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SANJAY KUMAR CHAUBEY AND 101 OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Sanjay Kumar Chaubey And 101 Others v. State Of U.P. And Others - WRIT - A No. - 41331 of 2003 [2007] RD-AH 18103 (20 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No.41331 of 2003

Sanjay Kumar Chaubey and others v. State of U.P.

and others

with

Civil Misc. Writ Petition Nos.29684 and 29685 of 2003

and Civil Misc. Writ Petition No.23600 of 2004

Hon'ble R.K.Agrawal, J.

(Delivered by R.K.Agrawal, J.)

All the aforementioned writ petitions involve similar facts and controversy and as such are being disposed of by this common judgment. Civil Misc. Writ Petition No.41331 of 2003 is being treated as the leading writ petition.

By means of the present writ petitions filed under Article 226 of the Constitution of India, the petitioners seek quashing of the order dated 5.7.2003 issued by the Basic Shiksha Adhikari, Maharajganj and a writ of mandamus commanding the respondents not to interfere in the functioning of the petitioners as Assistant Teacher in Junior Basic Schools, Maharajganj and to pay the petitioners their regular monthly salary on the said post regularly every month.

Briefly stated, the facts giving rise to the present petition are as follows:-

According to the petitioners, they possessed either B.Ed. or L.T. degree and are members of the Prashikshit Berojgar Samiti, Maharajganj. Recruitment to the post of teachers in the Junior Basic Schools and Senior Basic Schools in the State of U.P. is governed by the provisions of the U.P. Basic Education Act and the U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "the Act" and "the Rules" respectively), as amended from time to time, under which the appointing authority is the Basic Shiksha Adhikari. As there were a large number of vacancies on the post of the Teacher in Junior Basic Schools and B.T.C. trained candidates were not available in sufficient number, the State Government, vide Government Order dated 9.9.1994, directed that in the hill districts (now Uttarakhand) against the post of Assistant Teachers in the Junior Basic Schools run by the U.P. Basic Shiksha Parishad, if B.T.C. trained candidates were not available, B.Ed./L.T. trained incumbents would be eligible under Rule 8 of the U.P. Basic Shiksha (Teachers) Services (Fifth Amendment) Rules, 1993. By subsequent Government Order dated 22.11.1995, it was clarified that on the vacant post first of all trained candidates would be appointed and if trained candidates were not available, then appointment on substantive post would be made from untrained candidates on merit from the district on contract on a fixed pay. According to the petitioners, there was no justification to apply the aforesaid provisions only to hill districts as there were a large number of vacancies in plains also including the district of Maharajganj. The petitioners filed Civil Misc. Writ Petition No.27241 of 1996 seeking extension of the aforesaid two Government Orders to the entire State of U.P. including the district of Maharajganj and to consider them for appointment as Assistant Teachers. This Court, vide order dated 4.4.1997, permitted the petitioners to appear in the interview to be held for the post of the Assistant Teachers and the selection was made subject to the result of the petition. Some of other similar writ petition, alongwith the leading Civil Misc. Writ Petition No.4983 of 1997, were decided on 24.4.1997 by this Court directing the respondents to consider the petitioners having B.Ed./L.T. qualification if no B.T.C. trained candidates were available, which judgment has attained finality. Since the order dated 24.4.1997 was not complied with, they filed Civil Misc. Contempt Petition No.2153 of 1997 in which, on 3.12.2001, notices were issued. However, it was made open to the respondents to comply with the order to purge the contempt. The State Government, vide Government Orders dated 10.4.2003 and 28.5.2003, directed the authorities to comply with the orders passed by the High Court in respect of appointment of teachers. Pursuant to the aforesaid directions of the State Government, the Basic Shiksha Adhikari, Maharajganj, vide order dated 19.5.2003, appointed the petitioners as Assistant Teachers in Junior Basic Schools of the district of Maharajganj in untrained pay scale as no B.T.C. candidates were available. These appointments were subject to final orders to be passed in Civil Misc. Writ Petition Nos.27241 of 1996 and Civil Misc. Contempt Petition No.2153 of 1997. It was further made clear that these appointments were purely temporary and could be terminated at any time without specifying any reason and such appointments would not be treated as precedent in future. Pursuant to their appointment, the petitioners joined and started discharging their duties. The Basic Shiksha Adhikari, Maharajganj, respondent no.4, vide order dated 5.7.2003, recalled their appointment as they were made to comply with the orders of the Hon'ble High Court without following the regular selection process and in Contempt Case No.1930 of 2003, Devanand Shukla and others v. Ramesh Kumar Singh, Basic Shiksha Adhikari, Basti, this Court, vide order dated 23.5.2003, had held that B.Ed./B.P.Ed./L.T. could not be compared with B.T.C. and they were not equivalent to B.T.C. Thus, those candidates who, as per the Government Order dated 9.1.1998 and Rule 8 of the Rules, did not obtain Special B.T.C. training for six months from the institutions recognised by the State Government, were not eligible to be appointed as Assistant Teachers in Basic Schools and as such purely temporary appointment of the petitioners were recalled. According to the petitioners, the impugned order was passed without giving any notice/opportunity and the order of this Court dated 24.4.1997 having attained finality, could not be wiped out by the subsequent order dated 23.5.2003. Moreover, their appointments were as per the provisions of the Rules.

In the counter affidavit filed by Sri Ram Naval Verma posted as the District Basic Shiksha Adhikari, Maharajganj, it was stated that under Rule 8 of the Rules, only B.T.C., H.T.C., J.T.C. and C.T. certificate holders were eligible for appointment as Assistant Teachers in Junior Basic Schools and B.Ed./L.T. was not the prescribed qualification and, therefore, such degree-holders could not be considered for appointment as the concept and duration of course were altogether different. According to the respondent no.4, even the National Council for Teachers Education did not recognise the B.Ed./L.T. as equivalent to B.T.C. and, therefore, the petitioners were not eligible and could not be appointed as Assistant Teachers in Basic Schools. It was further stated that the Government Orders dated 9.9.1994 was applicable to hill districts, which was withdrawn by the Government Order dated 11.8.1997 and, therefore, no benefit could be claimed thereunder. It was stated that procedure for recruitment of Assistant Teachers provided under the Rules were not followed and the petitioners did not possess the requisite qualifications and the District Basic Shiksha Adhikari had erred in making their appointments and after the dismissal of the contempt application, the petitioners' appointment was recalled.

The petitioners have filed rejoinder affidavit in Civil Misc. Writ Petition No.29685 of 2003 denying the contents of the counter affidavit and reiterating the contents of the writ petition.

Heard the learned counsel for the parties.

Learned counsel for the petitioners submitted that as these petitioners were also parties in the Writ Petition no.27241 of 1996 they are entitled for the benefit of the interim order passed in the said writ petition on 4th April 1997 and have rightly been appointed on the post of Assistant Teacher. The subsequent cancellation of the appointment is, therefore, illegal and wholly without authority of law. It was further submitted that neither any show cause notice nor any opportunity of being heard was given to the petitioners before cancelling their appointments and, therefore, the order dated 5th July, 2003 is liable to be quashed on the ground of it being violative of the equity, fair play and the principles of natural justice. In this regard reliance has been placed upon a decision of the Apex Court in the case of Shridhar v. Nagar Palika, Jaunpur and others, AIR 1990 SC 307. It was further submitted that this Court in the case of B.Ed. Berozgar Sangh, Sonbhadra and others v. State of U.P. and others, 1997(3)UPLBEC 1774 has already held that if the Government allows any other qualification to be treated as a proper qualification, whenever candidates with B.T.C. qualification are not available in sufficient number, the same policy is to be applied throughout the State in every selection process. As sufficient number of B.T.C. candidates were not available, in terms of the directions issued by this Court in the aforesaid case, the petitioners who possessed B.Ed. or L.T. degrees, were considered and granted appointment on the post of Assistant Teacher. Thus, the action of the respondents in cancelling the appointment of the petitioners is wholly illegal, arbitrary and contrary to the directions given by this Court in the aforesaid decision. Reliance has also been placed on the decisions of this Court in the case of Ravind Kumar Pandey and others v. High Court of Judicature at Allahabad and others, 1998(1) ESC 760(All.) and Writ Petition No.6146 (S/S) of 2003, Brij Bhushan Tripathi and others v. State of U.P. and others decided on 17th September, 2004.

On behalf of the respondents, it has been submitted that the petitioners did not possess the minimum academic qualification for being appointed on the post of Teacher in a Basic School as they did not possess training qualification consisting Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate or Certificate of Teaching or any other training course recognised by the State Government equivalent thereto and, therefore, they could not have been appointed as teacher and their appointments have rightly been cancelled. Reliance has been placed on a Division Bench decision of this Court in the case of State of U.P. and others v. Anant Kumar Tiwari and others, 2003(3) AWC 2060.

Having heard the learned counsel for the parties, I find that it is not in dispute that the petitioners did not possess Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognised by the Government as equivalent thereto as provided in Rule 8 of the Rules. This Court in the case of B.Ed. Berozgar Sangh, Sonbhadra (supra) has held as follows:

"19.......I hold that in such circumstances, if the Government allows any other qualification to be treated as a proper qualification whenever candidates with B.T.C. qualification are not available in sufficient number, the same policy is to be applied throughout the State in every selection process. I make it clear that this does not mean that on the present materials, the qualification of B.Ed. or L.T. is to be treated as equivalent to B.T.C. particularly when the Government has not recognised the same as equivalent and only in case when candidates with B.T.C. are not available, the candidates with B.Ed. or L.T. qualification are being considered.

20. In the aforesaid circumstances, this writ petition is disposed of finally directing the respondents to follow the same principle in every case and consider the case of the petitioners having B.Ed. or L.T. qualification if no sufficient candidates with B.T.C. qualification are available in respect of the selection process involved in this writ petition. But, if sufficient candidates with B.T.C. qualification are available the respondents are at liberty to appointment them in accordance with law."

The appointments of the petitioners have been made pursuant to the order dated 4.4.1997 passed by this Court in Civil Misc. Writ Petition No.27241 of 1996, which is to the following effect:

"In the meanwhile, the respondents are directed to permit the petitioner to appear in the interview for the post of Assistant Teacher, if any, to be held in near future. However, the selection of the petitioner shall be subject to the result of the present petition."

It may be mentioned here that when the appointment was not being made, the petitioners of that writ petition had preferred a contempt petition being Civil Contempt No.2153 of 1997, in which notices were issued on 5th September, 1997. On 6th January, 2000 an order was passed by this Court directing to comply with the order dated 4.4.1997 by 24th February, 2000 or to appear in person on 9th March, 2000 before the Court. The contempt petition has been dismissed on 10th April, 2006.

The petitioners were granted appointment on 19th May, 2003 in compliance of this Court's interim order passed on 4.4.1997. It is not in dispute that the qualification of B.Ed. or L.T. cannot be treated as equivalent to B.T.C. This Court, in the cases of B.Ed. Berojgar Sangh and Anant Kumar Tiwari (supra) as also the Apex Court, in the case of Rajesh Kumar Gupta and others v. State of U.P. and others, (2005) 5 SCC 172, has held that B.Ed./L.T. qualifications cannot be treated as equivalent to B.T.C.

However, the facts remains that in the cases of B.Ed. Berojgar Sangh (supra) this Court has held that the benefit of the Government Order which was made applicable to the hill districts (now Uttarakhand) and wherein it was provided that if sufficient candidates with B.T.C. qualification were not available, then appointment of candidates possessing B.Ed./L.T. qualification be made, was made applicable to the entire State of U.P. The interim order dated 4.4.1997 passed in the petitioners' earlier writ petition being Civil Misc. Writ Petition No.27241 of 1996, was also to the same effect. It may be mentioned here that the Government Order providing benefit to hill districts, which was made applicable to the entire State of U.P., had been withdrawn only on 11.8.1997 whereas the interim order which was passed by this Court in the petitioners' earlier writ petition, had been passed on 4.4.1997, therefore, on the date when the interim order was passed, the benefit of the Government Order as also the direction given by this Court in the cases of B.Ed. Berojgar Sangh (supra) was fully applicable.

I find that the appointment of the petitioners has been cancelled on 5.7.2003 on the basis of the order dated 23.5.2003 passed by this Court in Civil Misc. Contempt Petition No.1930 of 2003, Devanand Shukla and others v. Ramesh Kumar Singh, Basic Shiksha Adhikari, Basti in which this Court had held that B.Ed./L.T. qualification is not equivalent to B.T.C./Special B.T.C. and, therefore, the persons are not eligible for appointment. It is not the case of the petitioners that B.Ed./L.T. qualification should be treated equivalent to B.T.C./Special B.T.C. They are claiming the benefit of the Government Order issued in this behalf in respect of the hill districts, as made applicable by this Court to the entire State of U.P. in the cases of B.Ed. Berojgar Sangh (supra).

Admittedly, the appointments have been cancelled ex parte without giving any show cause notice or opportunity of hearing to the petitioners.

In the case of Shridhar v. Nagar Palika, Jaunpur and others, AIR 1990 SC 307, the Apex Court has, in paragraph 8 of the report, held as under:-

"It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant, therefore the order was illegal and void."

In the case of Shrawan Kumar Jha and others v. State of Bihar and others, AIR 1991 SC 309, the Apex Court has held that it is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. The Apex Court set aide the order of cancellation of appointment of teachers on this ground alone.

Similar view was taken by the Apex Court in the cases of Basudeo Tiwary v. Sido Kanhu University and others, AIR 1998 SC 3261; Jaswant Singh and others v. State of M.P. and others, (2002) 9 SCC 700 and Ravi S. Naik v. Union of India and others, 1994 Supp (2) SCC 641.

This Court in the case of Smt. Gayatri Devi and others v. Hari Lal Pasi, Additional District Magistrate, District Lalitpur and others, 1994(3) ESC 530, has held that where the candidates have joined pursuant to the appointment letters, they were entitled for opportunity of hearing before the appointment order passed in their favour were cancelled.

Similar view was taken by this Court in the case of Rajeev Ratnam Tewari and others v. State of U.P. and others, 1998(1) ESC 370.

As in the present case I find that there is no dispute that the order dated 5.7.2003 cancelling the appointment had been passed without issuing any show cause notice or giving any opportunity of hearing to the petitioners, the said order having been passed in violation of the principles of natural justice, cannot be sustained and is liable to be set aside.

Similar is the position in respect of other writ petitions also and, therefore, the order cancelling the appointment of the petitioners which have been impugned in the other writ petitions, are also liable to be set aside.

In view of the foregoing discussions, all the writ petitions succeed and are allowed. The Basic Shiksha Adhikari, Maharajganj is directed to give an opportunity of hearing to the petitioners and pass a fresh order in accordance with law. However, the parties are directed to bear their own costs.

November 20, 2007

vkp


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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