IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1050 of 2003 (S/S) Km. Kavita Pandey D/o Sri P.P. Pandey R/o Ashirwaad Ashok Vihar New Colony Teen Pani Haldwani P.O. Arjunpur District Nainital … Petitioner Versus 1. District Inspector of School, Almora 2. Principal, Government Girls Higher Secondary School Bhikiyasen, Almora 3. Joint Director (Education) (Kumaon) 4. State of Uttaranchal through Additional Director (Education) Dehradun, Uttaranchal …Respondents Sri J.C. Joshi, learned senior counsel assisted by Sri Chetan Joshi, learned counsel for the petitioner Sri Paresh Tripathi, learned standing counsel for the respondents Hon’ble B.C. Kandpal, J. By way of this writ petition a relief has been sought in the nature of certiorari quashing the impugned order dated 30.08.2003 (annexure 14 to the writ petition) passed by respondent No. 3 terminating the services of the petitioner from the post of Assistant teacher. Brief facts of the case are that the petitioner applied for the post of Assistant Teacher L.T. grade in music in response to an advertisement made in the newspaper. The petitioner has passed her high school and intermediate as regular candidate thereafter she passed her B.A. from Kumaon University and M.A. (Music & Vocal) from Indra Kala Sangeet Vishwidyalaya, Khairagarh, Chhattisgarh. The petitioner thereafter passed her Visharad exam in the year 1997 from Bhatkhande Music College, Lucknow with centre at Bhatkhande Sangit Vidyapith, Almora. In the advertisement dated 17.06.2002, Joint Director (Kumaon) invited application for the post of L.T. Grade teachers in various subjects. 2 In women branch 8 posts were advertised for the post of Music Teacher in general category. The advertisement was published in Amar Ujala and the petitioner, in view of the aforesaid advertisement sent her application form to respondent No. 3. As per the petition, the mark-sheet of Visharad exam could not be attached along with the application form, hence, she received a reminder for sending the mark-sheet of Visharad exam within 15 days and in compliance to that letter she sent her mark-sheet of Part-I and Part-II of Visharad on 14.02.2003. The petition further reveals that the respondents thereafter issued the appointment letter vide letter dated 31.05.2003 which was received by the petitioner on 01.07.2003 and the petitioner was posted at Government Higher Secondary School, Bhikiyasen, Almora as trained graduate music teacher. The petitioner joined on the aforesaid post on 03.07.2003. All the formalities as desired in the appointment letter by the authority concerned were completed before her joining in the college. The petitioner has further averred in her petition that on 18.07.2003, the Principal of the college refused to take work from the petitioner and stopped the petitioner from signing the attendance register. The petitioner thereafter received a letter on 06.08.2003 stating therein that she had obtained the appointment on the basis of wrong facts and declaration. The petitioner submitted her explanation against the aforesaid letter vide letter dated 07.08.2003 and also appeared before the Joint Director – Education (respondent No. 3) in order to explain the matter in detail. The respondent No. 3 after having considered the entire matter cancelled the appointment of the petitioner with immediate effect vide letter dated 30.08.2003. Feeling aggrieved by the aforesaid order, the petitioner has preferred this writ petition before this Court. Counter affidavit has been filed by the respondent No. 3 who has stated therein that the petitioner had concealed the material facts and 3 obtained the appointment letter on the basis of incorrect information furnished by her in the application form. It has been pleaded in the counter affidavit that had the mark-sheet of Visharad examination been taken into consideration the quality points to be provided to the petitioner would have been very less and in those circumstances there would be no scope with the petitioner to obtain the appointment order. It has also been pleaded that the petitioner in fact had passed her Visharad examination in the year 1997 with IInd Division though the certificate which has been filed by her showed that she passed the examination with Ist Division and on the basis of this aspect, the petitioner could succeed in getting 12 more quality points for which she was not entitled. The petitioner has filed the rejoinder affidavit reiterating the facts mentioned in the writ petition. Heard learned counsel for the parties and perused the record. As per the select, list, it appears that the petitioner was placed at second position on the basis of the quality points provided to her. Although, it is pleaded by the respondents that the petitioner had concealed the material facts as she did not furnish the mark-sheet of Visharad examination, therefore, 12 more quality points were awarded to her in view of the certificate of Visharad examination filed by her along with the application form. In order to appreciate the situation in this case some more factual aspects are to be kept in mind. The petitioner moved the application in lieu of the advertisement made in the newspaper but she did not submit the mark-sheet. But at the same time this cannot be ignored that the petitioner received a reminder form the office of the respondent No. 3 stating therein that she should sent the mark-sheet within 15 days. The letter issued from the office of respondent No. 3 dated 31.01.2003 makes the picture clear that the petitioner was asked to furnish the copy of Visharad mark-sheet within 15 4 days so that the selection process may not be delayed further. This letter was received by the petitioner on 13.02.2003 and as per the petition she sent the mark-sheet of Visharad immediately on 14.02.2003 along with the application. The petitioner has stated this fact specifically in paragraph 13 and 14 of the writ petition, which reads as follows:- “13. That in response to her application on 31.01.2003, the petitioner received a letter under postal certificate to sent her marksheet of Visharad exam within 15 days of receipt of the letter.” 14. That the said letter was received on 13 Feb 2003 and petitioner immediately responded to the aforesaid letter and sent her marksheet of part I and II True copies of the letter dated 31.01.2003 and petitioners letter dated 14.02.03 are marked as Annexure VII(A) and VIII(B) respectively to this writ petition.” It also appears from the perusal of the record that the respondent No. 3 has not specifically denied the above fact. In the reply, respondent No. 3 has stated in paragraphs No. 11 and 12, which reads as follows:- “11. That the contents of para 13 of the writ petition are admitted. 12. That the contents of para 14 of the writ petition are not disputed. However, it may be pointed out that the desired marksheet was not sent by the petitioner within the stipulated time period.” Therefore, from the perusal of the aforesaid pleadings adduced by the parties, it cannot be said that the petitioner did not in fact send the mark-sheet of Visharad exam to the office of respondent No. 3, before the final selection list was declared. Further, it is also made clear that the final select list was issued on 31.05.2003 i.e. more than three months after sending the mark-sheet of Visharad by the petitioner to respondent No. 3. Therefore, there is no mistake on the part of the petitioner in not furnishing the requisite documents during the process of the selection. 5 The petitioner received the appointment letter on 01.07.2003 and she joined her services on 03.07.2003. The appointment letter dated 31.05.2003 has been annexed as annexure – 9 to the writ petition and it shows that the respondent No. 3 has specifically directed the concerned Principal to tally the original mark-sheet and the certificates. It is also further directed in that letter that the Principal should also tally the original mark-sheet and certificates in the light of the quality points provided to the successful candidates and in case, if any different is found then the candidate should not be allowed to take charge. I is further quite clear on the basis of the aforesaid direction issued by the respondent No. 3 that there is not mistake on the part of the petitioner. It is not the case where there is an interpolation in either the mark- sheet or in the certificate issued to the petitioner from the concerned institution. It cannot be said that there is any kind of forgery committed by the petitioner. It also cannot be said that the petitioner has manipulated any wrong document in order to obtain the appointment letter, therefore, it is a case which can be said to be and based on wrong calculation in providing the quality marks to the petitioner. It is established on the basis of the pleadings adduced by the parties that the petitioner sent her mark-sheet before the select list dated 31.05.2003 was declared. Therefore, it also cannot be said that there is a concealment on the part of the petitioner. Had there been a case that the petitioner never sent the copy of the mark-sheet to the respondent No. 3 before her select list was declared or sent any forged mark-sheet, then the matter would been different. It appears to me that the petitioner did not try to conceal her mark- sheet and sent it immediately after receiving the reminder from the office of respondent No. 3. It is a mistake on the part of the respondent No. 3 in providing the quality points to the petitioner. Hence, cancellation order dated 30.08.2003 appears to be nothing but colourable exercise of the power to cover up mere own wrong. 6 Much emphasis has been put to this aspect that the petitioner has signed the verification column wherein it was mentioned that noting has been concealed in furnishing the application form. I think, that on this technical aspect nothing can positively be concluded that there is any type of manipulation on the part of the petitioner or the petitioner obtained the appointment letter by placing some forged or manipulated documents. As I have already observed above that it can be safely inferred that the petitioner sent her Visharad mark-sheet during the process of the appointment and before the final select list was declared. Therefore, the petitioner cannot be held responsible for the wrong act done by the office of the respondent No. 3. I have also observed that this is a case in which there is a calculation mistake committed by the office of the respondent No. 3 in providing the quality points. As per the petitioner there is 12 quality points against the Ist Class, 6 points against the IInd Class and 3 points against the IIIrd Class in written test examination on Visharad while there is 12 quality points against Ist Class, 6 points against IInd Class and 3 points against IIIrd Class in practical examination and as per the mark-sheet of the petitioner, she has secured Ist Class in written examination and IInd Class in practical examination, therefore, quality points should be provided to her accordingly and in case, if the quality points are provided in the light of the annexure XII attached with the petition, the position of the petitioner would come at Sl. No. 4. The petitioner has also stated this fact in paragraph 20 of the writ petition. The respondent has stated in the reply in para 17 of the counter affidavit that the contents are matter of record and the explanation given by the petitioner is wholly unsatisfactory is liable to be rejected. This reply by the respondent No. 3 does not appear to be convincing. 7 It is not disclosed in the impugned order as to which method was adopted in awarding the quality points and on the basis of the method adopted in awarding quality points, the petitioner is placed at what number in select list? However, in view of the aforesaid circumstances, I direct the respondent No. 3 to again reconsider the case of the petitioner and in case, if the petitioner gets the quality points and comes within the zone of the select list then respondent No. 3 should decide the case of the petitioner in a sympathetic and positive manner. In view of the discussion made above, I come to the conclusion that this writ petition is liable to be allowed and the order dated 30.08.2003 canceling the appointment of the petitioner is to be quashed. Accordingly, the writ petition is allowed. The impugned cancellation order dated 30.08.2003 annexure 14 to the writ petition passed by respondent No. 3 is hereby quashed. The respondent No. 3 is directed to reconsider the matter of the petitioner in a sympathetic and positive way. Respondent No. 3 is also directed to award the quality points to the petitioner in accordance with the correct procedure adopted in this regard. With the aforesaid observations, the writ petition is finally disposed of. There shall be no order as to cost. (B.C. Kandpal, J.) 25.06.2005 ASWAL