Allahabad High Court
Nasreen Fatima vs State Of U.P. And 4 Others on 18 May, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 33 Case :- WRIT - A No. - 6713 of 2017 Petitioner :- Nasreen Fatima Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Niyaz Ahmad Khan,Mansoor Ahmad,Mohd. Abrar Khan Counsel for Respondent :- C.S.C.,Maqsood Ahmad Beg Hon'ble Mrs. Manju Rani Chauhan,J.
1. Supplementary counter affidavit filed on behalf of the respondent-Committee of Management in Court today is taken on record.
2. Heard Mr. Radha Kant Ojha, learned Senior Advocate assisted by Mr. Mansoor Ahmad, Mr. Maqsood Ahmad Beg and Mr. B.P. Singh Somwashi, learned counsel for the respondent-Committee of Management and the learned Standing Counsel for the State-respondents.
3. By means of the present writ petition, the petitioner has prayed for quashing the order dated 4th September, 2015 passed by the Joint Director of Education, Allahabad Division, Allahabad (now Prayagraj) i.e. respondent no.3 as well as for quashing the communication letter of the District Inspector of Schools, Fatehpur dated 7th January, 2016. Petitioner has also prayed that a direction be issued to the respondents to make payment of salary of the petitioner w.e.f. 12th August, 2015 to till date including the arrears and also pay the salary regularly as and when it becomes due.
4. By means of the letter-cum-order dated 4th September, 2015, respondent no.3 has informed the Manager of Inter College Dhauli, Fatehpur that the recommendation of the Committee of Management to accord financial approval to the appointment of the petitioner on the post of Principal of the said institution has been refused by the Regional Level Committee. In the said letter/order, it has been mentioned that on an opinion being obtained, it has been informed by the U.P. Secondary Education Services Selection Board, Allahabad vide his letter dated 11th August, 2015 that the teachers working in recognized unaided institutions are treated to be part-time teachers due to which their experience is not accepted to be valid. Therefore, it is not possible for the Regional Level Committee to accord financial approval to the appointment of the petitioner on the post of Principal of the institution, as she possesses teaching experience certificate from an unaided institution. The same information has been sent by the District Inspector of Schools, Fatehpur to the Manager of the Inter College, Pauli, District Fatehpur vide his letter dated 7th January, 2016, which is also under challenge in the present writ petition.
5. Relevant facts as borne out from the records of the present writ petition, are as follows:
Intermediate College, Pauli, District Fatehpur is an institution duly recognized by the Board of secondary Education of the State of Uttar Pradesh. As the said institution is in the grand-in-aid list of the State Government, the teachers and other employees of the said institution including the Principal are getting their salary from State exchequer under the provisions of U.P. High School and Intermediate Colleges (Payment of Salary to the Teachers and Other Employees) Act, 1971. As the vacancy of the post of Principal occurred in the institution, the Committee of Management of the said institution applied for permission to advertise the said post. However, the Committee of Management of the institution was informed that as the institution has been conferred the minority status, no prior permission for publication of the post of Principal of the institution is required. Therefore, an advertisement was accordingly made in two daily news papers, namely, one in Hindi, namely, Amar Ujala and second in English, namely, Northern Indian Patrika on 25th March, 2015, which were having adequate circulations. Pursuant to the said advertisement, various prospective candidates sent their applications forms through registered post. Petitioner, who possessed the degrees of High School (in the year 1994), Intermediate (in the year 1996), B.A. (in the year 1999), M.A. (in the year 2004 and B.Ed. (in the year 2011) examinations and also teaching experience of six years, six months and nine days w.e.f. 2nd July, 2008 to that date, from Ganesh Shanker Vidyarthee Balika Intermediate College, Sultanpur Gosh, Fatehpur, also applied in pursuance of the aforesaid advertisement through registered post. The photo copies of the degrees and teaching experience certificate of the petitioner have been enclosed along with the supplementary counter affidavit filed in the Court today. After receipt of the application forms of various prospective candidates, the Committee of Management sent a letter to the Regional Joint Director of Education on 5th May, 2015 to nominate an Expert for holding the selections of the post of Principal of the institution, the Regional Joint Director of Education inturn vide letter dated 4th June, 2015 nominated two retired officers, namely, Shyam Narain Rai and Ramesh Mishra as an expert. The Committee of Management opted Mr. Shaym Narain Rai, retired Joint Director of Education, Allahabad Region, Allahabad as an Expert for selection of the principal of the institution. The Committee of Management issued letters dated 5th June, 2015 by registered post to all the prospective candidates requiring them to appear in the interview, which was to be held on 28th June, 2015 in the campus of the institution. The petitioner appeared in the said interview. In the interview which was held on 28th June, 2015, total 13 persons participated including the petitioner. The result of the said interview was declared by the Selection Committee on the same day i.e. 28th June, 2015 in which the petitioner was placed at serial no.1. On the said result, the signatures of the expert appointed by the Regional Joint Director of Education, namely, Shyam Narain Rai along with other members of the Selection Committee was also appended, a copy of which has been enclosed as Annexure-4 to the writ petition. On 29th June, 2015, a meeting was convened by the Committee of Management, wherein the said result declared by the selection committee was accepted and on the basis of same, the petitioner was selected for the post of Principal of the institution. Accordingly, the Committee of Management submitted the relevant papers, on 1st July, 2015 before the Regional Joint Director of Education, Allahabad for financial approval to the appointment of the petitioner as principal of the institution. As no objection was raised by the concerned authority, in view of provisions of Chapter-I, Rule 17 (2) (g) of the U.P. Intermediate Education Act, 1921, the Committee of Management offered appointment letter to the petitioner on 2nd August, 2015 for the post of Principal of the institution. Pursuant to the said appointment letter, the petitioner joined on 12th August, 2015 as principal of the institution, a copy of the joining letter has been enclosed as Annexure-6 to the writ petition. The petitioner was discharging her duties as principal of the institution continuously to the utmost satisfaction of the education authorities. After some time, pursuant to the letter of the Regional Joint Director of Education, Allahabad Region, Allahabad dated 4th September, 2015, the District Inspector of Schools vide letter dated 7th January, 2016 communicated the Committee of Management of the Institution that relying on the opinion given by the Secretary, U.P. Secondary Education Services Selection Board, Allahabad, the Regional Level Committee has refused to accord financial approval to the appointment of the petitioner on the post of Principal of the institution. It is against these letters/orders, that the present writ petition has been filed.
6, Questioning the aforesaid orders/letters of the Regional Joint Director of Education and the District Inspector of Schools, following submissions have been advanced by the learned counsel for the petitioner:
(i) The order dated 4th September, 2015 has been passed by the Regional Level Committee on the basis of opinion given by the Secretary, U.P. Secondary Education Services Selection Board, Allahabad, when as a matter of fact, the provisions of U.P. Education Services Selection Board Act, 1982 is not applicable to the petitioner's institution, which is a minority institution.
(ii) The order impugned dated 4th September, 2015 has been passed by the Regional Level Committee without giving any notice well as without affording any opportunity of hearing either to the petitioner or the manager of the institution, hence, the same hits Article 14 and 16 of the Constitution of India, as the same has been made in violation of principles of natural justice.
(iii) The Committee of Management has preferred appeal against the order of the Regional Level Committee dated 4th September, 2015 but the petitioner has no concern with the same, after expiry of one month of the submissions of the relevant papers qua the appointment of the petitioner as required under Chapter-II Rule 17 (2) (g) of the U.P. Intermediate Education Act, 1921, the financial approval is deemed to be given in favour of the petitioner.
(iv) Appendix-A as referred in Regulation-1 of Chapter-II of the Regulations framed under the U.P. Intermediate Education Act, 1921 does not speak about the experience from "aided" institution, it only speaks of experience from "recognized" institution. It is not disputed by the learned Standing Counsel for the State-respondents any where that the petitioner is having teaching experience of "unaided" institution but the same is "recognized" institution. Hence, the petitioner possesses correct and valid teaching experience, as per the aforesaid provisions and nothing is wrong in the same. Neither the word "aided" nor "unaided" is mentioned in the aforesaid provisions.
(v) While passing the order impugned, the Regional Joint Director of Education has erred in law in obtaining opinion of the Secretary, Secondary Education Services Selection Board, who has no authority to give any opinion to a principal of a minority institution recognized under the provisions of U.P. Intermediate Education Act, 1921.
(vi) The State education authorities are habitual to harass the minoirity institutions like the petitioner's institution for the reasons best known to them.
On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that the order impugned dated 4th September, 2015 passed by the Regional Level Committee, Allahabad Region, Allahabad refusing to accord financial approval to the appointment of the petitioner for the post of principal cannot be legally sustained and is liable to be quashed.
7. On the other-hand, learned Standing Counsel for the State-respondents and the learned counsel for the respondent-Committee of Management submit that on the opinion given by the Secretary, U.P. Secondary Education Services Selection Board that as in the unaided institutions, only short term post of assistant teachers are sanctioned, therefore, the experience gained by such teachers from the said institutions cannot be counted or admitted, the Regional Level Committee has taken a decision not to accord financial approval to the appointment of the petitioner on the post of Principal of the institution, as the petitioner has gained teaching experience from Ganesh Shankar Vidyarthee Balika Intermediate College, Sultanpur Ghos, which is a recognized but not aided institution, hence the same is legal and valid.
Learned Standing Counsel for the State-respondents and the learned counsel for the respondent-Committee of Management further submit that Pauli Intermediate College, Pauli is a recognized minority institution and is an aided institution taking grant-in-aid from the State Government, therefore the provisions of U.P. Act No. 2 of 1921 of U.P. Act No. 24 of 1071 are fully applicable over the institution. The experience of teachers working under privately managed recognized institution cannot be counted/admitted, inasmuch as in such institutions, only short terms posts have been sanctioned. As the petitioner has possessed teaching experience certificate of a private managed institution, therefore, the Regional Level Committee has rightly not accorded financial approval to the appointment of the petitioner as Principal for payment of salaries from the State exchequer.
Lastly, it has been submitted by the learned Standing Counsel for the State-respondents that after retirement of Sri Surendra Prakash Mishra, who was working as officiating principal of the institution on 30th June, 2014, Mohd. Aafan is working as officiating principal of the said institution from 1st July, 2014.
In view of the aforesaid submissions, learned Standing Counsel for the State-respondents submits that there is no illegality or infirmity in the decision taken by the Regional Level Committee dated 4th September, 2015, which has been communicated to the Committee of Management by the Regional Joint Director of Education vide letter dated 4th September, 2015 as well as by the District Inspector of Schools, vide letter dated 7th January, 2016.
8. This Court has considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition including the counter affidavits, supplementary counter affidavit and rejoinder affidavits filed on behalf of the State-respondents, respondent-Committee of Management and the petitioner respectively.
9. Article 30 of the Indian Constitution gives right of minorities to establish and administer educational institutions, which consists of provisions that safeguard various rights of the minority community in the country keeping in mind the principle of equality as well. Article 30(1) says that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Article 30(1A) deals with the fixation of the amount for acquisition of property of any educational institution established by minority groups. Article 30(2) states that the government, which gives aid, should not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
10. Judged in the aforesaid legal background, this Court has no hesitation to hold that Section 16E (1) (2) and Section 16FF and Regulations 17 to 19 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921 which lay down the procedure for selection of principal and teachers in minority institutions are basically provisions for furtherance of fair administration of the minority institution and not to its detriment. These provisions have stood the test of time for decades together.
11. For ready reference, Section Section 16 E (1) and (2) and Section 16FF and Regulations-17 to 19 are quoted below:
"[16-E. Procedure for selection of teachers and heads of institutions.----Subject to the provisions of this Act, the Head of institution and teachers of an institution shall be appointed by the Committee of Management in the manner hereinafter provided.
(2) Every post of Head of institution or teacher of an institution shall except to the extent prescribed for being filled by promotion, be filled by direct recruitment after intimation of the vacancy to the Inspector and advertisement of the vacancy containing such particulars as may be prescribed, in at least two newspapers having adequate circulation in the State.
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Section 16 FF:- Saving as to minority institutions (1) Notwithstanding anything in Sub-section (4) of Section i6-E and Section 16-P, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution of shall consist of five members (including its Chairman) nominated by the Committee of Management:
Provided that one of the members of the Selection Committee shall- (a) In the case of appointment of an Institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director; (b) in the case of appointment of a teacher, be the Head of the institution concerned.
(2) The procedure to be followed by the Selection Committee referred to in Sub-section (1) shall be such as may be prescribed.
(3) No person selected under this section shall be appointed unless-
(a) in the case of the Head of an institution the proposal or appointment has been approved by the Regional Deputy Director of Education; and
(b) in the case of a teacher such proposal has been approved by the Inspector.
(4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualifications prescribed and k otherwise eligible.
(5) Where the Regional Deputy Director of Education or the Inspector, as the case may be, does not approve of candidate selected under, this section, the Committee o Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director it the case of Head of Institution, and to the' Regional Deputy Director of Education in the case of a teacher.
(6) Every, order passed by the Director or the Regional Deputy Director of Education on a representation under Sub-section (5 shall be final.
Chapter II of the Regulations Framed under U.P. Intermediate Education Act, 1921.
Regulation 17: The procedure for filling up the vacancy of the head of the Institution and teachers by direct recruitment in any recognized institution referred to in Section 16-FF shall be as follows;
(a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shah be advertised by the manager of the institution in at least one-Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e. whether temporary/permanent) and number of vacancies, descriptions of post (i.e. Principle or Headmaster, Lecture or L.T., C.T, or J.T.C.B.T.C. grade teacher including the subject or subjects in which the lecturer or teacher is required), scale of pay and other allowances, experience required, minimum qualification and age prescribed, if any for the post and prescribing a date which should ordinarily be less than two 'weeks form the date of advertisement by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned.
Notes:- (1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised. (2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management.
(a) All applications shall be made in the form prescribed by the management and shall contain all necessary particulars about qualifications, teaching experience and other activities and be accompanied by certified copies, of all the necessary certificates and testimonials. The management may charge cost of tl a application form not exceeding the amount referred 10 in Clause (2) of the Regulation 10.
(b) An application by a person employed in an institution and applying for a post elsewhere or in tie same institution shall not be withheld by his employer but shall be forwarded to the authority concerned immediately.
(c) All applications received form the candidates shell be serially numbered and entered in a register and particulars of the candidates noted under appropriate columns, The Candidates to be called for interview shall be sever for each post (with the prior permission of the head of the institution). The Manager shall intimate by registered post all the members of the Selection Committee as well as such candidates as are called fir interview, the date, time and place of selection at lea-it ten days before it is held. The Selection Committee will hold the selection accordingly.
If on account of any unavoidable reason the expert selected by the Committee of Management under Clause (a) of the proviso to Sub-section (1) of Section 16-FF is unable to attend the selection on the date fixed, the meeting of the Selection Committee shall , a postponed.
(d) The provisions of Clauses (e) and (f) of Regulation 10 and those of Regulations 11, 12, and 16 shall mutatis mutandis apply to selections made under this regulation.
(e) A panel of experts consisting of fifteen or more persons selected form category (a) referred to in Regulation 14 shall be drawn by the Director for each region and be sent to the Regional Deputy Director of Education concerned. The Regional Deputy Director of Education shall out of the said panel communicate the names of three experts in sealed cover to the management through its manager as soon as he receives any request for supply of names of experts from him. The regional panel of experts shall, however, remain valid until it is replaced by a new one.
(f) Chairman of the Selection Committee after conducting interview of all the candidates for any post will get a note prepared in two copies on the proceedings of the selection which will mention the names of the selected candidates and names of two more candidates of waiting list. Chairman and other members of Selection Committee will sign on notes, so prepared, and mention their full name, designation arid address. Chairman would immediately forward a copy of this note and a copy of statement referred to in Clause (f) of Regulation 10 to the Regional Dy. Director of the Inspector, as the case may be, for approval as required under Selection 16FF.Regional Dy. Director or Inspector, as the case may be, within one month of the date of receipt of concerned records, will give his. decision thereon and, failing to do so, it will be deemed to be approved].
Regulation 18: (1) Within fifteen days of the receipt of-the recommendation of the Selection Committee constituted under Sub-section (1) or (2) of Section 16-F, and in case of an institution referred to iii Section 16-FF, the approval of the authority specified therein, the Manager shall, on authorization under resolution of the Committee of Management, issue an order of appointment by registered post to the candidate in the form given in Appendix 'B' requiring the candidate to join duty within ten days of the receipt of such order failing which the appointment of the candidate will be liable to cancellation.
(2) In case of promotions and ad hoc appointments also forma-order of promotion or appointment in the form as near a possible to the form referred to in Clause (1) shall be issued to the person concerned under the signature of the Manager.
(3) A copy of every order referred to in Clauses (1) aid (2 shall be sent to the Inspector and in case of appointment of the head of institution a copy thereof shall also be sent to the Regional Deputy Director of Education.
Regulation 19: Where any person is appointed as, or any promotion is made on any post of head of institution or ; teacher in contravention of the provisions of this chapter or against any post other Khan a sanctioned post the Inspector shall decline to pay salary and other allowance, if any, to such person where the institution is covered by the provisions of the V.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971, and in other cases shall decline to give any grant for the salary and allowances in respect of such person."
12. From bare reading of the aforesaid provisions as well as the records of the present writ petition, it is an admitted position that the selection of the petitioner for appointment on the post of Principal in the institution has been made after following all procedures, which have been quoted herein above.
13. The only question, which arises for consideration before this Court as to whether the petitioner has possessed the teaching experience certificate, as prescribed under the relevant provisions or not.
14. For appreciating the said question, it is worthwhile to reproduce Appendix-A of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, as qualification for the post of Principal or head of non-Government recognized Higher Secondary Schools, has been prescribed in aforesaid Appendix A, which reads as follows:
"APPENDIX A (In reference to Regulation 1 of Chapter II) Minimum eligibilities for appointment of Heads and teachers in non-Government recognised Higher Secondary Schools.
1. Degree and diploma in concerned subject of any University established or regulated by or under any Central Act, Provincial Act or State Act, which is considered to be a University under Section 3 of the University Grants Commission Act, 1956, or of any such institution specially empowered by any Act of Parliament shall be recognised for the purpose of minimum qualifications prescribed under it.
2. Under it in reference to prescribed qualifications the word "trained" means post graduate training qualification such as L.T., B.T., B. Ed., B. Ed. Sc. or M. Ed. of any University or institution as specified in the earlier para or any equivalent (Degree or Diploma). It also includes departmental A.T.C. and C.T. with minimum teaching experience of 5 years'. J.T.C./B.T.C. Grae teacher shall also be considered to be. C.T. if he has worked in C.T. Grade at least for 5 years'.
Essential Qualifications Sl. No. Name of the post Essential Training Experience Age Desirable qualficiations 2 3 4 5 1 Head of the institution (1) trained M.A. or M.Sc. or M.Com or M.Sc. (Ag) or any equivalent Post-graduate or any other degree which is awarded by corporate body specified in above-mentioned para one and should have at least teaching experience of four years in classes 9-12 in any training institute or in any institution or university specified in above-mentioned para one or in any degree college affiliated to such university or institution, recognized by board or any institution affiliated from Boards of other State or such other institutions whose examinations recognised by the board, or should the conditions is also that he/she should not be below 30 years of age.
or (2) First or second class postgraduate degree along with teaching experience of ten years in intermediate classes of any recognized institutions or third class post-graduate degree with teaching experience of fifteen years, or (3) Trained post-graduate diploma-holder in science. The condition is that he has passed this diploma course in first or second class and have efficiently worked for 15 or 20 years respectively after passing such diploma course.
Minimum 30 years Notes: (1) Assistant teachers having at least second class postgraduate degree and specified teaching experience of ten years in intermediate classes of a recognised institution may be exempted from training qualifications, (as per the provisions contained in the Act.) (2)Teaching experience includes teaching prior to or after teaching or both.
(3)Higher classes means classes from 9 to 12 and experience of teaching these classes is admissible for the post of Headmaster of intermediate college."
15. The aforesaid Appendix provides three alternative qualifications. The first being Trained M.A. or M. Sc. or M. Com. or M. Sc. (Ag) or any equivalent post graduate or any other degree which is awarded by corporate body specified in above mentioned para one and should have at least teaching experience of four years in class 9 to 12 in any training institute or in any institution. The second qualification which has been provided for is that the candidate should have 10 years teaching experience of Intermediate classes of any recognized institution with first or second class Postgraduate degree or third class Postgraduate degree with 15 years teaching experience. Third qualification, which has been provided for is Postgraduate Diploma holders in Science with the condition that he has passed diploma course in first or second class and has served meritoriously for 15 years or 20 years respectively in any recognized institution after passing such diploma course. These are three alternative qualifications provided for being appointed on the post of Principal under Appendix-A of Chapter- II of U.P. Intermediate Education Act, 1921
16. Therefore, whatever qualifications are prescribed under Appendix-A for the post of Principal apply equally for ad hoc appointment as well as for regular appointment. Merely because a teacher imparts education in one of the recognized but unaided institution (self financed institution), after he satisfies statutorily prescribed qualifications, it cannot be said that he is not a member of the cadre of teacher to be considered for appointment on the post of Principal/Headmaster. From perusal of entire Appendix-A, it is clear that the words "unaided or aided" have not been mentioned any where. Only the word "recognized" has been mentioned therein. Neither in the impugned decision made by the Regional Level Committee nor in the counter affidavits and supplementary counter affidavit filed on behalf of the State-respondents and respondent-Committee of Management nor it has been placed before this Court, by learned counsel for the respondents, as to in which provisions of law, it has been prescribed for appointment on the post of head of the institution/principal of a non-government higher secondary school that the candidate concerned must possess the teaching experience certificate of a recognized and aided institution, when as a matter of fact, in Appendix-A, it has only been prescribed that the candidate concerned must possess teaching experience certificate of any recognized institution.
17. In view of the aforesaid, this Court is of the considered opinion that as per Clause (1) of the Appendix-A as referred to in Regulation-1 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, the petitioner has possessed the requisite qualification of trained M.A. i.e. M.A. B.Ed. and teaching certificate of a "recognized" institution of more than six years. Therefore, the impugned decision taken by the Regional Level Committee appears to be bad in eyes of law and the same is liable to be quashed on this ground alone.
18. Apart from the above, this Court will also examine the issue which has been taken in the impugned decision of the Regional Level Committee, which has been taken in light of the opinion given by the Secretary, U.P. Secondary Education Services Selection Board, Allahabad that as the petitioner has obtained teaching experience certificate from Ganesh Shankar Vidyarthi Balika Intermediate College, Sultanpur Ghosh, Fatehpur, which is a recognized but a self-financed institution, in which posts of part time teachers are sanctioned, therefore, on the basis of said certificate, the appointment of the petitioner for the post of Principal of the institution cannot be approved of.
19. Even otherwise, the Apex Court in the case of Mohd. Altaf (1) & Others Vs. U.P. Public Service Commission & Another reported in (2008) 14 SCC 139, has held that apparently there being no restriction in the statutory rules to the effect that teaching experience must be that of a recognized institution of the U.P. Board of High School and Intermediate Education, without prejudice to the contentions, list of such candidatures also should be prepared and submitted to the Supreme Court. Paragraph no. 6 of the said judgment of the Apex Court, which is relevant, are being quoted herein below:
"6. It is to be stated that the aforesaid Rules nowhere prescribe that teaching experience should be that of a teacher in government college or government-aided or unaided college or institution. Teaching experience may be from any Higher Secondary School or High School or from an institute having Intermediate or higher classes. Further, a Lecturer having three years' teaching experience in CT/LT training college is also eligible."
20. A learned Single Judge of this Court vide judgment and order dated 24th February, 2014 passed in Writ-A No. 11100 of 2014 (Dr. Sanjay Kumar Singh And Another Vs.State Of U.P. Thru Secy. And Another) has opined as follows:
"As per the eligibility criteria the experience could be as Head of a Higher Secondary or normal School or in teaching Intermediate or higher classes or as a lecturer in CT or LT training college. It is also the case of the petitioner that she had appended a certificate duly issued by the College and counter signed by Deputy Registrar, Chaudhary Charan Singh University, Meerut to which the Degree College was affiliated. It is also case of the petitioner that her application form was also duly signed by the Secretary of the institution and also Deputy Registrar of the University.
According to the counsel for the petitioner experience as required under the Rules is for teaching Intermediate or higher classes in a recognised institution. There is no requirement of teaching in an aided institution or government institution. Reliance has been placed upon number of decisions of this Court and also the Apex Court in the case of-
1. Mohd. Altaf (1) and others vs. U.P. Public Service Commission and another, reported in (2008)14 Supreme Court Cases 139,
2. Mohd. Altaf (3) and others vs. U.P. Public Service Commission and another, reported in (2008) 14 Supreme Court Cases 146, and
3. Dr. Deepak Bhatiya and others vs. State of U.P. and others, reported in 2010(1) AWC 48, to the effect that teachers who have experience in an unaided institution or non governmental institution, but have been regularly teaching, cannot be excluded as the qualifications no where prescribes that experience should be in aided institution or government institution."
21. The same learned Single Judge vide judgment and order dated 7th March, 2014 passed in Writ-A NO. 14349 of 2014 (Dr. Om Prakash Pandey Vs. State of U.P. & Another, has noticed as follows:
"The learned Single Judge has found that the Apex Court in the case of Mohd. Altaf & Ors. vs. Public Service Commission & Anr. In Civil Appeal No.961- 962 of 1999 as also in Contempt Petition (c) No.372/2002 in Civil Appeal No.962/1999, Shamim Khanam vs. K.B. Pandey and another, had taken a view that teachers working in self-financed institution cannot, as a class, be excluded from consideration. The judgment of the Apex Court was followed by this Court in the case of Dr. Deepak Bhatia vs. State of U.P. and others, 2010(5) ESC 3498 and this Court has held that no distinction can be made in respect of the education recognised by U.P. Board of Secondary Education or the institutions recognised by the C.B.S.E. Or the I.C.S.E. Boards and experience earned by the candidates in self-financed institution are to be taken into consideration."
Another Single Judge while deciding Writ Petition No. 29000 of 2013 Dr. Madhulika Singh Vs. State of U.P. and others has held as under:
"The issue relating to experience in a self financed Intermediate college has already been resolved by the decision of this court in the case of Dr. Deepak Bhatiya and others Vs. State of U.P. and others, writ petition no. 2842 of 2010, decided on 15.7.2010. A copy of the said judgment is annexure 10 to the writ petition.
Apart from this, the ratio of the decision in the case of Dr. Madhulika Singh the petitioner herself in writ petition no. 14582 of 2012 relies on the ratio of a Supreme Court decision in relation to experience.
The petitioner's experience certificate of teaching in a Girls Degree College is on record and her appointment order in the degree college dated 23.1.2004 is Annexure 5 to the writ petition.
A perusal of the said appointment order indicates that the petitioner was appointed on a fixed honoraria basis after approval of the Vice Chancellor of the University. In such circumstances, the said appointment cannot be said to be an appointment either de-hors the rules or not in accordance with law so as to disentitle the petitioner to get the said period of experience counted for the purpose of selection.
The petitioner has described herself as a full time teacher supported by a certificate from the institution. Payment of a fixed honoraria is not necessarily an indicator of full time or part-time experience. Receipt of emoluments are not a substitute for experience.
A teacher getting a fixed salary at times is more devoted towards performance than those who have secured permanent berths. The experience of a teacher in a particular subject can be gauged by performance and the status of involvement in the institution, and not on some subjective assumption. However the genuineness of such experience, like in the present case, would also have to be assessed by the nature of engagement. In the present case the petitioner claims her status of a teacher in a degree college upon approval by the Vice Chancellor of a recognized University.
So far as her experience as a teacher in an Intermediate College is concerned, that experience has also to be examined in accordance with the modes of appointment in an unaided Inter College.
In both cases payment of honoraria cannot be the criteria of rejection of experience. Merely because a teacher has received lower emoluments, though working on an equivalent post, cannot be the ground to reject a candidature. The judgments referred to hereinabove have to be taken into account that relies on the Apex Court decision in the case of Mohd. Altaf and others Vs. U.P. Public Service Commission and another reported in 2008(14) SCC 139; 2008 (14) SCC 144; 2008 (14) SCC 146 and 2002 (93) FLR 1208.
It is expected that the Board shall now consider the matter more objectively. Thus the reasons given in the impugned order dated 13.3.2013 cannot be sustained. The impugned order is quashed.
The writ petition is allowed with a direction to the respondent Board to consider the experience of the petitioner in the light of observations made hereinabove and pass an appropriate order within six weeks."
22. Lastly, this Court finds substance in the submission made by the learned counsel for the petitioner that the impugned decision has been taken by the Regional Level Committee refusing to accord financial approval to the appointment of the petitioner on the post of principal without affording any opportunity of hearing to the petitioner and the respondent-Committee of Management, which has offered appointment letter to the petitioner. Therefore, the same hits Article 14 and 16 of the Constitution of India, as the same has been made in violation of principles of natural justice.
23. Thus, for the parameter and reasons noted above, this Court is of the considered opinion that the impugned decision taken by the Regional Level Committee, Prayagraj/Allahabad Region, Prayagraj dated 4th September, 2015, which has been communicated by the Regional Joint Director of Education, Prayagraj/Allahabad Region, Prayagraj vide letter dated 4th September, 2015 as also by the District Inspector of Schools, Fatehpur vide letter dated 7th January, 2016 to the respondent-Committee of Management cannot be legally sustained and is hereby quashed. This matter is remitted back to the Regional Level Committee, Prayagraj/Allahabad Region, Prayagraj for decision afresh qua financial approval to the appointment of the petitioner on the post of the principal of the institution of which relevant papers have been sent by the respondent-Committee of Management. While deciding this matter afresh, the Regional Level Committee, Prayagraj/Allahabad Region, Prayagraj shall pass a reasoned and speaking order, in accordance with the provisions of U.P. Intermediate Education Act, 1921 and its rules and regulations framed thereunder as also in light of the observations made above, preferably within three months from the date of production of a certified copy of this order.
24. The present writ petition is allowed subject to the observations made above.
(Manju Rani Chauhan, J.) Order Date :- 18.5.2022 Sushil/-