# Dr. Haider Ali v. Akhilesh Kumar Singh & Ors

- **Citation:** (2023) 5 ILRA 355
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Special Appeal No. 32 of 2023
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-haider-ali-v-akhilesh-kumar-singh-ors-50206
- **Pages:** 9

## Headnote

A. Education/Service Law - Educational
Qualification - Appointment - Aligarh
Muslim University Act, 1920 - Section 19 -
The
educational
qualification
for
recruitment to a post cannot ordinarily be
condoned.
If
the
essential
educational
qualification for recruitment to a post is not
satisfied,
ordinarily
the
same
cannot
be
condoned. Such an act cannot be ratified. An
appointment
which
is
contrary
to
the
statute/statutory rules would be void in law. An
illegality
cannot
be
regularized,
particularly, when the statute in no
unmistakable term says so. Only an
irregularity can be. (Para 18)

The University had framed Rules in 2016,
making B.Ed. degree an essential qualification
for the post of TGT (Agriculture). The Rules
incorporating the qualification came to be duly
approved by the Executive Council of the
University. In the circumstances, Office Memo
dated 30.04.2016, relaxing the qualification for
internal candidate bypassing the Rules is nullity
being in teeth of the statutory Rules. It is
beyond the jurisdiction, power and authority of
the Vice-Chancellor to bypass the Rules, as
relaxation in qualification is not referable to S.
19(3) of the Act, 1920. Office Memo dated
30.04.2016, could not have been issued by the
Vice-Chancellor as that would not fall within the
expression "immediate action is necessary on
any matter", for the reason that the competent
authority of the University i.e. Executive Council
had duly approved the Rules mandating
minimum qualification for the post of TGT
(Agriculture). Accordingly, Office Memo dated
30.04.2016, being issued in violation of the
statutory provisions is unsustainable in the eye
of law and cannot be given effect to. An
appointment which is contrary to the statutory
Rules/statues would be void in law. (Para 15)

B. An appointment should be made
strictly, in accordance with the statutory
provisions,
a
candidate
entitled
to
appointment
should
not
be
denied
appointment on any pretext. Appointment
should be made strictly in accordance with the
statutory provisions and a candidate who is
entitled for appointment, should not be denied
the same on any pretext whatsoever as
usurpation of the post by somebody else in any
circumstances is not possible. (Para 19)

C. Any appointment made in violation of
the mandate of Article 14 and 16 of the
Constitution is not only irregular but also
illegal and cannot be sustained. Article 14 is
an integral part of our system, each and every
State action is to be tested on the touchstone of
equality. (Para 20)

Therefore, the appellant cannot take advantage
of an Office Memo which was issued bypassing
the mandate of the Executive Council approving
the Rules governing the qualification of TGT
(Agriculture). The document is void ab-initio,
hence, nullity in the eye of law. (Para 21)

So far it relates to the qualification of TGT
(Agriculture), since University had adopted the
Rules and determined the minimum qualification
for the post of TGT (Agriculture), inter-alia,
mandating B.Ed. as an essential qualification, it
was not open for the University to have
approved
selection
of
a
candidate
who
admittedly, lacks the essential qualification. It is
of no relevance that the candidate was an
internal
candidate
working
since

## Text

5 All. Dr. Haider Ali Vs. Akhilesh Kumar Singh & Ors.
355
alleged non-rebuttal by the Department as
against the case set up by the workman,
although I find that the Department by
"tooth and nail" opposed the claim of the
workman by leading cogent evidence, both
oral and documentary, but the same has not
been given due consideration by the Labour
Court.

34. The question of gainful/nongainful
employment/engagement
is
considered
in
his
statement
dated
14.12.2011
wherein
the
respondentworkman took contradictory stand that is to
say that, on one hand, he stated that after
termination of his services, he was
unemployed, on the other hand, in the same
line, he stated that whenever he got work
from the contractors, he used to perform
the same and, therefore, it is not a case
where
workman
was
thoroughly
unemployed and, hence, on this score, the
relief of reinstatement with backwages or
continuity
in
service
would
not
be
appropriate.

35. In the facts and circumstances of
the case, a consolidated and lump sum
amount of compensation could have served
the purpose to console the respondent,
inasmuch as, in the counter affidavit filed
in the year 2016, the age of the respondent
no.4 was described as 53 years and,
therefore, as of now, he must have attained
the age of superannuation and in view of
the same, it would not be just and proper
for this Court to direct for reinstatement as
reinstatement after attaining the age of
superannuation would not be in accordance
with law. For this reason also, impugned
award requires modification in terms of
granting just and proper compensation.

36. In view of the above facts and
considering
the
ratio
of
aforesaid
authorities cited at the Bar, the writ petition
is allowed in-part. The impugned judgment
and award dated 19.10.2015 published on
30.01.2016 passed by the respondent No.2Presiding Officer, Labour Court, Firozabad
is
hereby
modified
and
relief
of
reinstatement with continuity in service and
backwages is hereby denied. However, in
totality of the facts and circumstances of
the case, award of Rs. 2,00,000/- as
lumpsum compensation to the workman
would meet the ends of justice.

37. Accordingly, a Writ of Mandamus
is issued to the petitioner to make payment
of sum of Rs.2,00,000/- to the respondent
no.4-workman within a period of one
month from the date of production of
certified copy of this order before the
petitioner, failing which, it would be open
for the respondent No.4-workman to get the
award executed in accordance with law,
and, in case, such execution proceedings
are instituted, the same shall be concluded
within a period of three months, thereafter.
----------
(2023) 5 ILRA 355
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Special Appeal No. 32 of 2023

Dr. Haider Ali ...Appellant
Versus
Akhilesh Kumar Singh & Ors.
 ...Respondents
356 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri T. Islam, Sri A.B.N. Tripathi, Sri Syed Ali
Murtaza

Counsel for the Respondents:
Sri Shashank Shekhar Singh, Sri Shailesh
Upadhyay

A. Education/Service Law - Educational
Qualification - Appointment - Aligarh
Muslim University Act, 1920 - Section 19 -
The
educational
qualification
for
recruitment to a post cannot ordinarily be
condoned.
If
the
essential
educational
qualification for recruitment to a post is not
satisfied,
ordinarily
the
same
cannot
be
condoned. Such an act cannot be ratified. An
appointment
which
is
contrary
to
the
statute/statutory rules would be void in law. An
illegality
cannot
be
regularized,
particularly, when the statute in no
unmistakable term says so. Only an
irregularity can be. (Para 18)

The University had framed Rules in 2016,
making B.Ed. degree an essential qualification
for the post of TGT (Agriculture). The Rules
incorporating the qualification came to be duly
approved by the Executive Council of the
University. In the circumstances, Office Memo
dated 30.04.2016, relaxing the qualification for
internal candidate bypassing the Rules is nullity
being in teeth of the statutory Rules. It is
beyond the jurisdiction, power and authority of
the Vice-Chancellor to bypass the Rules, as
relaxation in qualification is not referable to S.
19(3) of the Act, 1920. Office Memo dated
30.04.2016, could not have been issued by the
Vice-Chancellor as that would not fall within the
expression "immediate action is necessary on
any matter", for the reason that the competent
authority of the University i.e. Executive Council
had duly approved the Rules mandating
minimum qualification for the post of TGT
(Agriculture). Accordingly, Office Memo dated
30.04.2016, being issued in violation of the
statutory provisions is unsustainable in the eye
of law and cannot be given effect to. An
appointment which is contrary to the statutory
Rules/statues would be void in law. (Para 15)

B. An appointment should be made
strictly, in accordance with the statutory
provisions,
a
candidate
entitled
to
appointment
should
not
be
denied
appointment on any pretext. Appointment
should be made strictly in accordance with the
statutory provisions and a candidate who is
entitled for appointment, should not be denied
the same on any pretext whatsoever as
usurpation of the post by somebody else in any
circumstances is not possible. (Para 19)

C. Any appointment made in violation of
the mandate of Article 14 and 16 of the
Constitution is not only irregular but also
illegal and cannot be sustained. Article 14 is
an integral part of our system, each and every
State action is to be tested on the touchstone of
equality. (Para 20)

Therefore, the appellant cannot take advantage
of an Office Memo which was issued bypassing
the mandate of the Executive Council approving
the Rules governing the qualification of TGT
(Agriculture). The document is void ab-initio,
hence, nullity in the eye of law. (Para 21)

So far it relates to the qualification of TGT
(Agriculture), since University had adopted the
Rules and determined the minimum qualification
for the post of TGT (Agriculture), inter-alia,
mandating B.Ed. as an essential qualification, it
was not open for the University to have
approved
selection
of
a
candidate
who
admittedly, lacks the essential qualification. It is
of no relevance that the candidate was an
internal
candidate
working
since
2010.
Admittedly, on the date of application, pursuant
to the advertisement for session 2022-2023,
appellant lacked the essential qualification for
the post of TGT (Agriculture), hence, was not
qualified. (Para 22)

D. There cannot be relaxation in the terms
and
conditions
of
the
advertisement
unless
such
a
power
is
specifically
reserved in the relevant statutory Rules.
Even if the power of relaxation is provided
in the Rules, it must still be mentioned in
the advertisement, which was not the case in
the case in hand. (Para 23)
5 All. Dr. Haider Ali Vs. Akhilesh Kumar Singh & Ors.
357
E.
Relaxation
of
any
condition
in
advertisement without due publication
would be contrary to the mandate of
quality contained in Articles 14 and 16 of
the Constitution of India. (Para 23)

The record reflects that the writ petitioner/first
respondent was the sole candidate fulfilling the
essential qualification for the post of TGT
(Agriculture), all other candidates, including the
appellant, did not have B.Ed. degree. The
candidature
of
the
other
two
external
candidates was rejected by the Selection
Committee for the said reason, but, appellant
was selected even though he did not have B.Ed.
degree. The advertisement rightly did not grant
any relaxation in the minimum qualification to
internal candidate, as that would be hit by the
Rules governing selection/appointment of TGT
(Agriculture), duly approved by the Executive
Council. The Vice-Chancellor lacked power,
authority
and
jurisdiction
to
bypass
the
Executive Council on a subject (qualification)
which came to be duly approved by Executive
Council and the Vice-Chancellor as per the
statutes. The Rules thus framed was binding
upon all the authorities of the University and
could
not
have
been
diluted
by
an
administrative
order.
The
selection
and
appointment of the appellant is per se illegal
and violative of Article 14 and 16 of the
Constitution of India. (Para 24)

F. The employee has absolute right to
determine and decide the qualifications
for any post, once such an exercise is
undertaken under the rules, the same
would bind the authorities and cannot be
diluted even by the Courts. (Para 25)

G. Words and Phrases - Black's Law
Dictionary - 'Void' - "Void" meanswithout
any
legal
force,
effect
or
consequence;
invalid;
null;
worthless;
sipher; useless and ineffectual. 'Void' has
been defined as: ineffectual; nugatory; having
having no legal force or legal effect: unable in
law to support the purpose for which it was
untended; nugatory and ineffectual so that
nothing can cure it; not valid. "Void" means a
contract entirely devoid of legal effect or it is
devoid of main result contemplated.

"Void" means non-existent from its very
inception and a ban again its recognition. It
also means merely a nullity and may be
ignored even in collateral proceeding as if it
never were. "Void" does not have any legal
force or effect, the validity of which may be
ascertained by any person whose rights are
affected at any time or at any place directly
or indirectly. (Para 16, 17)

Special appeal dismissed. (E-4)

Precedent followed:

1. Kalawati Vs Bisheshwar, AIR 1968 SC 261
(Para 17)

2. Nutun Kumar Vs II A.D.J., AIR 1994 All 298
(Para 17)

3. Pramod Kumar Vs U.P. Secondary Education
Services Commission & ors., (2008) 7 SCC 153
(Para 18)

4. Purshottam Vs Chairman, Maharashtra State
Electricity Board, (1999) 6 SCC 49 (Para 19)

5. Delhi Development Horticulture Employees
Union Vs Delhi Administration, Delhi, AIR 1992
SC 789 (Para 20)

6. St. of Har. Vs Piara Singh, 1992 SC 2130
(Para 20)

7. Prabhat Kumar Sharma Vs St. of U. P., AIR
1996 SC 2638 (Para 20)

8. J.A.S. Inter College Khurja, U.P. Vs St. of U.
P., AIR 1996 SC 3420 (Para 20)

9. M.P. Housing Board Vs Manoj Shrivastava,
AIR 2006 SC 3499 (Para 20)

10. M.P. State Agro Industries Development
Corp. Ltd. Vs S.C. Pandey, (2006) 2 SCC 716
(Para 20)

11. St. of M. P. Vs Ku. Sandhya Tomar, (2013)
11 SCC 357 (Para 20)

12. Bedanga Talukdar Vs Saifudaullah Khan &
ors., (2011) SCC 85 (Para 23)
358 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Punjab National Bank Vs Anit Kumar Das,
2020 SCC Online SC 897 (Para 25)

Present special appeal challenges the
judgment and order dated 08.12.2022,
passed by learned Single Judge in Writ-A
No. 13257 of 2022.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri T. Islam, learned Counsel
for the petitioner and Sri Shashank Shekhar
Singh, learned Counsel for the respondentUniversity.

2. The instant intra Court appeal has
been filed by the fifth respondent of the
writ petition challenging the order of the
learned Single Judge dated 08 December,
2022, whereby, the writ petition instituted
by the petitioner / first respondent, herein,
was allowed, setting aside the appointment
of the appellant on the post of Trained
Graduate Teacher (Agriculture), at Aligarh
Muslim University/School, for want of
essential qualification i.e. B.Ed. degree.

3. Learned Counsel for the appellant
submits that appellant came to be appointed
on temporary basis as a Trained Graduate
Teacher (Agriculture), (for short TGT),
vide
appointment
letter
dated
20
November, 2010. The appointment was for
an academic session which continued on
year
to
year
basis
and
finally
an
advertisement dated 20 May, 2022, came to
be issued by the third respondent -
Directorate of School Education, Aligarh
Muslim University, Aligarh, (for short,
"AMU").
The
advertisement
sought
applications for various posts including
TGT (Agriculture) for the session 2022 -
23. The qualification of the post, inter-alia,
mandated that the candidate should have
B.Ed.
degree
or
equivalent
from
a
recognized University. The advertisement
further provided for age relaxation as per
Kendriya Vidyalaya Sanghathan (KVS)
norms, to various categories. It is agreed
between the parties that the relaxation does
not pertain to qualification for TGT
(Agriculture).
Pursuant
to
the
advertisement, the first respondent / writ
petitioner had applied for the post and it is
not in a dispute that he fulfills the
educational qualifications duly notified in
the advertisement i.e. he was having B.Ed.
degree. In any case, the appellant came to
be selected on 16 July, 2022, on the
recommendation
made
by
the
Local
Selection Committee, despite not having
B.Ed. degree. The validity of the selection /
appointment of the fifth respondent was
challenged in writ petition.

4. Learned Single Judge in the
impugned judgment noted that appellant is
not having requisite minimum qualification
i.e. B.Ed. degree and no relaxation with
regard to the qualification was notified in
the advertisement. Further, the counsel
appearing for AMU submitted that there is
no order with regard to relaxation of the
eligibility conditions and neither, any
relaxation was granted to the appellant. The
writ petition accordingly came to be
allowed. The relevant portion of the
impugned order, reads as under :-

"10. Also, submission advanced
by learned counsel for the respondent that
the selection made is wholly temporary,
carries no weight. Once the selection was
required to be made in accordance with
law, irrespective of the term for which it
may have been made, that law must be seen
to be fully applied. In any case, it is
apparent that the respondent no.5 has
continued on temporary basis for some
time i.e. since 2020 against annual
renewal/re-appointment.
5 All. Dr. Haider Ali Vs. Akhilesh Kumar Singh & Ors.
359

11. In view of the above, present
petition succeeds. It is allowed. ..........."

5. In this backdrop, learned Counsel
appearing for the appellant submits that
since the appellant has continued on
temporary basis from the academic session
2010-11, and being an internal candidate of
the University is entitled to relaxation in
qualification which was duly exercised by
the Vice-Chancellor in exercise of power
under Section 19 of the Aligarh Muslim
University Act, 1920, (for short "Act,
1920"). Section 19 (3) of the Act, 1920,
which is relevant for the case, reads as
under :-

19. The Vice-Chancellor :-

(1) .......................

(2) ................

(3) The Vice-Chancellor may, if
he is of opinion that immediate action is
necessary on any matter, exercise any
power conferred on any authority of the
University by or under this Act and shall
report to such authority the action taken by
him on such matter;

Provided that if the authority
concerned is of opinion that such action
ought not to have been taken, it may refer
the matter to the Visitor whose decision
thereon shall be final;

Provided further that any person
in the service of the University who is
aggrieved by the action taken by the ViceChancellor under this sub-section shall
have the right to appeal against such action
to the Executive Council within three
months from the date on which decision on
such action is communicated to him and
thereupon the Executive Council may
confirm, modify or reverse the action taken
by the Vice-Chancellor.

6. On a bare reading of Sub Section
(3) of Section 19 of the Act, 1920, it does
not transpire, nor can be inferred, that any
specific power has been conferred upon the
Vice-Chancellor to relax the qualification
which has duly been adopted by such
authority of the University after approval of
the Executive Council. Sub Section (3)
confers emergency / removal of difficulty
power upon the Vice-Chancellor to take
immediate action on any matter conferred
on any authority of the University or under
the Act, 1920, and thereafter shall report to
such authority the action taken by the ViceChancellor on such matter. The authority of
the University may agree / disagree with
decision of the Vice-Chancellor, then in
that event matter would be referred to the
Visitor for final decision.

7. It is not the case of the appellant
that
the
decision
with
regard
to
qualification of TGT (Agriculture) was yet
to be taken by the competent authority of
the
University,
therefore,
the
ViceChancellor had to take ''immediate action'
thereon. On the contrary the Executive
Council
had
already
approved
the
qualification for TGT which was to be
followed while making appointment for the
post. This fact is admitted to the parties.

8. Attention of the Court has been
drawn to Office Memo dated 16 January,
2016, issued by the Deputy Registrar
(Councils), (annexure CA-7 to the writ
petition), wherein, it has been noted that the
proposal of the Director, Directorate of
School Education, relating to University
Schools,
the
Vice-Chancellor
in
supersession of the earlier qualification
approved by the Executive Council, has
accorded approval to the Recruitment Rules
/
Qualifications
for
Selection
and
Promotion of AMU Schools Teachers, as
360 INDIAN LAW REPORTS ALLAHABAD SERIES
per KVS norms, under Section 19(3) of the
AMU Act, 1920. In other words, the Rules
relating
to
qualification
of
TGT
(Agriculture) came to be approved which
was binding upon the Selection Committee.

9. It is not in dispute that B.Ed. degree
was included as an essential qualification
for the post of TGT (Agriculture) in the
Rules. In other words the qualification
prescribed
for
the
post
of
TGT
(Agriculture) was in place on the date of
advertisement.

10. Reliance has been placed by the
learned counsel for the appellant on Office
Memo dated 30 April, 2016, which
provides for exemption in age limit and the
mandated qualification to be granted only
to those temporary teachers who were
eligible
at
the
time
of
their
first
appointment and thereafter appointed time
and again subsequently for a period of three
months with break.

11. It is on the strength of the
aforenoted Office Memo dated 30 April,
2016, issued with the approval of the
Vice-Chancellor, the learned counsel for
the appellant submits that appellant was
entitled to relaxation in the qualification
being an internal candidate continuing as
TGT (Agriculture) since 2010. It is
submitted that the Office Memo dated 30
April, 2016, was not under challenge
before the writ Court.

12. Learned Counsel appearing for
the respondent-University had taken a
categorical stand that no such relaxation
was granted to the appellant pursuant to
Office Memo dated 30 April, 2016. No
document to that effect is available on
the record of the University. In other
words, it is urged that the University had
not granted relaxation in qualification to
the appellant.

13. In any case, learned counsel
appearing for the appellant submits that
since the Office Memo dated 30 April,
2016, is available and it grants relaxation in
qualification
to
temporary
teachers,
appellant was rightly appointed after
relaxation being granted to him.

14. The short question that arises for
consideration is as to whether the appellant
was entitled to relaxation in qualification
against the Rules.

15. It is not being disputed by the
learned Counsel for the respective parties
that the University had framed Rules in
2016, making B.Ed. degree an essential
qualification
for
the
post
of
TGT
(Agriculture). The Rules incorporating the
qualification came to be duly approved by
the Executive Council of the University. In
the circumstances, Office Memo dated 30
April, 2016, relaxing the qualification for
internal candidate bypassing the Rules is
nullity being in teeth of the statutory Rules.
It is beyond the jurisdiction, power and
authority of the Vice-Chancellor to bypass
the Rules, as relaxation in qualification is
not referable to Section 19(3) of the Act,
1920. Office Memo dated 30 April, 2016,
could not have been issued by the ViceChancellor as that would not fall within the
expression "immediate action is necessary
on any matter", for the reason that the
competent authority of the University i.e.
Executive Council had duly approved the
Rules mandating minimum qualification
for
the
post
of TGT
(Agriculture).
Accordingly, Office Memo dated 30 April,
2016, being issued in violation of the
statutory provisions is unsustainable in the
eye of law and cannot be given effect to.
5 All. Dr. Haider Ali Vs. Akhilesh Kumar Singh & Ors.
361
An appointment which is contrary to the
statutory Rules / statues would be void in
law.

16. Void has been defined as:
ineffectual; nugatory; having having no
legal force or legal effect: unable in law to
support the purpose for which it was
untended; nugatory and ineffectual so that
nothing can cure it; not valid1. "Void"
means a contract entirely devoid of legal
effect or it is devoid of main result
contemplated.

17.
In
Kalawati
versus
Bisheshwar2,the Supreme Court held that
"void" means non-existent from its very
inception and a ban again its recognition. It
also means merely a nullity and may be
ignored even in collateral proceeding as if
it never were. "Void" does not have any
legal force or effect, the validity of which
may be ascertained by any person whose
rights are affected at any time or at any
place directly or indirectly. "Void" means -
without
any
legal
force,
effect
or
consequence;
invalid;
null;
worthless;
sipher; useless and ineffectual. [Vide:
Nutan Kumar versus II Additional
District Judge3].

18. The educational qualification for
recruitment to a post cannot ordinarily be
condoned. In Pramod Kumar versus U.P.
Secondary
Education
Services
Commission and others4, the Court has
held as under :-

"18. If the essential educational
qualification for recruitment to a post is not
satisfied, ordinarily the same cannot be
condoned. Such an act cannot be ratified.
An appointment which is contrary to the
statute/statutory rules would be void in law.
An
illegality
cannot
be
regularized,
particularly,
when
the
statute
in
no
unmistakable term says so. Only an
irregularity can be. {See Secretary, State of
Karnataka and Others Vs. Umadevi (3) and
Others [(2006) 4 SCC 1], National Fertilizers
Ltd.
and
Ors.
Vs.
Somvir
Singh
[(2006)5SCC493] and Post Master General,
Kolkata and Ors. Vs. Tutu Das (Dutta)
[(2007)5SCC317] }"

19. An appointment should be made
strictly, in accordance with the statutory
provisions,
a
candidate
entitled
to
appointment
should
not
be
denied
appointment on any pretext. In Purshottam
versus Chairman, Maharashtra State
Electricity Board5, the Supreme Court has
held that appointment should be made strictly
in accordance with the statutory provisions
and a candidate who is entitled for
appointment, should not be denied the same
on any pretext whatsoever as usurpation of
the
post
by
somebody
else
in
any
circumstances is not possible.

20. Article 14 is an integral part of our
system, each and every State action is to be
tested on the touchstone of equality. Any
appointment made in violation of the
mandate of Article 14 and 16 of the
Constitution is not only irregular but also
illegal and cannot be sustained in view of
the judgments rendered by Supreme Court
in
Delhi
Development
Horticulture
Employees'
Union
versus
Delhi
Administration, Delhi6; State of Haryana
versus Piara Singh7; Prabhat Kumar
Sharma versus State of Uttar Pradesh8;
J.A.S. Inter College, Khurja, U.P. versus
State of Uttar Pradesh9; M.P. Housing
Board versus Manoj Shrivastava10; M.P.
State
Agro
Industries
Development
Corporation Ltd. versus S.C. Pandey11;
and State of Madhya Pradesh versus Ku.
Sandhya Tomar12.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In view thereof, the appellant
cannot take advantage of an Office Memo
which was issued bypassing the mandate of
the Executive Council approving the Rules
governing
the
qualification
of
TGT
(Agriculture). The document is void abinitio, hence, nullity in the eye of law.

22. In so far it relates to the
qualification of TGT (Agriculture), we are
in agreement with the reasoning assigned
by the learned Single Judge that since
University had adopted the Rules and
determined the minimum qualification for
the post of TGT (Agriculture), inter-alia,
mandating
B.Ed.
as
an
essential
qualification, it was not open for the
University to have approved selection of a
candidate
who
admittedly,
lacks
the
essential qualification. It is of no relevance
that the candidate was an internal candidate
working since 2010. Admittedly, on the
date of application, pursuant to the
advertisement for session 2022 - 2023,
appellant lacked the essential qualification
for the post of TGT (Agriculture), hence,
was not qualified.

23. There cannot be relaxation in the
terms and conditions of the advertisement
unless such a power is specifically reserved
in the relevant statutory Rules. Even if the
power of relaxation is provided in the
Rules, it must still be mentioned in the
advertisement, which was not the case in
the case in hand. In Bedanga Talukdar
versus Saifudaullah Khan and others13,
the Court has held as under :-

"29. .......... In our opinion, it is
too well settled to need any further
reiteration that all appointments to public
office have to be made in conformity with
Article 14 of the Constitution of India. In
other words, there must be no arbitrariness
resulting from any undue favour being
shown to any candidate. Therefore, the
selection process has to be conducted
strictly in accordance with the stipulated
selection procedure............ There can not
be any relaxation in the terms and
conditions of the advertisement unless
such a power is specifically reserved. Such
a power could be reserved in the relevant
Statutory Rules. Even if power of
relaxation is provided in the rules, it must
still be mentioned in the advertisement. In
the absence of such power in the Rules, it
could
still
be
provided
in
the
advertisement. However, the power of
relaxation, if exercised, has to be given due
publicity. This would be necessary to
ensure that those candidates who become
eligible due to the relaxation, are afforded
an equal opportunity to apply and compete.
Relaxation
of
any
condition
in
advertisement without due publication
would be contrary to the mandate of quality
contained in Articles 14 and 16 of the
Constitution of India."

24. The record reflects that the writ
petitioner / first respondent was the sole
candidate
fulfilling
the
essential
qualification
for
the
post
of
TGT
(Agriculture),
all
other
candidates,
including the appellant, did not have B.Ed.
degree. The candidature of the other two
external candidates was rejected by the
Selection Committee for the said reason,
but, appellant was selected even though he
did
not
have
B.Ed.
degree.
The
advertisement rightly did not grant any
relaxation in the minimum qualification to
internal candidate, as that would be hit by
the
Rules
governing
selection
/
appointment of TGT (Agriculture), duly
approved by the Executive Council. The
Vice-Chancellor lacked power, authority
and jurisdiction to bypass the Executive
5 All. State of U.P. & Ors. Vs. Ram Ji Singh
363
Council on a subject (qualification) which
came to be duly approved by Executive
Council and the Vice-Chancellor as per the
statutes. The Rules thus framed was
binding upon all the authorities of the
University and could not have been diluted
by an administrative order. The selection
and appointment of the appellant is perse
illegal and violative of Article 14 and 16 of
the Constitution of India.

25. The employee has absolute right to
determine and decide the qualifications for
any post, once such an exercise is
undertaken under the rules, the same would
bind the authorities and cannot be diluted
even by the Courts. In Punjab National
Bank Vs. Anit Kumar Das14, the Court
observed as under:

21. "it is for the employer to
determine and decide the relevancy and
suitability of the qualifications for any post
and it is not for the Courts to consider and
assess. A greater latitude is permitted by
the Courts for the employer to prescribe
qualifications for any post. There is a
rationale behind it. Qualifications are
prescribed keeping in view the need and
interest of an Institution or an Industry or
an establishment as the case may be. The
Courts are not fit instruments to assess
expediency or advisability or utility of
such prescription of qualifications......"

26. Learned Counsel for the appellant
is unable to point out any illegality,
infirmity or perversity in the impugned
order.

27. We are unable to persuade
ourselves to take an opinion different from
that taken by the learned Single Judge.

28. The appeal being devoid of merit,
is accordingly, dismissed.
----------
(2023) 5 ILRA 363
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal No. 183 of 2023

State of U.P. & Ors. ...Appellants
Versus
Ram Ji Singh ...Respondent

Counsel for the Appellants:
Sri Rama Nand Pandey

Counsel for the Respondent:
Sri Arvind Kumar Singh, Sri Akhilesh Singh,
Sri Rakesh Singh, Sri Ravish Kumar Singh

A. Service Law - Recovery from pension -
It has been held by the Supreme Court
that employer is entitled to recover the
amount in cases where the employee has
been given monetary benefits by mistake
which could have occurred on account of a
variety of reasons; including the grant of a
status, which the concerned employee
was not entitled to; or payment of salary
in a higher scale, than in consonance of
the right of the concerned employee; or
because of a wrongful fixation of salary of
the
employee,
consequent
upon
the
upward revision of pay-scales or for
having been granted allowances, for
which the concerned employee was not
authorised. Provided the excess payment
was not attributable to any fraud or
misrepresentation by the employee. (Para
5)

The categories which have been delineated by
the Supreme Court are as follows :-