Govt School Teacher's Bigamous Marriage Prior To Appointment Not Misconduct But Strikes At Root Of Eligibility: Allahabad High Court

The Allahabad High Court has held that a woman, who entered into a bigamous marriage before being appointed as a government school teacher, cannot be punished for misconduct on this ground under U.P. Government Servant Conduct Rules and U.P. Government Servants (Discipline and Appeal) Rules. It however held that the candidate, who contracted marriage in 2009 with a person whose first marriage was subsisting, will be ineligible for appointment as a teacher under Rule 12 of the Uttar Pradesh Basic Education Teachers Service Rules, 1981 as this defect goes to the very root of the appointment, rendering it void ab initio. Justice Manju Rani Chauhan noted that in the present case the petitioner, whose services were terminated, had married a man in 2009 during the "subsistence of his first marriage with another woman"; however the petitioner was appointed as an Assistant Teacher only in 2015. The court thereafter said:"Rule 29 of the Uttar Pradesh Government Servants' Conduct Rules, 1956 applies to the conduct of a government servant during the period of service. Acts or omissions that took place prior to entering into government service do not fall within the ambit of the said rule. Since the alleged marital irregularity pertains to the year 2009, i.e., much prior to the petitioner's appointment in 2015, the provisions of Rule 29 of the Conduct Rules, 1956 are clearly inapplicable to the petitioner's case. Accordingly, any action sought to be taken against the petitioner by invoking Rule 29 of the Conduct Rules, 1956, on the basis of an event that occurred before she entered government service, is legally unsustainable and cannot be upheld...A rule governing eligibility cannot, by itself, be elevated to the status of a penal provision unless the statute expressly so provides."The court held that applicability of the Conduct Rules, 1956 is confined to those who have entered government service, and the Rules cannot be invoked against a person at a stage prior to appointment. It further said that any interpretation extending their operation to candidates or persons not yet in service would be contrary to the plain language of the Rules and the settled principles of statutory construction. Noting that the case was not pertaining to the conduct of the petitioner but her eligibility the court referred to Rule 12 of the Uttar Pradesh Basic Education Teachers Service Rules and observed:"Rule 12 creates a statutory bar on appointment where a candidate has contracted a marriage with a person whose spouse is living, unless an exemption is granted by the competent authority on special grounds...At best, a violation of Rule 12 may render the appointment voidable, subject to adjudication, but cannot attract disciplinary punishment unless the appointment was secured by fraud, suppression of material facts, or deliberate misrepresentation. In the absence of such elements, initiation of disciplinary proceedings would be legally unsustainable...this Court is of the considered opinion that the petitioner, having contracted marriage in the year 2009 with a person whose first marriage was subsisting, was rendered ineligible for appointment under Rule 12 of the Uttar Pradesh Basic Education Teachers Service Rules, 1981. The defect goes to the very root of the appointment, rendering it void ab initio. The case does not involve misconduct attracting punishment under the Conduct Rules or the Discipline and Appeal Rules, but concerns a statutory disqualification existing at the time of appointment itself". In 2015, Petitioner was appointed as an Assistant Teacher in a primary school. Based on a complaint that the petitioner had married someone who was already married, her services were terminated. Petitioner challenged her termination order before the High Court on grounds that no inquiry was conducted before terminating her and that she was not aware of the first marriage of her husband. The Court noted that Rule 29(2) of the U.P. Government Servant's Conduct Rules, 1956 provides that no female employee shall marry a man who has a living wife without prior permission of the Government. It noted that Section 19 of the U.P. Basic Education Act, 1972 empowered the State Government to make rules regarding he recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognized by the Board.Further, Rule 12 of the U.P. Basic Education (Teachers) Service Rules, 1981 provides that a male candidate with more than one living wife and a female candidate who marries a man who already has a living wife shall not be eligible for appointment in service provided the Board finds special grounds to exempt such person. The Court observed that the aforesaid Rules were inapplicable on a person till they joined services and an employer-employee relationship was established. It noted that the petitioner had married in the year 2009, but joined services only in 2015.The Court...

Govt School Teacher's Bigamous Marriage Prior To Appointment Not Misconduct But Strikes At Root Of Eligibility: Allahabad High Court

Upasna Agrawal

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