Allahabad High Court
Himanshi Yadav vs State Of U.P. And 3 Others on 4 July, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 19.05.2022 Delivered on 04.07.2022 Case :- WRIT - A No. - 3254 of 2021 Petitioner :- Himanshi Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shantanu Khare,Sr. Advocate Shri Ashok Khare Counsel for Respondent :- C.S.C.,Bhupendra Kumar Yadav Hon'ble Saral Srivastava,J.
Order on Amendment Application No.4/2021 Learned counsel for the petitioner through the present amendment application is seeking permission to incorporate the following prayer and the same may be treated as part of the writ petition.
"(f) issue a writ, order or direction in the nature of certiorari quashing the clause 16 of the circular dated 18.01.2021 issued by the Director General - School Education - UP, Lucknow."
Because the amendment sought is formal, therefore, the amendment application is allowed.
learned counsel for the petitioner/applicant is permitted to carry out the necessary amendment within one week from today.
Order on Writ Petition
1. Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for the petitioner, Sri Vikram Bahadur Yadav, learned Standing Counsel for the State respondent nos. 1 & 2 and Sri B.K.Yadav learned counsel for respondents nos.3 & 4.
2. The petitioner through the present writ petition, has prayed for quashing of notice dated 02.01.2021 issued by the Basic Shiksha Adhikari, Firozabad, and a writ of mandamus directing the opposite party to grant appointment to the petitioner as an Assistant Teacher in a Junior Basic School of District Firozabad and permit the petitioner to join in pursuance thereto and to discharge all duties as Assistant Teacher and to pay regular monthly salary on the said post.
3. The facts, in brief, are that under an advertisement notified as Assistant Teacher Recruitment Examination, 2019 for recruitment of 69000 Assistant Teachers in Junior Basic Schools of the State, the petitioner who belongs to the OBC category and is qualified for appearing in the said selection, submitted an application for selection in the said recruitment. She appeared in the examination and was declared successful.
4. On 13.5.2020 those candidates who succeeded in the Assistant Teacher Recruitment Examination, 2019 were required to apply for consideration for an appointment as Assistant Teacher. In response thereto, the petitioner also submitted her application online for the appointment of Assistant Teacher. It is stated that the petitioner specified all details of her educational qualification including teacher training qualification in the application. The teacher training qualification specified by the petitioner in the said application was B.T.C. training course passed in the year 2018 in an examination conducted by Examination Regulatory Authority, Prayagraj. It is stated that the petitioner was selected for appointment and was allotted District Ghaziabad. The petitioner was required to participate in counseling scheduled before the Basic Shiksha Adhikari, Firozabad on 02/03, September 2020. The petitioner participated in the counseling.
5. According to the petitioner, the appointment orders were scheduled to be issued in District Firozabad on 05.12.2020, but no appointment order was issued to the petitioner. The petitioner was informed that a complaint had been received against her that she had obtained two regular degrees namely B.Ed. and B.T.C. course certificates in the same session. Later on, a notice dated 02.01.2021 was issued by the Basic Shiksha Adhikari, Firozabad requiring the petitioner to submit documents within one week, failing which, action would be taken against her. It is further stated that the petitioner being a duly selected candidate for the post of Assistant Teacher, has availed no benefit of her B.Ed degree, therefore, the action of the respondents in not issuing an appointment letter to the petitioner is arbitrary. It is also stated that the petitioner has no objection if her B.Ed degree may be invalidated. In the aforesaid backdrop, the petitioner has prayed for the aforesaid relief.
6. A counter affidavit has been filed by respondent no.4 stating therein that paragraph 16 of the letter dated 18.01.2021 of the Director General, School Education and Director of State Project addressed to all Collectors and District Basic Education Officers of the State provides that such candidates who have completed two regular courses in same academic session as a regular student, their selection is not legal because of Paragraph 16 of the letter dated 18.01.2021, therefore, the District Selection Committee decided to cancel the appointment of the petitioner. The further case of the respondent is that the minutes of the meeting of the Expert Committee constituted by the University Grants Commission (U.G.C.) reveal that it had considered the issue of pursuing more than one degree simultaneously, and U.G.C. issued a notification dated 15.01.2016 by which it did not endorse the idea of pursuing two-degree courses simultaneously. Accordingly, it is stated that as the petitioner could not pursue two regular courses simultaneously, therefore, she cannot be appointed. Consequently, her appointment has been cancelled.
7. In the rejoinder affidavit filed by the petitioner, it is clarified that the petitioner was admitted to B.T.C. Batch 2015 and passed the same in the year 2019. The admission of the petitioner to Bachelor of Education was in the year 2016. The petitioner also gave details of the examination of B.T.C., in which the petitioner participated which are specified below:
(i) 1st Semester Examination 18.04.2017 to 20.04.2017
(ii) 2nd Semester Examination 07.12.2017 to 09.12.2017
(iii) 3rd Semester Examination 08.05.2018 to 10.05.2018
(iv) 4th Semester Examination 01.11.2018 to 03.11.2018
8. Petitioner also stated the details of Bachelor of Education Examination which is detailed below.
(i) 1st Year Examination Commencing from 08.12.2017
(ii) 2nd Year Examination 22.09.2018 - 04.10.2018
9. The further averment made in the rejoinder affidavit is that the petitioner had left the Bachelor of Education paper commencing from 08.12.2017 and appeared in re-examination. The petitioner along with the rejoinder affidavit also enclosed UGC (minimum standards of instructions for the grant of the first degree through formal education) Regulation 2003.
10. Learned Senior Counsel has contended that there is no rule which prohibits pursuing two courses simultaneously, therefore, the objection of the respondents that the petitioner is disqualified for appointment due to pursuing two courses simultaneously in the same session is arbitrary. It is contended that the petitioner was first admitted in B.T.C. course for the session 2015-16 whereas the petitioner did B.Ed course in the session 2016-18, therefore, non-issuance of appointment letter to the petitioner on the ground that she has pursued two courses simultaneously in the same session is based upon misappreciation of facts on record and is not sustainable In law.
11. It is further contended that there is no objection raised by the respondents or by any authority that the attendance of the petitioner in the B.T.C. course was not complete. Consequently, it is submitted that if any invalidity to the degree is attached, that would be to the B.Ed course which was after the B.T.C. course.
12. It is submitted that the qualification for recruitment in Assistant Teacher is B.T.C. and as the petitioner has not taken any benefit of B.Ed degree, therefore, she is eligible for the appointment even if her B.Ed. Degree is invalidated to which the petitioner has no objection.
13. Lastly, it is contended that the U.G.C. permits the petitioner to pursue one degree course and one certificate course simultaneously, and therefore, the objection raised by the respondents about the appointment of the petitioner is misconceived and does not stand to merit. Learned Senior Counsel has placed reliance upon the judgments of the Apex Court in the case of Kuldeep Kumar Pathak Vs. State of U.P. & Ors., (2016) 3 SCC 521 and Civil Appeal No.1301 of 2022 A.Dharmraj Vs. The Chief Educational Officer, Pudukkottai & Ors. and judgment of this Court passed in Special Appeal Defective No.898 of 2020, Board of Basic Education & Anr. Vs. Arvind Prakash Dwivedi & Ors.
14. Per contra, learned Standing Counsel would contend that the petitioner has preferred the writ petition against the show cause notice, therefore, the writ petition at this stage is premature and is liable to be dismissed on this ground alone. It is further contended that because of paragraph 16 of the letter dated 18.01.2021 of Director General, School Education and Director of State Project that in case a candidate has pursued two courses simultaneously, he/she is disqualified for being appointed as Assistant Teacher. Hence, the petitioner is not entitled to the appointment as Assistant Teacher. Accordingly, it is submitted that the writ petition is devoid of merit and deserves to be dismissed.
15. I have heard learned counsel for the petitioner and learned counsel for the respondents.
16. In the instant case, the record reflects that the petitioner has done B.T.C. training certificate course in the session 2015-17. The session was late due to which her B.T.C. certificate course had been completed in the year 2019 as it is evident from the mark sheet of the 4th semester of the petitioner of B.T.C. Batch 2015, appended on Page 20 of the writ petition, that second-year examination was held in 2018. The petitioner has completed her B.Ed. course in the session 2016-18, which is evident from the second year mark-sheet of the petitioner, appended on page 29 of the writ petition. Thus, it is manifest from the record that the sessions of the petitioner for the B.T.C. training course and B.Ed are different as the session for the B.Ed course was 2016-18 whereas the session of B.T.C. was 2015-17. At this point, it would be apt to refer to paragraph 5.8 of the U.G.C. (Minimum Standards of Instructions for the Grant of the First Degree through Formal Education) Regulation, 2003 (hereinafter referred to as 'Regulation 2003'):
"The minimum number of lectures, tutorials, seminars and practicals which a student shall be required to attend for eligibility to appear at the examination shall prescribed by the university, which ordinary shall not be less than 75% of the total number of lectures, tutorials, seminars, practicals, and any other prescribed requirements."
17. Paragraph 5.8 of Regulation, 2003 is relevant in the context of the present case. It specifies the minimum number of lectures that a student is required to attend to become eligible for appearing in the examination at the university.
18. In the case in hand, the respondents do not dispute the fact that the petitioner had pursued the B.T.C. certificate course in the session 2015-17, whereas she did B.Ed. course in the session 2016-18. Thus, the sessions for the two courses are different. It is also pertinent to mention that there is no averment in the counter affidavit that the petitioner did not attend 75% of lectures, tutorials, seminars, and practicals in the B.T.C. course to become eligible to appear in the examination. In such view of the fact, it can be concluded that the petitioner's B.T.C. course certificate is valid and does not suffer from any infirmity.
19. Learned counsel for the respondent has heavily placed reliance upon paragraph 16 of the letter dated 18.01.2021 issued by Director General, School Education and Director of State Project to contend that since there is a restraint imposed in paragraph 16 of the letter dated 18.01.2021, therefore, the authorities have acted as per law in rejecting the appointment of the petitioner. In this context to appreciate the controversy at hand, it would also be relevant to reproduce para 16 of the letter dated 18.01.2021.
16. एक शैक्षिक सत्र में दो कोर्स- ऐसे अभ्यर्थी जिनके द्वारा एक शैक्षिक सत्र में दो कोर्स उत्तीर्ण किया गया है उनमें यदि दोनो कोर्स संस्थागत परीक्षार्थी के रूप में उत्तीर्ण किया गया है, तो ऐसे अभ्यर्थियों का चयन मान्य न किया जाये, किन्तु यदि दोनो कोर्स में से कोई एक कोर्स व्यक्तिगत परीक्षार्थी के रूप में उत्तीर्ण किया गया है, किन्तु उन दोनों परीक्षाओं का अधिभार चयन में एक साथ सम्मिलित न हो तो ऐसे अभ्यर्थी के संबंध में नियुक्ति पत्र निर्गत किये जाने हेतु जनपदीय चयन समिति के समक्ष प्रस्तुत करते हुए, मूल अभिलेखों से मिलान एवं अन्य साक्ष्यों का परीक्षण करते हुए, प्रकरण निस्तारित किया जाये। किन्तु यदि उन दोनों परीक्षाओं का अधिभार चयन में एक साथ सम्मिलित किया गया हो तो ऐसे अभ्यर्थी के चयन पर विचार किया जाना उपयुक्त नहीं होगा।
20. The perusal of paragraph 16 of the letter dated 18.01.2021 though indicates that a candidate shall become ineligible for the appointment if he had pursued two-degree courses simultaneously as a regular student, but the fact remains that in the absence of any statutory provisions prohibiting the pursuing of two-degree courses simultaneously, can such a condition be imposed by a letter of Director General, School Education and Director of State Project dated 18.01.2021. In the opinion of the Court, the answer to the same is emphatic 'No' for the reason that there is no provision in the law that has been pointed out by the learned Standing Counsel which prohibits a candidate to pursue two courses simultaneously. If there is no statute prohibiting pursuing two courses simultaneously and if there is no illegality attached to pursuing two courses simultaneously and obtaining a degree then a candidate cannot be disqualified on the ground that he has pursued two courses i.e. B.Ed. And B.T.C. Simultaneously. In such view of the fact, this Court finds that paragraph 16 of the letter dated 18.01.2021 is arbitrary and has no nexus with the object sought to be achieved.
21. The Apex Court in Kuldeep Kumar Pathak (supra) in paragraph No. 7 of the judgment has held that where there is no prohibition in the regulation prohibiting pursuing two courses simultaneously, the intermediate certificate of a candidate cannot be cancelled. Paragraphs Nos. 6, 7, and 8 of the judgment are reproduced herein below.
"6. Before us, Mr. Pradeep Kant, learned senior counsel for the appellant has made a neat legal argument. He submits that though the impugned judgment proceeds on the basis that appearing in two examinations simultaneously for the same year is violation of the Regulations of the Board, this reason given by the High Court is clearly unsustainable inasmuch as no such Regulation is shown by the Board which prohibited any such candidate to appear in two examinations in the same year. The learned senior counsel further argued that the impugned order passed by the respondents for confiscating his Certificate of Intermediate exam was, otherwise also, contrary to the principles of natural justice inasmuch as no show cause notice and opportunity of hearing was given to the appellant before passing such an order, which was passed belatedly after a period of nine years from the passing of the said examination by the appellant.
7. We are of the opinion that both the submissions of the learned senior counsel are valid in law and have to prevail. The High Court has been influenced by the argument of the respondents that simultaneous appearance in two examinations by the appellant in the same year was 'contrary to the Regulations'. However, no such Regulation has been mentioned either by the learned Single Judge or the Division Bench. Curiously, no such Regulation has been pointed out even by the respondents. On our specific query to the learned counsel for the respondents to this effect, he expressed his inability to show any such Regulation or any other rule or provision contained in the U.P. Intermediate Education Act, 1921 or Supplementary Regulations of 1976 framed under the aforesaid Act or in any other governing Regulations. Therefore, the entire foundation of the impugned judgment of the High Court is erroneous.
8. It is also pertinent to note that the appellant's intermediate examination and result thereof was not in question before the U.P. Board. No illegality in the admission in that class has been pointed out by the respondents. The alleged charge of simultaneously appearing in two examinations, one of the U.P. Board and other of the Sanskrit Board, was with respect to Class X and equivalent examination which did not relate to admission in intermediate course. The only provision for canceling the said admission is contained in Regulation (1) of Chapter VI-B. It details the procedure for passing the order of punishment canceling intermediate results and, inter alia, prescribes that a committee consisting of three different members is to be constituted and entrusted with the responsibility of looking into and disposing of cases relating to unfair means and award appropriate penalty as specified in the Regulations itself. However, there is no allegation of any unfair means adopted by the appellant in the instant case and, therefore, that Regulation has no applicability. Even otherwise, no such committee was constituted. Therefore, having taken admission in Intermediate on the basis of past certificate issued by a separate Board, which was recognised, and not on the basis of the result of Class X of the U.P. Board, the appellant derived no advantage from his examination of the U.P. Board while seeking admission in Intermediate course. Thus, from any angle the matter is to be looked into, the impugned orders dated April 20, 2011 and May 10, 2011 passed by the respondents are null and void, apart from the fact that they are in violation of the principles of natural justice."
22. Similarly, in the case of A. Dharmraj (supra) the Apex Court almost in identical circumstances has held that cancellation of appointment of a candidate for pursuing two degrees simultaneously is illegal when there is no bar in the statute. In this respect, the Court observed that even if one of the degrees i.e. the subsequent degree obtained by the appellant namely M.A. (Tamil) is ignored, the appellant could have been promoted to the post of B.T. Assistant (English) because of the degree of B.A. (English) obtained by him. Paragraphs No. 5 and 5.1 of the judgment are reproduced herein below:
5. Having heard the learned counsel appearing on behalf of the respective parties and on perusal of the judgment and order passed by the learned Single Judge as well as the Division Bench, it appears that the promotion of the appellant to the post of B.T. Assistant (English) has been set aside by the High Court on the ground that the appellant obtained two degrees namely B.A. (English) and M.A. (Tamil) simultaneously and therefore as per Rule 14 he was ineligible for promotion. However, considering Rule 14, it can be seen that the bar was against teachers who have obtained B.A./B.Sc./B.Ed degree simultaneously during the same academic year. In the present case it cannot be said that the appellant obtained the degree of B.A. (English) and M.A. (Tamil) during the same academic year. The appellant pursued his B.A. (English) during January, 2012 to December, 2014. He pursued his M.A. (Tamil) which was a two years distance education course between the academic years 2013-2014 to 2014-2015. Therefore, as such Rule 14 is not applicable to the facts of the case on hand stricto senso. The degree of M.A. (Tamil) cannot be equated with B.A./B.Sc./B.Ed.
5.1 Assuming that the subsequent degree obtained by the appellant namely M.A. (Tamil) is ignored, in that case also, considering his degree in B.A. (English) he could have been promoted to the post of B.T. Assistant (English). That both the degrees secured by the appellant cannot be ignored. It is not in dispute that the degree of B.A. (English) was sufficient as per the eligibility criteria for promotion to the post of B.T. Assistant (English).
23. The Division Bench in the case of the Board of Basic Education (supra) following the judgment of Kuldeep Kumar Pathak (supra) has held as under:
"It is not in dispute that at the relevant time the respondent-petitioner could have obtained two qualification simultaneously and the respondent-petitioner as such possessed requisite qualification to hold the post of Assistant Teacher as well as the further promotional post.
Learned single Bench in view of it, has not committed any error that may warrant interference in appellate jurisdiction.
While dismissing the appeal, we would like to observe that the government authorities must be quite sensitive while imposing the severe punishment of dismissal as a consequence to disciplinary action. It is strange that in the instant matter the authority competent despite knowing the fact that the respondent-petitioner is having requisite qualification to hold the post chose to impose the penalty of dismissal.
With the observations as above, the appeal stands dismissed accordingly."
24. In view of the aforesaid discussion, the condition imposed by paragraph 16 of the letter dated 18.01.2021 is hit by Article 14 of the Constitution of India.
25. In the instant case, there is no averment or allegation in the counter affidavit that the two degrees acquired by the petitioner have been obtained by fraud or suffer from any illegality on account of non-compliance of any provision of law like non-fulfilling of criteria of minimum 75% attendance as provided in paragraph 5.8 of U.G.C., so this Court believes that the objection raised by the respondent for cancelling the appointment of the petitioner is illegal and is not sustainable in law.
26. Viewed from another angle, in the instant case applying the ratio of law elucidated by the Apex Court in paragraph 5.1 of the judgment in the case of A. Dharmraj (supra), if the B.Ed. degree of the petitioner for session 2016-18 is ignored, which has been obtained after the B.T.C. certificate course which the petitioner did in the session 2015-17, it can easily be concluded that the petitioner is eligible to be appointed as Assistant Teacher. Therefore, in view of the said fact, the objection raised by the respondents is misconceived and not sustainable in law.
27. Now coming to the submission advanced by learned counsel for the respondents that the writ petition is premature as it has been instituted against the show cause notice. In this regard, it is apposite to state that though it is settled in law that this Court should refrain from interfering at the stage of show cause notice, there is no bar that this Court cannot exercise its power under Article 226 of the Constitution of India where the notice itself is bad as having been issued on irrelevant considerations. In the instant case, the only allegation in the notice is that the petitioner is not eligible to be appointed on account of obtaining two degrees simultaneously, besides this, no other ground has been raised for invalidating the appointment of the petitioner. In the counter affidavit also the only stand taken by the respondents is that the petitioner is not eligible to be appointed because of para 16 of the letter dated 18.01.2021 as she has pursued two courses simultaneously.
28. From the discussion aforesaid, it is evident that the allegation made in the notice for declaring the petitioner to be ineligible for the appointment is based upon irrelevant considerations and is not supported by any material on record which requires any factual investigation. Since the counter affidavit in the instant case has been invited and filed, this Court finds that it is one such case that falls in the exceptional category where the Court can exercise its power under Article 226 of the Constitution of India and, therefore, in such view of the fact, the objection raised by the learned counsel for the respondents is not sustainable.
29. For the reasons given above, the writ petition is allowed, and notice dated 02.01.2021 issued by the Basic Shiksha Adhikari, Firozabad and paragraph 16 of the letter dated 18.01.2021 are quashed and a writ of mandamus is issued to the respondents to issue appointment letter to the petitioner as Assistant Teacher in any Junior Basic School to which she has opted as per her preference within one month from the date of production of the certified copy of this order and the respondents shall ensure the joining of the petitioner and shall pay regular monthly salary on the said post regularly every month with all consequential benefits to which she is entitled in law. There shall be no order as to cost.
Dated: 04.07.2022 Mohit Kushwaha (Saral Srivastava,J.)