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Allahabad High Court · body

2010 DIGILAW 953 (ALL)

RAJ NATH SINGH v. STATE OF U. P.

2010-03-22

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—The petitioner is a Collection Amin, whose services have been terminated under the impugned order dated 10.12.2009 on the ground that when he was appointed 33 years ago, he did not possess the minimum qualification of Intermediate which was required for the said post and, therefore, his appointment being invalid, the services are liable to be terminated. 2. The petitioner was admittedly appointed on 1.1.1977 as a Collection Amin and it is undisputed that he was made regular w.e.f. 1.7.1978 and was confirmed in his services on 10.1.1983. The petitioner passed his Intermediate Examination in the year 1989. 3. The nephew of the petitioner, who has been arrayed as Respondent No. 4, made a complaint that the petitioner had gained appointment on the basis of a forged Certificate upon which the petitioner was issued a Notice on 30.1.2006 by the Addl. District Magistrate, Azamgarh, calling upon him to give a reply to the said allegation made in the complaint. The petitioner submitted a reply that his certificate was not forged and he had been given appointment under the then prevalent qualification which was High School, and which certificate was possessed by him. The District Magistrate issued another direction to the Sub-Divisional Magistrate that he has received the said reply and the Addl. District Magistrate has gone into this question and, therefore, appropriate action should be taken. On the strength of such direction, a show cause notice was issued to the petitioner on 11.12.2007 to explain about his want of qualification on the initial date of appointment. The petitioner submitted a reply on 25.1.2008 indicating that at the time of his appointment, he was in possession of a High School Certificate and on the strength thereof, he was appointed in 1977. He also submitted that the Rule, having been changed with regard to qualification, was not in force nor was it known to the Sub-Divisional Magistrate who was the then appointing authority and, therefore, there is no occasion to consider his appointment to be invalid that too even after 32 years of service. A second show cause notice was issued to the petitioner on 29.8.2008 by the Sub-Divisional Magistrate calling upon the petitioner to show cause as to why his services be not terminated. 4. A second show cause notice was issued to the petitioner on 29.8.2008 by the Sub-Divisional Magistrate calling upon the petitioner to show cause as to why his services be not terminated. 4. This second show cause notice was challenged by the petitioner in Writ Petition No. 15525 of 2008 in which a counter-affidavit was filed but no orders were passed. The Sub-Divisional Magistrate, thereafter, proceeded to consider the reply of the petitioner and passed the impugned order holding that the petitioner did not possess the minimum qualification of having passed the Intermediate Examination on the date of his appointment and his services were terminated. 5. This writ petition has been filed challenging the said order dated 10.12.2009 on the ground that the petitioner has already put in more than 32 years of service and that in view of the law laid down in the case of Surendra Kumar Singh v. U.P. Financial Corporation and others, decided on 11.8.2004, which is a Division Bench judgement, this Court should exercise its writ of certiorari to quash the impugned order. Other decisions have also been cited at the Bar which shall be discussed hereinafter. 6. The facts in relation to the appointment of the petitioner on 1.1.1977, and the fact that the petitioner was only High School and not Intermediate, has not been disputed by the petitioner. Learned Standing Counsel, therefore, contends that there is no occasion to file any counter-affidavit and the matter can be decided on the legal issues raised. He submits that the petitioner did not possess the minimum qualification on the date of his initial appointment and, therefore, in view of the decision of the Apex Court in the case of State of M.P. and others v. Shyam Pardhi and others, (1996) 7 SCC 118 , the initial qualification which was lacking at the time of appointment, cannot allow the petitioner to continue in service and, therefore, the impugned order is not vitiated. He has further cited the decision of the Apex Court in the case of Mohd. Sartaj and another v. State of U.P. and others, (2006) 2 SCC 315 (paragraph Nos. 11 and 16), to contend that this was not a mere irregularity in appointment and it was a lack of initial qualification which cannot be cured and hence the appointment has to be set side. Sartaj and another v. State of U.P. and others, (2006) 2 SCC 315 (paragraph Nos. 11 and 16), to contend that this was not a mere irregularity in appointment and it was a lack of initial qualification which cannot be cured and hence the appointment has to be set side. Learned Standing Counsel, therefore, contends that the impugned order does not call for any interference and the Division Bench judgment relied upon by the learned counsel for the petitioner, which is Annexure-11 to the writ petition, does not come to his aid. 7. In view of the undisputed fact that the petitioner did not have the initial qualification of Intermediate at the time of his appointment in 1977 and was only a High School, the fact remains that the petitioner was appointed on the basis of a wrong qualification. The petitioner subsequently passed his Intermediate Examination in the year 1989 after he had been confirmed in service. The qualification of Intermediate had been introduced by way of an amendment in the Rules on 11.3.1976. The appointment of the petitioner was undisputedly after the said amendment. This is not a case where the petitioner was at fault but it is a case where he has been appointed on the basis of a qualification which has been altered by way of an appropriate amendment. The question is, therefore, should his appointment should be cancelled and the second issue is as to whether it should be done after 33 years of service of the petitioner. 8. The Apex Court in the case of Ashok Kumar Sharma and another v. Chandra Shekhar and another, 1993 Supp. (2) SCC 611, came to the conclusion that the results of the examination of the qualification that was required to be possessed on the date of interview had not been declared for no fault of the applicants, but were announced immediately before the date of interview. This did not dis-entitle the applicants as being disqualified and the Supreme Court upheld their selection and appointment in spite of that infirmity. The minority view of the third Hon’ble Judge even though agreed with the conclusion but held the applicants to be ineligible on the date when the application was to be filed. The minority view held that such practice should be discouraged as a person not qualified on the date of the application, cannot be subsequently given any benefit. The minority view of the third Hon’ble Judge even though agreed with the conclusion but held the applicants to be ineligible on the date when the application was to be filed. The minority view held that such practice should be discouraged as a person not qualified on the date of the application, cannot be subsequently given any benefit. However, since the conclusion was in favour of the applicants, their appointments were upheld. 9. There is another 3 Judges decision in the case of Ram Sarup v. State of Haryana and others, AIR 1978 SC 1536 , relied upon by the learned counsel for the petitioner where one of the three requisite qualifications of experience was not possessed by the candidate yet the Supreme Court held that the same stood cured in the following words : “We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years’ experience of the working of labour laws in any one of the three capacities mentioned in Cl. (1) of R. 4 or in any higher capacity, his appointment must be regarded as having been regularised.” 10. The Supreme Court in another case M.S. Mudhol v. S.D. Halegkar, (1993) 3 SCC 591 , considered the case relating to the appointment to the post of a Principal where the allegation was that the candidate did not fulfil the essential qualification. The Supreme Court in para 4 held that the candidate did not have the requisite educational qualification to be selected for the post of Principal as he did not possess the post graduate Degree in the division concerned, yet the subsequent acquisition of the qualification and his experience was taken into account and it was found that it would be inequitable to dislodge the petitioner after 9 years of service. Even though it was held that the academic qualification was not possessed, yet the illegality was committed by the Selection Committee and, therefore, the candidate was allowed to continue in service. 11. The Supreme Court in the case of Roshni Devi v. State of Haryana and others, (1998) 8 SCC 59 , again came across such a case where it passed an order in exercise of powers under Article 142 of the Constitution of India and upheld the appointment. 12. 11. The Supreme Court in the case of Roshni Devi v. State of Haryana and others, (1998) 8 SCC 59 , again came across such a case where it passed an order in exercise of powers under Article 142 of the Constitution of India and upheld the appointment. 12. The aforesaid decisions found favour with the Division Bench as relied upon by the learned counsel for the petitioner and, as such, in view of the fact that the petitioner had continued for more than 33 years of service, I see no justification in passing of the order when it is admitted that the petitioner has passed his Intermediate Examination subsequently. 13. It is also to be noticed that there was a distinction made in the case of Mohd. Sartaj (supra) wherein paragraph 19 recites that the order of cancellation therein was passed within a very short span of time. The aforesaid aspect, therefore, weighed heavily with the Supreme Court while deciding the case of Mohd. Sartaj. In the instant case, the order has been passed after more than 33 years of service and, therefore, the question of proximity of time has also to be taken notice of which has weighed with me while allowing this petition. Apart from this, there is no fraud or misrepresentation on the part of the petitioner and he had categorically disclosed his qualification only as High School and not as Intermediate. The impression given by the complainant that the petitioner had obtained employment through a forged mark-sheet was not found to be correct. It appears that then authority proceeded to make the appointment on the basis of a bona fide belief of the existence of the Rules before its amendment which contained the qualification of High School. 14. I, accordingly, set aside the order dated 10.12.2009 and allow the writ petition. ————