# Smt. Fatma Parveen & others v. State of U.P. and others

- **Citation:** (2000) 3 ILRA 140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-04-07
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-fatma-parveen-others-v-state-of-u-p-and-others-39487
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
140
Apparently, all the honorarium appointees
were
required
to
file
undertaking/declaration for making no
claim for regular appointment vis-s-vis
regularly
selected
candidate
by
the
Commission being available or after 30th
June- when new 'honorarium assignment'
is to be made. There is a clear and well-
conceived attempt to misrepresent facts by
concealing relevant material and thereby
mislead the Court.

36.
The
concerned
educational
authorities required management of a Post
graduate Government aided institutions
affiliated to a State University to obtain an
'affidavit' on stamp in view of Para 3 of
the Government Order dated 07th April
1998. Copy of letter dated 21st May 1998
sent by Director of Higher Education, U.P.
to Government to Government aided postgraduate institutions referred to above
shows
that
format
of
application,
appointment and declaration (Anubandh)
were enclosed. Petitioners have not filed
copies of the above formats/documents
with the petition as perusal of these
documents would have clearly exposed
that honorarium appointee was required to
give a declaration that he shall get himself
automatically relived on 30th June or
earlier in case of a duly selected candidate
by the Commission being available and
that he shall make no claim in this respect.
Such persons, like the Petitioner, cannot be
permitted to resile from his undertaking
without
establishing
necessary
facts
necessary for withdrawing an admission.
There is no foundation for such a
withdrawal in the petition.

In view of the above, Petitioners are
not entitled to the relief claimed and the
Writ Petitions are liable to be dismissed
with costs.

In view of what has been stated above
earlier Writ Petition No. 39404 of 1999
having been filed by Dr. Sanjay Kumar
Singh has become infructuous. This fact
may be brought to the notice of the Bench
when said Writ Petition is listed Copy of
this judgment shall be kept on the record
of Writ Petition No. 39404 of 1999 (Dr.
Sanjay Kumar Singh versus State of U.P.
and others0.

For the reasons given above, the
above Writ Petition. Civil Misc. Writ
Petition No. 27220 of 2000 including all
other above referred writ petitions fail and
dismissed.

No order as to costs.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( %+$*:$1 ',1 -
7+( +21·%/( %+$*:$1 ',1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6PW )DWPD 3DUYHHQ DQG RWKHUV
«3HWLWLRQHUV
9HUVXV
6WDWH RI 83 WKURXJK 6HFUHWDU\
.DUPLN 9LEKDJ /XFNQRZ
DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHUV
6KUL $VKIDT $KPDG $QVDUL
6KUL 6: $OL
&RXQVHO IRU WKH 5HVSRQGHQWV
6&
6* +DVQDLQ

83
%DVLF
6KLNVKD
$GK\DSDN
6HZD
1L\DPDZDOL
3ROLF\
GHFLVLRQ
WR
DSSRLQW
8UGX
$VVLVWDQW
7HDFKHUV
LQ
3ULPDU\
6FKRROV3RVWV
DGYHUWLVHG
VHOHFWLRQ
OLVW
SUHSDUHG
VXEVHTXHQW
3All] Smt. Fatma Parveen & others V. State of U.P. and others
141
FDQFHOODWLRQ ZLWKRXW HQTXLU\ VKRZLQJ DQ\
LUUHJXODULW\
RU
YLRODWLRQ
RI
UXOHV
FDQFHOODWLRQ KHOG WR EH DUELWUDU\ DQG
PDODILGH+HQFH TXDVKHG
+HOG3DUD
7KH UHVSRQGHQWV KDYH QRW SURGXFHG DQ\
GRFXPHQW RI UHFRUG GHPRQVWUDWLQJ WKH
ERQDILGH RI WKH UHVSRQGHQW QR WKDW KH
HQTXLUHG LQWR WKH PDWWHU DQG IRXQG VRPH
LUUHJXODULW\
LQ
WKH
VHOHFWLRQ
RI
WKH
FDQGLGDWHV DQG WKDW WKHUH VPDFNHG VRPH
FRUUXSWLRQ
RU
IDYRXULWLVP
7KH
UHVSRQGHQWV QR DQG KDYH QRW VKRZQ
D JRRG FRQGXFW LQ WKH FRXUW DOVR 7KH\
KDYH QRW ILOHG WKH FRXQWHU DIILGDYLW LQ WKH
UHJLVWU\ DIWHU VXSSO\LQJ WKH FRS\ RI WKH
VDPH WR WKH SHWLWLRQHUV¶ FRXQVHO , DP
XQDEOH WR XQGHUVWDQG DV WR ZK\ WKH\ GLG
QRW
SODFH
WKH
VDPH
LQ
WKH FRXUW IRU
SHUXVDO
:KDW
WUDQVSLUHV
IURP
WKH
FRQGXFW RI WKH UHVSRQGHQWV LV WKDW WKH\
KDYH QRWKLQJ RQ UHFRUG WR VKRZ WKH FRXUW
WKDW
WKH
RUGHU
RI FDQFHOODWLRQ RI WKH
VHOHFWLRQ OLVW RI
XUGX $VVLVWDQW 7HDFKHU
ZDV EDVHG RQ VRXQG UHDVRQV DQG WKDW LW
ZDV
VR
GRQH
DIWHU
HQTXLU\
DQG
WKH
UHVSRQGHQW QR ZDV VDWLVILHG WKDW VRPH
LUUHJXODULW\ KDV EHHQ FRPPLWWHG RU WKH
UXOHV SURYLGLQJ IRU VHOHFWLRQ KDV EHHQ
YLRODWHG ,Q VXFK VWDWH RI FLUFXPVWDQFHV
DQG KDYLQJ UHJDUG WR WKH REVHUYDWLRQV RI
WKH
+RQ¶EOH
6XSUHPH
&RXUW
TXRWHG
DERYH QR RWKHU YLHZ H[FHSW WKDW WKH
UHVSRQGHQW QR KDV DUELWUDULO\ DQG ZLWK
PDODILGH LQWHQWLRQ FDQFHOOHG WKH VHOHFWLRQ
OLVW E\ WKH LPSXJQHG RUGHU GDWHG
 FDQ EH WDNHQ 7KHUHIRUH LW GHVHUYHV
WR EH TXDVKHG
&DVH ODZ GLVFXVVHG
-7 6&
-7 6&

By the Court

1. The State Government (respondent
No. 1) took a policy decision to appoint in
the year 1995-96 about 5,000 Urdu
Assistant
Teachers
in
the
Primary/Upgraded
Primary
Schools
established and managed by the U.P. Basic
Shiksha
Parished
in
this
regard
a
Government
order
No. 2709/15-5-9575/95
dated
21-7-1995
was
issued,
providing that such appointments shall be
made under the provisions of U.P. Basic
Shiksha Adhyapak (Sewa Niyamawali),
1981 in pursuant to the aforesaid policy
decision. The District Basic Shiksha
Adhikari issued a notice, published on 6-81995 in daily newspaper Amar Ujala,
Meerut
inviting
applications
for
appointment on the posts of Urdu Assistant
Teacher. A number of candidates applied
for. After scrutiny those found suitable,
were allowed to appear in the competitive
examination held on 10-9-1995. After
valuation of the performances in the
competitive
examination,
a
list
of
successful candidates was published on
15-9-1995. But the appointment letters
were not issued to the selected candidates
for quite a long time, therefore, by means
of this petition under Article 226 of the
Constitution of India, the petitioners
sought for a writ in the nature to
mandamus
directing
the
District
Magistrate, Saharanpur, the respondent no.
5 and the Basic Shiksha Adhikari,
Saharanpur, respondent no. 6 to issue
appointment letters to the petitioners.

2. Initially, this petition was filed by
four petitioners, but later on, 10 others
jointed the suit. They have been impleaded
as petitioners no. 5 to 14.

3. During the pendency of the
petition, the petitioners could know, that
the District Magistrate, respondent no. 5
had already cancelled the selection list by
order dated 11-10-1995 and fresh notice
inviting applications for appointment on
the post of Urdu Assistant Teacher in the
district has been issued. Therefore, they
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
142
sought, by amendment, to add in the
prayer clause to the effect that:-

"to issue a writ, order or direction in
the nature of certiorari quashing the
impugned order dated 11-10-1995 passed
by
the
respondent
no.
5
and
the
advertisement dated 13-9-1998 issued by
respondent no. 6."

4. Mohd. Aslam, the petitioner no. 2
filed a rejoinder affidavit in the court after
serving a copy thereof on the Chief
Standing Counsel. On receipt of the
rejoinder affidavit, it was believed that the
counter affidavit must have been filed by
the respondents in the office. So a
direction to the office was made for tracing
out the counter affidavit and placing the
same on record. The office on 6-3-2000
reported that no counter affidavit has been
filed by the respondents so much so, there
is no entry of receipt in the progress
register. It appears that the respondents
after supplying a copy of the counter
affidavit to the petitioners counsel, did not
file the same in the Registry. Since no one
was present on that date on behalf of the
respondents, therefore, no orders could be
passed and the petition was directed to be
listed on next day. On the next day also no
one was present for the respondents,
therefore, the matter was again directed to
be listed on the next day. One Sri Fahim
Ahmad, holding brief of Sri S.G. Hasnain,
the counsel for respondents no. 4 and 6
appeared
on
9-3-2000 and he was
informed that on 13-3-2000 the case will
be taken up for admission/hearing. On the
said date, the lawyers were on strike,
therefore, the matter was taken up on 30-32000. Learned Standing Counsel appeared
for respondents no. 1,2, and 5 but did not
file even the copy of the counter affidavit
supposed to have had been filed by the
respondents in the Registry. None was
present representing the respondents no. 4
and 6. Thus the petition has not been
contested by the respondents.

5. The grievance in this petition is
mainly against respondents no. 5 and 6.
But none has come forward to oppose the
petition. I heard the counsel for the
petitioners. For want of instructions and
the counter affidavit, on record, the learned
Standing Counsel, was not in a position to
controversy the assertions made in the
petition and the submissions offered by the
counsel for the petitioners.

The admitted facts, as it appears from
the record, are;-

(1) That the State Government took a
policy decision to appoint Urdu Assistant
Teachers in Primary School, established by
the U.P. Basic Shiksha Parishad.

(2) That the Basic Shiksha Adhikari,
respondent no. 6 issued a notice in the
daily newspaper Amar Ujala inviting the
applications for appointment on the post of
Urdu
Assistant
Teacher
in
Primary
Schools in District Saharanpur.

(3) That
a
number
of
candidates,
including the petitioners did appear in the
competitive test held on 10-9-1995 and
after evaluation of the performance of the
candidates in the competitive test, a list of
selected
candidates,
contained
in
annexure-4 to the writ petition, was
published on 15-9-1995 and

(4) That
the
District
Magistrate,
Saharanpur, respondent no. 5 cancelled the
selection list by order dated 11-1-1995.
3All] Smt. Fatma Parveen & others V. State of U.P. and others
143
6. The sole contention of the learned
counsel appearing for the petitioner is that
the act of the respondent no. 5, cancelling
the selection list, is arbitrary and in
violation of the settled norms and the
standard. It is submitted by him that the
Basic Shiksha Adhikari was the member of
the Committee constituted for selection of
the Urdu Assistant Teacher for their
appointment in the Primary Schools in the
district, the District Magistrate on the sole
ground that the Basic Shiksha Adhikari
orally informed that some basic errors
have been committed in the selection of
the candidates for apointment as Urdue
Assistant Teachers, cancelled the selection
list, without holding enquiry that the
selection has been vitiated on account of
the violation of the Rules or for the reason
that it smacks of corruption, favouritism,
nepotism or the alike.

7. Hon'ble Supreme Court in Dr.
Mukherjee V. Union of India and other
(judgements Today 1993 (5) SC 439) has
held that-

"In the backdrop of these facts, this Court,
while repelling the extreme submission
that the Government as the appointing
authority wields absolute power to approve
or disapprove of the list at its sweet-will,
observed, that where the Government is
satisfied after due enquiry that the
selection has been vitiated on account of
vio9lation of rules or for the reason that it
smacks
of
corruption,
favouritism,
nepotism or the alike, it may refuse to
approve the list in which case if must
record the reasons for its action and
produce the same in court".

8. Similarly in the case of Bhagwan
Parshu Ram College and another v. State
or Haryana and others (Judgments Today
199 (10) SC 29), the Hon'ble Supreme
Court has held that:-

"It is no doubt true that the position in law
is that a selection process commenced for
an appointment may be cancelled or
stopped at any stage or not completed by
appointment of the selected candidate but
such action can be attacked as arbitrary or
mala fide."

9. In the instant case, the petitioners
appeared in the competitive test and the
Committee
found
them
suitable
for
appointment as Urdu Assistant Teacher in
the
Primary
Schools
and,
therefore,
declared them successful. The District
Magistrate whimsically giving a lame
reference to the conversation with the
Basic Shiksha Adhikar; respondent no. 6,
cancelled the selection list and refused to
issue appointment letter to the petitioners
and other selected candidates shown in the
select list, contained in Annexure-4 to the
writ petition. The respondents have not
produced
any
document
or
record
demonstrating
the
bonafide
of
the
respondent no. 5 that he enquired into the
matter and found some irregularity in the
selection of the candidates and that there
smacked some corruption or favouritism.
The respondents no. 5 and 6 have not
shown a good conduct in the court also
they have not filed the counter affidavit in
the registry after supplying the copy of the
same to the petitioners' counsel. I am
unable to understand as to why they did
not place the same in the court for perusal.
What transpires from the conduct of the
respondents is that they have nothing on
record to show the court that the order of
cancellation of the selection list of Urdu
Assistant Teacher was based on sound
reasons and that it was so done after
enquiry and the respondent no. 5 was
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
144
satisfied that some irregularity has been
committed of the rules providing for
selection has been violated. In such state of
circumstances and having regard to the
observations of the Hon'ble Supreme
Court, quoted above, no other view, except
that the respondent no. 5 has arbitrarily
and with malafide intention cancelled the
selection list by the impugned order dated
11-10-1995, can be taken. Therefore, it
deserves to be quashed.

10. The writ petition is allowed. The
impugned order dated 11-10-1995 is
hereby quashed. The respondents no. 5 and
6 are directed to issue appointment letters
to all the candidate whose names appear in
the selection list, contained in Annexure-4
to the Writ petition.

Petition Allowed.