# Himanshi Yadav v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-04
- **Case number:** Writ-A No. 3254 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/himanshi-yadav-v-state-of-u-p-ors-48979
- **Pages:** 9

## Headnote

A. Constitution of India, Art. 226 - Writ
Petition against show cause notice -
Maintainability - although it is well settled
that High Court should refrain from
interfering at the stage of show cause
notice - but when the show cause notice
has
been
issued
on
irrelevant
considerations, in such cases, the High
Court may under Art. 226 intervene and
entertain a writ petition (Para 27)

In the instant case, the only allegation in the
notice is that the petitioner is not eligible to be
appointed on account of obtaining two degrees
simultaneously - Held - the allegation made in
the
notice
is
based
upon
irrelevant
considerations and is not supported by any
material on record which requires any factual
investigation - High Court quashed the notice
(Para 28, 29)

B. Civil Law - Service law - Appointment -
Pursuing two courses simultaneously -
Director General of School Education
issued a letter dated 18.01.2021 stating
that a candidate would be ineligible for
appointment if he had pursued twodegree
courses
simultaneously
as
a
regular student - legality of the condition
challenged - Held - there is no provision
in the law that explicitly prohibits a
candidate
from
pursuing
two-degree
courses simultaneously, such as a B.Ed.
and B.T.C. course - imposing such a
condition through a letter issued by the
Director General of School Education is
illegal. (Para 20)

Petitioner did B.T.C. training certificate course in
the session 2015-17 & completed her B.Ed.
course in the session 2016-18 - Notice issued to
her on ground that she had obtained two
regular degrees namely B.Ed. and B.T.C. course
certificates in the same session - Held - sessions
of the petitioner for the B.T.C. training course
and B.Ed are different as the session for the
B.Ed course was 2016-18 whereas the session
of B.T.C. was 2015-17 - No objection raised by
the authority that the petitioner did not attend
75% of lectures, tutorials, seminars, and
practicals in the B.T.C. course to become eligible
to appear in the examination - petitioner's
B.T.C. course certificate is valid -Even if the
petitioner's B.Ed. degree is ignored, the
petitioner is still eligible to be appointed
as an Assistant Teacher (Para 20, 25)

Allowed. (E-5)

List of Cases cited:

## Text

1206 INDIAN LAW REPORTS ALLAHABAD SERIES
wrongly rejected. It shall be open for the
respondent No. 2 to consider the claim of
the petitioner for grant of compassionate
appointment to any of her family members
strictly in accordance with law.

14. The writ petition is allowed to the
extent above.
----------
(2022) 9 ILRA 1206
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 3254 of 2021

Himanshi Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shantanu Khare, Sri Siddharth Khare,
Sri Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Yadav

A. Constitution of India, Art. 226 - Writ
Petition against show cause notice -
Maintainability - although it is well settled
that High Court should refrain from
interfering at the stage of show cause
notice - but when the show cause notice
has
been
issued
on
irrelevant
considerations, in such cases, the High
Court may under Art. 226 intervene and
entertain a writ petition (Para 27)

In the instant case, the only allegation in the
notice is that the petitioner is not eligible to be
appointed on account of obtaining two degrees
simultaneously - Held - the allegation made in
the
notice
is
based
upon
irrelevant
considerations and is not supported by any
material on record which requires any factual
investigation - High Court quashed the notice
(Para 28, 29)

B. Civil Law - Service law - Appointment -
Pursuing two courses simultaneously -
Director General of School Education
issued a letter dated 18.01.2021 stating
that a candidate would be ineligible for
appointment if he had pursued twodegree
courses
simultaneously
as
a
regular student - legality of the condition
challenged - Held - there is no provision
in the law that explicitly prohibits a
candidate
from
pursuing
two-degree
courses simultaneously, such as a B.Ed.
and B.T.C. course - imposing such a
condition through a letter issued by the
Director General of School Education is
illegal. (Para 20)

Petitioner did B.T.C. training certificate course in
the session 2015-17 & completed her B.Ed.
course in the session 2016-18 - Notice issued to
her on ground that she had obtained two
regular degrees namely B.Ed. and B.T.C. course
certificates in the same session - Held - sessions
of the petitioner for the B.T.C. training course
and B.Ed are different as the session for the
B.Ed course was 2016-18 whereas the session
of B.T.C. was 2015-17 - No objection raised by
the authority that the petitioner did not attend
75% of lectures, tutorials, seminars, and
practicals in the B.T.C. course to become eligible
to appear in the examination - petitioner's
B.T.C. course certificate is valid -Even if the
petitioner's B.Ed. degree is ignored, the
petitioner is still eligible to be appointed
as an Assistant Teacher (Para 20, 25)

Allowed. (E-5)

List of Cases cited:

1. Kuldeep Kumar Pathak Vs St. of U.P. & ors.,
(2016) 3 SCC 521

2. A. Dharmraj Vs The Chief Educational Officer,
Pudukkottai & ors. Civil Appeal No.1301 of 2022

3. Board of Basic Education & anr. Vs Arvind
Prakash Dwivedi & ors. Special Appeal Defective
No.898 of 2020,
9 All. Himanshi Yadav Vs. State of U.P. & Ors.
1207
(Delivered by Hon'ble Saral Srivastava, J.)

Order on Amendment Application
No.4/2021

Learned counsel for the petitioner
through the present amendment application
is seeking permission to incorporate the
following prayer and the same may be
treated as part of the writ petition.

"(f) issue a writ, order or
direction in the nature of certiorari
quashing the clause 16 of the circular
dated 18.01.2021 issued by the Director
General
-
School
Education
-
UP,
Lucknow."

Because the amendment sought is
formal,
therefore,
the
amendment
application is allowed.

learned
counsel
for
the
petitioner/applicant is permitted to carry
out the necessary amendment within one
week from today.

Order on Writ Petition

1. Heard Sri Ashok Khare, learned
Senior Advocate, assisted by Sri Siddharth
Khare, learned counsel for the petitioner,
Sri
Vikram
Bahadur
Yadav,
learned
Standing Counsel for the State respondent
nos. 1 & 2 and Sri B.K.Yadav learned
counsel for respondents nos.3 & 4.

2. The petitioner through the present
writ petition, has prayed for quashing of
notice dated 02.01.2021 issued by the Basic
Shiksha Adhikari, Firozabad, and a writ of
mandamus directing the opposite party to
grant appointment to the petitioner as an
Assistant Teacher in a Junior Basic School
of District Firozabad and permit the
petitioner to join in pursuance thereto and
to discharge all duties as Assistant Teacher
and to pay regular monthly salary on the
said post.

3. The facts, in brief, are that under an
advertisement notified as Assistant Teacher
Recruitment
Examination,
2019
for
recruitment of 69000 Assistant Teachers in
Junior Basic Schools of the State, the
petitioner who belongs to the OBC
category and is qualified for appearing in
the said selection, submitted an application
for selection in the said recruitment. She
appeared in the examination and was
declared successful.

4. On 13.5.2020 those candidates who
succeeded
in
the
Assistant
Teacher
Recruitment
Examination,
2019
were
required to apply for consideration for an
appointment as Assistant Teacher. In
response
thereto,
the
petitioner
also
submitted her application online for the
appointment of Assistant Teacher. It is
stated that the petitioner specified all
details of her educational qualification
including teacher training qualification in
the application. The teacher training
qualification specified by the petitioner in
the said application was B.T.C. training
course passed in the year 2018 in an
examination conducted by Examination
Regulatory Authority, Prayagraj. It is stated
that the petitioner was selected for
appointment and was allotted District
Ghaziabad. The petitioner was required to
participate in counseling scheduled before
the Basic Shiksha Adhikari, Firozabad on
02/03, September 2020. The petitioner
participated in the counseling.

5. According to the petitioner, the
appointment orders were scheduled to be
issued in District Firozabad on 05.12.2020,
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
but no appointment order was issued to the
petitioner. The petitioner was informed that
a complaint had been received against her
that she had obtained two regular degrees
namely
B.Ed.
and
B.T.C.
course
certificates in the same session. Later on, a
notice dated 02.01.2021 was issued by the
Basic
Shiksha
Adhikari,
Firozabad
requiring
the
petitioner
to
submit
documents within one week, failing which,
action would be taken against her. It is
further stated that the petitioner being a
duly selected candidate for the post of
Assistant Teacher, has availed no benefit of
her B.Ed degree, therefore, the action of the
respondents in not issuing an appointment
letter to the petitioner is arbitrary. It is also
stated that the petitioner has no objection if
her B.Ed degree may be invalidated. In the
aforesaid backdrop, the petitioner has
prayed for the aforesaid relief.

6. A counter affidavit has been filed
by respondent no.4 stating therein that
paragraph 16 of the letter dated 18.01.2021
of the Director General, School Education
and Director of State Project addressed to
all Collectors and District Basic Education
Officers of the State provides that such
candidates who have completed two regular
courses in same academic session as a
regular student, their selection is not legal
because of Paragraph 16 of the letter dated
18.01.2021, therefore, the District Selection
Committee
decided
to
cancel
the
appointment of the petitioner. The further
case of the respondent is that the minutes of
the meeting of the Expert Committee
constituted by the University Grants
Commission (U.G.C.) reveal that it had
considered the issue of pursuing more than
one degree simultaneously, and U.G.C.
issued a notification dated 15.01.2016 by
which it did not endorse the idea of
pursuing
two-degree
courses
simultaneously. Accordingly, it is stated
that as the petitioner could not pursue two
regular courses simultaneously, therefore,
she cannot be appointed. Consequently, her
appointment has been cancelled.

7. In the rejoinder affidavit filed by
the petitioner, it is clarified that the
petitioner was admitted to B.T.C. Batch
2015 and passed the same in the year 2019.
The admission of the petitioner to Bachelor
of Education was in the year 2016. The
petitioner
also
gave
details
of
the
examination of B.T.C., in which the
petitioner participated which are specified
below:

(i)
1st
Semester
Examination
18.04.2017 to
20.04.2017
(ii)
2nd
Semester
Examination
07.12.2017 to
09.12.2017
(iii) 3rd
Semester
Examination
08.05.2018 to
10.05.2018
(iv)
4th
Semester
Examination
01.11.2018 to
03.11.2018

8. Petitioner also stated the details of
Bachelor of Education Examination which
is detailed below.

(i)
1st
Year
Examination
Commencing
from 08.12.2017
(ii) 2nd
Year
Examination
22.09.2018
-
04.10.2018

9. The further averment made in the
rejoinder affidavit is that the petitioner had
left the Bachelor of Education paper
commencing
from
08.12.2017
and
appeared in re-examination. The petitioner
along with the rejoinder affidavit also
enclosed UGC (minimum standards of
instructions for the grant of the first degree
through
formal
education)
Regulation
2003.
9 All. Himanshi Yadav Vs. State of U.P. & Ors.
1209

10. Learned Senior Counsel has
contended that there is no rule which
prohibits
pursuing
two
courses
simultaneously, therefore, the objection of
the respondents that the petitioner is
disqualified
for
appointment
due
to
pursuing two courses simultaneously in the
same session is arbitrary. It is contended
that the petitioner was first admitted in
B.T.C. course for the session 2015-16
whereas the petitioner did B.Ed course in
the
session
2016-18,
therefore,
nonissuance of appointment letter to the
petitioner on the ground that she has
pursued two courses simultaneously in the
same session is based upon misappreciation
of facts on record and is not sustainable In
law.

11. It is further contended that there is
no objection raised by the respondents or
by any authority that the attendance of the
petitioner in the B.T.C. course was not
complete. Consequently, it is submitted that
if any invalidity to the degree is attached,
that would be to the B.Ed course which was
after the B.T.C. course.

12.

It
is
submitted
that
the
qualification for recruitment in Assistant
Teacher is B.T.C. and as the petitioner has
not taken any benefit of B.Ed degree,
therefore,
she
is
eligible
for
the
appointment even if her B.Ed. Degree is
invalidated to which the petitioner has no
objection.

13. Lastly, it is contended that the
U.G.C. permits the petitioner to pursue one
degree course and one certificate course
simultaneously, and therefore, the objection
raised by the respondents about the
appointment
of
the
petitioner
is
misconceived and does not stand to merit.
Learned Senior Counsel has placed reliance
upon the judgments of the Apex Court in
the case of Kuldeep Kumar Pathak Vs.
State of U.P. & Ors., (2016) 3 SCC 521
and Civil Appeal No.1301 of 2022
A.Dharmraj Vs. The Chief Educational
Officer, Pudukkottai & Ors. and judgment
of this Court passed in Special Appeal
Defective No.898 of 2020, Board of Basic
Education & Anr. Vs. Arvind Prakash
Dwivedi & Ors.

14. Per contra, learned Standing
Counsel would contend that the petitioner
has preferred the writ petition against the
show cause notice, therefore, the writ
petition at this stage is premature and is
liable to be dismissed on this ground alone.
It is further contended that because of
paragraph 16 of the letter dated 18.01.2021
of Director General, School Education and
Director of State Project that in case a
candidate
has
pursued
two
courses
simultaneously, he/she is disqualified for
being appointed as Assistant Teacher.
Hence, the petitioner is not entitled to the
appointment
as
Assistant
Teacher.
Accordingly, it is submitted that the writ
petition is devoid of merit and deserves to
be dismissed.

15. I have heard learned counsel for
the petitioner and learned counsel for the
respondents.

16. In the instant case, the record
reflects that the petitioner has done B.T.C.
training certificate course in the session
2015-17. The session was late due to which
her B.T.C. certificate course had been
completed in the year 2019 as it is evident
from the mark sheet of the 4th semester of
the petitioner of B.T.C. Batch 2015,
appended on Page 20 of the writ petition,
that second-year examination was held in
2018. The petitioner has completed her
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
B.Ed. course in the session 2016-18, which
is evident from the second year mark-sheet
of the petitioner, appended on page 29 of
the writ petition. Thus, it is manifest from
the record that the sessions of the petitioner
for the B.T.C. training course and B.Ed are
different as the session for the B.Ed course
was 2016-18 whereas the session of B.T.C.
was 2015-17. At this point, it would be apt
to refer to paragraph 5.8 of the U.G.C.
(Minimum Standards of Instructions for the
Grant of the First Degree through Formal
Education) Regulation, 2003 (hereinafter
referred to as 'Regulation 2003'):

"The
minimum
number
of
lectures, tutorials, seminars and practicals
which a student shall be required to attend
for eligibility to appear at the examination
shall prescribed by the university, which
ordinary shall not be less than 75% of the
total
number
of
lectures,
tutorials,
seminars,
practicals,
and
any
other
prescribed requirements."

17. Paragraph 5.8 of Regulation, 2003
is relevant in the context of the present
case. It specifies the minimum number of
lectures that a student is required to attend
to become eligible for appearing in the
examination at the university.

18. In the case in hand, the
respondents do not dispute the fact that the
petitioner
had
pursued
the
B.T.C.
certificate course in the session 2015-17,
whereas she did B.Ed. course in the session
2016-18. Thus, the sessions for the two
courses are different. It is also pertinent to
mention that there is no averment in the
counter affidavit that the petitioner did not
attend 75% of lectures, tutorials, seminars,
and practicals in the B.T.C. course to
become
eligible
to
appear
in
the
examination. In such view of the fact, it can
be concluded that the petitioner's B.T.C.
course certificate is valid and does not
suffer from any infirmity.

19.

Learned
counsel
for
the
respondent has heavily placed reliance
upon paragraph 16 of the letter dated
18.01.2021 issued by Director General,
School Education and Director of State
Project to contend that since there is a
restraint imposed in paragraph 16 of the
letter dated 18.01.2021, therefore, the
authorities have acted as per law in
rejecting the appointment of the petitioner.
In this context to appreciate the controversy
at hand, it would also be relevant to
reproduce para 16 of the letter dated
18.01.2021.

16. एि शैकक्षि सत्र में द ि सण- ऐसे
अभ्यिी सिनके िारा एक शैसक्षक सत्र में दो कोसष उत्तीणष
सकया गया है उनमें यसद दोनो कोसष संथिागत परीक्षािी के
रूप में उत्तीणष सकया गया है, तो ऐसे अभ्यसिषयों का चयन
मान्य न सकया िाये, सकन्तु यसद दोनो कोसष में से कोई एक
कोसष व्यस्क्तगत परीक्षािी के रूप में उत्तीणष सकया गया है,
सकन्तु उन दोनों परीक्षाओं का असधभार चयन में एक साि
सस्िसलत न हो तो ऐसे अभ्यिी के संबंध में सनयुस्क्त पत्र
सनगषत सकये िाने हेतु िनपदीय चयन ससमसत के समक्ष
प्रिुत करते हुए, मूल असभलेखों से समलान एवं अन्य साक्ष्ों
का परीक्षण करते हुए, प्रकरण सनिाररत सकया िाये।
सकन्तु यसद उन दोनों परीक्षाओं का असधभार चयन में एक
साि सस्िसलत सकया गया हो तो ऐसे अभ्यिी के चयन पर
सवचार सकया िाना उपयुक्त नहीं होगा।

20. The perusal of paragraph 16 of the
letter dated 18.01.2021 though indicates
that a candidate shall become ineligible for
the appointment if he had pursued twodegree courses simultaneously as a regular
student, but the fact remains that in the
absence
of
any
statutory
provisions
prohibiting the pursuing of two-degree
courses
simultaneously,
can
such
a
condition be imposed by a letter of Director
General, School Education and Director of
State Project dated 18.01.2021. In the
9 All. Himanshi Yadav Vs. State of U.P. & Ors.
1211
opinion of the Court, the answer to the
same is emphatic 'No' for the reason that
there is no provision in the law that has
been pointed out by the learned Standing
Counsel which prohibits a candidate to
pursue two courses simultaneously. If there
is no statute prohibiting pursuing two
courses simultaneously and if there is no
illegality attached to pursuing two courses
simultaneously and obtaining a degree then
a candidate cannot be disqualified on the
ground that he has pursued two courses i.e.
B.Ed. And B.T.C. Simultaneously. In such
view of the fact, this Court finds that
paragraph 16 of the letter dated 18.01.2021
is arbitrary and has no nexus with the
object sought to be achieved.

21. The Apex Court in Kuldeep
Kumar Pathak (supra) in paragraph No. 7
of the judgment has held that where there is
no prohibition in the regulation prohibiting
pursuing two courses simultaneously, the
intermediate certificate of a candidate
cannot be cancelled. Paragraphs Nos. 6, 7,
and 8 of the judgment are reproduced
herein below.

"6. Before us, Mr. Pradeep Kant,
learned senior counsel for the appellant
has made a neat legal argument. He
submits that though the impugned judgment
proceeds on the basis that appearing in two
examinations simultaneously for the same
year is violation of the Regulations of the
Board, this reason given by the High Court
is clearly unsustainable inasmuch as no
such Regulation is shown by the Board
which prohibited any such candidate to
appear in two examinations in the same
year. The learned senior counsel further
argued that the impugned order passed by
the
respondents
for
confiscating
his
Certificate of Intermediate exam was,
otherwise also, contrary to the principles of
natural justice inasmuch as no show cause
notice and opportunity of hearing was
given to the appellant before passing such
an order, which was passed belatedly after
a period of nine years from the passing of
the said examination by the appellant.

7. We are of the opinion that
both the submissions of the learned senior
counsel are valid in law and have to
prevail.
The
High
Court
has
been
influenced
by
the
argument
of
the
respondents that simultaneous appearance
in two examinations by the appellant in the
same
year
was
'contrary
to
the
Regulations'. However, no such Regulation
has been mentioned either by the learned
Single Judge or the Division Bench.
Curiously, no such Regulation has been
pointed out even by the respondents. On
our specific query to the learned counsel
for the respondents to this effect, he
expressed his inability to show any such
Regulation or any other rule or provision
contained
in
the
U.P.
Intermediate
Education Act, 1921 or Supplementary
Regulations of 1976 framed under the
aforesaid Act or in any other governing
Regulations.
Therefore,
the
entire
foundation of the impugned judgment of the
High Court is erroneous.

8. It is also pertinent to note that
the appellant's intermediate examination and
result thereof was not in question before the
U.P. Board. No illegality in the admission in
that class has been pointed out by the
respondents.
The
alleged
charge
of
simultaneously
appearing
in
two
examinations, one of the U.P. Board and
other of the Sanskrit Board, was with respect
to Class X and equivalent examination which
did not relate to admission in intermediate
course. The only provision for canceling the
said admission is contained in Regulation (1)
of Chapter VI-B. It details the procedure for
passing the order of punishment canceling
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
intermediate
results
and,
inter
alia,
prescribes that a committee consisting of
three different members is to be constituted
and entrusted with the responsibility of
looking into and disposing of cases relating
to unfair means and award appropriate
penalty as specified in the Regulations itself.
However, there is no allegation of any unfair
means adopted by the appellant in the instant
case and, therefore, that Regulation has no
applicability. Even otherwise, no such
committee was constituted. Therefore, having
taken admission in Intermediate on the basis
of past certificate issued by a separate Board,
which was recognised, and not on the basis of
the result of Class X of the U.P. Board, the
appellant derived no advantage from his
examination of the U.P. Board while seeking
admission in Intermediate course. Thus, from
any angle the matter is to be looked into, the
impugned orders dated April 20, 2011 and
May 10, 2011 passed by the respondents are
null and void, apart from the fact that they
are in violation of the principles of natural
justice."

22. Similarly, in the case of A.
Dharmraj (supra) the Apex Court almost
in identical circumstances has held that
cancellation of appointment of a candidate
for pursuing two degrees simultaneously is
illegal when there is no bar in the statute. In
this respect, the Court observed that even if
one of the degrees i.e. the subsequent
degree obtained by the appellant namely
M.A. (Tamil) is ignored, the appellant
could have been promoted to the post of
B.T. Assistant (English) because of the
degree of B.A. (English) obtained by him.
Paragraphs No. 5 and 5.1 of the judgment
are reproduced herein below:

5. Having heard the learned
counsel appearing on behalf of the respective
parties and on perusal of the judgment and
order passed by the learned Single Judge as
well as the Division Bench, it appears that
the promotion of the appellant to the post of
B.T. Assistant (English) has been set aside by
the High Court on the ground that the
appellant obtained two degrees namely B.A.
(English) and M.A. (Tamil) simultaneously
and therefore as per Rule 14 he was
ineligible
for
promotion.
However,
considering Rule 14, it can be seen that the
bar was against teachers who have obtained
B.A./B.Sc./B.Ed
degree
simultaneously
during the same academic year. In the
present case it cannot be said that the
appellant obtained the degree of B.A.
(English) and M.A. (Tamil) during the same
academic year. The appellant pursued his
B.A. (English) during January, 2012 to
December, 2014. He pursued his M.A.
(Tamil) which was a two years distance
education course between the academic years
2013-2014 to 2014-2015. Therefore, as such
Rule 14 is not applicable to the facts of the
case on hand stricto senso. The degree of
M.A. (Tamil) cannot be equated with
B.A./B.Sc./B.Ed.

5.1 Assuming that the subsequent
degree obtained by the appellant namely
M.A. (Tamil) is ignored, in that case also,
considering his degree in B.A. (English) he
could have been promoted to the post of B.T.
Assistant (English). That both the degrees
secured by the appellant cannot be ignored. It
is not in dispute that the degree of B.A.
(English) was sufficient as per the eligibility
criteria for promotion to the post of B.T.
Assistant (English).

23. The Division Bench in the case of
the Board of Basic Education (supra)
following the judgment of Kuldeep Kumar
Pathak (supra) has held as under:

"It is not in dispute that at the
relevant time the respondent-petitioner
9 All. Himanshi Yadav Vs. State of U.P. & Ors.
1213
could have obtained two qualification
simultaneously
and
the
respondentpetitioner as such possessed requisite
qualification to hold the post of Assistant
Teacher as well as the further promotional
post.

Learned single Bench in view of
it, has not committed any error that may
warrant
interference
in
appellate
jurisdiction.

While dismissing the appeal, we
would like to observe that the government
authorities must be quite sensitive while
imposing
the
severe
punishment
of
dismissal as a consequence to disciplinary
action. It is strange that in the instant
matter the authority competent despite
knowing the fact that the respondentpetitioner is having requisite qualification
to hold the post chose to impose the penalty
of dismissal.

With the observations as above,
the appeal stands dismissed accordingly."

24. In view of the aforesaid
discussion, the condition imposed by
paragraph 16 of the letter dated 18.01.2021
is hit by Article 14 of the Constitution of
India.

25. In the instant case, there is no
averment or allegation in the counter
affidavit that the two degrees acquired by
the petitioner have been obtained by fraud
or suffer from any illegality on account of
non-compliance of any provision of law
like non-fulfilling of criteria of minimum
75% attendance as provided in paragraph
5.8 of U.G.C., so this Court believes that
the objection raised by the respondent for
cancelling the appointment of the petitioner
is illegal and is not sustainable in law.

26. Viewed from another angle, in the
instant case applying the ratio of law
elucidated by the Apex Court in paragraph
5.1 of the judgment in the case of A.
Dharmraj (supra), if the B.Ed. degree of
the petitioner for session 2016-18 is
ignored, which has been obtained after the
B.T.C.
certificate
course
which
the
petitioner did in the session 2015-17, it can
easily be concluded that the petitioner is
eligible to be appointed as Assistant
Teacher. Therefore, in view of the said fact,
the objection raised by the respondents is
misconceived and not sustainable in law.

27. Now coming to the submission
advanced by learned counsel for the
respondents that the writ petition is
premature as it has been instituted against
the show cause notice. In this regard, it is
apposite to state that though it is settled in
law that this Court should refrain from
interfering at the stage of show cause
notice, there is no bar that this Court cannot
exercise its power under Article 226 of the
Constitution of India where the notice itself
is bad as having been issued on irrelevant
considerations. In the instant case, the only
allegation in the notice is that the petitioner
is not eligible to be appointed on account of
obtaining two degrees simultaneously,
besides this, no other ground has been
raised for invalidating the appointment of
the petitioner. In the counter affidavit also
the only stand taken by the respondents is
that the petitioner is not eligible to be
appointed because of para 16 of the letter
dated 18.01.2021 as she has pursued two
courses simultaneously.

28. From the discussion aforesaid, it
is evident that the allegation made in the
notice for declaring the petitioner to be
ineligible for the appointment is based
upon irrelevant considerations and is not
supported by any material on record which
requires any factual investigation. Since the
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
counter affidavit in the instant case has
been invited and filed, this Court finds that
it is one such case that falls in the
exceptional category where the Court can
exercise its power under Article 226 of the
Constitution of India and, therefore, in such
view of the fact, the objection raised by the
learned counsel for the respondents is not
sustainable.

29. For the reasons given above, the
writ petition is allowed, and notice dated
02.01.2021 issued by the Basic Shiksha
Adhikari, Firozabad and paragraph 16 of the
letter dated 18.01.2021 are quashed and a
writ of mandamus is issued to the
respondents to issue appointment letter to the
petitioner as Assistant Teacher in any Junior
Basic School to which she has opted as per
her preference within one month from the
date of production of the certified copy of this
order and the respondents shall ensure the
joining of the petitioner and shall pay regular
monthly salary on the said post regularly
every month with all consequential benefits
to which she is entitled in law. There shall be
no order as to cost.
----------
(2022) 9 ILRA 1214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ-A No. 18302 of 2021

Pradeep Kumar Gupta ...Petitioner
Versus
Government of U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Pradeep Kumar Gupta (In Person). Sri
Prabhakar Awasthi
Counsel for the Respondents:
C.S.C.

Civil Law - Rights of Persons with
Disabilities Act, 1995- Petitioner-differently
abled-50 % locomotor disorder-applied for
advertisement-appointment on post of Library
Peon (one Post)-essential qualification-class V
pass and ability to ride cycle-Petitioner claims
violation of his rights and humiliation-before
reservation to be claimed-identification of post
necessary-absence of the same-reservation
cannot be claimed-in absence of specification of
'bicycle' in advertisement-he should have been
allowed to ride a tricycle-and should be compete
as a General category candidate-Petitioner is
entitled to compensation at Rs. 5,00,000/- by
the Respondent St. Government-W.P. partly
allowed. (E-9)

Held, the amount of compensation has been
awarded to let the petitioner know, the St. may
take time to hear & understand its citizen and
his plight but, it is neither deaf nor heartless as
may ever remain indifferent, forcing him to drag
his feet, almost literally, to this Court to seek
justice. The citizen works at the heart of the
giant being the St. is. Unless the heart beats
freely, the being cannot thrive. (para 31)

List of Cases cited:

K.S. Puttaswamy (Privacy-9J) Vs U.O.I., (2017)
10 SCC 1
(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Heard the petitioner - Sri Pradeep
Kumar Gupta, in person and learned
Standing Counsel for the State. Also, on the
request of the Court, Sri Prabhakar
Awasthi, Advocate has assisted the Court
to ascertain the correct facts.

2. The petitioner is a differently abled
person having 50% locomotor disorder. On
24.06.2006,
an
advertisement
was
published
inviting
applications
for
appointment, amongst other, on the post of