Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL SPECIAL APPEAL NO. 161 OF 2007 Gajendra Singh Bisht and others. …….Appellants. Versus Sri Dhurendr Pal and others. …Respondents. Mr. Manoj Tiwari, Senior Advocate with Mr. Alok Mehra, Advocate for the appellants. Mr. Dharmendra Barthwal, Advocate for respondent no. 1. Mr. P.C. Bisht, Advocate for respondent nos. 2 and 3. With SPECIAL APPEAL NO. 141 OF 2007 Gajendra Singh Bisht and others. ………Appellants. Versus Sri Narendra Kumar and others. ………Respondents. Mr. Manoj Tiwari, Senior Advocate with Mr. Alok Mehra, Advocate for the appellants. Mr. Dharmendra Barthwal, Advocate for respondent nos. 1 to 4. Mr. P.C. Bisht, Advocate for respondent nos. 5 and 6. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. Both these special appeals have been filed by the appellants challenging the order and judgment of the learned Single Judge dated 10.8.2007, whereby the writ petitions of the respondents have been allowed and in effect the promotion/appointment of the appellants on Class III in the District Court – Haridwar has been set aside. Aggrieved the respondent in the writ petitions have preferred the present Special Appeals. Brief facts of the case are as follows: The appellants before this Court were working on Class IV post in the District Court-Haridwar. Under the rules applicable to the Staff of the Subordinate Courts read with Government Order No. 37/1/1969-Karmik-2, dated 218.1976, 15 per cent seats on the Class III post 2 were reserved to be filled by way of promotion from amongst the Class IV employees, provided they have an educational qualification of “High School”. The appellants were appointed/promoted under this 15% quota under the rules applicable to the Staff of the Subordinate Courts read with Government Order No. 37/1/1969- Karmik-2, dated 21.8.1976. The promotion of each of the present appellants were made under the aforesaid Rules, though on different dates, which is spread over a period between 1990 to 1999. Some of the Class IV employees in the District Court Haridwar, who could not be promoted under the aforesaid provision, subsequently challenged the promotion of the present appellants by way of representation made in the year 2002, before the District Judge, Haridwar , inter alia, on the ground that on the date of their promotion, the appellants did not have the “High School qualification”, which was the mandatory qualification for promotion. Learned District Judge, Haridwar considered the complaint of these persons and passed an order on 3.7.2004, whereby, inter alia, it was held that the appellants have done their “Prathama” from Hindi Sahitya Sammelan, Allahabad, which is equivalent to High School and therefore, they have a requisite qualification and there was nothing improper in their promotion/appointment. Aggrieved, by this order certain petitions were filed being Writ Petition (SS) No. 908 of 2004 Narendra Kumar and others Vs. District Judge, Haridwar and others and Writ Petition (SS) No. 1086 of 2004 Dhurendra Pal Vs. District Judge, Haridwar and others, in which the promotion/appointment of the present appellants was challenged, as well as the order of the learned District Judge, Haridwar, passed on the Administrative side. 3 The learned Single Judge of this Court was of the view that the appellants, who were the respondents in the writ petitions, were not fully qualified as they were not having High School qualification and the “Prathama” from Hindi Sahitya Sammelan, Allahabad is neither equivalent to High School, nor is given to the Court to grant equivalence and since, they were not qualified, they were not liable to be promoted/appointed and their promotion was set aside by order dated 10.9.2007. The respondents have now filed present Special Appeals, against the order of the learned Single Judge. Heard learned counsel for the appellants, learned counsel for the State as well as learned counsel for the private respondents. It is absolutely clear that according to the Rules, the essential qualification for promotion from Class IV to Class III post in the departmental quota scheme was “High School qualification”. It is an admitted case that none of the appellants, who were promoted under the said quota have High School qualification. They have only done their “Prathama” from Hindi Sahitya Sammelan. It is also a settled position of law that “Prathama” is not equivalent to High School. Therefore, the appellants on the said date were not having the requisite qualifications and consequently, their promotion was not proper. A Division Bench of this Court in Shailendra Singh and others Vs. State of Uttaranchal and others; 2007 (1) Uttaranchal Decisions 155 has held that the degrees of “Shiksha Visharad” issued by Hindi Sahitya Sammelan are not equivalent to B.Ed, as is being made out. This has also been the consistent view of this Court that the said qualification is not equivalent to High School qualification. Moreover, the Apex Court in the State of Rajasthan and another Vs. Kulwant Kaur (2006) 9 SCC 564 has observed as under: 4 “13. The respondent herein did not possess the requisite qualification. Only because the order of termination of service of respondent was directed to be stayed and in obedience of the interim orders passed by the High Court, she was allowed to continue in service, the same, in our opinion, cannot lead to the conclusion that she had been validly holding the post or the order of termination was bad in law. After Shyam Lal Joshi it is not disputed that the teachers were required to possess a short Training Certificate. As the respondent did not possess such essential qualification, she has no legal right to continue in service. The orders of termination passed, both in 1987 and 1994, which were the subject matter of Writ Petition No. 1383 of 1987 (being against the order dated 11-5-1987) and Writ Petition No. 2973 of 1994 (being against the order dated 31-5-1994), cannot, thus, be held to be bad in law. 14. In Mohd. Sartaj v. State of U.P. this Court clearly held that possession of an essential qualification was mandatory for obtaining the right to continue in the post. A legal right in this behalf cannot be said to be derived by an employee only because an interim order was passed by the High Court.” Be that as it may, the present appointment / promotion of the appellants has been challenged after a gap of several years in the year 2002, inasmuch as the appointments/promotions of the appellants were made between 1990-99. We are already in the year, 2010. Considering the long passage of time, and also, considering the fact that the post on which the appellants have been promoted is not such a sensitive post it may not be proper or equitable to unsettled what now stands settled. This Court is also conscious of the fact that it is also nobody’s case that the appellants had taken appointment by concealing any material fact or by any fraud or forgery. Mistake, if any, was on the part of the appointing authority. After rendering service for so many years, it is not only a legitimate expectation of the appellants, who are the bread winners of their family but a legitimate expectation of all those in the family who are depended on these appellants, that they will not be 5 disturbed in their service. Therefore, this Court is not looking into the issue of “qualification” of these appellants for the peculiar facts and circumstances of the case. The inordinate delay in raising the issue of qualification goes to the root of the present matter, and this is what will go against the present respondents and the petitioners in the writ petition. For these reasons that is for the delay in raising the dispute, the petitioners are not liable to succeed. The learned counsel for the appellants Sri Manoj Tiwari, Senior Advocate has also cited a decision of the Apex Court in Dr. M.S. Mudhol and another Vs. S.D. Halegkar and others (1993) 3 SCC 591. There are broadly similar set of facts in the case being relied upon by the counsel for the petitioner. The essential qualification in the above case for the post of Principal was, inter alia, M.A. with second division, whereas the incumbent was having qualification of M.A. with third division. The Apex Court though held that he was not having essential qualification, yet declined to interfere with the appointment of the said Principal on the ground of inordinate delay in the challenge of this appointment (which was 9 years), and particularly when there was no fault on the part of the incumbent (as in the present case), where he had not suppressed any material facts or committed fraud or forgery and mistake, if any, was on the part of the authority, who had given the appointment. It is not even the case of the contesting respondents that the appellants have not been able to render satisfactory service on account of the alleged deficiency in their qualification. After having rendered long years of service on the promotional posts, by sheer experience, the appellants must be deemed to have overcome deficiency, if any, in their eligibility. 6 The present Special Appeals are accordingly allowed. The order of the learned Single Judge dated 10.9.2007 is hereby set aside. (Sudhanshu Dhulia, J.) (J.S. Khehar,C.J.) 17.03.2010 Rathour