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Baij Nath Singh Vs. the State of Uttar Pradesh Through the Secretary, Education (B) Department and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2648 of 1958
Judge
Reported inAIR1965All151
ActsConstitution of India - Articles 12, 16(1) and 226; Uttar Pradesh Primary Education Act, 1919; Uttar Pradesh Primary Education Rules - Rule 4
AppellantBaij Nath Singh
RespondentThe State of Uttar Pradesh Through the Secretary, Education (B) Department and ors.
Appellant AdvocateS.N. Kacker, Adv.
Respondent AdvocateS.C. Khare and ;Yashodanandan, Advs.
DispositionPetition dismissed
Excerpt:
.....- cause of action arises everyday - no question of delay in presenting the petition - power under the article discretionary - held, where a person is holding a post for a long time no complaint against him - issue of writ would have been vexatious - high court can refuse the writ. - - according to the petitioner sri ishwar saran was not qualified for being appointed to that post, it appears that the director of education was not satisfied with the appointment and wrote to the state government that sri zshwar saran did not possess the requisite statutory qualifications and requested it to cancel its approval. the form in which certificates were granted to the second category of teachers is given in annexure b2 to the petition which mentions that he has satisfied the director of..........some interest. the petitioner, therefore, has the locus standi to challenge the appointment of sri ishwarsaran if, in his view, the appointment was made against a statutory provision. 6. this petition cannot be dismissed on the ground of delay also. in sonu sampat shewale v. jalgaon borough municipality ilr (1958) bom 113 a bench of the bombay high court held as follows: 'if the appointment of an officer is illegal, every day that he acts in that office a fresh cause of action arises; there can, therefore, be no question of delay in presenting a petition for a writ of quo warranto in which his very right to act in such a responsible post has been questioned.' a similar relief is capable of being granted in the present case also and, therefore, the petition cannot be dismissed on the.....
Judgment:

D.D. Seth, J.

1. This is a petition under Article 226 of the Constitution. The opposite party No 2 in the petition was the Administrator, Municipal Board. By an order passed on an application made by the petitioner the name of the Administrator was removed from the array of opposite parties and in his place Nagar Mahapalika, Allahabad through the Mukhya Nagar Adhikari Allahabad was substituted.

2. The facts, in brief, according to the petition, are that on 2nd May 1956 an advertisement was published in the local papers of Allahabad inviting applications from trained M. As. or M. Ses. for the post of Superintendent of Education in the then Municipal Board of Allahabad. In response to the advertisement ninety applications were received and 38 persons were called for interview who were all post graduates and either held the degree of L. T. or B. T. or held Acting Teachers Certificate. Out of the 38 persons called for interview only 21 persons appeared before the Interview Board and one of those 21 persons was Sri Ishwar Saran opposite party No. 3 to the petition. The Interview Board decided to appoint. Sri Ishwar Saran in preference to other candidates and the appointment was duty made on 10th October 1956. It was confirmed by the State Government on 5th December 1956. The District Inspector of Schools also gave his approval to the proposal of the Interview Board to appoint Sri Ishwar Saran as Superintendent of Education. The petitioner had also applied for the appointment to that office hut was not selected by the Interview Board. The petitioner addressed a representation on 8th October 1957 to the Secretary to Government U. P., Education Department, Lucknow and drew the attention of the State Government to the illegality committed in appointing Sri Ishwar Saran as Superintendent of Education in the Municipal Board, Allahabad.

According to the petitioner Sri Ishwar Saran was not qualified for being appointed to that post, it appears that the Director of Education was not satisfied with the appointment and wrote to the State Government that Sri Zshwar Saran did not possess the requisite statutory qualifications and requested it to cancel its approval. The State Government, however, by a letter dated 31st March 1958 informed the Administrator of the Municipal Board that the petitioner's representation had been rejected by it. This order further directed that the persons holding Acting teachers Certificate would be deemed to be trained persons Cor the purposes of appointment as Superintendent of Education in the Municipalities in Uttar Pradesh. On a further representation to the State Government by the Director of Education the State Governmentdirected that its order dated 31st March 1958 should not be deemed to be an order having general application but one which would apply only to Sri Ishwar Saran as a special case. The joint Director of Education, therefore, by a letter dated 7th August 1958 informed the petitioner that his representation to the State Government dated 8th October 1957 had been rejected. The petitioner thereupon came to this Court under Article 226 of the Constitution and prayed that a writ in the nature of quo warranto may be issued directing Sri Ishwar Saran opposite party No. 3 to the petition, to show to the satisfaction of this Court the lawful authority by which he claims to hold the office of the Superintendent of Education in the Municipal Board of Allahabad. It was further prayed that a writ of mandamus may be issued to the State Government commanding it to withdraw its approval accorded to the appointment of Sri Ishwar Saran as Superintendent of Education and that the opposite party No. 2 be commanded to treat the office of the Superintendent of Education as vacant and not filled up in accordance with law and to take suitable steps to fill up the same.

3. A counter affidavit has been filed on behalf of Sri Ishwar Saran and the petitioner has filed a rejoinder affidavit.

4. I have heard Sri S. N. Kacker the learned counsel for the petitioner, Sri S. C. Khare appearing on behalf of Sri Ishwar Saran and Sri Yashodanandan appearing on behalf of the Nagar Mahapalika, Allahabad. Nobody has appeared before me on behalf of the State. Sri S. C. Khare has raised two preliminary objections. His first objection is that the petitioner has no legal right to file the petition as he was not qualified for the appointment to the post of Superintendent of Education as at the time of the interview in 1956 he was below 35 years of age and hence he was not an aggrieved party on that date. The second objection is that the petition is much too belated as the petition was filed in this Court on 17th September 1958, i.e. after about two years of the appointment of Sri Ishwar Saran. I find no force in these objections.

5. The question whether the petitioner was below 35 years of age at the time of the interview is a question of fact which cannot be decided in a petition under Article 226 of the Constitution. It is true that the relief asked for in a petition under Article 226 of the Constitution must be one to enforce a legal right and the legal right must be of the petitioner himself who complains of the violation of such a right but Article 226 of the Constitution is very wide in its scope. It confers a very wide power on the High Court to issue directions and writs of the nature mentioned in that Article. In my view every citizen has a legal right to file petitions for writs in the nature of habeas corpus or quo warranto as every citizen has the right to approach the Court for relief where the freedom of the individual is threatened or if he thinks that there has been a violation of any statutory provision or rule in making an appointment in which the public at large has some interest. The petitioner, therefore, has the locus standi to challenge the appointment of Sri IshwarSaran if, in his view, the appointment was made against a statutory provision.

6. This petition cannot be dismissed on the ground of delay also. In Sonu Sampat Shewale v. Jalgaon Borough Municipality ILR (1958) Bom 113 a Bench of the Bombay High Court held as follows:

'If the appointment of an officer is illegal, every day that he acts in that office a fresh cause of action arises; there can, therefore, be no question of delay in presenting a petition for a writ of quo warranto in which his very right to act in such a responsible post has been questioned.'

A similar relief is capable of being granted in the present case also and, therefore, the petition cannot be dismissed on the ground of delay.

7. I now proceed to consider the points urged by Sri S. N. Kacker. He submitted that the office of Superintendent of Education in the then Municipal Board of Allahabad was a statutory office which could be filled up only in accordance with the provisions contained in the U. P. Primary Education Act (hereinafter referred to as the Act) and the rules framed thereunder which was not done in this case. In this connection he further submitted that the appointment of Sri Ishwar Saran was in conflict with the minimum requisite qualifications prescribed by Rule 4(x) of the rules framed under Section 18 of the Act and as such the appointment was void since he was not a trained teacher as he did not possess the necessary qualifications as are required by the rules framed under the Act. The next submission of Sri Kacker was that the appointment of Sri Ishwar Saran was unconstitutional and void as in appointing him to the post of the Superintendent of Education the State Government and the Administrator Municipal Board denied to the petitioner and to the other persons who had applied for appointment to that post equality of opportunity in the matter of the appointment as provided by Article 16 of the Constitution.

Sri Kacker urged that under Sub-section (3) of Section 1 of the Act the Act was part of and supplementary to the U. P. Municipalities Act. Under Section 3 of the Act the State Government had issued a notification making primary education for boys and girls compulsory within the municipal limits of Allahabad. Under Section 18 of the Act the State Government was given authority to make rules for determining generally what shall be considered to be the adequate provision for compulsory and free primary education. Rule 4 framed under Section 18 of the Act provided that adequate provision for primary education for purposes of Section 4 of the Act shall comprise of various things mentioned in the said Rule. One of the things mentioned in Sub-clause (viii) of Rule 4 is that a Superintendent of Education shall be appointed in every municipality. Sub-clause (x) of Rule 4 framed under the Act provided that the Superintendent of Education and his assistants shall be trained teachers who shall be appointed by the Municipal Board in consultation with the Circle Inspector of schools.

By an order dated 2nd August 1949 which was subsequently supplemented by another order dated 15th May 1956 the State Government laid down the minimum qualifications for the cadre of Superintendents of Education and Assistant Attendance officers in various municipalities. These twoorders provided that for the municipality of Kaval town the minimum qualifications for a Superintendent of Education shall be a trained M. A. or M. Sc. According to Sri Kacker Sri Ishwar Saran was working as an Assistant Attendance officer at the time he was called for interview by the Interview Board. Although he was M. A. he did not possess any regular training certificate as he possessed only an Acting Teachers Certificate (A. T. C.) which was not a regular training certificate. Sri Kacker submitted that the Acting Teachers certificate was only a concession awarded by the Education Department to some old untrained teachers working in aided schools so that their services might not be terminated by the management of those schools on the ground that they were not trained. He also submitted that the said certificate was granted without passing any examination and only after a refresher course of only two months had been undergone by the teachers concerned.

According to Sri Kacker the said certificate specifically declared that the holder thereof was fit to work as a teacher only in aided institutions in Uttar Pradesh. 'Sri Kacker urged that Sri Ishwar Saran held Acting Teachers Certificates of a category the requisite minimum qualifications for which were that the teachers should have at least passed the High School examination and put in five years of continuous and satisfactory service before 31st December 1946 and as such he was not a trained teacher within the meaning of Sub-rule (x) of Rule 4 framed under the Act. It is, therefore, clear that the office of the Superintendent of Education in the Municipal Board of Allahabad was a statutory office. It, therefore, follows that it could be filled up only in accordance with the provisions contained in the Act and the rules framed thereunder. Section 68 of the U. P. Municipalities Act gives power to the Municipal Board to appoint by special resolution principal officers of its technical departments including the Secy. and Superintendent of Education. This section is certainly an enabling section but the necessary qualifications for the post of the Superintendent of Education in a Municipal Board have not been prescribed by the U. P. Municipalities Act.

It is the Act which is part of and supplementary to the U. P. Municipalities Act which prescribes those qualifications. Who is a trained teacher has not been defined by the Act or the rules framed thereunder. The fact that Sri Ishwar Saran possessed only an Acting Teachers Certificate is admitted. Annexure B 3 to the petition is relevant in this connection. It reads as follows:

'Acting Teachers Certificate Pramanit kiya jatahai ki Ishwar Saran ne jo Municipal Board Allahabad ke Adhyapak hain do mas May tatha June 1947ki rifresher kors ki shikchha prapt ki hai, Inkakam Santosh janak tha. Yeh Ukta prant menSarkari sahayata pane wale Vidhyalaya men Adhyapak niyukta kiye jane ke yogya ghosit kiye jatehain.'

Sd/- R. P. Klohalu,

M. A. L. T.

Registrar,

Shilkchha Vibhag Parikcha,

Ukta prant.

7-10-1948.

8. It may be noted that the Acting TeachersCertificate was awarded to three categories of teachers working in aided institutions. The first category was of those teachers who were appointed before 1st January 1927. The form in which the certificate was awarded to the first category of teachers is given in Annexure B1 to the petition. It mentions that 'he is hereby declared eligible for appointment in the United Provinces as a teacher in an aided institution on the same terms as a trained teacher. The Second category of teachers to whom Acting Teachers Certificate was granted was of those teachers who were appointed between 1st January 1927 and 1st August 1931 and had at least passed the Intermediate Examination. The form in which certificates were granted to the second category of teachers is given in Annexure B2 to the petition which mentions that he has satisfied the Director of Public Instruction, United Provinces, that he is an efficient teacher and is hereby declared eligible for appointment in the United Provinces as a teacher in an aided institution on the same terms as a trained teacher.' it is, therefore significant that the words on the same terms as a trained teacher are missing in the acting teachers certificate awarded to the teachers of the third category which consisted of those who were granted the certificate in the year 1948.

Sri Ishwar Saran admittedly belonged to the 3rd category of teachers and was awarded the Acting Teachers Certificate the form of which is given in Annexure B3 to the petition and from which the words 'on the same terms as a trained teacher' are missing. That fact itself shows that the Acting Teachers Certificate granted to the petitioner did not make him a trained teacher. Annexure 1 to the counter affidavit is a copy of the Government order dated 18th January 1947 issued by the Secretary to the Government, Education Department which provides that the Acting Teachers Certificate should be granted to such untrained teachers (both men and women) serving in recognised Anglo Hindustani Schools of these provinces as fulfil the following conditions: Para 143 of the Education Code of Uttar Pradesh provides rules regarding the appointment of teachers in all recognised institutions. These rules were framed for the purpose of appointment of teachers in the recognised Higher Secondary Schools and not for the office of the Superintendent of Education in a Municipal Board. It is true that Sub-rule (x) of Rule 4 of the rules framed under the Act did not require any particular type of training but it cannot be said that any kind of training was sufficient for the appointment of a Superintendent of Education in a Municipal Board. In my opinion the word 'trained' implies training imparted by a duly constituted training college. It, therefore, must be held that Sri Ishwar Saran was not a trained teacher within the meaning of Sub-rule (x) of Rule 4 framed under the Act and he was, therefore, not qualified to be appointed as Superintendent of Education to the Municipal Board of Allahabad.

9. As regards the submission of Sri Kacker that in appointing Sri Ishwar Saran to the post of Superintendent of Education in the Municipal Board of Allahabad the State Government and the Administrator of the Municipal Board denied to the petitioner and to the other persons who had applied for that appointment equality of opportunity asprovided by Article 16 of the Constitution, attention may be drawn to Annexures D and E to the petition. Annexure D is an order passed by the State Government on 31st March 1958 and was in reply to a letter sent to the State Government by the Nagat Mahapalika, Allahabad. it reads as follows :

'Mahodey,

Aapke patra sankhya 4234 A.D.M. S.T.E.D. Dinank December 27, 1957 ke parsang men mujhe aapko soochit karne ka aadesh hua hai ki rajyapal mahodey ne uparynkki vishey per Sri Baij Nath Singh ke savedan patra ko radd kar diya hai aur aadesh diya hai ken nagar palikayon men shiksha adhikashak ke pad per niyukti ke liye A. T C. Trained ke anusar nianya hai.'

Annexure E is another order of the State Government dated 7th August 1958, it makes a reference to the previous order dated 31st March 1958 and mentions that:

'..... dinank March 31/1958men shasan ne jo aagya di hai woh samanya agya nahin, waran nagar palika Allahabad men Sikchha Adhikachhak ke pad per kewal Sri Ishwar Saran matra ki niyukti ke liye hi vyaktigat adesh ya rajagya hai, jo tathaya aap bhavisya ke liye kripya vishes rup se not kar len.'

These two orders are directly in conflict with Rule 4 of the rules framed under the Act, I find in Sri Kackers' submission that these orders favoured Sri Ishwar Saran alone and were discriminatory as far as the other candidates to the post of the Superintendent of Education in the Municipal Board of Allahabad were concerned. No orders could be passed by the State Government which were in conflict with the statutory provisions contained in Rule 4 of the rules framed under the Act. The two orders which are Annexures D and E to the petition were in my opinion arbitrary. Article 16(1) of the Constitution reads thus: '(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.' Local authorities are included in the word 'State' as is clear from Article 12 of the Constitution, which reads thus:

'In this part, unless the context otherwise requires, the State includes the Government of India and the Government and the legislature of each of the State and all local or other authorities within the territory of India or under the control of the Government of India.'

What Article 16(1) of the Constitution guarantees is equality of opportunity to all citizens in respect of the matters relating to employment to any office under the State. The order dated 7th August 1958 issued by the State Government which is Annexure E to the petition picked out Sri Ishwar Saran for preferential treatment and must, therefore, be held to be discriminatory as far as the petitioner and the other candidates who had applied for the post of Superintendent of Education in the Municipal Board were concerned. Rule 4 framed under the Act contemplates no such discrimination. It is, therefore, clear that the petitioner was denied equality of opportunity in the matter of employment by the Municipal Board. Both the arguments of Sri Kacker are therefore well-founded.

10. The petitioner, however, is not necessarily entitled to the issue of a writ of quo warranto as Article 226 of the Constitution is discretionary in nature. There are circumstances in this case which, in my view, favour the exercise of my discretion in favour of opposite party No. 3. It will be, in my opinion, vexatious to issue a writ of qua warranto in this case as Sri Ishwar Swan has been holding the office of the Superintendent of Education since 1956 and the Municipal Board of Allahabad of the Nagar Mahapalika seem to have no complaint against him. It will, therefore, not be proper to disturb the existing position.

11. I, therefore, dismiss this petition but under the circumstances I order the parties to beartheir own costs.


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