IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. C.W.P. NO. 1050 of 2006 Reserved on : 24.4.2008 Decided on: 7.5.2008. Ramesh Chander Ladohia ..Petitioner. Versus Union of India & Others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting?1 For the Petitioner : Mr. Rajnish Maniktala, Advocate. For respondent No.1 : Ms. Shilpa Sood, Central Govt.Counsel For respondents No. 2 & 3 : :Mr. H.K.Paul, Advocate. RAJIV SHARMA, J. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Lecturer in the respondent No.3 – College in the pay scale of Rs.250-550 on 8.8.1972. His appointment was ratified by the H.P.University vide order dated 16th May, 1980. The respondent No.3-College was recognized by the Ministry of Human Resource Development vide Notification dated 25.3.1994. The respondent No.3-College was recognized as ‘Adarsh Sanskrit Mahavidyalaya w.e.f. 1st April, 1993 in sequel to Notification dated 25.3.1994. The petitioner who was working as Lecturer (Hindi), was appointed as Post Graduate Teacher with a specific condition that he shall have to improve his M.A. Hindi qualification within two years. Thereafter, his 1 Whether reporters of Local Papers may be allowed to see the Judgment ? case was to be reviewed for the post of Lecturer (Hindi) if he improved his qualification within the stipulated period. He appeared in M.A. 1st Semester examination held in the month of November, 1994. He completed his M.A. degree in the year, 1996. He made a representation to the Director, National Sanskrit Sansthan, New Delhi on 2nd February, 2000 seeking pay scale of Rs.2200-4000 instead of 1800-3200. He has also mentioned in his representation that the management of the respondent No.3-College had recommended his case. He made representations for the release of Lecturer scale and pay fixation on 2nd April, 2005 and 10th May, 2005. When the representations made by him were not addressed to by the respondents, he approached this Court by way of CWP No.1247 of 2005. The Court directed the respondents No.2 & 3 to decide the representation of the petitioner by passing a speaking order within six weeks from the date of receipt of the certified copy of the order along with copy of representation of 1st December, 2005. This Court on 2nd March, 2006 directed that the representation of the petitioner be decided by the respondent No.1-Union of India instead of respondents No.2 & 3. In sequel to order dated 2.3.2006, the petitioner made a representation to the Secretary to the Government of India, Ministry of Human Resources Development on 13.3.2006. The representation made by the petitioner was rejected on 28.4.2006. The petitioner had assailed this order dated 28.4.2006 in this writ petition. Mr. Maniktala on the basis of Annexure P-3 dated 25.3.1994 had strenuously argued that his client had qualified M.A. (Hindi) within two years and was entitled to be appointed as Lecturer. He also contended that the impugned order dated 28.4.2006 is not sustainable in the eyes of law. Mr. Maniktala has also contended that his client could only appear in the examination of M.A. (Hindi) in the month of November, 1994 and he has completed his degree within two years. Ms. Shilpa Sood had supported the order dated 28.4.2006. Mr. H.K.Paul, Advocate appearing on behalf of respondents No.2 & 3 had also adopted the stand of the respondent No.1. I have heard the learned counsel for the parties and perused the records carefully. What emerges from the facts narrated hereinabove is that the petitioner was appointed on 8.8.1972. The respondent No.1 had recognized the respondent No.3-College on 25.3.1994 as ‘Adarsh Sanskrit Mahavidyalaya’ w.e.f. 1.4.1993. It is evident from item No.3 (3) of letter dated 25.3.1994 that petitioner was appointed as Post Graduate Teacher with specific condition that he will improve his qualifications within two years. The relevant text of the para -3 reads thus: “Shri Ramesh Chand Ladohia presently working as Lecturer (Hindi) does not have MA (Second Class) degree in Hindi. He may be appointed as Postgraduate Teacher with the specific condition that he shall have to improve his MA (Hindi) qualification within 2 years. His case may be reviewed after two years for the post of Lecturer (Hindi) if he improves his qualification within the stipulated period.” He appeared in M.A.1st Semester in the month of November, 1994 and secured 167 marks. He appeared in 4th Semester examination in the month of June, 1996 and secured 163 marks. Mr. Maniktala had strenuously argued that his client sat in the examination of 1st Semester at the first available opportunity i.e. November, 1994 and had completed the degree within two years and his case was duly recommended by the management in the month of October, 1996. He made several representations bringing to the notice of the respondents that his case for being absorbed as Lecturer should be considered since he had passed M.A. (Hindi) in second division. The representations made by him were not addressed to by the respondents which led to filing of the petition in this Court bearing No.CWP No.1247 of 2005. Initially, respondents No.2 & 3 were directed to decide the representation on 1.12.2005. However, this Court directed on 2.3.2006 that the representation made by the petitioner be decided by respondent No.1. He made a representation on 13.3.2006. The representation made by the petitioner was rejected on 28.4.2006 by assigning the following reasons: “i) Shri Ladohia did not possess the requisite educational qualification laid down by UGC for the post of Lecturer i.e. MA (second class) at the time of recognition of the College in March, 1994. ii) He failed to attain the required qualification for the post of Lecturer in the specified period of time of two years i.e. 25 March, 1996 (he attained the MA second class degree in June/September 1996). iii) The Managing Committee erred in recommending his appointment as Lecturer in the year 2000 for the reasons that (a) the required educational qualification laid down by UGC could not be relaxed by the Managing Committee and (b) the fact that the eligibility test for the post of Lecturer conducted by UGC (NET) had become necessary by that time but Shri Ladohia has not qualified the NET examination. iv) He still does not possess the requisite qualification for the post of Lecturer as he has not qualified the NET examination conducted by the UGC.” It is evident from the facts enumerated hereinabove that the petitioner was appointed as Post Graduate Teacher as per communication dated 25.3.1994 with a condition that he shall improve his M.A.(Hindi) qualification within two years.Thereafter,his case was to be reviewed for the post of Lecturer (Hindi). He had appeared in the examination conducted by the H.P.University in November, 1994. He had completed his M.A.(Hindi) securing second division in 1996. His case stood recommended by the Managing Committee as observed hereinabove. The respondents have taken a strange stand that the petitioner had not qualified his examination within two years from the date of receipt of letter dated 25.3.1994. This stand of the respondents is not sustainable being arbitrary. The period of two years was to be counted from the first opportunity, the petitioner had to appear in the examination after the issuance of letter dated 25.3.1994. The first opportunity available to the petitioner for appearing in M.A. (Hindi) examination arose only in November, 1994 and he completed his M.A (Hindi) qualification within two years from November, 1994 onwards. Thus, his case was to be considered as per para (3) of the Scheme, which has already been reproduced hereinabove. The petitioner could not be forced to complete his M.A.(Hindi) qualification within two years from 25.3.1994. It is fit case where the maxim Lex non cogit ad impossibilia is attracted. The petitioner has done everything possible to complete his M.A.(Hindi) qualification after the issuance of letter dated 25.3.1994 and was to be considered for the post of Lecturer. The case of the petitioner was to be considered as per letter dated 25.3.1994 alone and at that time, there was no requirement for the petitioner to pass NET. He may not be possessing the second class in the year, 1994 but he had secured second division in M.A. (Hindi) in the year, 1996. The period of two years is to be counted from the date the petitioner sat in the examination i.e. November, 1994 onwards and not w.e.f. 25th March onwards. The Managing Committee has rightly recommended the case of the petitioner. The rights of the petitioner to be appointed as Lecturer flows from letter dated 25.3.1994. Ms. Shilpa Sood, strenuously argued that the petitioner had given an undertaking on 18.7.2002 that the pay fixed as Post Graduate Teacher is acceptable to him. The undertaking given by the petitioner while accepting the pay fixed as Post Graduate Teacher will not amount to waiver as far as his rights for consideration for appointment to the post of Lecturer based on letter dated 25.3.1994 is concerned. Their Lordships of the Hon’ble Supreme Court of India in “Nar Singh Pal Versus Union of India and Others” (2003) 3 SCC 588 have held that mere acceptance of money will not preclude the petitioner from seeking relief based on his fundamental and legal rights. Their Lordships have held as under:- “The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchment compensation was paid to him. They intended to say that once retrenchment compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment. This, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the “temporary” status after having put in ten years of service. Like any other employee, he had to sustain himself, or, maybe, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him which was only a meagre amount of Rs.6350, was utilized by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained.” Their Lordships of the Hon’ble Supreme Court of India in Vinod Krishna Kaul Versus Union of India and Others, (1996) 1, SCC 41 have explained the principle of Lex non cogit ad impossibilia as under: “From the above material, it will be clear that on 1-1-1976, the appellant was not in a position to move to his own house even assuming that he had sufficient accommodation and he can move as a joint owner into that house. That means he could not surrender government house and move to his house. Clause 3 of the rules requires a government servant owning a house himself or in the name of any other “members of his family” as defined in the Rules to surrender the government residence in his occupation on coming into force of that Rule on1-1-1976. Obviously, the rule can apply only to a government servant who not only owns the house but also has possession or right to immediate possession of that house to enable him to shift from government residence to that house. The rule cannot apply to a government officer who merely owns a house but does not have its possession or the right to its immediate possession because of its occupation by another person under a legal right which the government servant as an owner cannot override. Clause 3 was, therefore, not intended to apply to a government servant who neither had the occupation of a house owned by him nor the right to its immediate possession. The legal maxim lex non cogit ad impossibilia has to be borne in mind, i.e. the law does not compel a person to do the impossible. In the present case, in view of the subsisting lease in favour of the tenant, the commencement of the lease being prior to 1-1-1976 and the entire period in question being covered by the period of that lease, the provisions in clauses 3 and 4 could not be applied to the appellant, even if he is assumed to be the owner of the house for this purpose. Recovery of the higher rent/damages from the appellant in accordance with clauses 3 and 4, as aforesaid, is therefore not justified.” The outcome of the above discussion is that the petitioner had completed his M.A (Hindi) qualification within two years as per letter dated 25.3.1994. The block of two years is to be counted from the date when the petitioner sought admission and appeared in the examination on the first available opportunity i.e. November, 1994. The decision taken by the respondents that the period of two years was to be counted from 25.3.1994 to enable the petitioner to complete his M.A.(Hindi) qualification is declared unreasonable and arbitrary. The conditions of service of the petitioner are to be governed vide letter dated 25.3.1994 on the basis of which he was permitted to improve his MA (Hindi) qualification. His case was required to be reviewed immediately after two years for appointment as Lecturer in the subject of Hindi. He is not required to qualify NET examination since his case was to be considered as per Annexure P-3 dated 25.3.1994. The parties are bound by the conditions imposed in Annexure P-3 dated 25.3.1994. Consequently, the writ petition is allowed and Annexure P-12 dated 28.4.2006 is quashed and set-aside. The respondents are directed to consider the case of the petitioner for the post of Lecturer (Hindi) strictly as per letter dated 25.3.1994 and the observations made here-in- above within four weeks. The petitioner will be held entitled to all the consequential benefits in the eventuality of being appointed as Lecturer in the subject of Hindi. No order as to costs. ( Rajiv Sharma ), J. May 7, 2008. (GR)