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2013 DIGILAW 2622 (ALL)

Waseeq Ahmad v. State of U. P.

2013-10-22

SABHAJEET YADAV

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JUDGMENT Sabhajeet Yadav,J.: - A Division Bench of this Court vide judgment and order dated 8.4.2011 passed in Special Appeal No. 336 of 2011 has directed to decide this petition on merit in accordance with law. Initially the writ petition was dismissed vide judgment and order dated 18.1.2007 in view of an order dated 26.7.1996, whereby the writ petition was dismissed on the ground of alternative remedy. But vide order dated 8.4.2011 passed by Division Bench of this Court since this writ petition is directed to be decided on merit in accordance with law. Accordingly, the same is decided on merit. 2. It is stated that the petitioner was appointed as Urdu Translator-cum-Junior Clerk after due selection against the advertised vacancies in the year 1995. Vide order dated 23.6.1995 contained in Annexure-7 of the writ petition payment of salary to the petitioner was stopped. Vide order dated 19.6.1995 the services of the petitioner has been terminated on the ground that he has not passed Intermediate examination from Uttar Pradesh Madhyamik Shiksha Parishad with Urdu as one of the subjects and possess only certificate of Adeeb-a-Mahir examination conducted by Jamia Urdu Aligarh. In similar facts and circumstances of the case in Writ Petition No.22797 of 1995 Mohammad Istiaque Ansari Vs. State of U.P. I have already taken the view that Adeeb-a-Mahir examination conducted by Jamia Urdu Aligarh has been recognized by State of Uttar Pradesh equivalent to Intermediate qualification conducted by U.P. Madhyamik Shiksha Parishad and in the advertisement inasmuch as rules governing the recruitment of Urdu Translator-cum-Junior Clerk said qualification has been prescribed as alternative qualification for the post in question. Therefore, it cannot be held that the petitioner did not possess the minimum educational qualification prescribed by rules and advertisement for the post in question. The aforesaid view also finds support from other decisions of this Court as well as Apex Court. The pertinent observations made by this Court in paras 9, 10, 11 and 12 of the said decision dated 23.9.2013 are quoted as under: - “(9) The aforesaid educational qualification prescribed in the said advertisement has also been made appendix to 1994 Rules as Annexure-2 of said Rules, therefore, the said educational qualification published in the advertisement was in accordance with said Rules. Besides Annexure-2 of the said Rules in Annexure-3 of the said Rules the equivalent qualification has been shown by the same Gazette Notification wherein Adibe-A-Mahir examination has been shown to be equivalent to the Intermediate examination vide Government Order dated 9th September, 1983 and Adeeb a Quamil examination has been shown equivalent to B.A. examination vide Notification dated 14th July, 1982. (10) Thus, Rule-11 of 1994 Rules and advertisement in question clearly established that in order to become legible for the post of Urdu Translator Cum Junior Clerk a candidate for direct recruitment must have passed either (i) the Intermediate examination with Urdu as one of the subjects from the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto, or (ii) any higher examination recognized by the Government with Urdu as one of the subjects. Since Adibe-A-Mahir examination conducted by Jamia Urdu, Aligarh has been recognised by the Government of Uttar Pradesh as equivalent to the Intermediate class as revealed from the note appended to the academic qualification for the post in question shown in the advertisement and also from the Appendix-II of 1994 Rules and Appendix-III of said Rules also reveals that vide Government order dated 9th September 1983 the Government of U.P. has recognised Adibe-A-Mahir qualification as equivalent to Intermediate class and the petitioner has passed Adibe-A-Mahir examination conducted by Jamia Urdu Aligarh and there is nothing on record to show that prior to the said advertisement aforesaid Rules of recruitment has been changed and recognition of Adibe-A-Mahir examination conducted by the Jamia Urdu Aligarh as equivalent to Intermediate examination conducted by U.P. Board of Secondary Education has been withdrawn by the Government of U.P., therefore, in wake of these facts and circumstances of the case, there can be no scope for doubt to hold that the Adibe-A-Mahir from Jamia Urdu Aligarh academic qualification possessed by the petitioner was recognised by the Government of U.P. as equivalent to the Intermediate examination conducted by U.P. Secondary Education Board and said academic qualification has been prescribed in the advertisement as alternative academic qualification for the post in question, thus, in my opinion, it can not be held at all that the petitioner did not possess education/academic qualification prescribed for the said post at the time of his recruitment for the said post. Therefore, in my view cancellation of selection and appointment of the petitioner on the ground of lack of academic qualification can not be sustained. (11) In a similar controversy for appointment on the post of Pharmacist (Unani) under Central Government Health Scheme in case of Syeed Ahmad Vs. Secretary, Ministry of Health & Family Welfare and others reported in (1997) 11 S.C.C. 529 the Apex Court has held that Adibe-A-Mahir examination conducted by Jamia Urdu Aligarh for the purpose of employment in Central Government has been recognised as equivalent to Intermediate standard. A Coordinate Bench of this Court also in the case of Saleem Ahamed Vs. State of U.P. in Writ Petition No. 1577 of 1996 decided on 5.7.2007 has held that Adibe-A-Mahir examination conducted by Jamia Urdu Aligarh is equivalent to the Intermediate examination conducted by U.P. Secondary Education Board, as such, in my opinion, the impugned order dated 24.6.1995 passed by Superintendent of Police Padrauna is contrary to the law and the view taken by me, therefore, can not be sustained. Accordingly, the same is hereby quashed. (12) Since the petitioner has been deprived for discharging his duties on account of wrongful acts of respondents, therefore, principle of no pay for no work will not be made applicable in the case of petitioner but having regard to the totality of facts and circumstances of the case, in my opinion, it would be appropriate to direct the respondents concerned to make payment of 50% salary as back wages to the petitioner from the date of termination of services of petitioner till the date. Thereafter the petitioner shall be entitled for full salary till his actual reinstatement in service." 3. In this view of the matter, the impugned orders dated 19.6.1995 so far as it pertains to the petitioner and 23.6.1995 are hereby quashed. The respondents are directed to reinstate the petitioner in service along with continuity of service and other consequential benefits of service like seniority and grant of regular increments within a period of one month from the date of production of certified copy of the order passed by this Court before the competent authority. The respondents are directed to reinstate the petitioner in service along with continuity of service and other consequential benefits of service like seniority and grant of regular increments within a period of one month from the date of production of certified copy of the order passed by this Court before the competent authority. But in given facts and circumstances of the case the payment of arrears of salary shall be made to the petitioner only to the extent of 50% wage admissible to the post in question as revised from time to time for the reason that the petitioner has been deprived from discharging his duties on account of wrongful acts of respondents, therefore, principle of no pay for no work will not be made applicable in the case of petitioner. Such arrears of salary shall be paid to the petitioner within a period of three months from the date of production of certified copy of the order passed by this Court before the competent authority. 4. With the aforesaid observations and directions, writ petition succeeds and is allowed.