UP Govt Can't Cancel Teacher's Appointment After 29 Years Over Lack Of Qualification In Absence Of Fraud: Allahabad High Court
Allowing the appeal of a teacher whose qualification was questioned after 29 years of continuous service, the Allahabad High Court has held that the power to cancel an appointment under Section 16-E(10) of the Intermediate Education Act cannot be exercised at a belated stage. The Court held that it was bound by the full bench decision of the High Court in Dr. Asha Saxena vs. Smt. S. K....
Allowing the appeal of a teacher whose qualification was questioned after 29 years of continuous service, the Allahabad High Court has held that the power to cancel an appointment under Section 16-E(10) of the Intermediate Education Act cannot be exercised at a belated stage.
The Court held that it was bound by the full bench decision of the High Court in Dr. Asha Saxena vs. Smt. S. K. Chaudhari and others, wherein exercise of the same power after a lapse of nearly 17 years was held to be arbitrary.
Relying on the aforesaid decision, the bench of Justice Saumitra Dayal Singh and Justice Swarupama Chaturvedi held,
“In that, it has been noted that the power under Section 16E(10) of the Act may not be exercised at a belated stage after lapse of nearly 17 years (in that case). Being a decision of a larger bench deciding the writ petition itself, it binds us.”
Appellant held a Bachelor of Arts degree with the additional qualification of Shiksha Alankar. Believing it to be equivalent to a B.Ed. degree, he applied for and was appointed as an ad-hoc LT grade teacher at Sri Gandhi Smarak Inter College, Bajheda Bharatpur, District Aligarh on 28th July 1992.
When salary was denied to him, he approached the High Court, which protected his working and directed payment of salary by interim order. That petition was disposed of in 2004 with a direction to the Joint Director of Education, Aligarh to decide his pending regularization claim.
He was regularized in service under Section 33-C of the U.P. Secondary Education Services Selection Board Act, 1982 on 27th February 2013, and was promoted to Lecturer grade on 3rd April 2017. On 24th November 2021, after serving at the institution for 29 years, proceedings under Section 16-E(10) of the Intermediate Education Act were initiated against him on a complaint by respondent no. 6 that he did not hold the essential qualification of B.Ed. at the time of his original engagement.
The Single Judge disposed of his writ petition relying on Dinesh Kumar Singh vs. State of U.P. and others, holding that Shiksha Alankar was not a valid qualification for appointment as Assistant Teacher and the appointment was de hors the rules. Liberty was reserved to him to take legally permissible remedy if any action was taken for recovery of salary. That order was challenged in intra-court appeal.
Counsel for the appellant submitted that even though the question of equivalence stood decided against him by a coordinate bench in Surya Prakash Pandey vs. State of UP and 5 others, he could not be thrown out of service at the fag end of his tenure and deprived of the benefits of nearly three decades of work. It was argued that there was no allegation of fraud, concealment or collusion, and that the State had consciously granted financial approval to payment of his salary, regularized him and promoted him.
The Standing Counsel contended that the equivalence issue was settled, that a direction issued in Vinod Kumar Upadhyay vs. State of U.P. and others for removal of all teachers appointed on the strength of that degree had attained finality. It was argued that in Dinesh Kumar Singh services had been dispensed with after 30 years.
The Court observed that the coordinate bench in Dinesh Kumar Singh had considered a similar controversy, but that the power exercised there was not referable to Section 16-E(10) of the Act. It observed that had that been the only law on the point it would have been bound, with a reference to a larger bench the only recourse open.
The Court noted that no objection to the appellant's eligibility had been raised when he was regularized in 2013 by a positive order, nor when he was promoted four years later. It held it doubtful whether the State authorities could exercise power under Section 16-E(10) at that belated stage.
“Therefore, in the present facts, the State Authorities were not only aware but are expected to have applied their mind-to the qualifications of the original petitioner-appellant, at that time.”
Rejecting the submission that the full bench in Dr. Asha Saxena had been dealing with a different reference, the Court observed that it had decided the writ petition itself and not merely a referred question of law, and had categorically examined the issue of delay.
“Once the writ petition itself has been decided by the larger bench, the ratio contained therein is the binding law declared by this Court. That being so, the contrary view that may have been taken by a coordinate bench in Dinesh Kumar Singh (supra) that too in ignorance of the binding decisions of co-ordinate benches may not bind us.”
The Court held that the full bench view was consistent with Radhey Shyam Yadav and another vs. State of U.P. and others, where the Supreme Court had disapproved abrupt stoppage of salary and declared the appellants to be deemed in service.
The Court held that in the present case, no inquiry had been held during 29 years of service, and the appellant had been found eligible for regularization and thereafter for promotion.
Observing that the appellant had neither misled the authorities nor practised any deception, the Court held,
“While taking this view, it appears to us that in a single human life that exists in a linear time dimension, one cannot turn back the clock. Certainly, not by decades.”
“To the extent, a citizen may not have misled or may not have practiced fraud or deception while seeking such engagement to earn his means of livelihood, necessary to continue with his journey in life, we may not allow the employers, especially State agencies, to turn a blind eye to that essential facet of life. By seeking to offer legally correct solutions in such cases, though we may hope to become consistent to the law, but we may become distanced (eventually), by light years, from justice. That we cannot do.”
Holding the order of the Single Judge to be erroneous on principle and contrary to the law laid down by the full bench, the Court quashed it and allowed the appeal.
Case Title: Devendra Kumar Agrawal v. State Of U.P. And 5 Others