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Uttarakhand High Court · body

2007 DIGILAW 533 (UTT)

Gerald John v. State

2007-10-30

PRAFULLA C.PANT

body2007
Judgment By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the impugned order dated 02-01-1990, passed by respondent no. 2, whereby the petitioner's appointment as Lecturer in Commerce in C.N.I. Boys' Inter College, Dehradun, is not approved. The petitioner has further challenged the order dated 05-02-1990, passed by respondent no. 2, approving the appointment of respondent no. 4 for the said post. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that one PC. Rawat was Lecturer in Commerce, working in CNI. Boys' Inter College, Dehradun (hereinafter referred as College), got retired on 30-061989, and consequently a post of Lecturer in Commerce fell vacant. An advertisement was published in the daily newspaper 'Times of India' on 21-08-1989, inviting applications for the post of Lecturer in Commerce in the aforesaid College. It was mentioned in the advertisement that the qualification prescribed for the post would be as mentioned in the calendar. The petitioner has alleged that the qualification required for the post under the UP. Intermediate Education Act, 1921, is simply Master of Commerce (for short M.Com.). The petitioner was one of the candidates, who appeared for the interview before the Selection Committee. on November 10, 1989. It appears that petitioner's name was recommended for the post and under the Rules the name of petitioner was sent by the Management of the College to respondent no. 2 (District Inspector of Schools), for his approval. Vide impugned order dated 02-01-1990, respondent no. 2 District Inspector of Schools, refused the approval on the ground that the petitioner did not possess additional qualification of Shorthand and Typing, as required in Government Order No. 5583/fifteen-8-3100- 1973, dated 3m October 1974. Petitioner's case is that additional qualification was not required for the post and as such the refusal of approval for his appointment on the part of the respondent no. 2, is illegal. When the petitioner's appointment was not approved by the District Inspector of Schools, it appears that the Management of the College recommended name of respondent no. 4, who also appeared before the Selection Committee and his name figured in the select list below the petitioner. His name was approved by respondent no. 2 on the ground that he possessed all the qualifications required for the post. Challenging the disapproval of the petitioner and approval of respondent no. 4, who also appeared before the Selection Committee and his name figured in the select list below the petitioner. His name was approved by respondent no. 2 on the ground that he possessed all the qualifications required for the post. Challenging the disapproval of the petitioner and approval of respondent no. 4, this writ petition was filed before Allahabad High Court in the year 1990, from where it is received by transfer to this Court under Section 35 of U.P. Reorganization Act, 2000, for its disposal. 4. No counter affidavit appears to have been filed by the respondents except respondent no. 4 Ashok Kumar Sharma, whose appointment was approved by respondent no. 2: In the counter affidavit, the said respondent has stated that P.C. Rawat, on whose retirement the post in question fell vacant, used to teach Shorthand and Typing apart from Commerce. Earlier Shorthand and Typing teachers used to be appointed separately, but after Government Order dated 3rd October 1974, no separate teacher for Shorthand and Typing was to be appointed in a school and the teacher of Commerce was required to teach also the Shorthand and Typing, hence the need of additional qualifications arose. According to the answering respondent no. 4, as stated in Para 8 of the counter affidavit, the eligible candidates as per the calendar were required to possess diploma in Shorthand and Typing apart from educational qualification M.Com. The respondent no. 4 has alleged that petitioner's name was wrongly sent by the Management for approval to respondent no. 2, as he was not fully qualified for the post. Defending the impugned orders, it is stated by the answering respondent that his approval for the appointment on the post of Lecturer in Commerce is valid and in accordance with law, as he possessed all the qualifications required for the post. In Para 25 of the counter affidavit, it has been stated that the respondent no. 4 has joined his duties as Lecturer in Commerce on 12-02-1990, after his name was approved by respondent no. 2, for the appointment and working since then. 5. A rejoinder affidavit is filed on behalf of the petitioner in which averments made in the writ petition are reiterated. 6. 4 has joined his duties as Lecturer in Commerce on 12-02-1990, after his name was approved by respondent no. 2, for the appointment and working since then. 5. A rejoinder affidavit is filed on behalf of the petitioner in which averments made in the writ petition are reiterated. 6. Learned counsel for the petitioner argued that under the U.P. Intermediate Education Act, 1921, the required qualification for the post of Lecturer in Commerce in Intermediate College is only Master in Commerce, and no Shorthand and Typing is required for the post, as such, disapproval of the petitioner's appointment by respondent no. 2 is illegal. This Court, in view of Annexure CA-1 to the counter affidavit, finds that vide Government Order No. 5583/fifteen-8-3-31 00/1973, dated 3rd October 1974, it was expressly provided that in future Shorthand and Typing would be required to be done by teacher of Commerce and no separate teacher would be provided for Shorthand and Typing. In view of this Government Order, it cannot be said that respondent no. 2, the District Inspector of Schools, committed any illegality in refusing the approval of the petitioner for appointment to the post of Lecturer in Commerce. Had there been expressly provided in the advertisement that simply M. Com. is the qualification required for the post it could have been said that the petitioner s wrongly denied the appointment. But even in the advertisement the requirement was as provided in the calendar. There is no bar for the Government to provide additional qualification for a particular post in respect of which the Act providing the qualification is silent. As such, this Court is of the view that the impugned orders dated 02-01-1990 and 05-02-1990, do not suffer from any illegality. 7. Learned counsel for the petitioner drew attention of this Court to the principle of law laid down in Dr. M.S. Mudhol and another Vs. S.D. Halegkar and others (1993) 3 Supreme Court Cases 591. I have gone through said case law. In the opinion of this Court, the case relied does not help the petitioner. In the case of M.S. Mudhol (supra), the candidate possessed M.Ed. M.S. Mudhol and another Vs. S.D. Halegkar and others (1993) 3 Supreme Court Cases 591. I have gone through said case law. In the opinion of this Court, the case relied does not help the petitioner. In the case of M.S. Mudhol (supra), the candidate possessed M.Ed. degree instead of degree of MA (Master of Arts) and it was held that the degree of Master of Education is not equivalent to degree of Master of Arts, as the degree possessed by the petitioner of the case was a teaching degree not on the subject of Arts. In this connection, learned counsel for the petitioner further argued that the• petitioner's writ petition cannot be thrown away only for the reason that for eighteen years respondent no. 4 has continued on the post. I do agree with the submission, but the writ petition is not being dismissed on that ground. In the case of M.S. Mudhol (supra), the appointment of the person holding the post was found unqualified. It is not so in respect of respondent no. 4. 8. Accordingly, this Court is not inclined to interfere with the impugned orders. Therefore, the writ petition is dismissed. No order as to costs.