IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 121 of 2010 Harish Chandra Sharma. .……… Appellant Versus Additional District Education Officer (Basic), Nainital. .………. Respondent. Mr. Manoj Tiwari, Senior Advocate with Mr. Bhagwat Mehra, Advocate for the appellant. Mr. K.P. Upadhyaya, Advocate for the respondent. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) The appellant, while holding the substantive post of Assistant Teacher, was granted officiating charge as Coordinator, Block Resource Centre. This charge was granted to the appellant without holding any process of selection. In fact, it is the contention of the learned counsel for the appellant, that in the entire State of Uttarakhand, the posts of Coordinator, Block Resource Centre, have been filled-up only by way of granting officiating charge, without holding any formal process of selection. 2. By an order dated 26.07.2007, the Additional District Education Officer (Basic), Nainital, required the appellant to assume charge of his substantive post, that is as Assistant Teacher, at the Junior High School, Devipura. In doing so, the officiating charge as Coordinator, Block Resource Centre, came to be divested from the appellant. 3. The order dated 26.07.2007 was assailed by the appellant, by filing Writ Petition (S/S) No. 1017 of 2007. A learned Single Judge of this Court dismissed the aforesaid writ petition by an order dated 07.05.2010. The primary reason, which had persuaded the learned Single Judge to dismiss the writ petition filed by the appellant, was that the appellant did not possess the minimum educational qualifications prescribed for the post of Coordinator, Block Resource Centre. In fact, the learned Single 2 Judge expressly pointed out, that the appellant did not possess the qualification of a Graduate Degree, and as such, was liable to be treated as ineligible for appointment to the post of Coordinator, Block Resource Centre. 4. After the dismissal of the aforesaid writ petition, the appellant preferred M.C.C. No. 405 of 2010, seeking review of the order passed by the learned Single Judge on 07.05.2010. In the instant Review Application filed by the appellant, he demonstrated that he had acquired the Graduate Degree as far back as in the year 1994 and had brought the aforesaid matter to the notice of the respondent. Despite the factual position disclosed by the appellant in M.C.C. No. 405 of 2010, the aforesaid Review Application was also dismissed on 04.06.2010. 5. Through the instant Special Appeal, the appellant has assailed the order dated 07.05.2010 (whereby Writ Petition (S/S) No. 1017 of 2007 was dismissed), as also the order dated 04.06.2010 (whereby M.C.C. No. 405 of 2010 was dismissed). 6. During the course of hearing of the instant Special Appeal, the solitary contention advanced by the learned counsel for the appellant was, that the only reason disclosed by the respondent for withdrawing charge of the post of Coordinator, Block Resource Centre, from the appellant was, that he did not possess the Graduate Degree, which is the prescribed qualification for appointment to the said post. Having acquired the Graduate Degree as far back as in the year 1994 and having brought the aforesaid qualification to the knowledge and notice of the respondent, the respondent should have unilaterally taken back the appellant and revested the officiating charge of Coordinator, Block Resource Centre, with him. 7. The contention advanced by the learned counsel for the appellant has been contested on two grounds. Firstly, it is asserted at the hands of the learned counsel for the respondent, that the appellant has no right whatsoever to hold the post of Coordinator, Block Resource Centre, or to discharge the duties thereof. It is pointed out, that the appellant substantively holds the post of Assistant Teacher, and as a consequence of 3 the passing of the impugned order dated 26.07.2007, the appellant has been required to discharge the duties of the post substantively held by him. It is, therefore, asserted that no grievance can be made by the appellant, for divesting officiating charge of the post of Coordinator. Secondly, it is the submission of the learned counsel for the respondent, that the Graduation Degree, allegedly acquired by the appellant, was without seeking prior permission of his superiors in the Education Department, while he was very much in the service of the Education Department. It is pointed out, that neither any request for pursuing the aforesaid course was made nor any such request made by the appellant was acceded to by the competent authority. The qualification acquired by the appellant, without due permission of the competent authority, cannot, for purposes of the appellant’s service career, be taken into consideration. Not only was the aforesaid qualification acquired unauthorisedly, the appellant desires further premium thereon by seeking to continue against the post of Coordinator, based on the afore-stated unauthorised qualification possessed by him. 8. We have given our thoughtful consideration to the rival submissions advanced by the learned counsel for the parties. In order to ascertain, whether or not, the appellant had acquired the qualification under reference after due permission, this Court in its motion Bench order dated 01.07.2010 inter alia directed as under: “Mr. Manoj Tiwari, Senior Advocate with Mr. Alok Mehra, Advocate for the appellant. Mr. J.P. Joshi, Advocate for the respondent. Learned counsel for the respondent seeks a week’s adjournment, so as to enable him to verify, whether or not the petitioner is a graduate, and whether or not he had acquired the graduation qualification by appearing in the examination after seeking permission from the competent authority, as also, whether after having acquired the graduation qualification, he had intimated the competent authority of the aforesaid fact and required the competent authority to incorporate the same in his service-book. In the meantime, the petitioner shall continue to render the services of the post of Coordinator, which he has continuously held even during the pendency of the writ petition. To come up for further consideration on 08.07.2010.” In furtherance of the direction issued by this Court, it is the submission of the learned counsel for the respondent, that there is no material on the 4 record of the official file depicting, that the appellant had ever submitted an application for pursuing the graduation qualification during the tenure of his employment. Additionally, it is pointed out, that there is no material on the record of the official file of the appellant depicting, that any such permission was ever granted to him. All the same, learned counsel for the respondent handed over to us in Court today, the official file pertaining to the appellant. Its perusal reveals, that a letter dated 06.09.1996 is available on the record of the file, wherein the appellant had disclosed that he had acquired the Graduate Degree in the year 1994. The aforesaid communication is allegedly addressed to the Assistant Basic Education Officer, whereas the competent authority, insofar as the appellant is concerned, was the Basic Education Officer. 9. In view of the vehement contest at the hands of the learned counsel for the respondent, that the appellant had factually neither sought permission to acquire the aforesaid qualification, nor was he ever granted the aforesaid permission, the issue raised assumes the status of a disputed question of fact. It is not possible for us, in exercise of our jurisdiction under Article 226 of the Constitution of India, to render a decision thereon, by recording evidence. In case, the appellant is interested in pursuing the issue raised by him through Writ Petition (S/S) No. 1017 of 2007 and the instant Special Appeal, it will be open to the appellant to agitate the aforesaid cause before a civil court of competent jurisdiction. 10. Be that as it may, we have chosen not to interfere with the claim raised by the appellant, on account of the fact, that the appellant substantively holds the post of Assistant Teacher. Even after the passing of the impugned order, the appellant continues to hold the aforesaid post on a substantive basis. Insofar as his being allowed to discharge duties of the post of Coordinator, Block Resource Centre, on an officiating basis is concerned, no right is vested in the appellant to continue as such, under the conditions of service, wherein he is holding the post of Assistant Teacher. Thus viewed, it is not possible for us to accept the claim of the appellant, so as to direct the respondent to revest officiating charge of the post of Coordinator, Block Resource Centre. 5 11. Finding no merit in the instant Special Appeal, the same is accordingly hereby dismissed. Needless to mention, that the interim directions passed in favour of the appellant on 01.07.2010 would abate with the disposal of the main Special Appeal. 12. The afore-stated conclusions have been recorded primarily on account of the fact, that the appellant had no substantive right against the post of Coordinator, Block Resource Centre. All the same, it has emerged as a matter of fact, that the appellant has acquired graduation qualification. The same was acquired by the appellant as far back as in the year 1994. There is a communication even on the official file produced in this Court, wherein the appellant himself has disclosed that he acquired the Graduate Degree as far back as in the year 1994. The aforesaid letter was submitted by the appellant on 06.09.1996. Based on the aforesaid letter, we are satisfied, that for all intents and purposes, the service record of the appellant should be upgraded, so as to record, that he is a graduate, having acquired the aforesaid qualification in the year 1994. For the aforesaid purpose, the appellant shall produce, for the consideration of the competent authority, the original certificate issued to him. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 12.07.2010 12.07.2010 G