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2019 DIGILAW 244 (UTT)

Yogesh Kumar v. State of Uttarakhand Through Principal Secretary School Education Dehradun

2019-03-27

N.S.DHANIK, RAMESH RANGANATHAN

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JUDGMENT : Ramesh Ranganathan, J. The application to restore the Special Appeal to file is not opposed by the learned counsel for the respondents and is, therefore, ordered. 2. This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 2627 of 2015 dated 29.10.2018. The appellant herein sought a writ of certiorari to quash the orders dated 23.07.2013 and 28.05.2012 passed by the District Education Officer (Basic), Haridwar. 3. Facts, to the limited extent necessary, are that the appellant-writ petitioner was appointed on compassionate grounds, on 02.01.2004, as an Assistant Teacher (untrained scale), since he did not possess the requisite qualification to be appointed as an Assistant Teacher in the regular scale. The appellant-writ petitioner secured the stipulated education qualifications thereafter, and by proceedings dated 26.06.2006, his services were confirmed as an Assistant Teacher in a regular scale. A seniority list of Assistant Teachers was prepared by the District Education Officer in May, 2012, and the appellant-writ petitioner was promoted as Headmaster on 18.05.2012. The appellant-writ petitioner claims to have joined duty soon thereafter on 21.05.2012. Subsequently, by proceedings dated 23.07.2013, the petitioner’s promotion as a Headmaster was cancelled on the ground that his services as an Assistant Teacher was erroneously recorded from 08.01.2004 when he was appointed as an Assistant Teacher (untrained scale), whereas it should have been reckoned only from 26.06.2006, when he was appointed as an Assistant Teacher in a regular scale. Aggrieved thereby the appellant-writ petitioner invoked the jurisdiction of this Court by way of WPSS No. 2627 of 2015. 4. Aggrieved thereby the appellant-writ petitioner invoked the jurisdiction of this Court by way of WPSS No. 2627 of 2015. 4. In the order under appeal, the learned Single Judge observed that no person can be appointed against a post without possessing essential qualifications; the essential qualification for the post of Assistant Teacher, under the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, was a Bachelor’s Degree from a university recognized by law in India with training qualification and consisting of a Basic Teacher’s Certificate, Hindustani Teacher’s Certificate, Junior Teacher’s Certificate and Certificate of Teaching; prior to 15.04.2006, the appellant-writ petitioner did not possess the essential qualifications and could not, therefore, have been appointed as an Assistant Teacher in a regular scale; the Feeder post, for promotion to the post of Headmaster, was an Assistant Teacher, and not an untrained teacher; the seniority of the appellant-writ petitioner, as an Assistant Teacher, could not be reckoned from a date prior to when he fell in the cadre of Assistant Teacher; and, consequently, the respondents had rightly calculated the appellant-writ petitioner’s seniority from 2006 instead of 2004. 5. Sri Ajay Veer Pundir, learned counsel for the appellant-writ petitioner, would submit that relaxation, in possessing the requisite qualification, is given to persons appointed on compassionate grounds under the Dying-in-Harness Rules; since appointment is made to provide aid to the family in financial distress, a person who does not possess the requisite qualification is also considered for appointment; their appointment is conditional on their securing the prescribed qualifications within the specified period; the petitioner had secured the prescribed qualifications within the stipulated time; since his appointment as an Assistant Teacher is conditional on his securing the prescribed qualification, and on fulfillment of the conditions, the petitioner’s seniority must be reckoned from the date of his appointment on 08.01.2004 as an Assistant Teacher, and not from 2006 when he was appointed as an Assistant Teacher in the regular scale pursuant to his having secured the required qualifications. 6. The submission of Sri Ajay Veer Pundir, learned counsel for the appellant-writ petitioner, though attractive at first blush, does not merit acceptance since no rule or government order, which provides any such concession, has been placed on record. 6. The submission of Sri Ajay Veer Pundir, learned counsel for the appellant-writ petitioner, though attractive at first blush, does not merit acceptance since no rule or government order, which provides any such concession, has been placed on record. It is not even the appellant-writ petitioner’s case, in the affidavit filed in support of the writ petition, that his appointment was conditional on his obtaining the prescribed qualifications within a specified period. The order of appointment, enclosed to the writ petition, does not also disclose that the appointment is conditional. It merely states that the petitioner was being appointed as an Assistant Teacher (untrained). The very fact that the appellant-writ petitioner was not appointed as an Assistant Teacher in a regular scale, but was appointed in the post of Assistant Teacher (untrained) is, by itself, proof that he was appointed as an Assistant Teacher (untrained) only because he did not possess the prescribed qualifications. Consequent on his securing the required qualifications, the appellant-writ petitioner was appointed as an Assistant Teacher in a regular scale in the year 2006; and his seniority has been rightly reckoned as an Assistant Teacher only from that date, and not from 02.01.2004 when he was appointed as an Assistant Teacher (untrained). 7. Inference in an intra-Court appeal would be justified only if the order under appeal suffers from a patent illegality. We find no such infirmity in the order under appeal. The appeal fails and is, accordingly, dismissed. No costs.