Mohammad Asif Ansari v. State of U.P. and 5 Others

Court No. - 36 Case :- WRIT - A No. - 11455 of 2023 Petitioner :- Mohammad Asif Ansari Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Pradeep Kumar Upadhyay Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh Kachhawah,Navin Kumar Sharma Hon'ble Manjive Shukla,J.

¶1Heard Sri Anurag Srivastava, learned counsel appearing for the petitioner, learned Standing Counsel appearing for the Respondents No. 1 to 4 and Sri Bhanu Pratap Singh Kachhawah, learned counsel appearing for the Respondents No. 5 and 6.

¶2Mr. Sami Anwar has filed an application for his impleadment as Respondent No. 7 in this writ petition through his counsel, Mr. Navin Kumar Sharma. Learned counsel appearing for the petitioner does not have any objection if the impleadment application is allowed.

¶3Impleadment application is allowed.

¶4Since the application for impleadment has been allowed, therefore, this court has heard the arguments advanced by Sri Navin Kumar Sharma, learned counsel appearing for the Respondent No. 7.

¶5Petitioner through this writ petition has challenged the order dated 30.6.2023 passed by the District Basic Education Officer, Etah, whereby services of the petitioner have been terminated with immediate effect.

¶6Facts of the case, in brief, are that an advertisement was published for making appointments against 60 posts of Assistant Teacher (Urdu). Petitioner on the basis of his eligibility submitted application for his appointment on the post of Assistant Teacher (Urdu) in the primary schools run by the U.P. Basic Education Board, Prayagraj.

¶7Later on, a Committee under the Chairmanship of Principal, District Institute of Education and Training, Etawah considered the matter and held that since petitioner has obtained certificate of Moallim-e-Urdu after year 1998, therefore he is not eligible for appointment on the post of Assistant Teacher (Urdu). Petitioner challenged the aforesaid decision of the Committee dated 22.7.2019 by filing Writ-A No.15412 of 2019 and the said writ petition was allowed by this court vide judgment and order dated 14.11.2019, whereby decision of the Committee dated

22.7.2019 was quashed and a direction was issued to District Basic Education Officer, Etah to pass fresh order in the light of observations made by this court in the decision rendered in Writ-A No. 6004 of 2016 (Sartaj Ahmad and 5 others Vs. State of U.P. and 3 others). The judgment and order dated 14.11.2019 passed in Writ-A No.15412 of 2019 is extracted as under:- "Heard learned counsel for the parties. On 5.11.2019, the Court had passed the following order:- "Heard learned counsel for the petitioners, learned standing counsel for respondent Nos. 1 & 2 and Sri S.K. Srivastava, learned counsel for respondent Nos. 3 & 4. Learned counsel for the petitioners submitted that earlier petitioner No. 3 has filed Writ-A No. 10187 of 2016 (Tahzeeb Fatma vs. State of U.P. and 3 others) which was disposed of by this Court vide order dated 30.01.2018 in terms of order dated 30.01.2018 passed in Writ-A No. 6004 of 2016 (Sartaj Ahmad and 5 others Vs. State of U.P. and 3 others) along with other connected petitions. As per paragraph 11(i) of the judgment of Sartaj Ahmad (Supra), petitioners are fully eligible for appointment. Relevant paragraph 11(i) of the judgment of Sartaj Ahmad (Supra) is quoted below:- "(i) All the petitioners who had taken admission prior to 11.8.1997 in the Moallim-E-Urdu training course and have cleared it during academic session 1997-98 would be entitled to be considered for appointment to the post of Assistant Teacher in Urdu in the primary institutions run by the Department of Basic Education, Uttar Pradesh, for which process had been initiated vide Government Order dated 5.1.2016." It is further submitted that in the impugned order, it is admitted that petitioners have taken admission in Moallim-E-Urdu training course prior to the cut-off date fixed by the Court i.e. 11.08.1997, but considering this fact that mark sheet was issued on 22.10.1998, his candidature was rejected which is absolutely contrary to the direction issued by the Court in the matter of Sartaj Ahmad (Supra). I have perused the impugned order dated 22.07.2019. By the perusal of impugned order, it is apparent that there is no dispute on the point that petitioner had taken admission in course in question prior to the cut-off date fixed by the Court i.e. 11.08.1997 and also there is no dispute raised in the impugned that this admission was not taken in Session 1997-98 and only on the ground of declaration of result on 22.10.1998, their candidatures have been rejected which prima facie appears not in consonace with the direction issued by this Court in the matter of Sartaj Ahmad (Supra). Sri S.K. Srivastava, learned counsel for respondent Nos. 3 & 4 prays for and is granted a week time to seek instruction in the matter. Put up this case on 14.11.2019 in the additional cause list." Pursuant to the order dated 5.11.2019, Sri Sanjay Kumar Srivastava, learned counsel for the respondent nos. 3 and 4 has produced written instruction, which is taken on record. In the written instruction, there is no denial of any fact which was observed by this Court in the order dated

5.11.2019 and only ground has been taken that result was declared on

22.10.1998 after cut-off of date fixed by this Court in Writ-A No. 6004 of 2016 in the matter of Sartaj Ahmad and 5 others Vs. State of U.P. and 3 others, therefore, selection was denied by Committee vide order dated

8.7.2019. Learned counsel for the petitioner submitted that in the matter of Sartaj Ahmad (supra) this Court has only held that admission should have been taken prior to 11.8.1997 in Session 1997-98 and this fact is not disputed, but merely on the ground of date of declaration of result on 22.10.1998, candidature of the petitioners has not been considered and impugned order dated 22.7.2019 has been passed. I have perused the impugned order as well as relevant record and judgment of this Court in the matter of Sartaj Ahmad (supra). Relevant paragraphs 10 and 11 of the said judgment are quoted below:- "10. Once an application for grant of recognition under section 14 of the Act could be moved uptill 31.3.1999, the training certificate issued prior to it cannot be discarded merely for the reason that institution which granted such certificate has not applied for recognition till the academic session 1997-98. The objection of respondents in that regard cannot be sustained. Petitioners' training certificate of Moallim-E-Urdu is thus a valid training certificate when admission had been secured for training programme prior to 11.8.1997.

¶11For the reasons recorded above, this bunch of writ petitions is disposed of by providing as under:-

(i) All the petitioners who had taken admission prior to 11.8.1997 in the Moallim-E-Urdu training course and have cleared it during academic session 1997-98 would be entitled to be considered for appointment to the post of Assistant Teacher in Urdu in the primary institutions run by the Department of Basic Education, Uttar Pradesh, for which process had been initiated vide Government Order dated 5.1.2016.

(ii) Petitioners alongwith certified copy of this order would also submit proof of their admission in the course concerned prior to 11.8.1997 within a period of three weeks from today. It would be open for the concerned District Basic Education Officers to examine the question as to whether admission had in fact been obtained by the petitioners prior to 11.8.1997, as is asserted by them. It goes without saying that other educational certificates etc. would also be open to be examined in accordance with law.

(iii) Petitioners who have already participated in the counselling pursuant to interim orders passed in this bunch of writ petitions and have been selected would be considered for appointment and appropriate orders in that regard would be issued within a period of three months from the date of presentation of certified copy of this order.

(iv) In respect of those petitioners who have not participated in the counselling, it would be open for them to approach the District Basic Education Officer concerned and in case there are posts still lying vacant and the respondents are proposing to conduct further counselling, their claim shall also be considered in accordance with law." By perusal of the said judgment, it is clear that admission is required to be taken prior to 11.8.1997 in Session 1997-98 and there is no dispute on the point that the petitioners had taken admission in Moallim-E-Urdu course prior to cut-off date i.e. 11.8.1997. Once this Court in the matter of Sartaj Ahmad (supra) has not made any observation with regard to issuance of result and it is not disputed that the petitioners had taken admission in the year 1997, date of declaration of result cannot be a ground for rejection of candidature of petitioners. It is also necessary to point out that there is no inordinate delay in date of declaration of result of Session 1997-98 and session would have been completed in June, 1998 and mark sheet was issued on 22.10.1998, therefore, impugned order is bad and liable to be quashed. Accordingly, writ petition is allowed. The impugned order dated 22.7.2019 passed by respondent no. 4-District Basic Education Officer, Etah is hereby quashed. The respondent no. 4-District Basic Education Officer, Etah is directed to pass fresh order in light of observation made by this Court in the matter of Sartaj Ahmad (supra) within four weeks from the date of production of certified copy of this order."

¶8The aforesaid judgment and order dated 14.11.2019 passed in Writ-A No.15412 of 2019 was complied with by the District Basic Education Officer, Etah and petitioner was issued appointment order on 18.1.2020, whereby petitioner was appointed as Assistant Teacher (Urdu) in Primary School Dhaninga Nidhauli Kalan, District Etah. Petitioner since

18.1.2020 started discharging duties attached to his post and he has been paid salary from the State exchequer.

¶9The District Basic Education Officer, Etah vide order dated 10.5.2022 stopped payment of salary to the petitioner for the reason that inquiry regarding petitioner's appointment is being done by the Chief Development Officer, Etah on the basis of some complaints.

¶10The District Basic Education Officer, Etah issued a show cause notice to the petitioner on 31.5.2023, wherein it was mentioned that inquiry report in respect of petitioner's appointment has been submitted by the Chief Development Officer, Etah to District Magistrate, Etah and thereby District Magistrate, Etah has directed the District Basic Education Officer, Etah to take action in the matter on the basis of the findings recorded in the inquiry report. Vide aforesaid notice dated 31.5.2023, petitioner was required to submit his response within a period of one week with further rider that if petitioner fails to submit reply to the show cause notice, petitioner's appointment shall be cancelled.

¶11Petitioner in response to the aforesaid show cause notice dated 31.5.2023 submitted his reply on 3.6.2023 to District Basic Education Officer, Etah. Petitioner in his reply has categorically pointed out that petitioner's certificate of Moallim-e-Urdu course is a valid certificate in view of the judgment rendered by this court in Writ-A No.6004 of 2016, Sartaj Ahmad and others vs. State of U.P. and others. Petitioner in his reply dated 3.6.2023 also took categorical grounds to show that petitioner's appointment has been made on the basis of valid certificate of Moallim-e-Urdu course. Petitioner along with his reply dated

3.6.2023 also annexed various documents to show that his appointment is valid and has been made in compliance of the directions issued by the High Court. Thereafter, District Basic Education Officer, Etah has passed order on 30.6.2023, whereby petitioner's services have been terminated with immediate effect.

¶12Learned counsel appearing for the petitioner has argued that from bare perusal of the order dated 30.6.2023, which is impugned in this writ petition, it becomes crystal clear that reply submitted by the petitioner to the show cause notice has not been considered at all, therefore the impugned order dated 30.6.2023 cannot sustain in the eyes of law. Learned counsel appearing for the petitioner has also vehemently argued that it is well settled proposition of law through catena of judgments of the Hon'ble Supreme Court that once prior to termination of services, show cause notice has been issued to the employee and he has submitted his reply, then it is obligatory on the competent authority to consider each and every point of reply while passing the final order, whereas in the present case, it is patently manifest that reply submitted by the petitioner has not been considered at all, therefore the order dated 30.6.2023, impugned in this writ petition, can not sustain in the eyes of law.

¶13Learned counsel appearing for the petitioner has concluded his arguments by saying that since reply submitted by the petitioner to the show cause notice dated 31.5.2023 has not been considered at all, therefore the order dated 30.6.2023 which is impugned in this writ petition, is liable to be quashed by this court and the matter is liable to be remanded to the competent authority to pass a fresh order after considering each and every point of reply submitted by the petitioner.

¶14Sri Bhanu Pratap Singh Kachhawah, learned counsel appearing for the District Basic Education Officer, Etah has submitted that since in the inquiry conducted by the Chief Development Officer, Etah, petitioner's certificate of Moallim-e-Urdu course has not been found to be a valid certificate, therefore petitioner's services from the post of Assistant Teacher

(Urdu) have been terminated vide order dated 30.6.2023. Sri Bhanu Pratap Singh Kachhawah, learned counsel appearing for the Respondents No.5 and 6 has admitted that reply submitted by the petitioner against the show cause notice dated 31.5.2023 has not been considered, therefore the order dated 30.6.2023 impugned in this writ petition, may be quashed and the matter may be remanded to District Basic Education Officer, Etah to pass fresh order after considering the reply submitted by the petitioner.

¶15Sri Navin Kumar Sharma, learned counsel appearing for the Respondent No. 7 also could not satisfy the court regarding non-consideration of reply submitted by the petitioner while passing the impugned order dated 30.6.2023. Learned counsel appearing for the Respondent No. 7 has also agreed that the order dated

30.6.2023 may be quashed and the matter may be remanded to District Basic Education Officer, Etah to pass fresh order after taking into consideration the reply submitted by the petitioner to the show cause notice dated 31.5.2023.

¶16I have considered the submissions advanced by the learned counsels appearing for the parties. I find that petitioner was appointed on the post of Assistant Teacher (Urdu) pursuant to the order dated 14.11.2019 passed by this court in Writ-A No.15412 of 2019. Later on, some complaints were made regarding illegalities in the petitioner's appointment and an inquiry was conducted by the Chief Development Officer, Etah and he submitted an inquiry report. District Basic Education Officer, Etah issued a show cause notice on 31.05.2023 to the petitioner, whereby he was required to submit his reply in respect of findings recorded in the inquiry report. The relevant extract of the show cause notice dated 31.5.2023 is reproduced as under:- "शिकायतकात मी अनवर न चयशिनत त न शि्ቌका का ्ቚव का शितशि का अशिलेख उपलेब्ध कारय गय ह , जि समी" स्नतका (समीका्ቌ) का परिरणामी का शितशि स प&व ह' मी(अजि)लेमी -ए उቖ኏& (बी ०टी'०स ० समीका्ቌ) मी" ्ቚव ቖ኏य गय ह/ , बीकिका स्नतका पर'्ቌ उቈኍ णा कारन का उपरन्त ह' बी ०टी'०स ० समीका्ቌ मी" ्ቚव शिलेय  सकात ह/। इस ्ቚकार मी(अजि)लेमी ऐ उቖ኏& व्ቧ 1997 मी" पर'्ቌ आवቖ኏न का शितशि का नकार' का बिबीन चयन कारन एव9 मी(अजि)लेमी ऐ उቖ኏& का(स का( रᮆᯚ य अध्यपका शि्ቌ परिर्ቧቖ኏ ቛኋर अमीन्य घो(बि्ቧत कारन आकिቖ኏ का बीबी &ቖ኏ शि्ቌका का चयन किकाय गय ह/। उ्ሹ का दृबि@गत ्ቚमी दृ@य मी(अजि)लेमी ए उቖ኏& का(स धरका उቖ኏& शि्ቌका का चयन अमीन्य ्ቚत त ह(त ह/। अतA आपका( शिनቖ኏Bशित किकाय त ह/ किका उ्ሹ का सम्बीन्ध मी" अपन स्प@ कारणा/प्ቌ शिलेजिखत अशिकान का स सቌኚय एव9 अशिलेख सकिहत एका स቎ኋह का अन्ቖ኏र अቕኘ(हस्त्ቌर' का( उलेब्ध कारन सHशिनजिIत कार", अन्य का जिस्शित मी" आपका उቖ኏& स०अ० का पቖ኏ पर शिनयH्ሹ शिनरस्त कारणा का कायवह' अमीले मी" लेय यग ।"

¶17Petitioner submitted his reply to the aforesaid show cause notice dated 31.5.2023, on 3.6.2023. The relevant extract of the reply submitted by the petitioner is reproduced as under:- "आपका कायलेय ቛኋर शिनगत बिवष्य9किकात कारणा बीतओ न(किटीस का्ቅ मी मी" ्ቚO का स्प@ कारणा शिनम्नवत ह/।

¶1मीनन य उच्च न्ययलेय इलेहबीቖ኏ मी" य(जि त यशिचका स9ख्य 6004/2016 सरत अहमीቖ኏ व अन्य बीनमी उቈኍर ्ቚቖ኏ सरकार व अन्य मी" परिरत शिनणाय मी" बिबीन्ቖ኏H स9ख्य 9 का अनHसर मी(अजि)लेमी ए उቖ኏& का(स का मीन्यत हतH सम्बीजिन्धत स9स् ቛኋर मीन्यत ्ቚቖ኏न किकाय न हतH आवቖ኏न कारन का शितशि

31.03.1999 तका एन.स .टी'.ई. ቛኋर किቖ኏न9का 31.03.1999 का( अशिधस&चन र' का गई  । जि सका अनHसर मीन्यत ्ቚ቎ኋ किकाय न हतH आवቖ኏न का शितशि मी" अजिन्तमी किቖ኏न9का मी" 31.03.1999 तका व[बि\ का गई  । (स9लेग्न 1)

¶2शिकायतकात ቛኋर लेगय गय आर(प शिनरधर एव9 असत्य ह/्ቚ O ቛኋर शिमीय उቖ኏& अले गढ़ स अቖ኏'व ए काशिमीले व्ቧ 1995 मी" का गई  ।्ቚ O ቛኋर इसका पIत शिमीय उቖ኏& अले गढ़ मी(अजि)लेमी ए उቖ኏& व्ቧ 1997 मी" ्ቚव किቖ኏न9का 26.07.1997 मी" ले शिलेय गय । इस्ቚ कार मी(अजि)लेमी ए उቖ኏& का(स प&णातA मीन्य एव9 व/धशिनका ह/। (स9लेग्न 2) अतA ्ቚO का चयन शिनधरिरत अहत प&णा ह(न का आधर पर किकाय गय ह/ ( प&णातA व/ध ह/। (स9लेग्न उ्ሹ वत)

¶18Petitioner has submitted his detailed reply to the show cause notice dated 31.5.2023 and by giving detailed reasons, he has stated that his certificate of Moallim-e-Urdu course is perfectly valid. Petitioner along with his reply also annexed various documents to show that his certificate of Moallim-e-Urdu course is valid and there is no illegality or infirmity in his appointment on the post of Assistant Teacher (Urdu).

¶19The District Basic Education Officer, Etah while passing the impugned order has only stated that petitioner pursuant to show cause notice dated 31.5.2023 has submitted his reply but he has not given any evidence/document along with his reply which can prove the findings recorded in the inquiry report to be incorrect, therefore there is no reason to allow the petitioner to continue in service and accordingly, petitioner's services have been terminated. The relevant portion of the order dated 30.6.2023 is extracted as under:- "उ्ሹ dच का ्ቅ मी मी" कायलेय का पኋ᭖9का 1499-1500/2023/24 किቖ኏न9का 31-5-2023 का ቛኋर उ्ሹ अध्यपका का( कारणा बीतओ न(किटीस शिनगत कार अपन-अपन प्ቌ ्ቚस्तHत किकाय न हतH शिनቖ኏Bशित किकाय गय , इस न(किटीस का ्ቅ मी मी" सम्बीजिन्धत अध्यपका ቛኋर किቖ኏य गय स्प@ कारणा का स का(ई ऐस सቌኚय/अशिलेख उपलेब्ध नह'9 कारय गय किका जि सस dच आख्य का बिवपर'त तथ्य ्ቚका मी" आ सका । ऐस मी" उ्ሹ अध्यपका का( वतमीन मी" सव मी" बीनय रखन का का(ई औशिचत्य नह'9 ह/। अतA उ्ሹ dच आख्य का ्ቅ मी मी" ቦኍ मीत तह व फातमी स०अ० ्ቚ०व मीHढई ्ቚहलेቖ኏नगर बिवकास ्ቌ ኋ᭖ लेसर, ቦኍ मी(हम्मीቖ኏ आशिसफा अ9सर' स०अ० ्ቚ०बिव० धशिनग बिवकास ्ቌኋ᭖ शिन०कालेd एव9 ቦኍ मीHकामी अहमीቖ኏ स०अ० ्ቚ०बिव०(पतपHर बिवकास ्ቌ ኋ᭖ शिन०कालेd का सवय" तत्काले ्ቚव स समी቎ኋ का त ह/।

¶20It is well settled proposition of law through catena of judgments of the Hon'ble Supreme Court that when a show cause notice has been issued to an employee and he has submitted reply to the said show cause notice, then while passing the order terminating the services of the said employee, each and every point of his reply must be considered and it should not be rejected only by saying that reply submitted by the said employee is not sufficient.

¶21This court finds that petitioner has submitted detailed reply to the show cause notice dated 31.05.2023 but the District Basic Education Officer, Etah while passing the order dated 30.06.2023 has not considered his reply at all.

¶22Once reply submitted by the petitioner to the show cause notice dated 31.5.2023 has not been considered, the order dated

30.6.2023 cannot sustain in the eyes of law. Even otherwise, learned counsels appearing for the respondents have agreed to this extent that since reply submitted by the petitioner to the show cause notice has not been considered while passing the order dated 30.6.2023, therefore the impugned order may be quashed and the matter may be remanded to District Basic Education Officer, Etah to pass fresh order after considering the reply submitted by the petitioner.

¶23In view of the aforesaid reasons, this writ petition is allowed, order dated 30.6.2023 passed by the District Basic Education Officer, Etah, is quashed and matter is remanded to District Basic Education Officer, Etah to pass fresh order after considering the petitioner's reply dated 3.6.2023 within one month from the date of service of certified copy of this order.

¶24It is made clear that this court has quashed the order dated

30.6.2023 only on account of non-consideration of reply submitted by the petitioner, therefore he shall not be reinstated in service at once and his reinstatement will depend upon the fresh order to be passed by the District Basic Education Officer, Etah. Order Date :- 21.11.2023 Salim/A. Mandhani , High Court of Judicature at Allahabad