State of Uttarakhand and ors. Vs. Sanjay Singh and ors.

State of Uttarakhand and ors. vs Sanjay Singh and ors.

Type Court Judgment Court Uttaranchal Decided Feb 09, 2010

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Citation: sooperkanoon.com/902459
Court: Uttaranchal High Court
Judge: J.S. Khehar, C.J. and; Sudhanshu Dhulia, J.
Decided On: Feb 09, 2010
Subject: Service

Case Summary

AI-generated summary - not the official court judgment text.

- MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of...

Key legal issue: Service

Parties & Advocates

Appellant / Petitioner

State of Uttarakhand and ors.

Respondent

Sanjay Singh and ors.

Excerpt

.....his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal..........in physical education. it is not a matter of dispute, that all the respondents, as also other similarly situated as them, were declared ineligible despite the fact that they possessed the qualification of 'vyayam ratna' from 'maharani laxmi bai vyayam mandir, vyayam college, jhansi'. the contention of the learned counsel for the appellants before this court is, that the aforesaid qualification has not been recognized as equivalent to diploma in physical education, and as such, the same cannot be taken into consideration to determine the eligibility for candidates applying for the posts of assistant master (physical education).7. whilst the contention at the hands of the learned counsel for the appellants is based on equivalence, we are of the view that the issue of equivalence does not arise under the rule extracted above. a perusal of the rule extracted above reveals, that two qualifications have been prescribed for the eligibility for the post under reference. firstly, a bachelor's degree from a recognized university or a degree recognized by the government as equivalent. secondly, diploma in physical education. a close examination of the prescribed qualification postulates that the requirement of a bachelor's degree from a recognized university, or alternatively a bachelor's degree accepted as equivalent thereto by the government. the postulated diploma qualification, however, stands on a different footing. the rule does not mandate the qualifications of a diploma from a specified institution and therefore, the equivalence thereof is an irrelevant consideration. the rule only mandates the possession of the qualification of diploma in physical education. the question therefore to be determined is, whether the respondents in this case, and others similarly situated as them, who had acquired the 'vyayam ratna' qualification from 'maharani laxmi bai vyayam mandir, vyayam college, jhansi' possess the prescribed qualification. the answer to this is in the.....

Full Judgment

J.S. Khehar, C.J.

Delay Condonation Application No. 388 of 2010

1. For the reasons indicated in the application, we are satisfied that the delay in filing the instant Special Appeal deserves to be condoned. The same is accordingly condoned.

Special Appeal No. 2 of 2010

2. A bunch of writ petitions was filed in this Court raising identical issues. One of the aforesaid writ petitions i.e. Writ Petition (SS) No. 580 of 2009 was filed by the respondent Sanjay Singh and a few other similarly situated as him. The aforesaid writ petitions were prompted by the action of the appellants in not considering their claims for appointment against the post of Trained Graduate Assistant Teacher (Physical Education) advertised in June 2002, October 2004 and November 2004. The claim of the candidature of the petitioners was sought to be denied on account of the fact that they were treated as ineligible for consideration.

3. In all the aforesaid writ petitions including Writ Petition (SS) No. 580 of 2009, a learned Single Judge of this Court arrived at the conclusion, that the petitioners were prima facie eligible for appointment against the advertised post, and accordingly, directed the appellants herein to consider their candidature in furtherance of the advertisements referred to hereinabove.

4. The aforesaid order passed by the learned Single Judge on 4.9.2009 is subject matter of challenge at the hands of the appellants through the instant Special Appeal.

5. The only issue canvassed at the hands of the learned Counsel for the appellants pertains to the eligibility of the candidates adjudicated upon by the learned Single Judge. In order to demonstrate the ineligibility of the candidates, learned Counsel for the appellants has invited our attention to the Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 (hereinafter referred to as the Service Rules). In so far as the eligibility for the post of Assistant Master/Assistant Mistress (Physical Education) is concerned our pointed attention has been invited to Rule 8, and to Serial No. 6 thereof, relating to the post of Assistant Teacher (Physical Education). Serial No. 6 delineating the qualification to the post under reference. Serial No. 6 is being extracted hereunder:

6. Assistant Bachelor's Degree from aMaster/Assistant recognized University orMistress (Physical Education). a degree recognised bythe Government as equivalentthereto and Diploma in PhysicalEducation.

6. The sole contention of the learned Counsel for the appellants is, that the respondents, and all others similarly situated as them, were ineligible for appointment to the post of Assistant Master (Physical Education) as they do not possess the qualification of Diploma in Physical Education. It is not a matter of dispute, that all the respondents, as also other similarly situated as them, were declared ineligible despite the fact that they possessed the qualification of 'Vyayam Ratna' from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi'. The contention of the learned Counsel for the appellants before this Court is, that the aforesaid qualification has not been recognized as equivalent to Diploma in Physical Education, and as such, the same cannot be taken into consideration to determine the eligibility for candidates applying for the posts of Assistant Master (Physical Education).

7. Whilst the contention at the hands of the learned Counsel for the appellants is based on equivalence, we are of the view that the issue of equivalence does not arise under the rule extracted above. A perusal of the Rule extracted above reveals, that two qualifications have been prescribed for the eligibility for the post under reference. Firstly, a bachelor's degree from a recognized university or a degree recognized by the Government as equivalent. Secondly, Diploma in Physical Education. A close examination of the prescribed qualification postulates that the requirement of a bachelor's degree from a recognized University, or alternatively a bachelor's degree accepted as equivalent thereto by the Government. The postulated Diploma qualification, however, stands on a different footing. The Rule does not mandate the qualifications of a Diploma from a specified institution and therefore, the equivalence thereof is an irrelevant consideration. The rule only mandates the possession of the qualification of Diploma in Physical Education. The question therefore to be determined is, whether the respondents in this case, and others similarly situated as them, who had acquired the 'Vyayam Ratna' qualification from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi' possess the prescribed qualification. The answer to this is in the affirmative for two reasons. Firstly, the Government Order dated 18.11.1982 wherein the qualification of 'Vyayam Ratna' from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi' was recognized as Diploma in Physical Education; and secondly, that 'Vyayam Ratna' from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi' has been recognized as a Diploma in Physical Education by NCTE. Thus viewed, we are satisfied that 'Vyayam Ratna' from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi' is liable to be treated as Diploma in Physical Education, for all intends and purposes. In fact, the instant aspect of the matter stands confirmed by a letter of the Director of Education, Uttarakhand dated 31.8.2007 (Annexure-8 to the writ petition).

8. The conclusion recorded by us hereinabove, must be read in addition to the two findings recorded by the learned Single Judge. Firstly, that the qualification of 'Vyayam Ratna' from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi' is equivalent to the qualification of Diploma in Physical Education (inspite of the view expressed by us hereinabove, that the issue of equivalence is irrelevant to the present controversy). And secondly, persons possessing the same qualification i.e. 'Vyayam Ratna' from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi' have been treated as eligible by the State of Uttarakhand under the Rule extracted hereinabove, and have been appointed against the post of Trained Graduate Assistant Teachers (Physical Education) hither to before.

9. For the reasons recorded hereinabove, we find no merit in the Special Appeal and the same is accordingly dismissed.

10. In the set of writ petitions filed before the learned Single Judge including Writ Petition (SS) No. 580 of 2009, the only issue arising for consideration was, whether the petitioners in the said bunch of cases were eligible for appointment as Trained Graduate Assistant Teachers (Physical Education). The learned Single Judge vide his order dated 4.9.2009 has already arrived at the conclusion that the petitioner who had approached this Court were eligible. Through the instant Special Appeal, we have examined the objections raised at the hands of the appellants, to the determination rendered by the learned Single Judge in his order dated 4.9.2009. Having considered the objections of the appellants, we have concurred with the view expressed by the learned Single Judge vide his order dated 4.9.2009, and as such, have concluded that the petitioners having the qualification of 'Vyayam Ratna' from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi' were all eligible for consideration against the post of Trained Graduate Assistant Teachers (Physical Education) in response to an advertisements issued in June 2002, October 2004, and November 2004. Having so determined, there is no other issue that remains pending to be considered at the hands of the learned Single Judge.

11. In view of the above, while dismissing the instant Special Appeal, we hereby with the consent of the learned Counsel for the rival parties prepone all the connected writ petitions listed for consideration on 9.9.2009, so as to take them on the board, for final disposal today itself.

12. Having arrived at the conclusions recorded hereinabove we are satisfied that the petitioners in Writ Petition (SS) No. 614 of 2009, Writ Petition No. (SS) No. 580 of 2009, Writ Petition (SS) No. 604 of 2009, Writ Petition (SS) No. 635 of 2009 and Writ Petition (SS) No. 643 of 2009, possessing the qualification of 'Vyayam Ratna' from 'Maharani Laxmi Bai Vyayam Mandir, Vyayam College, Jhansi' must be deemed to possess the qualification of Diploma in Physical Education, and as such, are eligible to be considered for the posts of Trained Graduate Assistant Teachers (Physical Education). The aforesaid writ petitions are allowed. The selecting agency/appointing authority, is accordingly directed to consider their candidatures in the selection process for appointment to the posts of Trained Graduate Assistant Teachers (Physical Education), advertised in June 2002, October 2004 and November 2004.

13. Special Appeal No. 2 of 2010 and Writ Petition (SS) No. 614 of 2009, Writ Petition No. (SS) No. 580 of 2009, Writ Petition (SS) No. 604 of 2009, Writ Petition (SS) No. 635 of 2009 and Writ Petition (SS) No. 643 of 2009 are accordingly disposed of in the aforesaid terms.

Same Court & Year Uttaranchal · 2010 Same Parties State of Uttarakhand and ors. vs Sanjay Singh and ors. Same Subject Service Same Judge J.S. Khehar, C.J. and; Sudhanshu Dhulia, J.

Service