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2009 DIGILAW 3074 (ALL)

SANGEETA RAJPUT v. STATE OF U. P.

2009-09-08

ARUN TANDON

body2009
JUDGMENT Hon’ble Arun Tandon, J.—Petitioner before this Court was admitted to BTC Training Course between 2001-2002. Even prior to her completing the BTC training, she is stated to have made an application for being considered for appointment on the post of Headmistress of a recognized Junior High School namely Avanti Bai Kanya Junior High School, Yakubpur, District Aurraiya which was unaided at the relevant time (herein after referred to as Junior High School). The petitioner was selected for the post of Headmistress of the recognized Junior High School in the month of May, 2002 and such selection was also approved by the Basic Shiksha Adhikari vide order dated 16.5.2002. Both the aforesaid facts have taken place even prior to the petitioner having completed her BTC training and even prior to her being qualified for the post of Headmistress. Pursuant to the order of the Basic Shiksha Adhikari she joined the institution (Junior High School) in July 2002. She applied for leave between 20.1.2003 to 19.9.2006 i.e. for 3 years and 8 months at the first instance and thereafter between 21.3.2007 to 8.9.2008 i.e. nearly 1 year and 6 months. During this period of her working as Headmistress in Junior High School, the petitioner is stated to have applied for being appointed as Assistant Teacher in an institution established by the U.P. Basic Shiksha Parishad (herein after referred to as Parishadiya Vidyalaya). She was selected and offered appointment as Assistant Teacher in Parishadiya Vidyalaya on 20.1.2003. She joined the Parishadiya Vidyalaya on same day and continued to work and draw salary from State exchequer since then. A leave application for the period between 20.9.2006 to 20.3.2007 was made by the petitioner in the said Parishadiya Vidyalaya which is stated to be granted. Ultimately she resigned from the Parishadiya Vidyalaya on 8.9.2008. Her resignation is stated to have been accepted by the Basic Shiksha Adhikari on 26.12.2008 and on the same day the Basic Shiksha Adhikari is stated to have attested her signatures as Headmistress of the Junior High School. 2. Ultimately she resigned from the Parishadiya Vidyalaya on 8.9.2008. Her resignation is stated to have been accepted by the Basic Shiksha Adhikari on 26.12.2008 and on the same day the Basic Shiksha Adhikari is stated to have attested her signatures as Headmistress of the Junior High School. 2. In order to keep the record straight, it may be noticed that under an order of the State Government dated 2.12.2006, Avanti Bai Kanya Junior High School was taken on the grant-in-aid list of the State Government and under order of the Assistant Director (Basic) dated 23.3.2007 salary to the teachers mentioned was directed to be paid w.e.f. 2.12.2006 from State exchequer. The list included the name of the petitioner as Headmistress of the institution (Avanti Bai Kanya Junior High School). 3. On 26.5.2009 a First Information Report was lodged against the petitioner for misleading the authorities in the matter of her appointment and continuance in Parishadiya Vidyalaya while being employed in a Junior High School at the same time. The petitioner challenged the F.I.R. by means of Criminal Misc. Writ Petition No. 10335 of 2009 and the Division Bench of this Court was pleased to direct that the petitioner be not arrested at the stage of investigation in view of the judgment of the Apex Court in the case of Lal Kamlendra Pratap Singh v. State of U.P. and others. It is stated that in pursuance to the aforesaid order, the petitioner has not been arrested. 4. The petitioner has filed Civil Misc. Writ Petition No. 32001 of 2009 claiming following relief : “A writ, order or direction of suitable nature commanding the respondents not to interfere in the functioning of the petitioner as the Headmistress of Avanti Bai Kanya Junior High School, Yakubpur, District Auraiya and to pay her regular monthly salary on the said post from government grant. A writ, order or direction of suitable nature commanding the respondents to disburse to the petitioner the arrears of her salary from government grant for the period 20.2.2006 to 20.3.2007 and from 8.9.2008 till date within a period to be specified by this Hon’ble Court.” 5. In the said writ petition counter-affidavit was called for. While the writ petition was pending the Basic Shiksha Adhikari has passed the impugned order dated 26.6.2009 requiring the petitioner to refund the sum of Rs. In the said writ petition counter-affidavit was called for. While the writ petition was pending the Basic Shiksha Adhikari has passed the impugned order dated 26.6.2009 requiring the petitioner to refund the sum of Rs. 3,70,829/- which she has drawn on the strength of her working in the Parishadiya Vidyalaya and the attestation of signatures of the petitioner as Headmistress of the Junior High School has also been cancelled. This order is challenged by means of Civil Misc. Writ Petition No. 47036 of 2009. 6. This Court while entertaining the petition on. 4.9.2009 directed that records of earlier writ petition be also tagged. Counsel for the petitioner has addressed the Court on the merits of both the writ petitions. 7. Counsel for the petitioner clarified that she was selected for the post of Headmistress on the basis of B.Ed. Degree possessed by her and not on the strength of BTC qualification. It is admitted that the petitioner had in fact cleared the BTC Course 2001 subsequent to her appointment in the Junior High School. 8. It is stated on behalf of the writ petitioner that no material facts qua employment in Junior High School were concealed from any authority at any point of time. However it is not disclosed as to whether the petitioner informed the management of Junior High School while proceeding on leave between 20.01.2003 to 19.9.2006 and 21.3.2007 to 8.9.2008 that she will be working in a Parishadiya Vidyalaya for years together and similarly whether she informed the concerned authority of Parshadiya Vidhalaya while proceeding on leave between 20.9.2006 to 20.3.2007 that she will be serving the Junior High School. 9. This Court therefore pointedly asked the counsel as to whether the petitioner had informed the Parishadiya Vidyalaya while proceeding on such long leave that she will work in Junior High School and vice-versa. The counsel for the petitioner in reply stated that there is no such allegation in the impugned order and therefore, the writ petition is silent about the same. It is recorded that the counsel did not seek time to file an affidavit for answering the query made by the Court. 10. The counsel for the petitioner in reply stated that there is no such allegation in the impugned order and therefore, the writ petition is silent about the same. It is recorded that the counsel did not seek time to file an affidavit for answering the query made by the Court. 10. For the purposes of relief prayed in the first writ petition and for the purposes of challenging the order impugned in the second writ petition passed by the Basic Shiksha Adhikari, Auraiyya dated 26.6.2009 following grounds have been raised : (a) That the order impugned refers to notices issued to the petitioner dated 22.5.2009 and dated 23.5.2009 which were sought to be delivered by the Assistant Basic Shiksha Adhikari personally by visiting her house and it is alleged that she refused to accept the same. Subsequently notices are stated to be forwarded by Speed Post. It is stated that no such letter has been received by the writ petitioner. Reference in that regard has been made to paragraph 28 of the second writ petition. (b) That under the Basic Education Act and the Rules framed thereunder, both in respect of a recognized Parishadiya Vidyalaya and Junior High School namely U.P. Basic Education (Teachers) Service Rules, 1981 (herein after referred to as Rules of 1981) and U.P Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (herein after referred to as Rules of 1978) respectively, there is no provision under which on joining another institution the lien in the earlier institution shall stand terminated and therefore, there is no statutory prohibition qua the petitioner working in two institutions at the same time. Reliance has been placed upon the judgment in the case of Jagdish Singh Kushwaha v. U.P. Secondary Education Services Commission and others, 1993 HVD (Alld.) Vol. IV. 11. I have heard learned counsel for the parties and have gone through the records of both the writ petitions. 12. It is admitted to the petitioner that he had applied for leave without pay being granted, while working in the junior High School for the period 20.1.2003 to 19.9.2006 i.e. for a duration of 3 years and 8 months and thereafter for the period 21.3.2007 to 8.9.2008 i.e. one year and six months. Under which provision of law such leave is permissible has not been disclosed to the Court. Under which provision of law such leave is permissible has not been disclosed to the Court. Similarly it is admitted that while working in Parishadiya Vidyalaya the petitioner applied for leave without pay for the period 20.9.2006 to 20.3.2007 i.e. six months, the provision whereunder such leave can be granted has also not been disclosed. 13. During the period petitioner applied for leave in the Junior High School, she claims to have worked as Assistant Teacher in Parishadiya Vidyalaya and similarly while she made the leave application in the Parshadiya Vidalaya she claims to have worked in the Junior High School as Headmistress and for this period the petitioner has claimed salary as Headmistress of Junior High School as is apparent from the prayer made in the first writ petition quoted above. 14. I have no hesitation to record that the leave applications are only a camouflage for establishing her continuance in two institutions at the same time upon the authorities concerned. It is not the case of the petitioner that in any of the applications made for leave she had disclosed to the Committee of Management of the Junior High School that she would be serving in another institution. Similarly while applying for leave in the Parishadiya Vidyalaya she did not inform the authorities that she will be serving in a recognized Junior High School. 15. In the opinion of the Court the reason for the aforesaid acts of the petitioner are but obvious, the Junior High School has been brought on grant-in-aid list in December, 2006, the petitioner till then was working as Assistant Teacher in Parishadiya Vidyalaya. On liability of salary of teachers of Junior High School being taken over by the State Government, she wanted to become the Headmistress of the recognized and aided Junior High School on the strength of his selection in 2002 so that she is ensured a higher salary (admissible to the post of Headmistress) from the State exchequer. She initially opted for leave and then resigned as Assistant Teacher from the Parishadiya Vidyalaya. This Court may record that on the date the Junior High School had been taken on the grant in aid list, the petitioner was actually working in the Parishadiya Vidyalaya and was drawing salary. She initially opted for leave and then resigned as Assistant Teacher from the Parishadiya Vidyalaya. This Court may record that on the date the Junior High School had been taken on the grant in aid list, the petitioner was actually working in the Parishadiya Vidyalaya and was drawing salary. In terms of the Government Order applicable she could not have been included in the list of teachers of Junior High School approved for the purposes of salary from the State exchequer. The applications for leave and the prayer for payment of salary as is made in the first writ petition are ample proof of the attempt to create a situation for getting illegal benefits. 16. Even otherwise this Court may further record that the petitioner was not possessed of the prescribed minimum qualification i.e. BTC, HTC etc. Training Certificate in accordance with Rule 4 of the Rules of 1978 on the date she was selected as Headmistress of the recognized Junior High School qua which approval was granted by the Basic Shiksha Adhikari. It is on record that the petitioner cleared her BTC examination 2001 in the month of June, 2002 while she was selected as Headmistress of Junior High School qua which approval was granted by the Basic Shiksha Adhikari on 18.5.2002. 17. The Hon’ble Supreme Court of India in the case of Public Service Commission, Allahabad and another v. Alpana, (1994) 2 SCC 723 has held that essential qualification are to be examined with reference to the last cut of date mentioned in the advertisement for making the application and any qualification achieved thereafter cannot be the basis for holding that the candidate as qualified. In order to over come the said short coming, learned counsel for the petitioner stated that petitioner was selected on the strength of her B.Ed. Degree and not because of her BTC qualification. 18. So far as the Degree of B.Ed. possessed by the petitioner is concerned, the Hon’ble Supreme Court in the case of Mohd. Sartaj v. State of U.P. and others, 2006 JT (3) SC 331 has clarified that a Degree of B.Ed. is not equivalent to BTC, HTC etc. and any person possessed of the Degree of B.Ed. is not qualified to be appointed as Assistant Teacher. possessed by the petitioner is concerned, the Hon’ble Supreme Court in the case of Mohd. Sartaj v. State of U.P. and others, 2006 JT (3) SC 331 has clarified that a Degree of B.Ed. is not equivalent to BTC, HTC etc. and any person possessed of the Degree of B.Ed. is not qualified to be appointed as Assistant Teacher. The Hon’ble Apex Court has also clarified that any length of working will not cure the defect of lack of essential qualification at the time of initial appointment. Such appointments are null and void. Reference may also be had in that regard to the judgment of the Apex Court in the case of Pramod Kumar v. U.P. Secondary Education Services Commission and others, 2008 (4) ALJ 207. This Court may also refer to Rule 5 of the Rules of 1978 which declares that a person not possessed of prescribed minimum qualifications cannot be appointed in a recognized institution (Junior High School). 19. This Court, therefore, holds that the petitioner was not possessed of the essential qualifications for appointment as Headmistress of a Recognized Junior High School on the crucial date. She could not have been selected nor the selection could be approved by the Basic Shiksha Adhikari on 16.9.2002. Even otherwise it is established from the record that the petitioner was actually working in the Parishadiya Vidyalaya since 20.1.2003 till she resigned on 8.9.2008. Therefore, on the relevant date qua the teachers of Junior High School to be included in the list for payment of salary from State exchequer i.e. 2.12.2006, she was not actually working in the institution. Therefore, the order of the Basic Shiksha Adhikari withdrawing attestation of her signature as Headmistress does not warrant any interference under Article 226 of the Constitution of India. 20. The plea raised by the counsel for the petitioner that she did not loose her lien qua the post of Headmistress of Junior High School even after her appointment as Assistant Teacher of the Parishadiya Vidyalaya has only been stated to be rejected. No person can serve two masters at the same time. Two different set of statutory rules regulate the service conditions of teachers working in Recognized Junior High School and Parishadiya Vidyalaya respectively namely Rules, 1978 and Rules 1981. No person can serve two masters at the same time. Two different set of statutory rules regulate the service conditions of teachers working in Recognized Junior High School and Parishadiya Vidyalaya respectively namely Rules, 1978 and Rules 1981. No person can be said to be governed by two sets of statutory rules qua service conditions at the same time (except probably in cases of deputation). This Court is at loss to understand as to how a person can work on two posts under two different employers at the same time specifically when the mode of appointment and service conditions are statutorily regulated under different rules. 21. So far as the Division Bench judgment of this Court in the case of Jagdish Singh Kushwaha (supra), specifically paragraph 28 is concerned, this Court may record that the same is clearly distinguishable in the facts of the present case inasmuch as the petitioner claims simultaneous appointment and continuance (a) in a private recognized and aided Junior High School, service conditions whereof were regulated by statutory rules and (b) in a Parishadiya Vidyalaya established by statutory authority constituted under the Basic Education Act qua which different service conditions are statutorily prescribed. As already noticed above, no statutory rule permitting grant of such long leave to a teacher of private recognized and aided Junior High School has been brought to the notice of the Court by the counsel for the petitioner. In absence of any such provision for such long leave being, granted the principle of abandonment of employment would apply and any amount of applications made by the petitioner asking for such long leave would be of no legal consequence and shall be a mere paper transaction. 22. The issue which remains for adjudication is as to whether the recovery of the amount of salary paid to the petitioner qua working in Parishadiya Vidyalaya as directed under order dated 26.6.2009 can be maintained in the factual background noticed herein above or not. 23. Normally this Court would have asked the Basic Shiksha Adhikari to afford a fresh opportunity of hearing to the petitioner and to determine as to whether in her leave applications she had disclosed the fact that she was to serve the Junior High School/Parishadiya Vidyalaya as the case may be. 23. Normally this Court would have asked the Basic Shiksha Adhikari to afford a fresh opportunity of hearing to the petitioner and to determine as to whether in her leave applications she had disclosed the fact that she was to serve the Junior High School/Parishadiya Vidyalaya as the case may be. But such a course is not being adopted by this Court, in view of the fact that it has specifically been recorded in the order passed by the Basic Shiksha Adhikari that the petitioner had applied for leave without pay, when as a matter of fact she was working in another institution and was withdrawing salary. Even otherwise counsel for the petitioner could not refer to any provision where under such long leave could be granted to a Headmistress. The Court records that in the facts of the case the petitioner has mislead the authorities time and again and has created a situation wherein she claims to be serving two masters at the same time despite the service conditions being regulated by two different set of Rules namely Rules of 1981 and Rules of 1978. She has signed the manager’s return in support of her working in Junior High School on a date when she was actually working in Parishadiya Vidyalaya. The motive for such illegal acts being to somehow seek adjustment as Headmistress of a Recognized Junior High School after it was taken on the grant-in-aid list by the State Government in December, 2006. 24. The writ petitioner must disclose something plausible which could be agitated before the authority concerned if an opportunity had been afforded. Mere bald allegation that there had been denial of opportunity of hearing is not sufficient. 25. On the facts as admitted on record the Court has to examine as to what legally follows therefrom. I am of the considered opinion that in the facts of the present case only one logical conclusion can be arrived at by any reasonable man i.e. the petitioner has mislead the authorities by concealing his appointment in other institution. In view of the aforesaid affording of opportunity of hearing to the petitioner would be an empty formality. I am of the considered opinion that in the facts of the present case only one logical conclusion can be arrived at by any reasonable man i.e. the petitioner has mislead the authorities by concealing his appointment in other institution. In view of the aforesaid affording of opportunity of hearing to the petitioner would be an empty formality. In State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679 , the Hon’ble Apex Court had observed that Courts have to examine whether the non-observance of any statutory provision or principle of natural justice have resulted in deflecting the course of justice. In S.L. Kapoor v. Jagmohan and others, AIR 1981 SC 136 , the Hon’ble Supreme Court has held that where from admitted or undisputed fact, only one conclusion is possible and under the law only one course is permissible to be adopted, the Court should not enforce the observance of principles of natural justice for the reason that it would amount to issuing a futile writ. In A.K. Kraipak and others v. Union of India and others, AIR 1970 SC 150 , the Hon’ble Supreme Court observed as under : “The aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in the areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it …... Whenever a complaint is made before the Court that some principles of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.” 26. Therefore, to what extent the principles of natural justice should be applied in a given case, depends upon the facts and circumstances of that case. In case where the principles of natural justice have not been strictly applied but if even after their observation the result could have been the same, enforcing the observance of such principles would be a futile exercise. (Vide Khem Chand v. Union of India and others, AIR 1958 SC 300 ; and Laxmi Shankar Pandey v. Union of India and others, AIR 1991 SC 1070 ) 27. (Vide Khem Chand v. Union of India and others, AIR 1958 SC 300 ; and Laxmi Shankar Pandey v. Union of India and others, AIR 1991 SC 1070 ) 27. This Court feels that the person like the petitioner do not deserve sympathy of the Court specifically when they are appointed to impart education to the minor children. 28. For achieving the purpose of education i.e. of educating youth to be honest and lawful to his/her duties so that the democracy of this country be saved, the educators have to be the persons of impeccable honesty and integrity. Any act of an educator which reflects upon his honesty and integrity has to be dealt with firm hand. Any teacher who endeavours to mislead the authorities for simple monetary benefits, she/he must face the consequences which result. 29. This Court, therefore, refuses to exercise its equitable jurisdiction in favour of the petitioner in the facts of the present case. 30. Writ petition is dismissed. ————