# Tej Pal Kaushik v. State of U.P. and another

- **Citation:** (2008) 2 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-03
- **Case number:** Civil Misc. Writ Petition No. 29235 of 2007
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tej-pal-kaushik-v-state-of-u-p-and-another-41080
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.
226Regularisation-petitioner
working
as
Principal on Ad-hoc basis-for the last 17
years-requisite qualification for principal
of
Government
industrial
Training
Institute is B.Tech (Electronic) while
petitioner
is
M.
Tech.
From
IIT
Kharagpur-by
impugned
orderregularisation refused on the basis of
Uma
Devi
case-nothing
whether
regarding
lack
of
qualification-or
concealment
of
facts
on
initial
appointment-No reason disclosed for
ignoring the expert opinion in favour of
petitioner-order
not
sustainabledirection issued for fresh consideration.

Held: Para 19 & 20

Thus, in view of the above, we are of the
considered opinion that the respondent
authorities while passing the impugned
order did not record any reason for not
agreeing with expert opinions and in
case of doubt why they failed to refer the
matter to Expert Committee for its
opinion and under what circumstances
experience possessed by the petitioner
for about 18 years has been completely
ignored.

In the facts and circumstances of the
case, it is warranted that the matter be
remanded for re-examination. As the
petitioner is out of service, the case
requires
to
be
decided
within
a
stipulated period.
Case law discussed:
1965 SC 491, AIR 1986 SC 1448, AIR 1975 SC
192, (1979) 2 SCC 339, AIR 1980 SC 2141,
AIR 1990 SC 434, AIR 1991 SC 2272, AIR
1992 SC 917, AIR 1994 SC 579, (1997) 8 SCC
31, (2000) 3 SCC 59, (2001) 5 SCC 486,
(2006) 4 SCC 1

## Text

2 All] Tej Pal Kaushik V. State of U.P. and another
437
7. The Registrar General is directed
to send a copy of this order to Sri Shiv
Sharma, the then Additional Sessions
Judge, Court No.2, Bijnor for his future
guidance.
 Application disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 29235 of 2007

Tej Pal Kaushik

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan
Sri P.S. Chauhan

Counsel for the Respondents:
Sri R.B. Pradhan
Sri Arvind Kumar
S.C.

Constitution
of
India,
Art.
226Regularisation-petitioner
working
as
Principal on Ad-hoc basis-for the last 17
years-requisite qualification for principal
of
Government
industrial
Training
Institute is B.Tech (Electronic) while
petitioner
is
M.
Tech.
From
IIT
Kharagpur-by
impugned
orderregularisation refused on the basis of
Uma
Devi
case-nothing
whether
regarding
lack
of
qualification-or
concealment
of
facts
on
initial
appointment-No reason disclosed for
ignoring the expert opinion in favour of
petitioner-order
not
sustainabledirection issued for fresh consideration.

Held: Para 19 & 20

Thus, in view of the above, we are of the
considered opinion that the respondent
authorities while passing the impugned
order did not record any reason for not
agreeing with expert opinions and in
case of doubt why they failed to refer the
matter to Expert Committee for its
opinion and under what circumstances
experience possessed by the petitioner
for about 18 years has been completely
ignored.

In the facts and circumstances of the
case, it is warranted that the matter be
remanded for re-examination. As the
petitioner is out of service, the case
requires
to
be
decided
within
a
stipulated period.
Case law discussed:
1965 SC 491, AIR 1986 SC 1448, AIR 1975 SC
192, (1979) 2 SCC 339, AIR 1980 SC 2141,
AIR 1990 SC 434, AIR 1991 SC 2272, AIR
1992 SC 917, AIR 1994 SC 579, (1997) 8 SCC
31, (2000) 3 SCC 59, (2001) 5 SCC 486,
(2006) 4 SCC 1

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the impugned order dated
01st June, 2007 by which the petitioner
has been denied regularisation of services
on the ground that at the initial stage of
appointment on ad-hoc basis he did not
possess the requisite qualification.

2. The facts and circumstances
giving rise to this petition are that
petitioner was appointed as Principal on
ad-hoc basis in Government Industrial
Training Institute vide order dated 05-101988 for a period of one year or till the
regular selections are made by the Public
Service
Commission
whichever
was
earlier.

3. As the vacancies could not be
filled up by the Commission on regular
basis, period of employment had been
extended from time to time by passing
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
specific orders. While granting the reemployment, there has been an artificial
break of two days' time and the petitioner
continued to serve the institution at
different places as is evident from
different transfer orders till 26-10-2005.
After serving 17 years on ad-hoc basis,
the petitioner's service came to an end
vide order dated 26-10-2005 only on the
ground that his service could not be
regularized as the regularization have
been made in cases of other similarly
situate persons on the ground that
petitioner did not possess the requisite
qualification for appointment on the said
post on the date of initial appointment.

4. In fact, the petitioner has passed
M.Sc. (Physics) with specialisation in
Electronics and subsequent thereto M.
Tech. from IIT, Khadakpur though the
requisite qualification for the post of
Principal as per rules was B. Tech.
(Electronics) or any other equivalent
qualification.

5. Being aggrieved, petitioner
challenged the said order by filing writ
Petition No. 72154 of 2005 wherein the
interim order was passed on the basis of
which petitioner continued to be in
service and as an interim measure this
Court directed the respondent authorities
to re-examine the case of the petitioner. In
pursuant thereto, the impugned order
dated 1st June, 2007 has been passed
refusing the relief of regularisation on the
ground that on initial date of appointment
the petitioner did not possess the requisite
qualification
i.e.
B.
Tech./B.E.
(Electronics) or equivalent thereof.

6. We have heard Sri Shashi
Nandan, learned Senior Counsel duly
assisted by Sri P.S. Chauhan, learned
counsel for the petitioner and Sri R.B.
Pradhan, learned Standing Counsel for
respondents.

7. It has been submitted on behalf of
the petitioner that petitioner's experience
of 18 years has completely been ignored
and while recording the finding of fact
that petitioner did not possess the
qualification
equivalent
to
requisite
qualification, no reasons have been
recorded. More so, the opinion sought by
the respondents from the Vice Chancellor
of Chaudhary Charan Singh University,
Meerut and from the Vice Chancellor of
U.P.
State
Technical
University,
Lucknow, the same had been in favour of
the petitioner but benefit of their opinion
has not been given to him. Thus, the
petition deserves to be allowed.

8. On the contrary, Sri R.B. Pradhan,
learned
Standing
Counsel
for
the
respondents submitted that issue of
equivalence of qualification etc. lies
within exclusive domain of the authority
and as the Court lacks expertise in the
subject it should leave the matter to be
decided
by
the
Expert
Committee.
Therefore, petition lacks merit and is
liable to be dismissed.

9. We have considered the rival
submissions made by the parties and
perused the record.

10. Undoubtedly, the issue of
determination
of
equivalence
of
qualification has to be done exclusively
by the Expert Committee and as the Court
lacks experience/expertise in the subject,
it remains outside the scope of judicial
review in ordinary circumstances.
2 All] Tej Pal Kaushik V. State of U.P. and another
439
11. A Constitution Bench of the
Supreme Court, in The University of
Mysore & Anr. Vs. C.D. Govindarao &
Anr., 1965 SC 491, held that in academic
matters
where
the
decision
under
challenge
has
been
taken
by
the
Committee of Experts, "normally the
Court should be slow to interfere with the
opinion expressed by the experts" unless
there are allegations of mala fide against
any of the members of the expert
committee.

12. In Rajendra Prasad Mathur Vs.
Karnataka University & Ors., AIR 1986
SC 1448, the Hon'ble Supreme Court
held as under:-

"It is for each University to decide
the question of equivalence and it would
not be right for the Court to sit in
judgment over the decision of the
University because it is not a matter on
which the Court possesses any expertise.
The University is best fitted to decide
whether any examination held by a
University outside the State is equivalent
to an examination held within the State
having regard to the courses, the syllabus,
the quality of teaching or instruction and
the standard of examination. It is an
academic question in which the Court
should not disturb the decision taken by
the University."

13. A similar view has been
reiterated by the Hon'ble Supreme Court
in the State of Bihar & Anr. Vs. Dr. A.K.
Mukherjee & Ors., AIR 1975 SC 192; Dr.
M.C. Gupta & Ors. Vs. Dr. Arun Kumar
Gupta & Ors., (1979) 2 SCC 339; Dr. J.P.
Kulshrestha & Ors. Vs. Chancellor,
Allahabad University & Ors., AIR 1980
SC 2141; Dalpat Abasaheb Solunke &
Ors. Vs. Dr. B.S. Mahajan & Ors., AIR
1990 SC 434; Dr. Uma Kant Vs. Dr.
Bhika Lal Jain & Ors., AIR 1991 SC
2272; Bhushan Uttam Khare Vs. The
Dean, BJ. Medical College & Ors., AIR
1992 SC 917; The Chancellor & Anr. Vs.
Dr. Bijaynananda Kar & Ors., AIR 1994
SC 579; Central Areca Nut & Cocoa
Marketing & Processing Co-operative
Ltd. Vs. State of Karnataka & Ors.,
(1997) 8 SCC 31; Chairman, J & K State
Board of Education Vs. Feyaz Ahmed
Malik & Ors., (2000) 3 SCC 59; and
Dental Council of India Vs. Subharti
K.K.B. Charitable Trust & Anr., (2001) 5
SCC 486; wherein the Hon'ble Supreme
Court held that in the matter of academic
courses, the Court should not disturb the
decision
taken
by
the
educational
institution/State etc. unless there are
compelling circumstances and sufficient
material warranting the interference.

14. Admittedly, two opinions have
been sought by the respondent authorities.
It is evident from the report of the Vice
Chancellor of Chaudhary Charan Singh
University, Meerut dated 12-02-2002 that
he has opined that the petitioner possessed
the equivalent qualification. So far as the
report of Vice Chancellor of U.P.
Technical University dated 30th May,
2002 is concerned, a similar opinion has
been expressed mentioning further that as
the petitioner had been working for last
18 years and person having similar
qualification had earlier been appointed as
Principal
on
similar
institutions,
appropriate decision may be taken.

15. Respondent authorities passed
the impugned order observing that expert
opinions sought by them were not binding
on them. The petitioner did not possess
the requisite qualification at the time of
initial appointment. Placing reliance upon
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the judgement of Hon'ble Supreme Court
in Secretary, State of Karnataka & Ors.
Vs. Uma Devi & Ors., (2006) 4 SCC 1,
the claim of the petitioner has been
rejected. No reasons have been recorded
for not agreeing with the opinions
expressed by the two Vice Chancellors
though deemed to be expert in their
respective fields.

16. It is settled legal proposition that
while passing such an order reasons have
to be recorded, particularly when a person
successfully hold the post for last 18 years
and it has not been brought on record that
the service rendered by the petitioner had
been unsatisfactory or he had played any
fraud/misrepresentation at the time of
initial appointment. In such a fact
situation, the authority ought to have
considered that the State authority could
not be permitted to take benefit on his
own mistake, though estoppel does not lie
against the statutory provisions.

17. While dealing with the similar
situation, the Hon'ble Supreme Court in
Bhagwati Prasad Vs. Delhi State Mineral
Development Corporation, AIR 1990 SC
371, wherein the regularisation has been
refused on similar ground held as under:

"The indisputable facts are that the
petitioners were appointed between the
period 1983 and 1986 ever since, they
have been working and have gained
sufficient
experience
in
the
actual
discharge of duties attached to the posts
held by them. Practical experience would
always aid the person to effectively
discharge the duties and is a sure guide to
assess the suitability. The initial minimum
educational qualification prescribed for
the different posts is undoubtedly a factor
to be reckoned with, but it is so at the
time of the initial entry into the service.
Once the appointments were made as
daily rated workers and they were allowed
to work for a considerable length of time,
it would be hard and harsh to deny them
the confirmation in the respective posts on
the ground that they lack the prescribed
educational qualifications."

18. Undoubtedly, regularisation has
to be granted considering large number of
factors including possession of requisite
qualification on the date of appointment.
But where incumbent had held the post
successfully for about two decades, his
experience on the post could have also
been taken into consideration.

19. Thus, in view of the above, we
are of the considered opinion that the
respondent authorities while passing the
impugned order did not record any reason
for not agreeing with expert opinions and
in case of doubt why they failed to refer
the matter to Expert Committee for its
opinion and under what circumstances
experience possessed by the petitioner for
about 18 years has been completely
ignored.

20. In the facts and circumstances of
the case, it is warranted that the matter be
remanded for re-examination. As the
petitioner is out of service, the case
requires to be decided within a stipulated
period.

21. Thus, in view of the above, we
set aside the impugned order dated 01st
June, 2007 and request the respondent no.
1 to re-determine the issue involved
herein by making reference to an Expert
Committee, by a speaking and reasoned
order expeditiously, preferably within a
period of three months from the date a
2 All] Tarun Kumar V. State of U.P. and others
441
certified copy of this order is filed before
him. Writ petition is allowed subject to
the observation made.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 12931 of 2008

Tarun Kumar

...Petitioner
Versus
State of U. P. and others ...Respondents

Counsel for the Petitioner:
Sri Vishnu Behari Tiwari

Counsel for the Respondents:
S.C.

Constitution of India, Art. 23-'Begar'-
petitioner
appointed
on
honorarium
basis for fixed terms-with stipulation no
right for regularization-if management
taking other work also-petitioner can
refused to work or to file damage suitbut
public
exchequer
can
not
be
burdened nor it can be termed as
'Begar'-while complete ban on Ad-hoc
appointment.

Held: Para 12

In the instant case, the aforesaid law
does not apply at all. It is not the case or
petitioner that he had been working as
full time teacher or had ever been
appointed as full time lecturer nor he has
stated that he had been forced to work
in contravention of the terms of his
appointment letter or the Government
Order
under
which
he
has
been
appointed.
Case law discussed:
AIR 1983 SC 328, 2000 (1) AWC 221, A.I.R,
1986 SC 584, (1986) 1 SCC 637, AIR 1982 SC
1473. 2000 (1) A.W.C. 221, (2004) 1 A.W.C.
321, (2002) 2 ESC 427

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
seeking the following reliefs:

(i) Issue a writ or order or direction in
the nature of mandamus to punish the
respondents for contravention of Article
23 of the Constitution of India in
accordance with law.
(ii) Issue a writ or order or direction in
the nature of mandamus to pay the
amount of compensation of Rs. 15 lacs to
the petitioner from the respondents.

2. The aforesaid reliefs had been
sought by the petitioner on the ground
that the petitioner, who is duly qualified
to be appointed as a teacher (lecturer) in a
degree college affiliated to the University
and aided by the State Government, had
been exploited and forced to work at a
meagre amount of Rs.5,000/= (enhanced
to Rs.8,000/=) per month.

3. The petitioner applied in
pursuance of an advertisement dated 2204-1998 for appointment on honorarium
for the subject of Botany in D.S.A.
College, Unnao. He was appointed and
joined on 01-08-1998. Since then the
petitioner had been working continuously.
In addition to teaching work, he has also
been
looking
after
the
other
responsibilities as being In-charge of
game etc. The petitioner was paid
honorarium at the rate of Rs.5,000/= per
month upto 10th September, 2006 and
subsequent thereto he is getting a sum of
Rs.8,000/= per month. The petitioner
claims that he had been working under
compelling circumstances on meagre