Allahabad High Court
Shalini Verma vs State Of U.P. And 5 Others on 22 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:169373 Court No. - 35 Case :- WRIT - A No. - 11017 of 2023 Petitioner :- Shalini Verma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Hina Shafiq,Rizwan Ahmad(Qureshi) Hon'ble Vikas Budhwar,J.
1. Rejoinder affidavit which are two in number has been filed in the Court after serving an advance copy upon the counsel for the respondents, the same is taken on record.
2. Heard Sri Prabhakar Awasthi, learned counsel for the writ petitioner, Sri Shailendra Singh, learned Standing Counsel who appears for respondents No. 1 to 4, Sri Julfkar Ali learned counsel who appears for respondent No. 5 and Sri R.K. Ojha, learned Senior Advocate assisted by Sri Rizwan Ahmad Qureshi, learned counsel who appears for respondent No. 6.
3. Since the affidavits have been exchanged between the parties and they do not propose to file any further affidavits, thus, the writ petition is being decided at the fresh stage with the consent of the parties.
4. The case of the writ petitioner is that the fifth respondent, C/M Kalka Prasad Ram Chandra, Kala Kendra Girls Inter College Bareilly is an institution which is recognized under the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971 stands applicable.
5. The writ petitioner claims to be appointed as Assistant Teacher (Music) on 01.01.1997 on compassionate ground owing to the death of her mother. Likewise, the sixth respondent is concerned she was also appointed as an Assistant Teacher but on 01.07.2009, however in the seniority list so appended and which is not being disputed by the rival parties the name of the writ petitioner finds at serial No. 1 as well as the sixth respondent at serial No. 4 respectively. According to the writ petitioner one Smt. Vimla Gupta who was discharging the duties as Lecturer in the subject Sanskrit retired on 31.03.2013 and, thus, now the recruitment exercise by way of promotion stood initiated in that regard. The writ petitioner had come up with the stand that she has to a credit the academic qualification of M.A. in Sanskrit along with M.A. in Music. The writ petitioner claims to have staked her claim for being promoted on the post of Lecturer (Sanskrit) and she in this regard, preferred a request letter of 17.04.2023 before the fifth respondent followed by reminder on 12.05.2023. It is the case of the writ petitioner that despite the fact that she was representing her cause for being accorded promotion on the post of Lecturer (Sanskrit) but to the utter surprise of the writ petitioner she attained knowledge that on 12.12.2022 the fourth respondent, District Inspector of Schools, Bareilly proceeded to issue a communication to the Authorized Controller/Principal of the fifth respondent institution with regard to compliance of the direction of the Joint Director of Education, Bareilly Region, Bareilly dated 09.12.2022 according promotion on the post of Lecturer (Sanskrit) to the sixth respondent.
6. Sri Prabhakar Awasthi, learned counsel for the writ petitioner, at this juncture, has made a statement at bar that the order of the Joint Director of Education, Bareilly Region, Bareilly dated 09.12.2022 has not been served upon him and, thus, he is in dark regarding the contents of the same. Alleging discrimination being meted to the writ petitioner in not according consideration to her claim for being promoted as Lecturer (Sanskrit) despite the fact that the writ petitioner is fully eligible and qualified and obviously senior, the writ petitioner has filed the present writ petition questioning the order dated 09.12.2022 (not available with the writ petitioner, order dated 12.12.2022) as well as sought mandamus directing the respondents to promote the writ petitioner on the post of Lecturer (Sanskrit).
7. This Court entertained the writ petition on 31.07.2023 and passed the following order.-
"Sri Prabhakar Awasthi learned Senior Counsel has contended that the order dated 09.12.2022 of the Joint Director of Education which is not available with the writ petitioner and the order dated 12.12.2022 passed by fourth respondent, District inspector of schools, Bareilly proceeds on misconception of fact and law particularly when the writ petitioner is senior to the sixth respondent and the promotion ought not to have been granted to the sixth respondent on the post of Lecturer (Sanskrit) which is even in fact in direct violation of Rule 14 of the U.P. Secondary Education Service Selection Board, 1998 and the alleged story cooked up by the respondents with regard to relinquishment of the charge voluntary by the writ petitioner is totally non-existent. Since certiorari has been sought for quashing of the order of the year 2022, let the response be filed by the respondent.
Sri Shailendra Singh learned Standing Counsel has accepted notice on behalf of respondents No. 1 to 4. Sri R.K. Ojha assisted by Sri Qureshi has accepted notice on behalf of six respondent.
Issue notice to respondent No. 5 by both ways.
Steps be taken within two days.
Affidavit of service be filed before the next date of listing. The respondents shall file counter affidavit by 18th of August, 2023, three days for rejoinder affidavit.
Put up this case on 22.08.2023 as fresh."
8. Pursuant whereto now counter and rejoinder affidavits have been filed by the respective parties and the pleadings are complete.
9. Sri Prabhakar Awasthi, learned counsel for the writ petitioner submits that the entire exercise sought to be undertaken at the instance of the respondents while conferring the benefit of promotion on the post of Lecturer (Sanskrit) upon the sixth respondent, Smt. Deepa Sharma is patently illegal besides being indirect teeth of the statutory provisions particularly in view of the fact that the writ petitioner is fully eligible and qualified and also senior as the said seniority list has attained finality with the passage of time. Sri Prabhakar Awasthi further submits that the only ground taken in the counter affidavits filed by the respective respondents which is common is in regard to the fact that the writ petitioner by virtue of a certificate which has been appended along with the counter affidavit filed on behalf of the fifth respondent with respect to staking of the claim by the writ petitioner to be only promoted on the post of Lecturer (Music) and for the rest of the course she has given no objection. Sri Prabhakar Awasthi, thus, seeks to submit that the aforesaid certificate even does not bear the date and further the said certificate cannot be said to be an act on the part of the writ petitioner to forego her claim for being promoted on the post of Lecturer (Sanskrit). The submission is that in totality, the said document is a manufactured and a forged document planted just in order to dislodge the claim of the writ petitioner. According to learned counsel for the writ petitioner that the certificate in this regard have also been planted in the case of Sangeeta Chaudhary, Urmila Devi & Others. The submission of the learned counsel for the writ petitioner is that such type of certificates being used as a device treating as no objection to the decision of a Committee of Management to promote somebody else is neither contemplated in the Act or the Rules in question.
10. Sri Awasthi lastly submits that the joining of the sixth respondent was tailored in such a manner so as to cover up its misdeed as the Principal of the institution in question found the said exercise to be unjust and illegal and, thus, the Principal of the institution in question was suspended on 05.06.2023 on various allegations including the allegation of not granting of joining to the sixth respondent. He, thus, submits that the order in question be set aside.
11. Sri R.K. Ojha, learned Senior Counsel who appears for the sixth respondent, on the other hand, submits that the no doubt, the writ petitioner happens to be the senior to the sixth respondent, however, in view of the certificate which has been appended along with the counter affidavit personifying that the writ petitioner only claimed promotion on the post of Lecturer (Music) and not on the post of Lecturer (Sanskrit), thus, the promotion of the sixth respondent cannot be faulted. He further submits that even in fact the writ petitioner's claim for promotion on the post of Lecturer (Music) is under consideration on account of occurrence of the vacancy.
12. Sri Julfkar Ali, learned counsel who appears for the Committee of Management has adopted the submission of Sri Ojha who appears for the sixth respondent and he submits that there is nothing to add but only his submission is that on the basis of the certificate so produced by the writ petitioner itself the entire exercise has been undertaken.
13. Sri Shailendra Singh, learned Standing Counsel who appears for respondents No. 1 to 4, on the other hand, submits that the order in question is perfectly valid in accordance with law and no fault whatsoever has been attributed in this regard. He further submits that the matter can be re-visited by the second respondent, in case, the matter stands remitted to it.
14. In rejoinder, Sri Prabhakar Awasthi submits that the issue with regard to the fact that as to whether the said certificate has been relied upon by the respondents are genuine or not or they have reached through a proper channel or not had to be adverted to and they are being very basis of negating the claim of the writ petitioner. According to him the writ petitioner possesses academic qualification and the writ petitioner is in the process of even initiating criminal action against the author of the said letter in that regard. Though, a repeated query was made to the learned counsel for the respondents to produce the copy of order of the Joint Direction of Education, Bareilly Region, Bareilly dated 09.12.2022 which has been relied upon in the order dated 22.12.2022 but none of the parties before this Court has produced the said letter, thus, this Court is in dark regarding the contents of the said letter. Though this Court would have undertaken the task of deciding the case on merits but the learned counsel for the parties has made a statement at bar that the matter be remitted back to the second respondent, Chairman, Committee constituted under Section 12 of Act No. V of 1982 to accord consideration to the entire issue afresh giving a re-look to the same.
15. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being disposed of in the following manner; (a) the writ petitioner shall approach the second respondent, Chairman, Committee constituted under Section 12 of Act No. V of 1982 by filing a comprehensive representation along with the self attested copy of the writ petitioner including the affidavits filed, by 30.08.2023; (b) the second respondent, Chairman, Committee constituted under Section 12 of Act No. V of 1982 shall fix 11.09.2023 as a date on which date the parties shall exchange their submissions; (c) a further date shall be fixed on 11.09.2023 for hearing of the matter which should be on 19.09.2023;(d) hearing be conducted on 19.09.2023; (e) orders be passed by 29.09.2023; (f) the second respondent, Chairman, Committee constituted under Section 12 of Act No. V of 1982 while passing the order shall bear in mind the following fundamental and core issues; (i) the genuineness of the certificates titled as "Pramanpatra" alleged to have been submitted by the writ petitioner; (ii) the import and impact of the submission of the said certificates in the light of the provisions contained under the U.P. Secondary Education Service Selection Board Rules, 1998; (iii) eligibility and suitability of the writ petitioner and the sixth respondent; (iv) any other incidental and ancillary issue connected with the matter; (v) the order dated 09.12.2022 of the Joint Director of Education, Bareilly, Region Bareilly and the order of the District Inspector of Schools, Bareilly dated 12.12.2022 shall be subject to the final orders to be passed by the second respondent.
16. Needless to point out that the entire exercise is to be undertaken after summoning the records and after going through the provisions of law while passing a reasoned and speaking order. It is clarified that the order passed today may not be construed to be an expression that this Court has adjudicated the matter on merits.
Order Date :- 22.8.2023 Rajesh