Bhagwat vs State of U.P. and Others

B. Amit Sthalekar, J.—1. The petitioner is seeking quashing of the order dated 5.11.2015 whereby promotions granted to him on the post of Junior Clerk and above have been canceled.

The brief facts of the case, as emerging from the documents on record, are that the petitioner was appointed as a Class IV employee on 23.8.1980 in the Public Works Department. He was promoted to the post of Daftari in the pay scale of 315-440 by order dated 30.12.1988 and he joined as Daftari on 4.1.1989. He was promoted as Junior Clerk in the pay scale of 950-1500 by order dated 28.1.1994. It is stated that the petitioner had done his Prathama and Madhyma in the year 1991 and 1998 from the Hindi Sahitya Sammelan, Allahabad. It is also stated that these facts were never concealed by the petitioner and were well within the knowledge of the Department when he had submitted his testimonials. It is stated that he was also promoted as Junior Clerk in the pay scale of 950-1500 by order dated 28.1.1994 and thereafter he was again promoted as Senior Assistant in the pay scale of 5200-20,200 and also in the pay bank of 9300-34,800 with grade pay of Rs. 2000/- by order dated 27.12.2012. Thereafter he was promoted as Head Assistant by order dated 11.3.2015. It is stated that a show cause notice was issued to the petitioner on 15.10.2015 stating that he was not entitled for promotion as the certificates of Prathama and Madhyama were not equivalent to the High School or Intermediate. In paragraph 27 of the writ petition it is stated that by the impugned order the promotions granted to the petitioner on the post of Junior Clerk and above have been canceled.

Heard Shri Govind Kumar Singh, learned senior counsel assisted by Shri Grijesh Tiwari for the petitioner and Shri Vijay Kumar Singh, learned standing counsel for the respondents.

The submission of the learned counsel for the petitioner is that he has been granted promotion in 1994 and therefore the action at this stage in 2015 is wholly unwarranted after such a long period of time particularly when the petitioner had not concealed the fact of his having done his Prathama and Madhyma from the Hindi Sahitya Sammelan, Allahabad.

It is not disputed by the petitioner that the certificates issued by the Hindi Sahitya Sammelan, Allahabad are not equivalent to High School and, therefore, are of no value so far as appointment or promotion to the post in question is concerned. It is however contended by the petitioner that inspite of the Supreme Court having held so, the respondents have nevertheless granted the petitioner promotion twice in the year 2012 and 2015 also and, therefore, such promotions cannot be negated after such a long period of time.

So far as the certificates of Prathama and Madhyama issued by the Hindi Sahitya Sammelan, Allahabad are concerned, this question was specifically considered by the Supreme Court in JT 2010 (6) SC 306 Rajasthan Pradesh v. Sardarshahar and another v. Union of India and others. Para 43 of the judgment of the Supreme Court reads as under:--

"43. At the cost of repetition, it may be pertinent to mention here that in view of the above, we have reached to the following inescapable conclusions:

(I) Hindi Sahitya Sammelan is neither a University/Deemed University nor an Educational Board.

(II) It is a Society registered under the Societies Registration Act.

(III) It is not an educational institution imparting education in any subject inasmuch as the Ayurveda or any other branch of medical field.

(IV) No school/college imparting education in any subject is affiliated to it. Nor Hindi Sahitya Sammelan is affiliated to any University/Board.

(V) Hindi Sahitya Sammelan has got no recognition from the Statutory Authority after 1967. No attempt had ever been made by the Society to get recognition as required under Section 14 of the Act, 1970 and further did not seek modification of entry No. 105 in II Schedule to the Act, 1970.

(VI) Hindi Sahitya Sammelan only conducts examinations without verifying as to whether the candidate has come elementary/basic education or has attended classes in Ayurveda in any recognized college.

(VII) After commencement of Act, 1970, a person not possessing the qualification prescribed in Schedule II, III and IV to the Act, 1970 is not entitled to practice.

(VIII) Mere inclusion of name of a person in the State Register maintained under the State Act is not enough making him eligible to practice.

(IX) The right to practice under Article 19(1)(g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19(6) of the Constitution.

(X) Restriction on practice without possessing the requisite qualification prescribed in Schedule II, III, & IV to the Act, 1970 is not violative of Article 14 or ultra vires to any of the provisions of the State Act."

A Division Bench of this Court in the case of Urmila Devi v. State of U.P. and another reported in 2012 (1) ADJ 346 has, relying on the judgment of the Supreme Court in Sardarshahar (supra) held that certificate of Prathma and Madhyama (Visharad) conducted by Hindi Sahitya Sammelan are not equivalent to High School and Intermediate Examination conducted by the Board of High School and Intermediate Education, U.P. Paragraphs 15 and 16 of the said judgement read as follows:--

"15. There is another aspect to the matter namely that if the qualification conducted by private societies, in respect of language are treated as equivalent to the statutory boards, the candidates passing the examination from the statutory board will be seriously discriminated in appointments in Government Service, which is regulated by the statutory rules. The Court cannot permit the equivalence to be considered so casually. In Rajasthan Pradesh V.S. Sardarshahar & Anr. (Supra) the Supreme Court considered the legal status of Hindi Sahitya Sammelan and found that it is neither university/deemed university nor an educational board. It is society registered under the Societies Registration Act and is not an educational institutions imparting education in any subject. There is no school/college imparting education in any subject affiliated to it. It also does not have any recognition from any statutory authority, even in respect of medical qualifications after 1967.

In the aforesaid circumstances, we fully agree with the reasoning given by the learned Single Judge in the judgment cited as above and reiterate that the Prathama and Madhyama (Visharad) examination conducted by the Hindi Sahitya Sammelan are not equivalent to the High School and Intermediate Examination conducted by the Board of High School and Intermediate Education U.P. The petitioner''s qualification of Madhyama (Vishrad) is thus not equivalent to Intermediate Examination, and thus the petitioner was not qualified and eligible to be appointed as a clerk."

The Supreme Court in the case of State of Rajasthan and others v. Lata Arun reported in , AIR 2002 SC 2642 has also considered the certificate issued by the Hindi Sahitya Sammelan. Paragraphs 10, 11, 12, 13 and 14 of the said judgement read as under:

"10. The points involved in the case are two fold: one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than +2 or 1st year of TDC for the purpose of admission. Both these points relate to matters in the realm of policy decision to be taken by the State Government or the authority vested with power under any statute. It is not for courts to determine whether a particular educational qualification possessed by a candidate should or should not be recognized as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In an appropriate case the Court can examine whether the policy decision or the administrative order dealing with the matter is based on a fair, rational and reasonable ground; whether the decision has been taken on consideration of relevant aspects of the matter; whether exercise of the power is obtained with malafide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates.

This Court in Delhi Pradesh Registered Medical Practitioners v. Director of Health, Delhi Admn. Services and Ors., rejecting the contention that proper consideration had not been given to the standard of education imparted by the Hindi Sahitya Sammelan, Prayag and expertise acquired by the holders of the degrees awarded by the said institution, made the following observations:

"....It is not necessary for this Court to consider such submissions because the same remains in the realm of policy decision of other constitutional functionaries. We may also indicate here that what constitutes proper education and requisite expertise for a practitioner in Indian Medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of the Delhi High Court is justified on the face of legal position flowing from the said Central Act of 1970, we do not think that any interference by this Court is called for."

In the case of Dr. Ravinder Nath v. State of H.P. And Ors., this Court considered the question whether a diploma/degree of Vaidya Visharad or Ayurveda Ratna obtained from Hindi Sahitya Sammelan, Allahabad, which institution was recognized for the period from 1931 to 1967 only, could be accepted as educational qualification fulfilling the eligibility conditions for promotion to the post of Ayurvedic Chikitsa Adhikari (Vaidya) under the State of Himachal Pradesh. This Court held that the Second Schedule to the Indian Medical Central Council Act, 1970 came into force in the State of Himachal Pradesh on 15.8.1971 which clearly mentioned the period for which diploma/degrees awarded by the Hindi Sahitya Sammelan were recognized. The respondent obtained qualification after this period for which there was no recognition, and they were aware of the fact which itself disentitled them from claiming promotion. Their contention that the condition regarding degree from a recognized body is prescribed for direct recruitment only in Rule 7 of 1974 Recruitment Rules while there is no such condition in Rule 11 which governs promotion, was rejected by this Court holding that the recruitment rules have to be read consistently with the 1970 Act and 1968 Act as well as the Government Notification dated 21.2.1978 which recognizes diploma/degrees awarded by the Hindi Sahitya Sammelan during the period 1931 to 1967 only. This Court declared that the qualifications acquired by the respondent for the HSS which were admittedly after 1967 did not entitle them to be considered for promotion to the post of Vaidya.

From the ration of the decisions noted above it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. it is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.

Testing the facts of the case in hand on the touchstone of the principles it is clear that on the date of submission of the application for joining the course the respondent did not possess the prescribed qualification of 10+2 or 1st year TDC from a recognized institution. The Madhayama Certificate from Hindi Sahitya Sammelan Prayag, Allahabad had been deleted from the recognized qualification by the notification dated 28.6.1985. The respondent submitted the application for admission to the course in December, 1989. In the circumstances the High Court was in error in issuing a direction to the appellants to treat the respondent as a candidate possessed of the prescribed educational qualification and to declare her result on that basis."

One point that has been agitated very vociferously by the learned senior counsel for the petitioner is that the petitioner was given promotion on 28.1.1994 and the same has been sought to be taken away by the impugned order only in 2015. He has placed reliance upon a decision of the Division Bench of this Court in the case of Surendra Kumar Singh v. U.P. Financial Corporation, Kanpur and others reported in 2005 (5) ESC 284, in which the appointment was made in 1981 and order of dismissal was passed in 2004 and the Division Bench held the dismissal to be wholly illegal and arbitrary and further that such appointment cannot be questioned after more than 23 years.

The next judgment relied upon by the petitioner is reported in (1991) 1 UPLBEC 250 (FB) Smt. S.K. Chaudhari v. Manager, Committee of Management, Vidyawati Darbari Girls Inter College, Allahabad and others. This was a case relating to inter se seniority under the U.P. Intermediate Education Act, 1921 and the Court was considering the provisions of Clause 3(1)(bb) of Chapter II of the Act, 1921 and the Court held that the provisions of Clause 3(1)(bb) of Chapter II of the Act, 1921 are not retrospective in operation and the Hon''ble Judges are not prepared to quash the seniority list after a lapse of 15 years. This judgement in my opinion has absolutely no application to the facts of the present case.

It is trite law that illegal appointment or illegal promotion will not confer any right upon the petitioner to continue to enjoy the benefit of such illegal appointment/promotion merely because several years have passed in between and that he has been holding the promotional post for a long time.

The Supreme Court in , (2005) 4 SCC 209 Binod Kumar Gupta and others v. Ram Ashray Mahoto and others in the matter of illegal appointments in Class IV in Civil Court has held that merely because the appellants therein were holding the post for the last 15 years they cannot be allowed to continue to enjoy such benefit. Paragraph 12 and 13 of the said judgment read as under:

"12. Indeed, learned counsel appearing on behalf of the appellants conceded this position but contended that since they had continued to serve for the last 15 years, a selection could be held amongst the appellants 15 to 27.As far as the first 14 are concerned, it is submitted that they should be permitted to continue as there had been an advertisement.

The "advertisement" was no ''advertisement'' as required by the High Court. Without adequate notice no fair opportunity was given to others who might have applied. Apart from this, it does not appear from the records that there was any selection procedure followed at all. There is no explanation why the Selection Committee had been by passed nor any acceptable reason why the persons who had applied as far back as in 1986 were ignored. This singular lack of transparency supports the finding of the High Court that the appointments were not made bonafide. The District Judge, who was ultimately responsible for the appointment of Class-IV staff violated all norms in making the appointments. It is regrettable that the instructions of the High Court were disregarded with impunity and a procedure evolved for appointment which cannot be said to be in any way fair or above board. The submission of the appellants that they had been validly appointed is in the circumstances unacceptable. Nor can we accede to their prayer to continue in service. No doubt, at the time of issuance of the notice on the special leave petition, this Court had restrained the termination of services of the appellants. However, having regard to the facts of the case as have emerged, we are of the opinion that this Court cannot be called upon to sustain such an obvious disregard of the law and principles of conduct according to which every judge and any one connected with the judicial system are required to function. If we allow the appellants to continue in service merely because they have been working in the posts for the last 15 years we would be guilty of condoning a gross irregularity in their initial appointment. The High Court has been more than generous in allowing the appellants to participate in any fresh selection procedure as may be held and in granting a relaxation of the age limit."

Therefore, considering the facts of the case and the law laid down by the Supreme Court, the certificate of Prathama and Madhyma issued by the Hindi Sahitya Sammelan having been held to be not equivalent to High School Certificate issued by the U.P. Board of High School and Intermediate as well as in view of the judgment of the Supreme Court in the case of Binod Kumar Gupta (supra), I find no illegality or infirmity in the impugned order.

The writ petition lacks merit and is accordingly dismissed.