IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 56 of 2010 Mohammad Afzal S/o Mohammad Ibrahim, Resident of Jama Masjid Faiz-e-Aam, District Tehri Garhwal. …….……Appellant Versus 1. The State of U.P. Now State of Uttarakhand through Home Secretary, Dehradun. 2. Superintendent of Police, Tehri Garhwal. 3. District Magistrate, Tehri Garhwal. …...……. Respondents Present: Mr. Abdul Wahid, Advocate for the appellant. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the respondents. Coram:- Hon’ble Barin Ghosh, Chief Justice Hon’ble Sudhanshu Dhulia, Judge Date of Decision : 25.10.2010 Barin Ghosh, C. J. (Oral) Before being directly recruited as a Translator-cum- Junior Clerk the appellant had the qualification of Adeeb-e-Mahir obtained from Jamia Urdu, Aligarh. After he was appointed, suddenly by the order impugned in the writ petition his service was terminated only on the ground that the appellant is not an Intermediate. In the writ petition, appellant contended that the appointment of the appellant was made pursuant to the provisions contained in the Uttar Pradesh Urdu Translator-cum-Junior Clerk Service Rules, 1994 and in terms thereof his qualification of Adeeb-e-Mahir obtained from Jamia Urdu Aligarh was sufficient for his direct appointment. By the judgment and order under appeal the writ petition of the appellant has been dismissed. Hence the appellant is before us. 2. While rendering the judgment and order under appeal, the learned Judge did not take notice of the provisions contained in the 2 said Rules. The learned Judge felt that the requirement was to have at least Intermediate qualification, which the appellant did not have, and accordingly, his services could be terminated on that ground. 3. The said Rules have been made in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Prior thereto, what was the mode, manner and method of recruitment to the posts of Translator-cum-Junior Clerk is not known, as we have not been assisted by the counsel appearing for the State in that regard. Be that as it may, on 9th September 1983 a Government Order was issued, whereby and under it was held out that His Excellency the Governor of the State of Uttar Pradesh has been pleased to grant recognition to the examination Adeeb-e-Mahir of Jamia Urdu Aligarh for the purpose of appointment on posts, by direct recruitment, for which knowledge of Urdu at Intermediate level is necessary. 4. It, therefore, appears to us that before the said Rules were made, knowledge of Urdu at Intermediate level may have been necessary for being appointed as Urdu Translator-cum-Junior Clerk. 5. Rule 11 of the said Rules provided that for direct recruitment to the post of Translator-cum-Junior Clerk, a candidate must pass Intermediate examination with Urdu as one of the subjects of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto or any higher examination recognized by the Government with Urdu as one of the subjects. Therefore, in terms of the said Rule having passed Intermediate examination with Urdu as one of the subjects of the Board of High School and Intermediate Education, Uttar Pradesh is the first parameter. The second being passing an examination recognized by the Government as equivalent thereto i.e. equivalent to Intermediate examination with Urdu as one of the subjects of the Board of High School and Intermediate Education, Uttar Pradesh and the third any higher examination 3 recognized by the Government with Urdu as one of the subjects. In enclosure-3 to the said Rules, it has been provided, as stands upon the Hindi version being translated into English, as follows:- “The following examinations conducted by Jamia Urdu, Aligarh have been granted equivalence as mentioned against them- (1) Adeeb-e-Mahir ……… Intermediate (Government Order No.10-4-78-Personnnel-2, Dated 9th September, 1983)……..” 6. It, therefore, appears to us that while before the said Rules came into force, it may not have had been necessary for a candidate to have passed Intermediate for being directly appointed as Urdu Translator-cum-Junior Clerk but after the said Rules came into force, it became a necessity. However, the said Rules made it explicit that the government shall be competent to declare an examination as equivalent to Intermediate examination with Urdu as one of the subjects of the Board of High School and Intermediate Education, Uttar Pradesh and without waiting further the said Rules in enclosure- 3 thereto in no uncertain terms and without any ambiguity declared Adeeb-e-Mahir as equivalent to Intermediate. 7. That being the situation, the appellant having had passed Adeeb-e-Mahir, it could not be contended in law that he does not have a qualification equivalent to Intermediate as was purported to be contended when the service of the appellant was terminated. 8. It is not being contended that appellant had no knowledge of Urdu of Intermediate level, on the other hand it is the contention of the State that a candidate, who has passed Adeeb-e-Mahir, studied Urdu and Urdu and nothing else. The requirement being recognition by the government as equivalent to Intermediate examination with Urdu as one of the subjects of the Board of High School and Intermediate Education, Uttar Pradesh and the said Rule having declared Adeeb-e-Mahir as equivalent to Intermediate, it was unjust and improper on the part of the respondents in holding out that the 4 appellant does not have Intermediate qualification and, accordingly, his services are open for interference. 9. The confusion that has been created, as it appears to us, is the Government Order dated 14th August 1995 upon which reliance has been placed by the State. No doubt, in the said Government Order it had been stated in reference to the earlier Government Order dated 9th September 1983 that in terms thereof a person having qualification of Adeeb-e-Mahir shall be deemed to have knowledge of Urdu of Intermediate level, but unfortunately it was held out that such a candidate shall not be treated to be an Intermediate and has passed Intermediate in terms of the said Rules, which is not in consonance with the said Rules. The said Rules having been made in exercise of power under proviso to Article 309 of the Constitution of India could only be interfered with by exercise of such power or by the legislature and not by a subsequent Government Order. Further, we think and believe that while issuing the said Government Order dated 14th August 1995 the creator thereof lost sight of the provisions contained in the said Rules and in particular the action of the said Rules in granting equivalence. 10. We, accordingly, conclude the matter, set aside the impugned judgment and order and at the same time allow the writ petition and quash the order of termination of the services of the appellant dated 24th June 1995. The appellant shall be entitled to all consequential reliefs. ( Sudhanshu Dhulia,J. ) ( Barin Ghosh, C.J.) 25.10.2010 P. Singh