# Vivek Singh And Another v. State Of U.P.Thru Secy & Ors

- **Citation:** (2013) 1 ILRA 225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-13
- **Case number:** Civil Misc. Writ Petition No. 6837 of 2013
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-singh-and-another-v-state-of-u-p-thru-secy-ors-42438
- **Pages:** 5

## Headnote

granted grade) Service Rules 1983appointment of T.G.T. Hindi teacher in
Government
College-essential
qualification-graduate in Hindi plus one
subject as Sanskrit in intermediate-heldcontention
of
petitioner
possessing
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
degree in Sanskrit and Hindi both-hence
over qualification-can not come in way
of petitioner-as such discriminatory as in
private schools said over qualificationaccepted but in Government Collegeignored.

Held: Para-11

 Coming to the decision in State of
Haryana V. Abdul Gaffar Khan (supra)
the
same
indicates
that
the
consideration of higher qualification is
not expressly excluded. The ratio of the
decision again is not attracted, inasmuch
as in the instant case what the petitioner
in essence desires is that the additional
lesser qualifications of Intermediate with
Sanskrit should be ignored as against the
higher qualification of B.A. With Hindi
and Sanskrit. In effect the submission is
that even if a candidate did not have
Hindi and Sanskrit at the Intermediate
level, yet if he possesses graduation with
the said subjects the qualification should
be deemed to be possessed by the
candidate. This ground of equivalence or
possession of a higher qualification
cannot be inferred by any fiction. The
absence of the qualification required at
the lesser does not fall within the
wisdom of this Court to eliminate or
discard an eligibility which is specifically
provided for. The judgment in the case of
State of Haryana does not rule to that
effect.
Case Law discussed:
2000 (2) SCC 606; 2006 (11) SCC 153; 2012
(3) SCC 129; 2011 (1) ESC 115 (FB)

## Text

1 All] Vivek Singh And Another Vs. State of U.P. Thru. Secy. & Ors.
225
irrespective of the fact the same already
exists or is irrelevant and not germane to
the controversy requiring adjudication is
also to be allowed. If this interpretation is
given to the concept then litigation
between the parties would never come to
an end. It is only where amendments are
necessary
for
proper
and
effective
adjudication of dispute between the
parties on merits then the same should not
be rejected on technical ground. The
amendments if allowed in any given case
may require fresh evidence which would
unnecessarily delay the disposal of the
proceedings and for this reason, the
Legislature put a rider by enacting a
proviso to Order VI Rule 17 providing
that after the commencement of trial
litigant
seeking
amendment
in
the
pleadings has to demonstrate that despite
due diligence, the fact could not be
mentioned in the pleadings. Obvious
purpose of enacting the proviso is to
discourage
unwarranted
amendments
being sought in the pleadings with the
purpose of delaying the disposal of the
proceedings.

15. In the case in hand, the facts
sought to be added by way of amendment
by the petitioner were either already
existing in the written statement or were
not germane and irrelevant to the
controversy. Further, the application was
moved after the trial had commenced
without specifying the reasons that the
facts could not be raised or mentioned in
the pleadings before the commencement
of trial. The only reason mentioned in the
amendment application and the affidavit
filed in support thereof is that at the time
of preparation of the case, it transpired
that facts were left out from being
mentioned in the written statement.
Petitioner has not even asserted that facts
were not within his knowledge as such
despite due diligence could not be
mentioned in the written statement.

16. Thus, it appears that amendment
application was not bonafide and was
made at a highly belated stage after the
trial had commenced only with sole
intention to delay disposal of the
proceedings and the same has rightly been
rejected by the Prescribed Authority.

17. In view of the above facts and
discussions, no illegality is reflected in
the impugned order which may require
any interference by this Court.

18. Writ petition accordingly fails
and stands dismissed in limine.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI,J.

Civil Misc. Writ Petition No. 6837 of 2013

Vivek Singh And Another
...Petitioner
Versus
State Of U.P.Thru Secy & Ors. ..Respondents

Counsel for the Petitioner:
Sri Siddharth Khare
Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

U.P. Subordinate Educational (Trained
granted grade) Service Rules 1983appointment of T.G.T. Hindi teacher in
Government
College-essential
qualification-graduate in Hindi plus one
subject as Sanskrit in intermediate-heldcontention
of
petitioner
possessing
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
degree in Sanskrit and Hindi both-hence
over qualification-can not come in way
of petitioner-as such discriminatory as in
private schools said over qualificationaccepted but in Government Collegeignored.

Held: Para-11

 Coming to the decision in State of
Haryana V. Abdul Gaffar Khan (supra)
the
same
indicates
that
the
consideration of higher qualification is
not expressly excluded. The ratio of the
decision again is not attracted, inasmuch
as in the instant case what the petitioner
in essence desires is that the additional
lesser qualifications of Intermediate with
Sanskrit should be ignored as against the
higher qualification of B.A. With Hindi
and Sanskrit. In effect the submission is
that even if a candidate did not have
Hindi and Sanskrit at the Intermediate
level, yet if he possesses graduation with
the said subjects the qualification should
be deemed to be possessed by the
candidate. This ground of equivalence or
possession of a higher qualification
cannot be inferred by any fiction. The
absence of the qualification required at
the lesser does not fall within the
wisdom of this Court to eliminate or
discard an eligibility which is specifically
provided for. The judgment in the case of
State of Haryana does not rule to that
effect.
Case Law discussed:
2000 (2) SCC 606; 2006 (11) SCC 153; 2012
(3) SCC 129; 2011 (1) ESC 115 (FB)

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. The petitioners are assailing the
additional qualification of Intermediate
with Sanskrit from the U.P. Board or an
equivalent examination of Sanskrit as
provided for the post of Assistant teacher
in Hindi in Government Schools governed
by the provisions of the U.P. Subordinate
Educational
(Trained
graduates
Grade)Service Rules, 1983.

2. The submission of Sri Khare was
noted in the order dated 6.2.2013 when
the petition was entertained as quoted
herein under.

"The contention raised by Sri Ashok
Khare learned senior counsel is that the
petitioners
have
applied
for
being
appointed against the post of Assistant
Teacher in T.G.T. grade for Hindi subject
and that they possess graduation degree
with Hindi and Sanskrit as one of the
subject. The petitioners candidature is not
being considered or not likely to be
considered on account of the qualification
prescribed for the said purpose inasmuch
as the requirement is that the candidates
have to possess a bachelor's degree with
Hindi and Intermediate with Sanskrit
from the U.P. Board or an equivalent
examination with Sanskrit.

Sri Khare contends that the petitioners
firstly are in possession of higher
qualifications as they are graduates in
Hindi and Sanskrit. He secondly submits
that the same category of education is
being imparted in privately managed
institutions under the U.P. Intermediate
Education Act,, 1921. The qualification
prescribed
under
Appendix
'A'
for
appointment against such category of post
does not have any such requirement.

The submission of Sri Khare is that their
qualifications are graduation with Hindi
and Sanskrit as one of the subject. He
contends that there is an anomaly in the
matter of qualification for the same
teachers imparting education in different
category for the same course. He contends
that the course of Hindi and Sanskrit at
1 All] Vivek Singh And Another Vs. State of U.P. Thru. Secy. & Ors.
227
that level either in a government school or
a privately managed school is one and the
same and in such circumstances if the
higher qualification of graduation has
been accepted in private schools then in
the
instant
case
the
insistence
of
possession of a lesser qualification is
arbitrary and violates Article 14 of the
Constitution.

Accordingly Sri Khare has even made a
prayer questioning the correctness of the
rules and challenged the vires thereof on
the basis of the aforesaid submissions. He
prays time to assists the Court with
authorities.

Put up on Friday next. "

3. Sri Khare has further advanced
his submission by relying on four
judgments to urge that the possession of a
higher qualification of the same line does
not disqualify the petitioners even if they
do not possess the lesser qualification at
the Intermediate level. The judgments
relied upon are (i) 2000(2) SCC 606
Mohd. Riazul Usman Gani Vs. District &
Sessions Judge,Nagpur, (ii) 2006(11)
SCC 153 State of Haryana Vs. Abdul
Gaffar Khan, (iii) 2012(3) SCC 129 Para
7 Chandrakala Trivedi Vs. State of
Rajasthan and (iv) 2011(1) ESC 115(FB)
Manjit Singh Vs.State of Punjab.

4. I have also heard Sri Tomar
learned standing counsel who has relied
on the decision in the case of Chet Ram
Gangwar Vs. State of U.P. reported in
2009(4) ESC 2569 to contend that the
requisite qualifications are required to be
possessed and the same cannot be
eliminated on the basis of arguments
advanced.

5. Having heard learned counsel for
the parties the first argument of Sri Khare
that the rule is ultra vires cannot be
accepted. The rule making authority has
the competence to make the rule and the
same has been standing for long. Apart
from this it does not offend any of the
fundamental right guaranteed under the
Constitution.

6. The contention of Sri Khare that
there is no justification to have a different
qualification in government schools as
against that of privately managed schools
also cannot be accepted as they belong to
different sources of establishment. It is
open to the State Govt. to frame a
separate rule for these two classes of
institutions unless it can be shown that it
results in discrimination. The petitioners
if find the rule to be harsh they can apply
for appointment in a privately managed
institution, the selections whereof are
conducted by a different body altogether
governed by the provisions of U.P.
Secondary Education Service Selection
Board Act, 1982 and the Rules and
Regulations framed thereunder.

7.

In
addition
to
this,
the
qualification of Intermediate with Sanskrit
or equivalent examination is an additional
qualification which the employer has a
right to provide for. Merely f because
only higher qualifications have been
prescribed
for
privately
managed
institutions, the same cannot be termed to
be discriminatory or violation of Article
14 of the Constitution of India. The mode
of recruitment in both the said institutions
is different and their promotional avenues
are also different. Their separate existence
as a class of teachers with separate modes
of recruitment remains undisputed.
228 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

8. The contention of Sri Khare that
since the government Intermediate college
and privately managed teach the same
subject and same course therefore a
teacher employed in either of the
institutions
cannot
have
different
qualifications
have
to
be
rejected,
inasmuch as, pointed out they are a
different class and governed by different
set of rules.

9. Sri Khare has then vehemently
urged on the basis of the decisions
referred to herein above to contend that
the petitioner has a higher qualification in
the same line of the subject concerned. He
contends that as against these judgments,
some other decisions of the Apex Court
provide a distinction between where the
academic qualifications and the training
qualifications that have been separately
dealt with which do not apply in the
present case.

10. I have perused the judgments noted
above and in my opinion none of them come
to the aid of the petitioners. The reason given
in paras 7,8 and 9 in the case of Chandrakala
(supra) is that the word 'equivalent' shall be
given a reasonable meaning which means
that there is some degree of flexibility or
adjustment which does not lower the stated
requirement. In my opinion providing for an
additional lower qualification specifying the
subject is an additional qualification and the
ratio of the interpretation of the word
'equivalent' in the judgment referred to herein
above is no where attracted in the present
case. Apart from this para 9 of the said
judgment categorically records that it was a
judgment
under
Article
142
of
the
Constitution of India on specific facts of that
case. Accordingly it does not support the
submission of Sri Khare.

11. Coming to the decision in State of
Haryana V. Abdul Gaffar Khan (supra) the
same indicates that the consideration of
higher
qualification
is
not
expressly
excluded. The ratio of the decision again is
not attracted, inasmuch as in the instant case
what the petitioner in essence desires is that
the additional lesser qualifications of
Intermediate with Sanskrit should be ignored
as against the higher qualification of B.A.
With Hindi and Sanskrit. In effect the
submission is that even if a candidate did not
have Hindi and Sanskrit at the Intermediate
level, yet if he possesses graduation with the
said subjects the qualification should be
deemed to be possessed by the candidate.
This ground of equivalence or possession of
a higher qualification cannot be inferred by
any fiction. The absence of the qualification
required at the lesser does not fall within the
wisdom of this Court to eliminate or discard
an eligibility which is specifically provided
for. The judgment in the case of State of
Haryana does not rule to that effect.

12. Coming to the third decision in
the case of Full Bench judgment of the
Rajasthan High Court the court therein
was concerned with the possession of a
higher qualification in the same line and
held that it cannot be excluded from
consideration from selection. In none of
these cases the present situation exists
where the higher qualification and the
lesser qualification have been provided
for specifically in the same line. It was the
wisdom of the rule making authority to
clearly provide that in addition to the
graduate level degree, the candidate has to
possess the knowledge of the Intermediate
level of the subject as well. In such
circumstances none of the judgments as
referred to above by Sri Khare come to
the aid of his alternative arguments in
1 All] Raj Pal Vs. Dist. Inspector Of Schools And. Ors.
229
relation
to
possessing
a
higher
qualification.

13. For the reasons aforesaid the
contention raised by the learned counsel
for the petitioners cannot be accepted.

14. The writ petition is accordingly
dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 7562 of 2013

Raj Pal

 ...Petitioner
Versus
Dist.Inspector of Schools And Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C.
Sri Prabhakar Awasthi

U.P. Intermediate Education Act 1921,
Chapter III Regulation 2-appointment by
promotion post of class III employeeD.I.O.S. held as petitioner does not
possess typing test as required by
Group-D Employees Service Rules in U.P.
Subordinate Offices 2001-can not be
appointed and R-4 already appointed no
compassionate
ground-hence
no
vacancy-held-D.I.O.S. Can not borrow
qualification other than Act-by travelling
beyond authority-order quashed-D.I.O.S.
To consider appointment of R-4 in any
other institution.

Held: Para-16

In the aforesaid circumstances, the
District
Inspector
of
Schools
has
travelled
beyond
his
authority
in
invoking the rules meant for subordinate
services of the state government for the
purpose of qualification to the extent as
indicated in the impugned order which is
unjustified. The order, therefore, having
proceeded on an erroneous assumption
of law cannot be sustained.

Case Law discussed:
2000 Volume 2 ESC Page 820

(Delivered by Hon'ble Amreshwar Pratap
Sahi,J.)

1. Heard Sri Indra Raj Singh, learned
counsel for the petitioner, Sri Prabhakar
Awasthi, learned counsel for the respondent
No.4 and the learned Standing Counsel for
the Respondent No.1 and 2.

2. The contest in this petition is in
relation to post of a clerk (class 3 post) in an
Intermediate College governed by the
provisions
of
the
U.P.
Intermediate
Education Act, 1921 and the regulations
framed thereunder.

3. The petitioner is a Class-IV
employee who is seeking promotion on the
said post in terms of Chapter 3 Regulation2
of the Regulations framed under the 1921
Act.

4. He is aggrieved by the direction of
the District Inspector of Schools ordering
appointment of the respondent no.4 against
the post available in the institution on
compassionate basis in terms of the
regulation aforesaid. The petitioner contends
that there is only one post of Class-III
available in the institution which has to be
filled up by way of promotion keeping in
view the law laid down by this Court in the
case of Jai Bhagwan Singh Vs. District
Inspector of Schools, Gautambudh Nagar
and others 2006 volume 9 ADJ Page 292.