JUDGMENT Rafat Alam and Sudhir Agarwal, JJ.
1. Heard Sri Devendra Dhama, learned Counsel for the appellant & the learned Standing counsel for respondent Nos. 1 to 3 and perused the order of Hon'ble the Single Judge of this Court dismissing the writ petition of the appellant. No body has appeared on behalf of respondent No. 4 although name of Sri Birendra Singh is shown in the cause list.
2. It appears that one Sri Nepal Singh, Assistant teacher LT Grade in Kisan Uchchtar Madhyamik Vidyalaya Budhansi, Aligarh proceeded on leave causing a short term vacancy wherein the appellant was appointed to impart instructions in Commerce/Arts upto High School classes on 30.10.1990. The District Inspector of Schools initially accorded approval for the period from 1.11.90 to 31.3.1991. However, when the regular incumbent did not join the post the Committee of Management extended the period of service of the appellant till the return of the regular incumbent. The District Inspector of Schools, however, refused to grant financial approval, Aggrieved, the appellant preferred writ Petition No. 45790 of 1992 before this Court which was disposed of vide order dated 1.12.1992 with the direction to the District Inspector of Schools to consider the case of the appellant regarding extension of his service against the leave vacancy. Pursuant thereof, the District Inspector of Schools vide order dated 9.6.1993 again refused to grant financial approval. The appellant preferred Writ petition No. 32935 of 1993 against the aforesaid order of the District Inspector of Schools dated 9.6.1993. The Hon'ble Single Judge alter hearing learned Counsel for the appellant on merit dismissed the writ petition holding that the appellant was not having requisite qualification as prescribed for the LT Grade Assistant teacher in Commerce/Arts since he did not possess the qualification of High School examination with Technical Art (drawing).
3. Learned Counsel for the appellant urged that the petitioner-appellant has passed Intermediate Grade Drawing Examination from Bombay and has also knowledge of Technical Drawing upto High school standard and therefore the District Inspector of Schools was not correct in refusing approval on the ground that the petitioner-appellant did not possess requisite qualification. We do not find any substance in the contention that the appellant possess minimum qualification. Nothing has been brought on record to show that the petitioner-appellant possessed the requisite qualification i.e. High School examination with Technical Drawing,
4. The qualifications for the post of Assistant Teacher of Art and Commerce are provided in Item 10 of Appendix to the U.P. Intermediate Education Act which is reproduced as under -
1. Art Master's Training Certificate ( formerly known as Drawing Teacher's Training Certificate) of the Government School of Art and Crafts Lucknow.
Or
2. Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh with technical Drawing.
Or
3. High school Examination with Technical Drawing and any one of the following qualifications:
(a) B.A. with drawing of Painting.
or
(b) Fine Art Diploma of Kala Bhawan Shantiniketan.
Or
(c) Certificate of the Government Drawing and Hindi Craft Centre Allahabad, or
(d) Final drawing Teachership Hxamination Calcutta.
Or
(e) Teacher's Senior certificate Examination Mayo School of Arts Lahore.
Or
(f) Intermediate Grade Drawing Examination Bombay Or
(g) Third Grade Arts School Examination, Bombay NOTE
1. Under (2) above, passing the Intermediate Examination with Drawing is obligatory for all but if evidence of Technical Drawing having been taken in the examination is not available, evidence of knowledge of Technical Drawing of that standard may be accepted instead. Teacher in Girls' Institution shall be exempted from the qualification in technical Drawing.
NOTE
2. Under (3) of Serial 23 passing the High School Examination is obligatory for all but if evidence of Technical Drawing having been taken in the examination is not available, evidence of knowledge of technical drawing of that standard may be accepted instead. Teachers' of Girls Institution shall be exempted from the qualification in Technical drawing.
5. The petitioner-appellant has alleged in support of his contention that he possessed the qualification of technical drawing upto the Intermediate level and the certificate is annexed to the affidavit filed in support of the stay application. However, the aforesaid certificate shows that the appellant possessed Intermediate Examination Certificate of 1992 from the U.P., High School and Intermediate Education Board, Allahabad as a private candidate. Since the certificate is of 1992, evidently the appellant did not possess the requisite qualification when he was appointed against leave vacancy as Assistant teacher for a short period. The subsequent acquisition of qualification would not validate his appointment. It is evidently clear that the appellant lacked requisite qualification on the date on which he was appointed. In the case of Mohammad Sartaj and Anr. v. State of U.P. and Ors. , the Apex Court has held that a person lacking requisite qualification on the date of appointment, cannot derive any benefit out of such appointment since it is nullity, void ab-initio and does not confer any right upon the incumbent to hold the post. Relevant observations contained in paras 19 and 21 are reproduced as under:
In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post.
It is settled law that the qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard perm it it.
6. The same view has been expressed in Umrao Singh v. Punjabi University Patiala and Ors. and the Apex Court has held that:
The advertisement itself indicated that the applicant was required to pas the concerned examination before appearing for interview. Admittedly, this is not a case of that nature. The decision of the University subsequent to the last date of making the application and after the process of selection had started cannot, in any way, come to the assistance of appellant-Kewal Krishan. The eligibility criteria of passing the Punjabi examination was a condition which goes to the root of eligibility. By a subsequent decision that condition could not have been altered.
7. Subsequent certificate of qualification will not relate back to the date when the incumbent was appointed and would not make his appointment valid. To validate his appointment, the candidate must possess requisite qualification on the date of appointment.
8. The counsel for the petitioner-appellant further submitted that the appellant possessed certificate of High School examination with Intermediate Grade Examination from Bombay and had also knowledge of technical drawing upto High School standard. Our attention was drawn to para 14 of the affidavit filed in support of the stay application in this appeal. However, the said averment neither can be accepted nor can be relied upon for two reasons, firstly the petitioner-appellant could not brought any thing on record to support the averment made in para 14 of the affidavit and secondly, what has been averred in para 14 is that he passed Intermediate Grade drawing examination and not technical drawing examination. The statutory provisions in the case in hand require a person to possess qualification of technical drawing and not the simple or general drawing.
9. Learned Counsel for the appellant next submitted that the aforesaid qualification is to be read not mandatory but directory and will not invalidate the appointment. There is no reason to accept the aforesaid submission of the learned Counsel since the provision as quoted above clearly provides that the incumbent be asked to provide evidence of passing Technical Drawing and in case the evidence of passing the examination in technical drawing is not available, evidence of knowledge of technical drawing of that standard must be made available and where the qualification is to be relaxed is also provided in the aforesaid provision.
10. Therefore it cannot be said that the petitioner possessed the requisite qualification and his appointment to the post of Assistant LT Grade teacher to impart teaching in Commerce and Arts upto High school standard was therefore illegal and the District Inspector of Schools rightly disapproved financial grant for the said reason.
11. The learned Counsel for the appellant lastly submitted that the appointment once approved by the District Inspector of Schools, he is estopped from refusing to give financial approval for subsequent period. We do not find any force in the aforesaid submission. Where necessary qualification is lacking, the appointment is illegal and void. Principle of estoppel would not apply in such case.
12. Before an estoppel can arise, there must be, firstly, a representation of an existing fact distinct from a mere promise made by one party to other, secondly, that the other party believing it must have been induced to act on the faith of it, and thirdly, that he must have so acted to his detriment. Besides, the estoppel is not a pure question of law but it has to be pleaded giving necessary facts and only thereafter the same can be considered. In the present case neither the petitioner has shown that the respondents at any point of time represented to him that qualification which he possessed is the valid qualification as required under the Rule nor there is any thing to show that he acted to his detriment on account of such representation. Further the relevant facts have not been pleaded either in the writ petition or in appeal.
13. In case of Smt. Ravinder Sharma and Anr. v. State of Punjab and Ors. , the Apex Court after recording a finding that the appellant did not possess the qualification, considering the principle of estoppel held as under:
Admittedly, the appellant did not possess this qualification. That being so, the appointment is had. The Commission recommended to the Government for relaxation of the qualification under Regulation 17 of the Regulations. The Government rejected that recommendation. Where, therefore, the appointment way clearly against the Regulation-7, it was liable to be set aside. That being so no question of estoppel would ever arise. We respectfully agree with the view taken by the High Court.
14. In the circumstances the principle of estoppel is inapplicable in the case in hand. Even otherwise it does not appear to have been raised before the learned Single Judge and therefore, cannot be permitted to be raised at this stage.
15. The writ petition, therefore, has rightly been dismissed and the judgment under appeal needs no interference. The appeal is accordingly dismissed being devoid of merit but without any order as to costs.