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Allahabad High Court · body

1990 DIGILAW 1256 (ALL)

Baidya Nath Rai v. Registrar, Kanpnr University

1990-12-17

M.L.BHAT

body1990
JUDGMENT M.L. Bhat- 1. The short controversy raised in this petition is whether the petitioner's continuance as class III employee with the respondents is proper and whether in the absence of having passed the High School examination, he could be promoted as class III employee. 2. The petitioner's case is that he has done M. A. previous in Sociology. He was initially appointed as class IV employee in the grade of Rs. 55-75, which appointment continued upto 2-3-1972. On a clear vacancy caused by promotion of one of the employees, the petitioner continued to hold the post of class IV employee and his appointment as such was extended from time to time. After completing two years service coutinuously the petitioner was appointed on regular basis in clear vacancy as class IV employee on 1-9-1973. He was promoted along with others to the post of routine grade clerk on 12-10-1973. The petitioner is said to have been asked to produce the High School certificate and mark sheet. The petitioner is said to have produced the original mark sheets of Prathma and Madhyama. The petitioner was promoted to the post of Junior Assistant on 20-8-1986 with effect from 16-5-1985 retrospectively. The petitioner could not produce the High School certificate. He informed the University that he has already submitted the certificates of Prathma and Madhyama, which were received by the University, therefore, he could not produce the High School certificate. The petitioner is said to have produced the High School certificate. The petitioner is said to have produced the certificates of B. A. Part I and B. A. II as also the M. A. Previous certificate. For non-production of High School Certificate the petitioner came to be suspended on 31-1-1988. An enquiry is said to have been conducted against the petitioner and the charge against him was proved that he did not have High School certificate and his services were terminated on 15-6-1989 after giving him a show cause notice. The petitioner submitted that the University of Allahabad has recognised Madhyama of Hindi Sabitya Sammelan as equivalent to Intermediate and Prathma has been recognised as equivalent to High School by the Central Government. A copy of the extract of Chapter IX of Hindi Sahitya Sammelan, Allahabad has been filed as Annexure 29 to the writ petition. The petitioner submitted that the University of Allahabad has recognised Madhyama of Hindi Sabitya Sammelan as equivalent to Intermediate and Prathma has been recognised as equivalent to High School by the Central Government. A copy of the extract of Chapter IX of Hindi Sahitya Sammelan, Allahabad has been filed as Annexure 29 to the writ petition. Sahitya Ratna Degree of the Hindi Sahitya Sammelan has been recognised as equivalent to M. A., which is next to Visharad Degree. 3. The case set up by the respondents is that the petitioner has defrauded the Board of High School and Intermediate Education and has obtained Intermediate certificate and B. A. Degree by committing fraud. Promoting the petitioner to the routine grade clerk he was required to furnish the High School certificate, which was essential qualification for his appointment. The submission of certificates of Prathma and Madhyama by the petitioner is said to be a cooked up story to cover the fault. When the petitioner could not furnish the High School certificate, he came up with a new story of Prathma and Madhyama qualification, which is not equivalent to High School certificate. In reply to various letters the petitioner is said to have stated at one stage that he bad already submitted the original mark-sheet and certificate of High School and he has made the administration liable for misplacing them. He had assured the respondents that he will produce a duplicate copy of the High School certificate and thereafter came with the story of Prathma and Madhyama. Throughout he was claming to have passed his High School examination. The original certificate submitted by the petitioner regarding Prathma is said to be a forged one. The promotion of the petitioner is said to have been given in routine manner. 4. It is the case of the respondents that the petitioner's Intermediate examination has been declared to be invalid by the Board of High School and Intermediate Education and consequently the B. A. (Pre), B. A. (Final) and M- A. (Pre) certificates will have no value. In his rejoinder-affidavit the petitioner has reiterated all what he has stated in the writ petition and has denied that his Intermediate and B. A. certificates have been cancelled by the Board. 5. I have heard the learned counsel for the parties in detail. 6. In his rejoinder-affidavit the petitioner has reiterated all what he has stated in the writ petition and has denied that his Intermediate and B. A. certificates have been cancelled by the Board. 5. I have heard the learned counsel for the parties in detail. 6. The learned counsel for the respondents has raised a preliminary objection to the maintainability of the writ petition. It is submitted that under Statute 2.07 of the State Universities Act the petitioner has an alternative remedy of filing an appeal against the order which is passed under Statute 2.06. Since the order of termination of services of the petitioner is passed under Statute 2.06, therefore, the petitioner's remedy is not writ petition but an appeal. Without exhausting the alternative remedy the petitioner cannot invoke the extra-ordinary jurisdiction of this Court. A communication is said to have been received from the authority of the Board by which it is stated that Prathma is not equivalent to High School examination. There is nothing on record to show that his Intermediate or B. A. examinations have been cancelled. The petitioner has submitted duplicate copies of Prathma and Madhyama, which are on the file. Annexure 30 is about the recognition of examinations conducted by the Hindi Vishwa Vidyalaya. By this Annexure the petitioner has tried to prove that Prathma in equivalent to High School examination, Madhyama is equivalent to Intermediate and Uttama is equivalent to B. A. However, there is a direction that the examinations of Prathma, Madhyama and Uttama will be considered for service where Hindi alone is being used. These examinations will not be considered full-fledged Matric or B. A. 7. It is not in dispute that the petitioner has done Intermediate and also B. A. and M. A. (Previous). IT cannot be said that he has defrauded the Board of High School and Intermediate Education, as contended by the respondents. The respondents have relied on a communication from the Board, which is used against the petitioner at his back. IT was necessary to allow the petitioner to rebut the said certificate and thereafter decide the whole matter. That has not been done. Whether or not admission to Intermediate and B. A. can be secured on the basis of Prathma and Madhyama certificates is not decided at all by the respondents or is not conveyed by the communication of the Board of High School and Intermediate Education. That has not been done. Whether or not admission to Intermediate and B. A. can be secured on the basis of Prathma and Madhyama certificates is not decided at all by the respondents or is not conveyed by the communication of the Board of High School and Intermediate Education. The Board of High School and Intermediate Education may have its own opinion about the value of Prathma and Madhyama examination but before that-communication could be relied upon, it was mandatory for the respondents to ask the petitioner to reply the same. The Board's communication, which is pressed into service is used against the petitioner without his knowledge even. Therefore, the finding given by the enquiry officer against the petitioner is based on evidence, which was not taken in the presence of the petitioner nor the petitioner was allowed to rebut the same. In what context the Board has said that Prathma is not equivalent to High School examination is not known whether it is for purpose of joining servioe or for the purpose of seeking admission to Intermediate or B. A. Course. 8. A further contention was raised by the respondents that the petitioner's certificates regarding Intermediate and B. A. have been cancelled. However, that could not be done unless the petitioner was before the Board. Therefore, I would not rely on this contention unless the Board apprises of its decision, which may adversely affect the petitioner and allows the petitioner to explain his position. In these proceedings I cannot make any direction to the Board to hold a fresh enquiry against the petitioner because the Board is not a party to the writ petition. The presence of the Board is not necessary in these proceedings. The respondents have introduced the communication of the Board, therefore, it was necessary to say something on that communication. Suffice it to say that the communication received from the Board could not be used against the petitioner at his back and without giving him an opportunity of being heard in respect of that communication. Annexure 29 to the writ petition also does not make us wise about the petitioner's contention that Prathma examination is equivalent to High School examination. In the first part it does say so but in the second part it imposes a rider, which can be explained only by the Vishwa Vidyalaya, which conducts the examinations of Prathma and Madhyama. Annexure 29 to the writ petition also does not make us wise about the petitioner's contention that Prathma examination is equivalent to High School examination. In the first part it does say so but in the second part it imposes a rider, which can be explained only by the Vishwa Vidyalaya, which conducts the examinations of Prathma and Madhyama. The preliminary objection raised by the respondents is over-ruled because the impugned order has proceeded to terminate the services of the petitioner in violation of the principles of natural justice. Bar of exhaustion of alternative remedy, therefore, must not stand in the petitioner's way to pursue this petition. 9. The petitioner's services have been terminated in a cursory manner without following the principles of natural justice. I am, therefore, of the opinion that the impugned order cannot be sustained and is liable to be quashed. However, that will not close the matter. The respondents are still entitled to hold an enquiry and make use of the communication of the Board against the petitioner, if the petitioner is given an opportunity of being heard, regarding that communication and is allowed to rebut that in accordance with law. 10. Accordingly the writ petition succeeds and the impugned order is quashed. It is, however, made clear that if the respondents choose to pursue the matter, they may hold a fresh enquiry against the petitioner and if In such enquiry any material is used against the petitioner, the petitioner shall be permitted to rebut the same and he shall be given opportunity of giving such evidence as may be in his possession and be associated with the enquiry at all stages. There will be no order as to costs.