The Allahabad High Court has observed that any appointment contrary to requirements in the advertisement would be void ab initio and the petitioner who has admittedly mentioned in the form that he has passed high school which was factually incorrect, it was nothing but fraud.
The Court ruled that any qualification attained during the pendency of the writ petition would not condone the fraud played by the petitioner.
A single-judge bench of Justice Saurabh Shyam Shamshery heard the petition filed by Dharmendra Kumar Srivastava.
The writ petition has been filed seeking following relief :-
“(i) To issue writ order or direction in the nature of certiorari quashing the impugned order dated 06.04.1998 passed by the respondents.”
The Court has passed the following order on 25.07.2022:-
“The petitioner was terminated from the post of Driver on the ground that he had not passed High-School Examination as provided under the relevant Advertisement/Rules.”
The counsel for the petitioner has admitted that the petitioner had not passed High School Examination and was only passed Class 9. The impugned termination order has been challenged before the Court by the present writ petition. In 1998, interim order was passed, whereby the impugned termination order was stayed and since then, the petitioner is working, i.e, almost 25 years under the interim order. Presently, the petitioner is aged about 55 years old and age of superannuation is 60 years. During pendency of the writ petition, the petitioner has passed High School Examination in 2001.
In these circumstances, considering that the petitioner has already served more than 25 years of service of which 24 years are under the interim order, therefore, at this stage if any adverse order is passed, it would prejudice the petitioner as well his family.
Therefore, being a welfare State, the respondents are directed to obtain fresh instructions that in peculiar facts and circumstances of case, that during pendency of this writ petition, petitioner has qualified High School Examination (essential qualification) and has already worked for more than 25 years (about 24 years under interim order) and that he is presently 55 years old therefore whether the petitioner may be continue to work till he attains the age of superannuation. List after two weeks.”
Bushra Maryam, the counsel for the High Court, submitted that since the petitioner has not been regularised or granted other service benefits, this matter be heard on merits.
Anil Bhushan, senior counsel for the petitioner, submitted that at the time of appointment in 1997, the petitioner had passed Class 9, however, he failed in high school. Still the concerned authority in the Judgeship at Hamirpur appointed the petitioner on ad hoc basis as driver on 08.05.1997.
Senior counsel further submitted that high school was not an eligible qualification and different Judgeships have adopted different criteria to appoint drivers. The petitioner has not committed any fraud. He has submitted his mark sheet of Class 10 (fail) and therefore the respondents, only after considering the petitioner to be eligible, appointed the petitioner as driver. No notice was issued to the petitioner before the impugned order of termination. The petitioner has already worked for 25 years under the interim order, therefore, equity is also in his favour.
Senior Counsel has also pointed out that Rule 11 of the UP Subordinate Civil Courts Inferior Establishment Rules, 1955 provides junior high school or equivalent examination to be essential qualification and not the high school, though petitioner has passed Class 10 during the pendency of the writ petition.
Senior Counsel has also placed reliance upon the judgment of the Supreme Court in the case of Dr M.S Mudhol Vs Shri S.D Halegkar and submitted that in case the employee is continued to hold a post for a very long period, it would be inadvisable to disturb him from the said post at the late stage particularly when he was not at fault when his selection was made.
Bushra Maryam, counsel for High Court, has pointed out that the advertisement in pursuance of which the petitioner applied clearly described that the essential educational qualification was Class 10. The said advertisement is not under challenge before the Court. Admittedly, the petitioner was not qualified in terms of the advertisement, however, he has attained that qualification during the pendency of the writ petition.
“On the basis of above submissions and material on record, the petitioner was not having essential qualification of Class 10 as required by the advertisement because the recruitment was based on Class 10 and admittedly the petitioner has not passed 10th class when he applied for the post. Though in the form against education qualification, the petitioner had mentioned high school which was a false declaration.
The argument of the Senior Counsel that equity is in favour of the petitioner is also contrary to the well established law that equity follows law and law is against the petitioner as he was not qualified at the time when he initially appointed and subsequent fulfillment of educational qualification will not make the initial appointment legal.
The Court has specifically asked the counsel for respondents to take instructions whether the petitioner can be continued as he has already worked for many years, however, the instructions were in negative.
Therefore, considering the above factual aspects and law, the appointment of the petitioner is void ab initio and the petitioner cannot be granted any benefit of the interim order as well as now he has attained eligible educational qualification. In these circumstances, there is no illegality in the impugned order,” the Court observed while dismissing the petition.