# Rajendra Singh v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 470
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-10
- **Case number:** Writ-A No. 3042 of 2015
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-v-state-of-u-p-ors-49648
- **Pages:** 6

## Headnote

A. Service Law - Post of Head Master -
Appointment - Requisite qualification,
non-possession thereof - Concealment of
material fact - Effect - Principle of natural
justice,
how
far
applicable
-
Held,
considering the fact that the petitioner
never had the requisite qualification for
appointment,
the
non
following
of
principles of natural justice would have no
effect on outcome of the petition as it is
well settled that in service jurisprudence
the allegations of violation of principles of
natural justice have to be fortified by the
test of prejudice caused on account of
violation of principles of natural justice.
(Para 16)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

470 INDIAN LAW REPORTS ALLAHABAD SERIES
the said Budhrani. It describes that person
as daughter of Om Prakash. Signatures
affixed to that Marriage Agreement is
also in the writing-Budhrani. Then,
though the document has been prepared
on 24.6.2006, it has been stamped on
26.9.2005. Also, grave doubt exists as to
the identity of the petitioner being the
same person who may have entered into
Marriage Agreement with the deceased. It
is so because the signatory of that
document did not describe herself as
Budhrani @ Ram Pyari. She also did not
disclose her parentage in that document.

9. Present petition has been filed by
Ram Pyari @ Budhrani. Affidavit thereto
is of one Ram Pyari. It does not disclose
any alias of the said Ram Pyari. Identity
of said Ram Pyari has been claimed on
the strength of a photostat copy of Voter
ID Card. It also describes the holder of
that card to be Ram Pyari and not Ram
Pyari @ Budhrani. Facts, noted above
may themselves prevent the Court from
granting any relief under Article 226 of
the Constitution to such a person about
whose identity there exists grave doubt.

10. Yet, a more serious objection
exists-the
petitioner
admits
to
have
married one Hori Lal in the year 2006 and
further that that marriage was never
legally
dissolved.
Being
Hindu,
by
religion, it is difficult to accept the status
of the petitioner as the legally wedded
wife of the deceased Ram Sajivan, during
lifetime of Hori Lal. No fact disclosure
has been made as to the identity of Hori
Lal or his current status. A legally wedded
wife of one person may never be heard to
claim compassionate appointment against
death of her live in partner, during
subsistence of her marriage.

11. Citizens may exercise their free
choice in these matters i.e. to live such
life as may not infringe with law yet, the
Court can only recognise the legal right
and act to protect the same. Thus, though
the petitioner's life and liberty was
protected despite her choice to live
outside her marriage, at present the law
may not recognise the right of the
petitioner to compassionate appointment
for reason of death of her live in partner.
That law being Rule driven, the petitioner
is found not covered by any category of
heirs
of
the
deceased
entitled
to
compassionate appointment. The Service
Book of the deceased also does not
include the name of the petitioner as a
family member of the deceased.

12. For the reasons noted above,
writ petition lacks merit and is dismissed.

13. The original service book of the
deceased has been returned to the learned
Standing
Counsel
and
the
original
Marriage Agreement has been returned to
learned counsel for the petitioner after
due perusal.
----------
(2023) 1 ILRA 470
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 3042 of 2015

Rajendra Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Som Kartik, Sri Piyush Mishra
1 All. Rajendra Singh Vs. State of U.P. & Ors.
471
Counsel for the Respondents:
C.S.C., Sri Abhishek Dwivedi, Sri Ajay
Kumar, Sri Dileep Kumar Mishra, Sri
Jogendra Nath Verma

A. Service Law - Post of Head Master -
Appointment - Requisite qualification,
non-possession thereof - Concealment of
material fact - Effect - Principle of natural
justice,
how
far
applicable
-
Held,
considering the fact that the petitioner
never had the requisite qualification for
appointment,
the
non
following
of
principles of natural justice would have no
effect on outcome of the petition as it is
well settled that in service jurisprudence
the allegations of violation of principles of
natural justice have to be fortified by the
test of prejudice caused on account of
violation of principles of natural justice.
(Para 16)
Writ petition dismissed. (E-1)
List of Cases cited:

1. Abhiram Vs St. of U.P. & ors.; 2021 (2) ALJ
102
2. Sushil Kumar Dwivedi Vs Basic Shiksha
Adhikari, Banda & ors.; (2003) 2 UPLBEC 1216
3. Ram Surat Yadav& ors. Vs St. of U.P.& ors.
(2014) 1 UPLBEC 1
4. Ram Surat Yadav& ors. Vs St. of U.P.& ors.
(2014) 1 UPLBEC 1
(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned Counsel for the
petitioner, learned Standing Counsel for the
respondent no.1, learned Counsel for the
respondent no.2, Sri Ajay Kumar, learned
Counsel appearing on behalf of the
respondents no.3 and 4 and Sri Dileep
Kumar Mishra,

2. The present petition has been filed
challenging the order dated 11.05.2015
whereby the appeal filed by the Committee
of Management against the order of Basic
Education Officer rejecting the resolution
of termination of the petitioner's services
was allowed.

3. Subsequently during the pendency
of the writ petition, an amendment
application was filed in view of the fact
that in pursuance to the appeal being
allowed, a fresh order had been passed on
19.09.2015 whereby the Basic Education
Officer has accepted the resolution of the
Committee of Management for removal of
the petitioner from the institution in
question.

4. The facts in brief are, that the
petitioner claiming to have the requisite
qualification applied for being appointed to
the post of Headmaster with the College
run by the respondent no.5. Initially, the
appointment was granted to the petitioner
and the appointment of the petitioner was
also recognized by the Basic Education
Officer and the petitioner continued to
work in the institution, for almost 10 years.

5. It is argued that subsequent to the
said period, proceedings were initiated
against the petitioner for having obtained
the appointment as well as the approval by
concealing
the
material
facts.
The
petitioner was served with the charge-sheet
dated 10.11.2014 by the Committee of
Management calling upon the petitioner to
show cause as to why the appointment
granted to him may not be cancelled in
view of the fact that the same has been
obtained by concealing the material facts.

6. In support of the said, the first
charge as levelled against the petitioner
was for obtaining the employment, the
petitioner had placed reliance on two
Experience Certificates having been issued
by one Indian Public Inter College,
472 INDIAN LAW REPORTS ALLAHABAD SERIES
Lucknow,
where
the
petitioner
had
allegedly worked as an Assistant Teacher
from July, 1998 to 10.03.2000 and the
certificate issued by one Survodya Public
Inter
College,
Lucknow,
where
the
petitioner had admittedly served as an
Assistant Teacher from July, 2000 to
10.08.2003. The petitioner gave a reply to
the said show cause notice denying the
allegations. The said show cause notice was
held by the respondents to be without any
merit and orders were passed holding that
the appointment of the petitioner in both
the said schools were without the requisite
qualifications on the date of appointments.
It was also recorded that although the
Survodya Public Inter College, Lucknow
had not responded to the efforts for finding
the truth, Indian Public Inter College had
given its report. Finding the explanation
given by the petitioner to be unacceptable,
a resolution came to be passed on
30.11.2014 terminating the services of the
petitioner. The said order of termination
passed
through
resolution
by
the
respondent no.5 was sent for approval
before the Basic Education Officer who by
means of an order dated 16.01.2015
disapproved
the
resolution
of
the
Committee of Management.

7. The said order rejecting the
approval, was challenged in an appeal by
the Committee of Management before the
Secretary, Board of Basic Education,
Prayagraj. The said appeal came to be
allowed
on
11.05.2015
whereby
the
disapproval order was set aside. Thereafter
the Committee of Management passed an
order dated 21.05.2015 stating that services
of the petitioner stood terminated and the
appointment order was cancelled. In terms
of the said order, a fresh order came to be
passed by the Basic Education Officer
whereby the approval was granted to the
resolution
of
the
Committee
of
Management terminating the services of the
petitioner on 19.09.2015. The said order is
under challenge by means of filing an
amendment application.

8. The contention of the Counsel for
the petitioner is that the principles of
natural justice were not followed, inasmuch
as, from the perusal of the records, it is
clear that subsequent to the filing of reply
filed by the petitioner to the charge-sheet
efforts were made to collect the evidence
from the two schools and the petitioner was
never confronted with the said evidences
before passing of the final orders. He
further argues that the provisions of The
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 (in short 'the 1999
Rules'), applicable to the State Government
employees, were never followed, inasmuch
as, procedure prescribed under Rule 7 of
the 1999 Rules was not followed as no
inquiry was held and the mandatory
requirement of Rule 7 was not followed in
toto.

9. In support of the said submissions,
the Counsel for the petitioner places
reliance on the judgment of this Court in
the case of Abhiram vs State of Uttar
Pradesh and others; 2021 (2) ALJ 102
wherein this Court had the occasion to
consider
the
applicability
of
U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999 and the Court was of
the view that without holding of the inquiry
as contemplated under the Rule 1999, the
dismissal order could not be justified.

10. The Counsel for the petitioner
further argues that even by passing the
termination order, it has been merely
recorded that the reply submitted by the
petitioner
is
not
satisfactory,
which
1 All. Rajendra Singh Vs. State of U.P. & Ors.
473
according to the petitioner is itself arbitrary
and no reasons have been recorded for not
accepting the contention of the petitioner.
He thus argues that the order impugned is
liable to be set aside.

11. The Counsel for the respondent
no.5, on the other hand, specifically argues
that the appointment to the Headmaster, at
the relevant point of time, were governed
under the provisions of U.P. Recognized
Basic
Schools
(Junior
High
School)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 (in short 'the 1978
Rules'). He places reliance on Rule 4 to argue
that Rule 4(1) prescribes the manner in which
an Assistant Teachers of a recognized school
can be appointed and Rule 4(2) prescribes for
the minimum qualification required for the
appointment to the post of Headmaster of a
recognized school. Rule 4 of the 1978 Rules
is quoted below:

"4. Minimum qualifications. (1)
The minimum qualifications for the post of
assistant teacher of a recognised school
shall be Intermediate Examination of the
Board of High School and Intermediate
Education, Uttar Pradesh or equivalent
examination (with Hindi) and a teacher's
training course recognised by the State
Government
or
the
Board
such
as
Hindustani Teaching Certificate, Junior
Teaching
Certificate,
Basic
Teaching
Certificate, or Certificate of Training,

(2) The minimum qualifications
for the appointment to the post of
Headmaster of a recognised school shall be
as follows: (a) A degree from a recognised
University or an equivalent examination
recognised as such;

(b) A teacher's training course
recognised by the State Government or the
Board, such as Hindustani Teaching
Certificate, Junior Teaching Certificate,
Certificate of Training or Basic Teaching
Certificate; and

(c)
Three
years'
teaching
experience in a recognised school."

12. This rule quoted above lays down
the minimum qualifications both for the post
of assistant teachers as well as for post of
Headmasters.
While
a
degree
from
recognised University, training certificate and
teaching experience are necessary for being
appointed as Headmaster, the essential
qualification for the appointment as an
assistant teacher is only Intermediate in
addition to a teachers' training course.

13. He further draws my attention to the
definition
of
'Recognized
School'
as
contained in Rule 2(g) to mean as under:

"2. Definitions. - In these rules,
unless the context otherwise requires -

(a) ...

(b) ...

(c) ...

(d) ...

(e) ...

(f) ...

(g). 'Recognised School' means any
Junior High School, not being an institution
belonging to or wholly maintained by the Board or
any local body, recognised by the Board as such."

14. The Counsel for the respondent
no.5 argues that admittedly the petitioner
474 INDIAN LAW REPORTS ALLAHABAD SERIES
had obtained the training in the year 2003
and thus, even as per the submission of the
petitioner, he did not have the requisite
qualification for being appointed as an
Assistant Teacher of a recognized school
which is specified under Rule 4(1) of the
1978 Rules. He further argues that once the
petitioner did not have the requisite
qualification to be appointed as an
Assistant Teacher in terms of Rule 4(1) of
the 1978 Rules, he could have produced the
experience certificate of teaching in a
recognized school, which is required
specifically in Rule 4(2) of the 1978 Rules.
He thus argues that the petitioner did not
possess the requisite qualification for being
appointed
and
had
obtained
the
appointment as well as the recognition to
the said appointment on the strength of
certificates, which could not have been
issued by the schools in question as the
petitioner did not have the requisite
qualification for appointment as Assistant
Teacher. He places reliance on the
judgment in the case of Sushil Kumar
Dwivedi vs Basic Shiksha Adhikari,
Banda and others; [(2003) 2 UPLBEC
1216] as well as in the case of Ram Surat
Yadav and others vs State of U.P. and
others [(2014) 1 UPLBEC 1].

15. From the submissions made at the
bar, it is culled out that the petitioner got
the appointment on the post of Headmaster
placing
reliance
on
two
experience
certificates which were obtained by the
petitioner on his having worked on the post
of Assistant Teacher from July 1998 to
10.03.2000 as well as the other certificate
in which the petitioner claims to work from
July, 2000 to 10.08.2003. The petitioner as
per his own showing did not have the
Teachers Training Course Certificate which
is a sine qua non for appointment to the
post of Assistant Teacher as specified
under Rule 4(1) of the 1978 Rules. The
experience
certificates issued by the
schools which had granted appointment to
the petitioner on the post of Assistant
Teacher will be of no consequence as the
phrase "Teaching Experience" used in Rule
4(2) has to be interpreted to be 'teaching
experience in a recognized school'. The
three years teaching experience as specified
in Rule 4(2)(c) has to be interpreted to
mean an experience certificate issued from
the
recognized
school
where
the
appointment is made in accordance with
Rule 4(1). Any other interpretation to Rule
4(2)(c) would militate against the whole
scheme
of
providing
the
requisite
qualification under Rule 4(2) and would
render the entire purpose of providing
qualification under Rule 4(2)(c) as nullity.
This issue was dealt with the by the Full
Bench of this Court in the case of Ram
Surat Yadav and others vs State of U.P.
and others [(2014) 1 UPLBEC 1] wherein
the Full Bench in para 7 has observed as
under:

"7. Before we deal with the
submissions of the appellants, it is
necessary to note that Rule 4 (1) provides
minimum qualifications for appointment to
the post of an Assistant Teacher. Rule 4 (1)
as it existed prior to 12 June 2008
prescribed as qualifications of eligibility (i)
Intermediate Examination of the Board of
High School and Intermediate Education,
Uttar
Pradesh
or
an
equivalent
examination with Hindi; and (ii) a
teachers' training course recognized by the
State Government or the Board of Basic
Education, such as Hindustani Teaching
Certificate
(HTC),
Junior
Teaching
Certificate
(JTC),
Basic
Teaching
Certificate (BTC) or Certificate of Training
(CT). The selection process was undertaken
in pursuance of an approval which was
1 All. Raj Kumar Vs. State of U.P. & Ors.
475
received with reference to the Rules of
1978 as they stood prior to the amendment
which took place on 12 June 2008
obviously because the selection process
was initiated and completed before the
amendment
had
taken
effect.
Where
statutory Rules prescribe conditions of
eligibility for appointment to a post, a
person
who
does
not
possess
the
qualification which is prescribed cannot
have a lawful entitlement to hold the post.
The appointment of a person who does not
fulfill the eligibility qualification would be
unlawful, being contrary to the Rules."

16. The submission of the Counsel for
the petitioner with regard to the violation of
principles of natural justice, although on
the first brush merit acceptance, however,
considering the fact that the petitioner
never had the requisite qualification for
appointment,
the
non
following
of
principles of natural justice would have no
effect on outcome of the petition as it is
well settled that in service jurisprudence
the allegations of violation of principles of
natural justice have to be fortified by the
test of prejudice caused on account of
violation of principles of natural justice, as
such, the submission on that count by the
Counsel for the petitioner merits rejection.

17. For all the reasons recorded
above, the writ petition lacks merit and is
accordingly dismissed.

18. The submission of Counsel for the
petitioner with regard to the non-following
of the 1999 Rules also merit rejection for
the simple reasons that the appointment of
the petitioner itself was found to be dehors
the Rules and thus, once the appointment is
obtained based upon the incorrect facts, the
Rules need not to be followed.
----------
(2023) 1 ILRA 475
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2022

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ-A No. 40280 of 2011

Raj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha, Sri A.K. Singh, Sri
Pradeep Kumar VI, Sri Shivendu Ojha

Counsel for the Respondents:
C.S.C., Sri Ramesh Chandra Mishra, Sri
Govind Narayan Srivastava

A. Service Law - U.P. Recruitments of
Dependants of Government Servants Dying
in Harness Rules, 1974 - Rule 7-Challenge
to- Compassionate appointment-Petitioner
father died in harness and younger brother
of the petitioner was appointed as an
assistant
teacher-Petitioner
claim
was
rejected before the Committee headed by
the District Inspector of Schools as the
petitioner submitted that the wife of
younger brother is working as assistant
teacher and therefore, he is not in harness
and not entitled for appointment-While
Rule 7 of the Rules, 1974 provides that if
more than one member of the family of the
deceased
Government
servant
seeks
employment under these rules, the Head of
Office shall decide about the suitability of
the person for giving employment keeping
in view of the overall interest of the entire
family-Therefore
the
compassionate
appointment to the younger brother of the
petitioner has been passed on the basis of
the consent of mother and other family
members, hence the same cannot be
quashed.(Para 1 to 11)

The writ petition is dismissed. (E-6)