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2004 DIGILAW 2415 (ALL)

Ashok Kumar Gupta v. Deputy Director of Education

2004-12-02

SUNIL AMBWANI

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SUNIL AMBWANI, J. ( 1 ) HEARD Sri B. N. Rai learned Counsel for petitioner and Sri Pankaj Mittal learned Counsel appearing for Respondent No. 3. ( 2 ) BY this writ petition, the petitioner has prayed for quashing the orders dated 22. 1. 1993 passed by the District Inspector of Schools. Meerut by which he has cancelled the order of regularisation of the service of the petitioner as L. T. Grade teacher in Sanatan Dharam Inter college, Kankar Kheda, Meerut Cantt. Meerut vide order dated 21. 5. 1983 ; and the consequential orders dated 24. 12. 1992 and 18. 1,1993. The petitioner has further prayed for a restraint order to the respondents not to interfere in his functioning as L. T. Grade teacher and for payment of salary in regular grade. ( 3 ) THE petitioner was appointed as Assistant Teacher in L. T. Grade on ad hoc basis on 1. 8. 1982. His appointment was approved by the Director of Education on 18,8. 1982 with effect from 2. 8. 1982 to 31. 1. 1983 and thereafter upto 20. 5. 1983 until a regularly selected candidate joins on the post. By a letter dated 21. 5. 1983, the District Inspector of Schools, approved the ad hoc appointment. The management of the Institution gave an information to the District Inspector of schools on 18. 7. 1984, raising doubts over the validity of the mark-sheet and B. Ed. Degree awarded to the petitioner. The principal of institution had enquired into the matter and was informed by the Gurukul Kangari University Haridwar, vide its letter dated 21. 5. 1984 that the university had never offered the B. Ed. Course. During the pendency of the enquiry, the petitioner was regularised by the Deputy Director of Education, Meerut vide his order dated 9. 11. 1992. The District Inspector of Schools vide his letter dated 24. 12. 1992 cancelled the said regularisation and consequently cancelled his letter dated 18. 1. 1993. ( 4 ) THE District Inspector of Schools, Meerut vide his letter dated 21. 1. 1993 Informed the secretary of the Secondary Education Service Commission, Allahabad, with the aforesaid facts, and directed the Manager of the Institution to take immediate and necessary steps for cancelling his appointment. This Court vide its order dated 3. 2. 1. 1993. ( 4 ) THE District Inspector of Schools, Meerut vide his letter dated 21. 1. 1993 Informed the secretary of the Secondary Education Service Commission, Allahabad, with the aforesaid facts, and directed the Manager of the Institution to take immediate and necessary steps for cancelling his appointment. This Court vide its order dated 3. 2. 1993, held that the petitioner was not given any opportunity before cancelling his regularisation and thus, the operation of the orders were stayed. ( 5 ) IN the counter-affidavit of Sri Hasmat Ullah Khan, Deputy District Inspector of Schools. Meerut, it is stated that the petitioner got appointed on the basis of a forged mark-sheet. The sanction of the State Government to start B. Ed. Course, and the proof that the University held b. Ed. Classes was not produced and hence the regularisation order was rightly cancelled. ( 6 ) THE petitioner has challenged the orders cancelling his regularisation on the ground that these are violative of Articles 14 and 16 of the Constitution of India as well as the principles of natural justice. The Manager of the College did not take any follow up action, in pursuance of the order of the District Inspector of Schools dated 7. 1. 1993. Several persons with same teaching qualifications from Gurukul Kangari University are still in employment, although similar complaints were made against them and that some of them namely, Kewal Ram, Assistant teacher, Higher Secondary School, Hardwar has been regularised on 12. 6. 1996 by the Regional deputy Director of Education Meerut. Sri B. N. Rai, Counsel for the petitioner submits that the respondents took almost nine years, in taking a decision, and has invoked the principle of estoppel. The petitioner has continued, in pursuance of interim orders dated 3. 2. 1993 and is teaching in the institution for the last 22 years. ( 7 ) SRI B. N. Rai has relied upon the proviso to Section 16-E of the U. P. Intermediate Education act, 1921 and notification dated 15. 4. 1976 issued by the Secretary Secondary Education, U. P. Lucknow, providing that Assistant Teachers having second class degree shall be exempted from b. Ed. Degree. ( 7 ) SRI B. N. Rai has relied upon the proviso to Section 16-E of the U. P. Intermediate Education act, 1921 and notification dated 15. 4. 1976 issued by the Secretary Secondary Education, U. P. Lucknow, providing that Assistant Teachers having second class degree shall be exempted from b. Ed. Degree. With regard to validity of his teaching qualification, it is submitted that Gurukul kangari University was declared a deemed University by notification under Section 3 of the university Grants Commission Act, 1962 and was entitled to conduct B. Ed. Course and to award degrees of Diploma for which no recognitions by the Central Government or the State government was required at the relevant time. The judgment dated 2. 7. 1980 of the District Judge by which it was held that there was no recognition to B. Ed. Classes, was not attained finality inasmuch as the First Appeal No. 356 of 1980 and 360 of 1980 are still pending in the High court. He has relied upon the judgment of Civil Suit No. 11 of 1994 passed by the Civil Judge (Junior Division) Hardwar declaring B. Ed. Degree of Gurukul Kangari University as valid degree vide his order dated 11. 12. 1997 against which Civil Appeal No. 7 of 1998 was dismissed on 4. 4. 2003. ( 8 ) SRI Pankaj Mittal, learned Counsel appearing for the Respondent No. 3 submits that the petitioner was not qualified to be appointed. The marks sheet and B. Ed. Degree submitted by him were not valid. The institution made enquiries and was informed by the Registrar of the university that no such course was conducted. The institution had informed the department, as early as on 18. 7. 1984 with these facts. Inspite of this communication the department regularised the petitioner on 9. 11. 1992, and thereafter cancelled it on 18. 1. 1993. No further enquiry was required to be made inasmuch as the University had certified that B. Ed. Course was not run by the University. Sri Mittal submits that where the appointment is made in a totally irregular, and illegal manner, no opportunity of hearing need to be given before cancelling such appointment. He submits that where fraud had been played in collusion with the authorities, the orders obtained from the Court are null and void. He has relied upon a judgment of this Court in Chief engineer and Ors. He submits that where fraud had been played in collusion with the authorities, the orders obtained from the Court are null and void. He has relied upon a judgment of this Court in Chief engineer and Ors. v. Pancham Ram and Ors. , 2004 (1) AWC 81 . Sri Mittal submits that it is well settled that fraud and collusion vitiated every proceeding, [vide Virendra Kumar Gupta v. State of U. P. and Ors. , 2004 (1) AWC 6 . Where a candidate procures appointment on a post meant for reserved category on the basis of a false caste certificate, such a person, in accordance with R. Vishwanatha Piliai v. State of Kerala and Ors. , (2004) 2 SCC 105 , does not hold a post and his appointment is no appointment in the eyes of law. He has also relied upon the judgment of Union of India v. Rati Pal Saroj and Anr. , (1998) 2 SCC 574 in support of the argument that the principles of natural justice are not applicable where a person is not in a position to join on the date fixed in the appointment letter and there is no prospect of joining for several years to come, the withdrawal/cancellation of such appointment does not cast any stigma nor it is a punishment for the prospective employee. ( 9 ) BEFORE proceeding to consider the rival submissions, it Is necessary to find out the status of b. Ed. Degree obtained by the petitioner. From the judgment of Sri B. D. Agarwal, the then district Judge, Saharanpur in Original Suit No. 29 of 1978 between Gurukul Kangari vishwavidyalaya and Ors. v. Balbhadra Kumar Ahooja and Ors. , decided and dismissed on 2. 7. 1980, I find that Gurukul Kangari University Hardwar was registered as a Society. It was established by Arya Pratinidhi Sabha, Punjab. There was some dispute about the appointment of sri V. S. Verma, as Vice-Chancellor on ad hoc basis. The defendant No. 2 B. K. Ahooja claimed his appointment as Vice-Chancellor through Dr. Dukhan Ram, the visitor appointed by senate and authorised to appoint Vice-Chancellor. The Central Government withheld the grant of the university with effect from July, 1977. A Writ Petition No. 3642 of 1978 was dismissed by the high Court, Allahabad on 3. 5. 1978. A suit for permanent injunction was instituted in the Court of Civil Judge. Dukhan Ram, the visitor appointed by senate and authorised to appoint Vice-Chancellor. The Central Government withheld the grant of the university with effect from July, 1977. A Writ Petition No. 3642 of 1978 was dismissed by the high Court, Allahabad on 3. 5. 1978. A suit for permanent injunction was instituted in the Court of Civil Judge. Roorkee (at present Saharanpur) on 12. 9. 1978. Shri Justice Balram Upadhyay was appointed as an Administrator. He took charge on 16. 9. 1978 and resigned on 29. 5. 1979 with effect from 1,7. 1979. The suit to recognize defendant No. 2 Dr. R. L. Varshney as vice-Chancellor was dismissed with the finding that the office-bearer of Arya Pratinidhi Sabha, as they merged after trifucation in pursuance of directive of the Sarvadeshik Arya Pratinidhi sabha dated 10/14. 7. 1975, and subsequent to the elections dated 14. 9. 1975, are the persons entitled to the membership of the senate under the constitution of Arya Pratinidhi Sabha Punjab. The plaintiff No. 2, V. S. Verma is not the Vice-Chancellor of the University or the Governor, and that the defendant No. 1, Sri B. K. Ahooja continued to remain the duly appointed vice-Chancellor. The two first appeals against the judgment are still pending in this Court. ( 10 ) SRI V. S. Verma, who had filed the aforesaid suit for declaration that he is Vice-Chancellor of the University, has filed a counter-affidavit in this case through Sri V. K. Birla, Advocate. In para 7 of the counter-affidavit he submits that the University is recognised by the University Grant commission vide notification of the Central Government dated 19. 6. 1962. The University had full authority to conduct B. Ed. Classes started in the year 1978-79. In para 8, he has verified the certificate given to S. D. Inter College, Kakarkhera, Meerut by which the B. Ed. Degree was awarded to the petitioner. The documents to this counter-affidavit include a letter from the vice-Chancellor of the University to run classes from Its own resources, and intimation for admission, order of the Administrator Sri Justice Balram Upadhyay constituting selection committee for admission of B. Ed. Students dated 24. 9. 1978, and the approval of the vice-Chancellor dated 26. 7. 1979 to run B. Ed. Classes etc. ( 11 ) THE petitioner has filed a supplementary affidavit annexing therewith a Judgment dated 4. 4. Students dated 24. 9. 1978, and the approval of the vice-Chancellor dated 26. 7. 1979 to run B. Ed. Classes etc. ( 11 ) THE petitioner has filed a supplementary affidavit annexing therewith a Judgment dated 4. 4. 2003 passed by IVth Fast Track Court/additional District Judge, Hardwar in Civil Appeal no. 7 of 1978 between Gurukul Kangari University and Anr. v. Mahabir Singh Nain and Ors. in which Sri V. S. Verma alias Vijayanand is Respondent No. 3. The issue involved in the suit was the authority of the University to conduct B. Ed. Classes and the degree obtained by the defendants 1 and 2 in the year 1978-79 and 1979-80 respectively. The appellate Court held that it was disputed by the defendant that Sri V. S. Verma was appointed as Vice-Chancellor at any time. The University is a deemed University under Section 3 of the University Grants commission Act, 1976 with an authority to award degree under Section 2 of the Act. It was found that the University had authority to award B. Ed. Degree, and that Shri Justice Balram upadhyay as Administrator of the University had given permission to start B. Ed. Classes. Some dispute was pending at that time with regard to the appointment of the office-bearers including sri V. S. Verma as Vice-Chancellor. The Appellate Court, after assessing the evidence, found that the process of admission started much before the filing of the Suit No. 29 of 1978, the B. Ed. examinations were held by the University and the degrees were also awarded by the University, hence in these circumstances it is not proper to declare these degrees to be invalid and inoperative. ( 12 ) THE two judgments of the Civil Court cited as above, prima facie establish that pending some dispute with regard to appointment of Vice-Chancellor, the then Administrator permitted the b. Ed. classes to be run by the University. The admissions were taken and the examinations were conducted by the University and the degrees were also awarded. The fact whether Sri V. S. Verma claiming to be then Vice-Chancellor was validly appointed or had authority to conduct the classes, is still subject matter of First Appeal Nos. 356 of 1980 and 360 of 1980. I am not called upon to decide these issues in this writ petition. The fact whether Sri V. S. Verma claiming to be then Vice-Chancellor was validly appointed or had authority to conduct the classes, is still subject matter of First Appeal Nos. 356 of 1980 and 360 of 1980. I am not called upon to decide these issues in this writ petition. On these facts and circumstances it cannot be said that the marks-sheet and the B. Ed. Degree awarded to the petitioner cannot be treated to be a fraudulent document obtained by the petitioner to seek ad hoc employment in the college. ( 13 ) THE District Inspector of Schools by his letter dated 22. 1. 1993 stayed the operation of the regularisation order dated 9. 11. 1992 and thereafter cancelled the same on 18. 1. 1993. These orders were passed on the basis of information received by the management from the Registrar of the Gurukul Kangari University vide his letter dated 21. 5. 1984 that the University is not running B. Ed. courses. Neither the management of the institution nor the Deputy Director of education, Meerut gave any notice to the petitioner before issuing the impugned orders, visiting serious civil consequence upon the petitioner. The petitioner was regularised on 9. 11. 1992 inspite of the fact that the management had informed the department on 18. 7. 1984 that the mark-sheet and B. Ed. Degree of the petitioner is doubtful. The management was not of the opinion that the mark-sheet and the degrees were fake. The doubt expressed by the management was pending consideration with the department for almost 8 years. The respondents have not brought on record the circumstances and correspondence on the basis of which this doubt was raised to the status of confirmation of the fact that the mark-sheet and degrees were fake. No conclusion was either drawn by the management or Deputy Director of Education. The District inspector of Schools in his letter dated 22. 1. 1993 has only communicated its order to the secretary, Secondary Education Services Commission, Allahabad and had directed the management to carry on with the enquiry into the matter and to pass necessary orders. ( 14 ) ON these facts and circumstances, it cannot be said that the petitioner had played fraud and had obtained appointment by producing fake mark-sheet and degree. ( 14 ) ON these facts and circumstances, it cannot be said that the petitioner had played fraud and had obtained appointment by producing fake mark-sheet and degree. There is no dispute that the petitioner was appointed on ad hoc basis after following due procedure and inspite of the information received from the Registrar, Gurukul Kangari University, the management has not taken any decision with regard to validity of his appointment for about 10 years. The management and the department had, as such, acquiesced to the appointment and had allowed the petitioner to continue as teacher for about 10 years. In Dr. M. S. Mudhol and Anr. v. S,d. Halegkar and Ors. , (1993 ). 3 SCC 591, the Supreme Court found that the respondents did not have requisite qualification to be selected for the post of Principal. The contention that M. Ed. IInd Division was equivalent to M. A. Second Division was fallacious. The apex Court found that the Director of Education was at fault in illegally approving the appointment made in the year 1981, as a result of which the first respondent is continued to hold the post for 12 years and hence it would be inadvisable to disturb him from the post at such late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. In State of U. P. v. Rafiquddin and Ors. , 1987 (Supp) SCC 401, the Supreme Court did not accept the challenge to the illegal appointment of judicial officer, after 12 years, and found that despite the illegality such appointment should not be set aside, on the ground of latches and delay. In Anil Vasantrao shirpurkar v. State of Maharashtra, 2004 (2) ESC 878 (Bom), the Bombay High Court refused to interfere with an appointment after 7 years on the ground that the petitioner did not belong to the caste for which he had claimed reservation. In Mrs. Rekha Chaturvedi v. University of Rajasthan and Ors. , (1993) 1 UPLBEC 745, the Supreme Court refused to disturb the appointment in the year 1993 which were made in the year 1985. In B. N. Saxena v. New Delhi Municipal committee and Ors. In Mrs. Rekha Chaturvedi v. University of Rajasthan and Ors. , (1993) 1 UPLBEC 745, the Supreme Court refused to disturb the appointment in the year 1993 which were made in the year 1985. In B. N. Saxena v. New Delhi Municipal committee and Ors. , (1990) 4 SCC 205 , the Supreme Court found that the experience gained as senior Draftsman without possessing any diploma, for six years, substitute the qualification of diploma. ( 15 ) FROM the above discussion, I find that the mark-sheet and B. Ed. Degree obtained by the petitioner was not declared to be illegal. These were only under a cloud, and that no finality has been attached to the challenge to the B. Ed. Course conducted by the Gurukul Kangari university. The matter is still pending in First Appeal in this Court. The management or the department did not conduct any enquiry into the matter. The petitioner was not given any opportunity of hearing before the cancellation of the order by which his service as L. T. Grade teacher were regularised. The impugned orders are, therefore, violative of principles of natural justice, and are wholly arbitrary, unreasonable and hence, violative of Articles 14 and 16 of the constitution of India. ( 16 ) THE writ petition is consequently allowed. The orders dated 24. 11. 1992 and 18. 11. 1993 passed by the Deputy Director of Education, Meerut and the order of the District Inspector of schools dated 22. 1. 1993 (Annexure-3 to the writ petition) are set aside. The petitioner shall be allowed to continue in service and paid his salary regularly. It will, however, be open to the respondents to initiate the enquiry afresh with regard to the validity of teaching qualifications held by the petitioner after the decision of the First Appeal pending in this Court. In case any such enquiry is held in future, the petitioner shall be afforded full and adequate opportunity to defend himself. The costs are made easy. . .