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2018 DIGILAW 367 (UTT)

BACHI SINGH LATWAL v. STATE OF UTTARAKHAND

2018-07-09

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT K.M. Joseph, C.J. (Oral) Appellants secured promotion to Class-III posts on 16.05.2006, after facing the selection committee for promotion as constituted by respondent no. 2 on 30.11.2005. The essential condition for promotion was that a candidate must have done their High School from a recognized Board, either from the State of Uttar Pradesh or from the State of Uttarakhand. The appellants have admittedly done their education from the Hindi Sahitya Sammelan, Allahabad known as “Prathama". They have not done their High School from a recognized Board, but they claimed that the qualification of “Prathama" as to be equivalent to High School on the basis of Government order dated 22.08.1998. A complaint was said to have been lodged and the matter was investigated. District Magistrate obtained a report from Director of Education. The District Magistrate, after giving show cause notice dated 03.05.2010 to them, which was the basis of the impugned order reverted them to Class-IV posts on 11.11.2010. Thereupon, the Writ Petition was filed by the petitioners for the following reliefs: “(i) A writ, order or direction in the nature of certiorari quashing the order dated 11.11.2010 passed by the respondent no. 2 (Annexure No. 7) i.e. District Magistrate reverting the petitioners from the post of class III to class IV. (ii) A writ, order or direction in the nature of mandamus commanding the respondent no. 2 to continue the petitioners to work in the post of the class III employee." 2. The respondents filed their counter affidavit and took the stand that State of U.P. vide circular dated 23.09.1999 had de-recognized the “Prathama" and “Madhyama", obtained from Hindi Sahitya Sammelan, hence it would not be an equivalent certificate to High School, as granted by the Board. Besides this, it was also held by the G.O. dated 23.09.1999, that the Government Order dated 22.08.1998, as relied by the petitioners herein is a forged Government Order and the same has been declared as such by Circular dated 23.09.1999. It was also case of the respondents that as per Regulation 17(4) (ka) Chapter 12 of the U.P. Intermediate Education Act, 1921 certificates of Hindi Sahitya Sammelan are not treated to be equivalent to the High School. It was also case of respondents that District Magistrate perhaps had made enquiry from District Education Officer who gave a report on 15.07.2009 that “Prathama" is not recognized by the Board. 3. It was also case of respondents that District Magistrate perhaps had made enquiry from District Education Officer who gave a report on 15.07.2009 that “Prathama" is not recognized by the Board. 3. In rejoinder affidavit an evasive reply has been made without denying the issuance of G.O. dated 23.09.1999 or questioning its propriety. Even averments made in paragraph-7 of counter affidavit regards non recognition of “Prathama" under Intermediate Act, 1921, too has not been specifically denied. Even as per show cause notice dated 03.05.2010, issued by the District Magistrate it did refer an office memorandum no. 14243-607/2002-03 dated 24.10.2002, issued by Director School Education that “Prathama" and “Madhyama" issued by Hindi Sahitya Sammelan are not equivalent to High School and Intermediate. 4. The learned Single Judge took the view that “Prathama" was issued by the Hindi Sahitya Sammelan, which is only a society and the certificate granted by it is not recognized as equivalent to High School in the State of Uttarakhand. The attention of the learned Single Judge was also drawn to a judgment passed in Special Appeal No. 161/2007. This is for the purpose of contending that there is inordinate delay in the challenge to the appointment and there is no suppression of material fact or fraud committed by forgery or mistake. Following is the discussion by the learned Single Judge in this regard: “4. In this case, the benefit of that cannot be given to the petitioners for the reason that the petitioners were promoted in the year 2006 and after conducting enquiry they have been reverted vide order dated 11.11.2010. Therefore, there is no inordinate delay in the matter. Moreover, in the counter affidavit, the State has specifically clarified that the order dated 22.08.1998 issued by the Director was forged and further as per the circular dated 23.09.1999 the certificates obtained by the petitioners from Hindi Sahitya Sammelan, Allahabad is not recognized in the State of U.P. as well as in the State of Uttarakhand." 5. Aggrieved against impugned order dated 14.07.2014, appellants are before us. We heard Mr. Amish Tiwari, Advocate for the appellants and Mr. J.C. Pandey, Brief Holder for the State/respondents. 6. Aggrieved against impugned order dated 14.07.2014, appellants are before us. We heard Mr. Amish Tiwari, Advocate for the appellants and Mr. J.C. Pandey, Brief Holder for the State/respondents. 6. As far as the essential condition to be fulfilled for being promoted as Class-III, is concerned, the petitioners have placed reliance placed on “prathama" certificate issued by the Hindi Sahitya Sammelan, as to be satisfying the condition of qualification required for promotion, the stand would not be of any avail to the appellants. It is to be noticed that this Court had in the judgment reported in 2007 (1) U.D., 155 ‘Shailendra Singh and others vs. State of Uttaranchal and others' held that Shiksha Visharad that is degree, which is granted by Hindi Sahitya Sammelan, Allahabad, is also not being recognized as equivalent to B.Ed. degree. It is also not treated as equivalent by the State of Uttarakhand. 7. We may also notice that in the judgment rendered in Special Appeal No. 161/2007 the issue pertaining to “Prathama" was an issue, the Division Bench held as follows: “It is absolutely clear that according to the Rules, the essential qualification for promotion from Class IV to Class III post in the departmental quota scheme was “High School qualification". It is an admitted case that none of the appellants, who were promoted under the said quota have High School qualification. They have only done their “Prathama" from Hindi Sahitya Sammelan. It is also a settled position of law that “Prathama" is not equivalent to High School. Therefore, the appellants on the said date were not having the requisite qualifications and consequently, their promotion was not proper." 8. Therefore, this is a clear case, where the appellants secured promotions on the basis of a qualification, which could not be treated as to be an essential qualification prescribed for promotion. Following a complaint, after giving show cause to the appellants and noticing the facts given in reply by the petitioners, the impugned order has been passed by which the appellants stand reverted on a Class-IV post. In fact, this is a case of promotion being undone. As far as the Division Bench judgment in SPA No. 161/2007 is concerned, that was a case where promotions of the appellants were challenged after a gap of several years in the year 2002 and the appointments/promotions of the appellants therein were made between 1990 and 1999. In fact, this is a case of promotion being undone. As far as the Division Bench judgment in SPA No. 161/2007 is concerned, that was a case where promotions of the appellants were challenged after a gap of several years in the year 2002 and the appointments/promotions of the appellants therein were made between 1990 and 1999. The Court noted that it was a long passage of time; whereas, in the present case, promotions are of the year 2006. Following a complaint and after going through the procedure, the order itself was passed in the year 2010. May be, the appellants claim to be continuing, but they are continuing on the strength of interim order of this Court and the appellants cannot get benefit on that basis. 9. The learned Single Judge in the impugned judgment has also noted that there is a case for the respondents that such certificates were forged. 10. In such circumstances and for reasons given above, we do not think that the appellants can be permitted to challenge the order reverting them on finding that they were not having the requisite qualification. 11. The Appeal fails and it is dismissed. 12. No order as to costs.