Court No. - 4
Case :- WRIT - A No. - 25011 of 2018 Petitioner :- Kirti Nikhar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Santosh Kumar Yadav Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has questioned the correctness of the order impugned dated 31.10.2018 whereby his contract of appointment as Special Educator at the Bachpan Day Care Centre, Basti has been annulled in mid-term.
3. Briefly stated facts are that the petitioner has obtained certificate namely D.Ed. in Special Education from the National Institution for Mentally Handicapped, Sikandarabad on 07.12.2015. The petitioners since have undergone course of that certificate from Sharad Chandra Pawar College of Special Education run by a Society namely Akhil Maharashtra Gramin Shikshan Vikas Mandal recognised by the National Institute for Mental Handicapped, Aurangabad, she was immediately permitted by the Principal of the College for training by appointment order dated 31.08.2015 in following terms:
" fu;qfDr&i= lqJh dhfrZ fu[kj iq=h Jh deys'k dqekj xzke&pkSjok] iksLV& xus'kiqj] tuin cLrhA vkidh 'kjn pUn iokj Lis'ky Ldwy vkSjaxkckn esa vLFkk;h fo'ks"k f'k{kd ¼,e-vkj-½ ds in ij fo|ky; dh vko';drk dks /;ku esa j[krs gq, fnukad&01@08@2015 dks fu;qfDr fd;k tkrk gSA tc vkidh iw.kZ ;ksX;rk laLFkk dks izkIrk gks tk;sxh mlh fnu ls vkidks fo'ks"k f'k{kd ,e-vkj- ds in ij Lor% eku yh tk;sxhA laLFkk vkils ;g vis{kk j[krh gS fd vki viuk dk;Z fu"Bk iwoZd fu"ikfnr djsaxhA "
4. Since the petitioner qualified relevant course by virtue of the certificate issued on 07.12.2015 by the Institute, the petitioner continued with the training and ultimately an experience certificate was issued to him by the college of Sharad Chandra Pawar, Special Education on 29.12.2017. The experience certificate states as under:-
" This is to certify that Ms Kirti Nikhar daughter of Kamlesh Kumar has worked as a Special Educator (MR) at our Institute from 01/08/2015 to till date.
We found her responsible, enthusiastic and hard working during her working tenure. She can prove to be an asset for any organization; we wish him success her future endeavors.
This certificate is being issued at the request of Ms Kirti Nikhar."
5. The petitioner also obtained the registration with Rehabilitation Council of India, New Delhi vide certification dated 10.11.2016.
6. The Department of Empowerment of Differently Abled Persons through the Deputy Director, Basti Division published an advertisement on 09.12.2017 inviting applications for appointment of Special Educator (Mental Retardation) for “Bachpan Day Care Centre”, Basti. The petitioner was issued a call letter dated 15.02.2018 to participate in the interview which was scheduled to be held on 26.02.2018. The petitioner participated and was given a contract of appointment vide order dated 06.03.2018 by the Deputy Director for a period of 12 months which is to last till 31.03.2019. The petitioner was discharging his duties and there was no complaint regarding his work and conduct. All of a sudden, vide order dated 31.10.2018 passed by the Deputy Director, the services has been annulled in mid-term on the ground that she did not possess the requisite training as the training certificates submitted by him is related to training period commencing prior to the issuance of the marksheet of the relevant course, for which she obtained registration subsequently.
7. The argument advanced on behalf of the counsel for the petitioner is that the petitioner was under the appointment order for training by the Principal of the Institute and that was to the effect that the petitioner was taken up for training only provisionally as his continuance was subject to his qualifying the course, and therefore, there was no illegality in the training certificate. It is further argued that training certificate is for the period running from 01.08.2015 to 29.12.2017, meaning thereby more than three years' training she had undergone as against the requirement of only one year.
8. The requisite qualification is that one must have training in the course along with a registration with the Rehabilitation Council of India and, therefore, it is argued that the requisite period of training for the purposes of appointment is fulfilled by the petitioner and there was no occasion to dispense with his services in mid-term.
9. Another argument advanced is that the order has been passed without show cause and opportunity of hearing to the petitioner while rescinding the contract of appointment mid-term which is a clear violation of the principles of natural justice.
10. Per contra, learned Standing Counsel has argued that requirement of registration with the Rehabilitation Council of India that a person must be first registered with the council and then she should go for training and, therefore, petitioner inherently lacks the qualification because this training certificate stands vitiated in the eyes of law.
11. Having heard the learned counsel for the parties and the arguments advanced across the bar and having perused the records and the pleadings raised in the writ petition, I find that the very appointment order of the petitioner for the purposes of training in question was of the same Institute whereby petitioner has already completed his course. If the Department admitted him provisionally for training subject to his qualifying the course itself for which she had already appeared in the examination, I find no illegality in such provisional admission. Since the petitioner qualified the examination and was issued the marksheet on 07.12.2015, therefore the petitioner would be held to be rightly admitted to the course and her training will be treated to be valid in law w.e.f. 07.12.2015.
12. The question with regard to the registration with the council and the training are not to be confused with each other. There is nothing demonstrated by learned Standing Counsel that certificate has to be obtained only after the registration with the Rehabilitation Council of India. The requisite qualification is that one must possess registration with the Rehabilitation Council of India and then one must have at least one year training course completed to make him eligible to be appointed as Special Educator. Thus, in the considered opinion of this Court and the view taken in the impugned order on the basis of the enquiry report annexed along with the counter affidavit, is palpably erroneous and cannot be countenanced in the eyes of law.
13. So far as the second argument is concerned regarding violation of principles of natural justice, the legal position that has emerged from the various decisions of this Court before, is that services of a person or contract of appointment is to be rescinded before the expiry of the term, such person should be at least given an opportunity to show cause to put up his defence. The minimum requirement of principles of natural justice even if not provided under the Rules, are inherently to be adopted in matters of employment, may be contractual. Every contract civil or service carries such conditions that before a contract is to be put to an end mid term, the prior notice is a must.
14. In view of the above, and the admitted position that much less a show cause noice was given, the impugned order cannot be sustained in the eyes of law and deserves to be quashed.
15. The matter would have been remitted to the respondent concerned however, since this Court has decided the case on merits holding the view taken by the respondent authorities as erroneous in law and have manifestly erred in rejecting the experience of the petitioner. The impugned order dated 19.07.2018 (Annexure no.-8) is quashed and writ petition succeeds and is allowed. Consequences to follow.
Order Date :- 20.12.2018 P Kesari