A^ HIGH COURT OF CHHATTISGARH AT BILASPUR Petitioner Respondents Writ Petition No. 4819 of 1996 Dr. Shiv Narayan Mishra Versus D.A.V. College Managing Committee through its President, Chitragupta Marg, New Delhi and others ^^ Post for order on ^f' March, 2007 Sd/- SatishK.Agnihom Judge '~\\ ^•^ --{ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 4819 of 1996 Pstitioner Respondents SS Dr. Shiv Narayan Mishra aged about 37 years, son of Shri Pandit Jeevan Prasad Mishra, Trained Graduate Teacher, D.A.V. Public School BasantVihar, S.E.C.L. Bilaspur D.A.V. College Managing Committee through its President, Chitragupte Marg, New Delhi. The Regional Director, D.A.V. Public School, M.P. Zone Bhilai District Durg The Princjpal D.A.V. Public School, BasantVihar, S.E.C.L. Bilaspur The General Manager, South Eastern Coal fields limited, Head Quarter, Bilaspur as the Chairmanofthe Local Managing Committee, DAV Public School, Vasant Bihar SECL, Bilaspur - 495-006 Hon'ble Shri Satish K. Aanihotri. J. Versus :1. 2. 3. 4. Present: Dr. Shiv Narayan Mishra. the petitioner in person. Mr. Manindra Shrivastava, Senior Advocate with Mr. Ashish Shrivastava, Advocate for the respondents No. 1 to 3. Mr. P.S. Koshy, Advocate forthe respondent No. 4. ORDER (Passed on this^ /''cjayofMarch, 2007) 1. In the instant petition, the petitioner is questioning the legality and validity of the show-cause dated 9.2.96 (P/9), whereunder the petitioner was directed to submit B.Ed degree certificate within one month time from the date of the notice, failing which the services of the petitioner was to be terminated. The order dated 26.2.96 (P/10), whereby on failure to produce B.Ed. Examjnation Certificate, the nature of appointment of the petitioner was changed from probation to i. -', ad hoc with one more chance to produce B.Ed. Examination Certificate before 30th April 96 and Establishment Manual (P/15). It is further sought for a direction to the respondents not to compel the petitioner to submit B.Ed. Examination Certificate and further, the petitioner be granted regular pay scale with all the benefrts with allocation ofofficial accommodation. 2. The indisputabie facts, in nutshell, are that pursuant to the advertisement for appointment to the post of Trained Graduate Teacher fTGT), the petitioner applied and was selected for appointment on 1.7.92 (P/7).ln the appointment letter by clause 22, the petitioner was directed tq submit original certificates of MA.; B.A.; B.Ed, & Matriculation along with photostat within two weeks ofjoining as also 2 copies of passport size photograph. The appointment of the petitioner was on probation for a period of two years, w.e.f. the date of joining the post. The petitioner failed to obtain B.Ed. Degree despite severai opportunities granted to him. Ultimately vide order dated 26.2.96 (P/10), the services of the petitioner was changed from probation to ad hoc with one more opportunity to submit B.Ed Examination Certificate before 30 Aprii 96 and ad hoc appointment of the petitioner was further extended vide order dated 18.4.1996 (R/9) for a period of one year with the conditjon that he should clear his B.Ed. examination in the year of 1996 otherwise his sen/ices wouid be terminated. The petitioner could oblain B.Ed. Examination Certificate in the Month of December, 1996. Accordingly, a fresh appointment on probation of two years was granted to the petitioner vide order dated 3.2.97 (R/10). 3. The petitioner has filed this petition on the ground that the appointment of the petitioner on probation period vide order dated 3.2.97 (R/10) was notconditiona! and subject to submissjon of B.Ed. certificate. !t was only that the appointment was on probation on the post of Trained Graduate Teacher for a period of two years. The direction to the effect of submission of B.Ed. Examination Certificate within a period of two years was not a condition precedent and it was after thought. Change of the nature of the appointment from probation to ad hoc was unlawfyl as there is no system to convert the nature of appointment. Even if, the petitioner has failed to produce B.Ed. Exanpination Certificate within a period of two years as this was not cleariy stated in the appointment order. 4. Dr. Shiv Narayan Mishra, appearing-Jn-person, would submit that the requirement of submitting B.Ed. Examination Certificate within a period of frwo years was not a condition precedent as in other cases namely in the case of one Shri P. Pathak, P.R.T. D.A.V. Goa Coal Mines Shihbhumi (W), he was exempted from obtaining B.Ed. Degree/diploma or certificate after completion of 15 years of service. He further contended that the petjtioner is entitled to reguiar pay scale, seniority, increments and allocation of official accommodation with effectfrom the initial date of appointment. 5. Per contra, Mr. Manindra Shrivastava, learned Senior Advocate with Mr. Ashish Shrivastava, learned Advocate appearing for the respondents No. 1 to 3 would submit that appointment of Trained Graduate Teacher itself indicates that the Trained Graduate means having graduatjon in education, only the teachers or candidates having B.Ed. Degree are Trained Graduate. The clause 22 of the 4 (^' appointment order clearly indlcates that the petitioner was required to submit M.A.; B.A.; B.Ed, & Matriculation certificates in original aiong with photostat within two weeks of joining as also 2 copies of passport size photograph. Thus, the contention ofthe petitionerthat it was not a pre-condition is contrary to records. The petitioner, having understood the requirement of qualification, has tendered the undertaking dated 4.9.92 (R/2) to the effectthat he would compiete B.Ed. training wjthin two years i.e.' before July 94. The petitioner has deliberately concealed this fact from this Court. The petitioner has already accepted each and every condition of obtaining and submission of B.Ed. Certificate within two years i.e. before July 1994. Learned counsel wouid further submit that this petition deserves to be dismissed on this ground alone that the petitioner has not come with clean hands and suppressed most material facts until it was dJsclosed by the respondents. Learned counsel relies on a decision of the Supreme Court in the case of Agricultural And Processed Food Products Vs. Oswal Agro Furane & others and tonnected matters1. He would further submit that B.Ed. Examination Certificate is essential requirement for appointment on the post of Trained Graduate Teacher. it was next contended that concerned D.A.V. Sehool is afRliated to the Central Board of Secondary Education and the educational qualification for appointment on the post of Trained Graduate Teacher is graduate in/with the subject concerned or its equivalent, a recognized Degree/Diploma in Education and B.A. Ed. with the ianguage concerned of the Regional Colleges of Education. He further submits that the petitioner was not confirmed on completion of two years on the ground of non-submission of essential qualificatjon certificate i.e. B.Ed. Examination Certificate. After having given three ^K years time, the nature of appointment of the petitioner was changed from probation to ad hoc. In ordinary course, the respondents ought to have? terminated services of the petitioner, however, taking the lenient view, he was allowed to continue, but on ad hoc basis. Immediately after he obtained B.Ed Examination Certificate, the petitioner was re-appointed onprobation on the post of Trained Graduate Teacher w.e.f. 9.1.97 vide order dated 20.1.97 (P/13). 6. Mr. P.S. Koshy, learned counsel appearing for the respondent No. 4 wou!d adopt the submissions made by learned counsei appearing for the respondents No. 1 to 3. 7. I have heard Dr. Shiv Narayan Mishra, the petitioner in person and learned counsel appearing for the respondents and have perused the pieadings and documents appended thereto. 8. It is well established that the requirement of the essential qualificatibn for appointment on the post of Trained Graduate Teacher as per the Central Board of Secondary Education for its affiliation in/with the subject concerned or its equivalent, a recognized Degree/Diploma in Education and B.A. Ed. with the languageconcerned of the Regional Colieges of Education. It is further admitted that the petitioner was appointed on probation for a period of Iwo years frqm the date of joining the post vide order dated 1.7.92 (P/7). Clause 22 of the appointment letter clearly provides that the appointee (petitioner) was required to submit origjnal certificates of M.A.; B.A.; B.Ed. & Matriculation along with Photostat copies. Thisalso indicates that the petitioner was required to have essential qualification of B.Ed. for appointment on the post of Trained Graduate Teacher. Clause 11 of the appointment ietter provides for termination. in the present case, ^^3s.^—-sas,i 1 @D'' since the petitioner failed to produce B.Ed.Examination Certificate Within the stipulated time, he was liable to be terminated immediately after completion of probation period. The petitioner accordingly filed a undertaking stating therein as under "I hereby undertake that 1 will complete B Ed training within two years i.e. before July 1994". 9. The petitioner was ser/ed a show-cause notice dated 9.2.96 (P/9) to the effect that the petitioner wouid neither be confirmed nor increment would be reieased untii completion of B.Ed. Degree Course. It was further stated that the petitioner was required to submit B.Ed. Degree passedcertificate within one month time from the date of notice, failing which the services of the petitioner wouid remain terminated on the expiry of one month from the date of issue of the letter. Thereafter, vide order dated 26.2.96 (P/10) he was informed to submit B£d. degrsse before 30ih April 96, faiiing which his services would be no more requjred. The petitioner feiled to do the needful within the prescribed time. Accordingly, vide order dated 20.4.96 (P/11) on the basis of the recommendation of the Regional Director D.A.V. Public Schooi, M.P. (Zone), appointment of the petitioner came to an end and as a very special case, instead of terminating of his service, the petitioner was ailowed to work on ad hoc basis for one year on the condition that he should obtain B.Ed. Certificate in the year of 1996. The petitioner obtained B.Ed. Examination Certifjcate in the month of December, 1996. Accordingly, vide order dated 20.1.97 (P/13) a fresh appointment order was passed on the same terms and conditions on probation basis. 10. There is no merit in the present case as the petitioner knew very weil that the essential quaiification of appointment for the post of Trained Graduate Teacher was B.Ed Examination Certificate. The petjtioner had given an undertaking which he has concealed in his petition. It appears that the respondents taking lenient view appointed the petitioner on ad hoc basis in lieu of terminating of his service on default to submit B.Ed. Examination Certificate within the prescribed time. The subsequent appointment vide order 20.1.97 (P/13) is perfectly valid and legal. The petitioner cannot be held as regular appointee with effect from 1 .7.92 as the petitioner has failed to comply with the terms and conditions. Thus, no right has accrued in favour of the petitioner to seek reliefs as sought for in this petition. The petition can be dismissed on this. ground alone that the petitioner has not come with clean hands before this Court. Even on merit, the petitioner has no case. 11. The Hon'ble Supreme Court, in the case of Mahesh Kumar Agal vs. DirectorGeneral ofPolice and anothes2, held as under:- "2. Passing the Hindi test is a condition for promotion and since the appeliant had passed the test on 20-9-1981, he was given promotion and seniority was fixed with effect from the passing of the said test. Under these circumstances, we do not find any Jllegality in the order passed by the tribunal warranting interference." 12. The Hon'ble Supreme Court, in the case of M.P. Chandoria vs. State ofM.P. andothers3, held as under :- "5. ............... In view of the admitted posjtion that he did not pass the test, the appointing authority considered that his seniority would be counted w.e.f. the date of his passing the test. Rule 12(a)(ii) cleariy empowers the appointing authority to assign, in these circumstances, the seniority in lower level than the one &&^^^^^^^^^.^^^^^^, assigned by the Public Service Commission. We do not find any jilegality committed by the authorities ingiving seniority fromthe date of his passing the test." 13. The above view has been later on approved by the Supreme Court in the case of State of M.P. vs. Ramkinkar Gupta and others4, and also in the case of Om Prakash Shrivastava \/s. State ofM.P. and anothei^. 14. As a result and for the reasons stated hereinabove, this petitjon is dismissed. No order asto costs; Sd/- SatishK.Agnihotri Judge 1 (1996)48cc297 2 (1996)2SCC70 3 (1996)11SCC173 4 (2000)10SCC77 , 5 (2005)11 SCC488 B/-