Satya Kam Dwivedi vs B.S.A. and Others

Devendra Pratap Singh, J.—Heard learned Counsel for the parties.

This Petition is directed against an order dated 8.3.2002 by which the appointment of the Petitioner as Assistant Teacher in a primary school run by the Basic Shiksha Parishad has been cancelled.

It appears that the Petitioner who held a Certificate of Physical Education (CP.Ed.) from the Registrar Departmental Examination, U.P. Allahabad dated 8.7.1994, applied for appointment as Assistant Teacher in the institution run by the U.P. Basic Shiksha Parishad in District Fatehpur in pursuance of the advertisement dated 21.3.1997 and 5.8.1997. However, the candidature was not being considered in view of the Government Order dated 11.8.1997 whereby the aforesaid qualification of the Petitioner was not recognized for the purposes of appointment as Assistant Teacher and thus, he along with two others preferred writ Petition No. 32070 of 1997 and a learned Single Judge of this Court relying upon a Division Bench judgment rendered in the case of Secretary Board of Basic Education, U.P. Allahabad and Ors. v. Rajendra Singh and Ors. 2000 U.P.L.B.E.C. 2101, disposed off the writ Petition directing that the claim of the Petitioner for appointment in terms of the Government Order dated 23.3.1995 and 28.2.1996 should be considered.

In pursuance thereof, the Petitioner was granted appointment letter dated 2.11.2001 appointing him as Assistant Teacher in Primary School, Paharpur, Vijai Nagar in District Fatehpur. However, by the impugned order, his appointment was cancelled on the ground that the Petitioner had suppressed the fact of pendency of a Special Leave to Appeal before Hon''ble Supreme Court against the judgment of the Division Bench in Rajendra Singh''s case (Supra). When this Petition was filed, an interim order was granted on 3.4.2002 staying the operation of the impugned order and asking the District Basic Education Officer to pass a fresh order after hearing the Petitioner as the earlier order was passed without hearing him. It appears that in pursuance thereof, the Basic Shiksha Adhikari passed an order dated 15th of May 2002 but it was never served on the Petitioner and the Court extended the stay order till further orders vide order dated 31.3.2003.

Meanwhile, it transpires that special appeal preferred by Secretary Board of Basic Education was converted into a civil appeal No. 844-846 of 2002 and was allowed vide order dated 5.2.2009and the judgment of the Division Bench was set aside and the validity of the Government Order dated 11.8.1997 was upheld. However, with regard to persons already appointed on the strength of interim or final orders of this Court, the Supreme Court granted protection by the following relevant portion of the order.

We may, however, make it clear that if any candidate with CPEd Certificate had already been appointed by virtue of any interim or final order of the High Court, and continues to be in appointment even as on date, after undergoing training as stated in the Government directions dated 23.3.1995, his service may not be terminated merely on the ground that the said Government direction was superseded by the Government direction dated 11.8.1997.

It is apparent from the aforesaid facts that in pursuance of the interim orders of this Court dated 3.4.2002 and 31.3.2003, the appointment of the Petitioner was continued and saved. Even otherwise in the impugned order itself, it is noted that the cancellation order would be subject to the decision by the Supreme Court. A perusal of paragraph No. 13 of the order as quoted hereinabove, shows that it has saved the appointment of the Petitioner.

It appears that after the decision of the Apex Court, the Petitioner represented before the Secretary of the Board claiming benefit of aforesaid decision of the Apex Court but the same has been rejected vide Order 19th July 2009 holding the the case of the Petitioner was not covered by the aforesaid paragraph 13 of the judgment. It is not denied that there was an interim order operating which had already been extended and there was also stipulation in the original order dated 8th March 2002 that the order would be subject to the decision of the Supreme Court and admittedly the Supreme Court has now saved the appointments such as that of the Petitioner.

However, learned Counsel for the Respondents has strenuously urged that the orders dated 15th May 2002 and 19th July 2009 have not been challenged before this Court and therefore no relief can be granted. The Petitioner has stated that the order dated 15th of May 2002 was never served on him or brought before this Court, in fact from the reply submitted under the Right to Information Act dated 11.8.2009, it is apparent that in pursuance of the interim order of this Court no order dated 15th May 2002 was passed. Assuming it was passed, it was passed allegedly on the basis of the interim direction of this Court dated 3.4.2002 and therefore, would be subject to the orders of this Court. So far as the order dated 19th July 2009 is concerned, it flies in the teeth of the aforesaid quoted paragraph 13 of the judgment of the Apex Court and therefore, none of the two orders can be sustained. It is worthy of note that the impugned order dated 8.3.2002 was passed on the ground that the Petitioner had suppressed the fact from this Court about filing of the Special Leave to Appeal. There is nothing to show on record that the Petitioner even knew about the pendency of the Special Leave to Appeal before the Apex Court against the Judgment in Rajendra Singh''s case (supra). So the only ground which is the basis of the impugned order is not established on record.

In view of the aforesaid, this writ Petition succeeds and is allowed and the impugned order dated 8.3.2002 and also the consequential orders dated 15.5.2002 and 19.7.2009 are hereby quashed and the Petitioner shall be entitled to the consequential benefits which should be made over within a month from the date of service of a certified copy of this order.

In the circumstances of the case no order as to cost.