Smt. Manju Keshi Dixit Vs. State of U.P. and others, 2004(5) ESC (All) 234 and in paragraph 13 this Court held:
"13. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities."
10. Both the above judgements have been followed recently in Smt. Bharti Roy Vs. Deputy Director of Education, II, Kanpur and others, 2008(2)ESC 911.
11. Moreover, no reason has been assigned by learned counsel for the petitioner as to why for the last almost 9 years the appointment of respondent no. 6 on Class-IV post was not challenged in a proper forum.
12. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 the Apex Court held that it is well settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sir Barnes Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. . . . . . . Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
13. Once it is not in dispute that the respondent no. 6 is senior to the petitioner as a Class-IV employee and he is otherwise eligible for promotion, I do not find it a fit case warranting interference at this stage in extraordinary equitable jurisdiction under Article 226 of the Constitution. The writ petition lacks merit, and, is accordingly dismissed in limine."
iii) 2011 (2) ADJ 320, Prem Prakash Vs. State of U.P. and others; paragraph Nos.10, 11, 12, 13, 14, 15, 16, 17 and 18:
10. In Vijay Narain Sharma Vs. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44, this Court in paragraphs 25 and 26 of the judgment held as under:
"25. On a reading of Regulation 3 of Chapter II, it is clear that it nowhere contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. The dispute can be taken in appeal under Clause (1) of Regulation 3 quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute."
11. In the case of Smt. Rani Srivastava Vs. State of U.P. and others, 1990(1) UPLBEC 425 this Court has held as under:
"5. Principle infirmity in appointment of petitioner, that could be pointed out, was that it was made without issuing any advertisement and recommendation by Selection Committee. May be but could the management which appointed petitioner in 1984 and the Basic Shiksha Adhikari who did not raise any objection to payment of salary for five years raise this objection in 1989. The appointing authority under rules is the committee of Management. And the approving authority is the Basic Shiksha Adhikari, who under U.P. Act No. 6 of 1979 is also to supervise the payment of salary and is empowered to inspect and check. For five years no objection was raised by him. And then suddenly when one of the members desired that a male principal, should be appointed, he also raised an objection. The petitioner had raised objection as far back as 1985 against her being treated as temporary employee. No action was taken on it. Nor any decision was given. For procedural irregularity the petitioner should not be made to suffer. Normally it is to be presumed that Management must have sent papers for appointment of petitioner to Basic Shiksha Adhikari who must have granted approval unless it is rebutted either by placing any communication by Management from record of Basic Shiksha Adhikari to show that things did not proceed as they are provided in the Act. In absence of any material there is no reason to doubt that Committee of Management would have appointed without intimating Basic Shiksha Adhikari and would have even issued letter appointing petitioner permanently and Basic Shiksha Adhikari would not have raised any objection in respect of payment of salary etc. from 1984 to 1989. Change of Secretary or Basic Shiksha Adhikari should not be permitted to create any difference otherwise it shall result in creating arbitrariness and expose teachers of being thrown out of employment on one or the other pretext and shall never have security which is necessary for efficient discharge of duty. Equity stands in her favour and prevents both the appointing and approving authority from taking recourse to their own mistakes, for causing prejudice to petitioner. Estoppel, the principle of equity, is the shield for such unjust and unfair actions."
12. In the case of Dr. Asha Saxena v. Smt. S.K. Chaudhary and others, 1991(2) UPLBEC 1202 a Full Bench of this Court has held as follows:
"16. .....In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16-E (10) of the Act and we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointment had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time."
13. This Court in the case of Smt. Manju Keshi Dixit Vs. State of U.P. and others reported in 2004(4) AWC 3758 reiterated the aforesaid view by following observations:
"13. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities."
14. Both the above judgements have been followed recently in Smt. Bharti Roy Vs. Deputy Director of Education, II, Kanpur and others, 2008(2)ESC 911 and Sughar Singh Vs. State of U.P. and others, Civil Misc. Writ Petition No. 67796 of 2009, decided on 15.12.2009.
15. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities.
16. It is evident from the record that respondent no. 5 was appointed in the institution concerned in 1979 and at no point of time he ever challenged the appointment of petitioner or anybody else before the competent authority. The representation made by respondent no. 5 for the first time after occurrence of vacancy on 15.08.2002 also basically relates to question of seniority and not that of appointment of petitioner. In view of the exposition of law laid down in the above cases in a dispute relating to seniority the validity of appointment cannot be looked into and hence it was not open to respondent no. 5 to challenge the validity of appointment of petitioner in an incidental and ancillary question which is basically relates to seniority. Moreover, nothing has been placed on record to show as to how and why the repsondent no. 5could not challenge the appointment of petitioner for more than two decades and, therefore, the respondent no. 5 could not have been allowed to raise this issue after such a long time. It is however not disputed that the institution in question was brought to grant-in-aid in 1974 as also admitted by repsondent no. 5 in para 18 of his counter affidavit and, therefore, salary from the State Exchequer was allowed to petitioner only w.e.f. 01.07.1974 and earlier thereto a meager sum of Rs. 25/- per month was paid to petitioner which became Rs. 165/- per month on application of regular pay scale.
17. In the circumstances and as discussed above, in my view, the petitioner's appointment could not have been allowed to be disputed in the garb of raising dispute of seniority and respondent no. 5 having been joined only in 1979 could have claimed seniority over petitioner who is working on that day.
18. In the result, the writ petition is allowed. The impugned order dated 07.04.2007 is hereby quashed. There shall be no order as to costs.
(59) Upon thoughtful consideration of the law reports relied upon by the learned counsel for the parties, this Court holds that the order of the Regional Joint Director of Education dated 02.06.2011 does not suffer from any infirmity or illegality. The Regional Joint Director of Education while deciding the substantive date of appointment of Sri Ram Ujagar Mishra has not committed any illegality. Thus, the Writ Petition No.4016 (S/S) of 2011 lacks merit and is hereby dismissed.
(60) It is further held that the law is settled that while examining the validity of the determination of seniority, a teacher has no right to challenge the validity of the appointment. The controversy in this regard was examined by the Full Bench of this Court in the case of Dr. Asha Saxena Vs. Smt. S.K. Chaudhary and others (Supra), wherein it was held in the following manner:
"20. Learned counsel appearing for Dr. Asha Saxena has also urged before us that the Regional Inspectress of Girls Schools has found the appointment of the three teachers invalid as on the date of appointment none of them had the requisite qualifications for being promoted to the post of lecturer in the College. It has been urged that the Full Bench on an earlier occasion relying on the decision of the Supreme Court in the case of Ram Sarup v. State of Haryana AIR 1978 SC 1536 = 1978 L.L.C. 1535 has held that the three teachers should be deemed to have been appointed from the date on which they would acquire qualifications for being promoted to the post of lecturers. At the very outset it may be mentioned that the earlier writ petition of Dr. Asha Saxena had been allowed inasmuch as complete material had not come before the Full Bench regarding the fact that Dr. Asha Saxena had filed objections immediately after her promotion which had been rejected and had become final. It has also not been brought to the notice of the Full bench that seniority list grade-wise was prepared every year after the incorporation of Chapter III in the year 1976. It may also be noted that Dr. Asha Saxena has not challenged the validity of the appointment and had only made a challenge to the seniority list. One fails to understand that after a lapse of nearly 17 years the Regional Inspectress of Girls Schools referred the matter to the Director of Education for adjudicating the question as to whether the appointments were valid or not. In our opinion, the exercise of power by the Regional Inspectress of Girls Schools on the facts and circumstances of the case is wholly arbitrary as that power could not be exercised after lapse of 17 years. The objections filed by Dr. Asha Saxena in the year 1986 which are contained in Annexure "3" to the writ petition are liable to be rejected inasmuch as the ground that she did not know the provision of Clause 3(1)(bb) in Chapter II was of no avail to her. The seniority lists were being prepared year after year after 1975-76 and the objection filed by Dr. Asha Saxena after the lapse of nearly 11 years was not liable to be entertained as has been held by the Supreme Court in the case of Malcom Lawrence Cecil D'Sousa (1975 L.I.C. 816) (supra). In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16-E(10) of the Act we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 year by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time. In our opinion, the order of the Regional Inspec-tress of Girls Schools referring the matter to the Director of Education under Section 16-E(10) is thus liable to be quashed."
(61) Smt. Khusnuda Parveen has filed another Writ Petition No.3969 (S/S) of 2013, challenging the order of the District Inspector of Schools dated 28.06.2013, whereby her claim for grant of ad hoc promotion on the post of officiating Principal was rejected on the ground that the dispute of seniority is pending consideration before the Lucknow Bench of Allahabad High Court. Therefore, the power under Section 18 (2) of U.P. Secondary Education Services Selection Board Act, 1982 cannot be exercised.
(62) The controversy involved in regard to the seniority has been decided by means of the common judgment passed in the connected writ petition, wherein Sri Ram Ujagar Mishra has been held to be senior to Smt. Khusnuda Parveen and the appointment of Smt. Khusnuda Parveen has been held to be illegal being obtained on the basis of fraudulent certificate of Scheduled caste. Therefore, the order of the D.I.O.S. dated 28.06.2013, does not require interference. The Writ Petition No.3969 (S/S) of 2013 is hereby dismissed.
(63) Accordingly, the issue of seniority between Sri Ram Ujagar Mishra and Smt. Khusnuda Parveen are set at rest. The respondents are directed to permit Sri Ram Ujagar Mishra to continue on the post of ad hoc Principal of the institution-Saadat Inter College, Nanpara, District Bahraich till regularly selected candidate comes and joins and to pay him regular monthly salary month by month accordingly, in as much as, the arrears of salary, if found due, be paid within three months' from the date of production of a certified copy of this order.
No order as to costs.
Order Date :- 19.07.2018 Adarsh