Mohammad Saleem vs Her Govind Singh And Others

Ramesh Ranganathan, CJ

The application, to amend the prayer, is not opposed by Mr. J.C. Pande, learned Brief Holder for the State of Uttarakhand, and amendment

application No. 16664 of 2019 is therefore ordered.

The appellant herein sought leave to prefer this appeal, against the order passed by the learned Single Judge in WPSS No. 461 of 2018 dated

16.03.2018, on the ground that, in compliance with the aforesaid directions issued by the learned Single Judge, the Additional Director had, by his letter

dated 18.02.2019, informed the Director, Elementary Education, Uttarakhand regarding 52 candidates, who were appointed more than a decade earlier

as an Assistant Teacher, (Urdu) based on their qualifications of Adeeb, Adeeb-e-Mahir and Adeeb-e-Kamil; the appellant’s name is found at

serial no.40 in the list enclosed along with order dated 18.02.2019; the authorities intend taking disciplinary action against all these 52 candidates; since

the appellant, one among these 52 Assistant Teachers (Urdu), is a person aggrieved by the order of the learned Single Judge dated 16.03.2018, he is

entitled to prefer this appeal; and this Court may consider granting him leave to appeal. As we are satisfied that the order of the learned Single Judge

dated 16.03.2018 forms the basis for the action being taken by the Government, we see no reason to deny the appellant leave to prefer an appeal

against the order passed by the learned Single Judge on 16.03.2018 and 2.10.2019. Leave to appeal is, therefore, granted; and the application seeking

leave is disposed of accordingly.

The order passed by the learned Single Judge dated 16.03.2018 is questioned by the appellant herein contending that, in a dispute wholly unrelated

to the appointment of these 52 individuals, equivalence of their educational qualities, to those which are prescribed, is now sought to be reopened in

some cases nearly 25 years after they were appointed as Assistant Teachers (Urdu); disciplinary proceedings are now sought to be initiated against

them; enquiry in a writ petition should, ordinarily, be confined only to the subject matter of the lis before the Court; writ proceedings cannot be so

expanded as to include matters wholly unconnected with the lis; the learned Single Judge ought not have undertaken the exercise of causing a roving

inquiry into all these appointments made several years ago; this Court would not entertain service disputes even while exercising its public interest

litigation jurisdiction; and, though the learned Single Judge was not deciding a public interest litigation writ petition, yet he had widened the scope of

enquiry in the writ petition before him, to include matters wholly unconnected with the lis before him.

WPSS No. 461 of 2018 was filed by the first respondent herein seeking a writ of certiorari to quash the order of suspension dated 30.11.2017; a

writ of mandamus directing the respondents to continue him as an Assistant Teacher, and pay him upto date and full back wages along with interest

with continuity in service; and a writ of mandamus directing the respondents to forthwith release his withheld salary from September, 2017 till date

with interest. The first respondent-writ petitioner was placed under suspension on the allegation that the documents, he had submitted in proof of his

educational qualification seeking appointment as an Assistant Teacher, L.T, were fabricated and forged.

The scope of enquiry in the writ proceedings, pending before the learned Single Judge, was, in the light of the reliefs sought for therein, confined to

issues whether the respondents were justified in placing the first respondent-writ petitioner under suspension; whether the official respondents were

justified in suspending him from service on the ground that the documents produced by him were forged and fabricated; and, in case interference was

warranted, whether the first respondent- writ petitioner was entitled to be paid back wages in its entirety.

The learned Single Judge had, in his order dated 16.03.2018, noted the contention of the learned counsel for the first respondent-writ petitioner that

the petitioner was teaching since 17 years; respondent Nos. 3 & 4, after such a long period, had suddenly found that the documents, on the basis of

which the petitioner was appointed, were forged and fabricated; they had, thereafter, passed an order suspending the petitioner from service; the

petitioner was not being paid subsistence allowance from the date of his suspension; and the official respondents had no authority to withhold

subsistence allowance. While holding that the petitioner was teaching since a long period, and had now been suspended, the learned Single Judge

directed, as an interim measure, that the impugned order of suspension dated 13.11.2017 be stayed till the next date of hearing.

The appellant herein can have no grievance in so far as the aforesaid directions passed by the learned Single Judge are concerned, since they were

well within the scope of the lis pending before him. The appellant-writ petitioner’s grievance, however, is that, after issuing the aforesaid

directions, the learned Single Judge had directed that a copy of the order be sent to the second respondent along with the notice; the second

respondent should explain how many students had passed in the past 15 years; the year-wise qualifications of Adeeb, Adeeb-e-Mahir and Adeeb-e-

Kamil; complete details of the teaching staff/school/colleges; the Government Order by which Adeeb, Adeeb-e-Mahir and Adeeb-e-Kamil were held

equivalent to High School, Intermediate and Graduation; how many Assistant Teachers were working on the basis of Adeeb, Adeeb-e-Mahir and

Adeeb-e-Kamil qualifications, without having High School/Intermediate and Graduation certificates from the recognized education board; whether

their credentials were examined or not; if the credentials of those candidates, who were working as Assistant Teachers, had not been verified, then

who were responsible for doing so; and what action had been taken against them.

Thereafter, by his order dated 22.10.2019, the learned Single Judge granted the learned Deputy Advocate General three more week’s time to

comply with the earlier order; and made it clear that the respondents should take against those persons who were illegally appointed in the department,

otherwise the Court would be constrained to pass an order against the erring Officers. Pursuant thereto, the Director, Primary Education informed all

the District Education Officers, by letter dated 23.11.2019, that immediate disciplinary action should be taken against those teachers, posted in the

concerned districts who were appointed without passing High School, Intermediate and B.A. in accordance with the provisions of the Government

Servant Disciplinary Appeal (amended) Rules, 2010.

A bare perusal of the list, enclosed along with the letter dated 18.02.2019, would show that it contains the names of 52 candidates who were

appointed as Assistant Teachers (Urdu) during the years 1994 till 2013. The appellant herein, whose name is to be found at serial no. 40 in the said list,

was appointed as an Assistant Teacher (Urdu) on 17.07.2006 more than 13 years ago. Some of the others, in the said list, were appointed as Assistant

Teachers (Urdu) more than 25 years ago. It is the appellant’s case that the educational qualifications they possess of Adeeb, Adeeb-e-Mahir and

Adeeb-e-Kamil, are equivalent to the High School, Intermediate and B.A in Urdu.

Even in the exercise of its Public Interest Jurisdiction, this Court would not entertain service disputes, for a public interest litigation is not

maintainable in service matters, except for a writ of quo warranto (Hari Bansh Lal v.Sahodar Prasad Mahto : (2019) 9 SCC 655;S tate of

Punjab v. Salil Sabhlok and others : (2013) 5 SCC 1; Girjesh Shrivastava v. State of Madhya Pradesh : (2010) 10 SCC 707; Duryodhan

Sahu (Dr.) v. Jitendra Kumar Mishra : (1998) 7 SCC 273; B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board

Employees Association & Ors. : (2006) 11 SCC 731; Bholanath Mukherjee v. Ramakrishna Mission Vivekananda Centenary College:

(2011) 5 SCC 464; P. Seshadri v. Mangati Gopal Reddy: (2011) 5 SCC 484; (Dr.) v. Union of India: (2004) 3 SCC 363; Central

Electricity Supply Utility of Odisha v. Dhobei Sahoo: (2014) 1 SCC 161; Dattaraj Nathuji Thaware v. State of Maharashtra : (2005) 1

SCC 590; Ayaaubkhan Noorkhan Pathan v. State of Maharashtra: (2013) 4 SCC 465 and Ashok Kumar Pandey v. State of W.B. : (2004)

3 SCC 349).

The dispute before the learned Single Judge related to the case of one individual questioning the order placing him under suspension on the ground

that the certificates produced by him, in support of his claim to possess the required qualifications, was fabricated and forged. It does appear that the

learned Single Judge has unduly widened the scope of the lis before him to include several others who were not even parties to those writ proceedings,

and with respect to whom no relief was sought for in the writ petition. While we may not be understood to have held that the State Government is

disabled from verifying whether the certificates produced, even by these 52 candidates at the time of their initial appointment, was fabricated/forged,

for, in cases of fabrication and forgery, delay may, by itself, not be fatal, it is difficult to accept that, in a lis wholly unrelated to their initial appointment,

the appellant and others should be penalized by way of disciplinary action after more than a decade (in some cases more than two and half decades)

suspecting that their educational qualifications is not equivalent to the qualification of a High School/Intermediate/B.A. in Urdu.

Mr. J.C. Pande, learned Brief Holder for the State Government, would submit that the name of Mr. T.A. Khan, learned Senior counsel, is

reflected in the order of the learned Single Judge dated 13.11.2019 as having appeared on behalf of the second respondent; and, having appeared for

the second respondent, it was not open, to the learned Senior Counsel to now appear on behalf of the appellant, since that would result in a conflict of

interest.

Mr. T.A. Khan, learned Senior Counsel, would submit that the order of the learned Single Judge dated 13.11.2019 erroneously records his having

appeared on behalf of the second respondent; he had appeared only on behalf of the appellant herein in an intervention application; and, since he did

not appear for the second respondent, the question of conflict of interest would not arise. Recording the submission of Mr. T.A. Khan, learned Senior

Counsel, we see no reason to delve into this aspect any further.

While setting aside the aforesaid orders passed by the learned Single Judge dated 16.03.2018 and 02.10.2019, for the reasons aforementioned, we

make it clear that we have not expressed any opinion as to whether the certificates, based on which the appellant was appointed as an Assistant

Teacher (Urdu) are genuine or not; and the order now passed by us shall not disable the State Government from enquiring whether the certificates, so

produced by him, are genuine or are forged/fabricated.

With these directions, the Special Appeal is disposed of. No costs.