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2013 DIGILAW 1019 (ALL)

RAMESH CHANDRA JAIN v. STATE OF U. P.

2013-04-04

ADITYA NATH MITTAL, VINEET SARAN

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JUDGMENT By the Court.—Undisputed facts of this case are that the petitioner was appointed on the post of Instructor in the subject of Refrigeration and Air-Conditioning in Murli Gajanand Polytechnic, Hathras which is an institution aided by the State Government. The matter relating to regularisation of the petitioner was pending with the respondents. It is also not disputed that the minimum qualification for appointment as Instructor in a Polytechnic was that the candidate should have secured 65% marks in the diploma course. It was also provided that preference was to be given to those candidates, who had done Post-diploma course. 2. The petitioner had secured 63.12% marks in the diploma course and has also done Post-diploma course. The petitioner has retired from service in the year 2008. It is not disputed that the payment of his salary, right from his appointment till his retirement, was paid from the State exchequer as the respondent-polytechnic is a Government aided institution. After his retirement, when the petitioner claimed his post retiral dues and the same were not paid, he filed Writ Petition No. 60965 of 2009 which was disposed of by judgment and order dated 13.11.2009 with the direction that the claim of the petitioner be examined by the Director, Technical Education, U.P. in accordance with law, keeping in view the relevant Government orders as well as the decision of the Division Bench of this Court rendered in Writ Petition No. 6664 of 1999. Pursuant thereto the Director, Technical Education decided the matter on 23.3.2010 and after considering the resolution of the Board meeting held on 24.12.2009 in which it had been recommended that the petitioner may be granted relaxation of 2% marks in the minimum qualification as provided under Section 22(E) of the U.P. Pravidhik Shiksha Adhiniyam, 1962 and also considering the ratio of the judgment of this Court in Writ Petition No. 6664 of 1999, it was decided that the relaxation be granted in favour of the petitioner with the condition that such relaxation may not be treated as a precedent. In pursuance of such order of Director, Technical Education the papers relating to payment of post retiral dues of the petitioner were prepared but in the meantime the Director, Technical Education passed yet another order on 17.8.2010, recalling its earlier order dated 23.3.2010 and refused to grant relaxation on the basis of communication dated 24.7.2009 of the State Government. In pursuance of such order of Director, Technical Education the papers relating to payment of post retiral dues of the petitioner were prepared but in the meantime the Director, Technical Education passed yet another order on 17.8.2010, recalling its earlier order dated 23.3.2010 and refused to grant relaxation on the basis of communication dated 24.7.2009 of the State Government. Challenging the aforesaid order dated 17.8.2010 passed by the Director, Technical Education and order dated 24.7.2009 passed by the State Government this writ petition has been filed. A further prayer has been made that a direction be issued to the respondents to release the post retiral benefits of the petitioner in the light of relevant Government orders and the decision of the Division Bench of this Court in Writ Petition No. 6664 of 1999 “Hari Prasad Shukla v. State of U.P. and others” 3. We have heard Sri Kshitij Shailendra, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondents and Sri Dinesh Kumar Mishra, Advocate holding brief of Ms. Sarita Dubey, learned counsel for respondent Nos. 4 and 5 and perused the record. 4. The submission of learned counsel for the petitioner is that the appointment of the petitioner was made after considering his qualification and on the basis of preference which was to be given to candidates who had done Post-diploma course. It is contended that the power to relax the minimum qualification was available with the respondent authorities under Section 22 (E) of the Act of 1962 and such application remained pending with the respondent authorities for more than 30 years and a decision was taken only after the retirement of the petitioner and during his service period, the petitioner was paid salary from the state exchequer. It is contended that the order dated 23.3.2010 was passed by the Director, Technical Education in pursuance of the directions issued by this Court in Writ Petition No. 60965 of 2009 and the same was a well reasoned order which has taken into consideration the resolution of the Board, which was in favour of the petitioner and as such there was no occasion for recalling such order. 5. Learned Standing Counsel has however submitted that the petitioner did not obtain 65% marks in the diploma course, therefore, his appointment was not valid and as such the impugned order has rightly been passed by the authorities. 6. 5. Learned Standing Counsel has however submitted that the petitioner did not obtain 65% marks in the diploma course, therefore, his appointment was not valid and as such the impugned order has rightly been passed by the authorities. 6. Learned counsel for the respondent-polytechnic has however, stated that the petitioner has worked in the Polytechnic to the satisfaction of the authorities and the case for regularisation after granting relaxation has been forwarded by the Polytechnic to the State authorities which had been pending with the authorities for several years. 7. Section 22(E) of the Act of 1962 provides that the qualification for appointment of Principal and of Teachers shall be laid down by regulations. The proviso clearly states that the Board may, after considering the report of the Director, exempt any person from requirement of minimum qualification having regard to his experience, education and other attainments. In the present case, the Board in its 55th meeting held on 24.12.2009 had recommended for relaxing the minimum qualification in the case of the petitioner by 2%. This probably had been done after considering the preferential qualification which the petitioner possessed as he had done the Post-diploma course also. On the basis of such recommendation of the Board, the Director, Technical Education had passed the order dated 23.3.2010 granting relaxation in the case of the petitioner. 8. The Division Bench of this Court in the case of Hari Prasad Shukla v. State of U.P. and others (Writ Petition No. 6664 of 1999) in paragraph 7 has, while considering a case where the person had secured 64.15% marks and was appointed in the year 1978 and continued for approximately 20 years without any objection, held it to be a fit case for grant of relaxation in the minimum qualification under Section 22(E) of the Act of 1962. 9. Keeping in view the ratio of the aforesaid decision, we are of the opinion that the Director had rightly passed the order dated 23.3.2010 granting relaxation in favour of the petitioner after keeping in view the resolution dated 24.12.2009 of the Board granting 2% relaxation in the case of the petitioner. 9. Keeping in view the ratio of the aforesaid decision, we are of the opinion that the Director had rightly passed the order dated 23.3.2010 granting relaxation in favour of the petitioner after keeping in view the resolution dated 24.12.2009 of the Board granting 2% relaxation in the case of the petitioner. The withdrawal of such order by the subsequent order of the Director on 17.8.2010 does not appear to be justified as it has been passed merely on communication of the State Government dated 24.7.2009 in which the question of relaxation was not considered but it was merely stated that the relaxation may not be granted to the petitioner because he does not possess the minimum qualification. The earlier order of the Director dated 23.3.2010 was with regard to grant of relaxation, whereas the order dated 24.7.2009 was with regard to grant of regularisation in the case of the petitioner. The benefit of regularisation had been given under Section 22(E) of the Act, 1962 after considering the merits of the case and the decision of Division Bench of this Court and the subsequent order recalling the order dated 23.3.2010 appears to be passed merely because of the communication dated 24.7.2009, without considering the resolution of the Board passed in 55th meeting on 24.12.2009. 10. The State Authorities are required to take decisions judiciously and not arbitrarily. In the present case, the State Government has not considered the resolutions dated 13.12.2007 and 24.12.2009 by which the Technical Education Board categorically considered the case of the petitioner and decided to grant relaxation of 2%. The State Government has not assigned any reason as to why these resolutions were not honoured. 11. In the present case, the State Government has not considered the resolutions dated 13.12.2007 and 24.12.2009 by which the Technical Education Board categorically considered the case of the petitioner and decided to grant relaxation of 2%. The State Government has not assigned any reason as to why these resolutions were not honoured. 11. In equity also, since the petitioner has worked in the respondent-institution to the satisfaction of the authorities (which is an aided institution) and had been paid salary from the State Government Funds for over three decades, it would be wholly inequitable that now after 30 years and that too after the retirement of the petitioner, they take a stand that the petitioner would not be entitled to payment of retiral dues because he did not possess the minimum qualification, even though the authorities had the power to relax the minimum qualification under the provisions of the Act for which an application had been pending with the authorities for more than 30 years and ultimately had been allowed by the Director on 23.3.2010. 12. For the reasons given above, we are of the opinion that the impugned order dated 24.7.2009 passed by the State Government and the order dated 17.8.2010 passed by the Director, Technical Education deserve to be quashed. 13. Accordingly, the writ petition stands allowed. The order dated 24.7.2009 passed by the State Government and the order dated 17.8.2010 passed by the Director, Technical Education are quashed. The respondents are directed to ensure payment of the retiral dues of the petitioner as expeditiously as possible but not later than four months from today, failing which the respondents shall be liable to pay interest @ 10% per annum from the date the amount became due till the date of payment. It is made clear that in case the payment is made within four months, the respondents shall not be liable for payment of interest. ——————