Allahabad High Court
Dr. Digvijay Nath Tiwari vs State Of U.P. And 5 Others on 13 November, 2019
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- WRIT - A No. - 14490 of 2018 Petitioner :- Dr. Digvijay Nath Tiwari Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ratnakar Upadhyay,Sr. Advocate Sri Radha Kant Ojha, Counsel for Respondent :- C.S.C.,Anil Kumar Singh,Ashok Kumar Yadav,Rahul Jain,Santoosh Kumar Dwivedi,Anil Kumar Singh With Case :- WRIT - A No. - 36446 of 2017 Petitioner :- Ajay Kumar Shahi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Hritudhwaj Pratap Sahi,Samarath Singh,Sankalp Narain Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav Hon'ble Suneet Kumar,J.
Heard Sri R.K. Ojha, learned Senior Counsel, assisted by Sri Ratnakar Upadhyay, learned counsels for the petitioner, learned Standing Counsel for the State-respondent, Sri S.K. Dwivedi for the third respondent, Sri Rahul Jain for the sixth respondent and Sri V.K. Singh, learned Senior Counsel, assisted by Sri H.P. Singh learned counsel for the petitioner in the connected writ petition (Writ-A No. 36446 of 2017), i.e. sixth respondent in the lead petition (Writ-A No. 14490 of 2018).
On the consent of the parties, the pleadings and facts of Writ-A No. 14490 of 2018 is being taken for the sake of convenience for deciding the writ petitions.
The writ petition is directed against the order dated 24 May 2018, passed by the third respondent, Secretary, U.P. Secondary Education Service Selection Board1, Prayagraj, rejecting the selection of the petitioner for the post of Headmaster in high school and approving the selection/appointment of the sixth respondent.
The facts, briefly stated, is that the Board invited applications, inter alia, for the post of Headmaster vide Advertisement No. 1 of 2008, notified on 7 September 2008. The petitioner and the sixth respondent came to be selected and their names were included in the select panel issued by the Board on 12 March 2010. Pursuant thereof, petitioner joined as Headmaster in Gramin Uchchatar Madhyamik Pandir Ke Rampur Bariarpur, District Deoria, whereas, the sixth respondent joined as Headmaster in Sri Shanker Narvadeshwar Uchchtar Madhyamik Vidyalaya Beejrapur, Jhangtaun, Deoria, on 1 July 2010. Thereafter several petitions came to be filed either by the petitioner or the third parties with regard to the appointment/selection, but finally on the directions of the Division Bench of this Court, the Board decided the eligibility of the contesting parties by the impugned order.
Earlier, vide order dated 24/1 March 2017 passed by the Board, the sixth respondent (petitioner in writ petition No. 36467 of 2017) was held unqualified not having the requisite qualification for L.T. Grade assistant teacher (Science). The order dated 24 November 2017 and the consequential orders are under challenge in the connected writ petition. However, by the impugned order dated 28 May 2018, the candidature of the petitioner of the lead petition has been set aside not being qualified, but the Board has found the sixth respondent qualified for the post of Head Master. In other words, the Board has for all practical purpose annulled its earlier order insofar it pertains to the sixth respondent.
The Board rejected the claim of the petitioner, primarily, on three counts: (i) petitioner lacks teaching experience on the post of L.T. grade assistant teacher mandated in sub-rule (5) of Rule 12 of U.P. Secondary Education Services Selection Board Rules 19982; (ii) petitioner having experience of part time lecturer (Sanskrit) under Section 7-AA of Intermediate Education Act, 19213, not being a full time or regular teacher is not qualified; (iii) petitioner committed fraud and misrepresentation as he worked in three different institutions i.e. Junior High School/Intermediate College/Degree College in the same period.
Insofar the sixth respondent is concerned, it is urged that he has the experience of assistant teacher (Agriculture), whereas, no post of assistant teacher (Agriculture) was sanctioned in the institution where the petitioner claims to have been teaching. In other words, it is urged that assistant teacher (Science) was approved for the institution, against which the sixth respondent claims to have been appointed, whereas, he lacks the qualification of assistant teacher (Science).
Learned counsel for the petitioner has made submissions on all the three points noted in the impugned order rejecting the claim of the petitioner. It is urged that under Section 7-AA, teacher/lecturer is appointed on regular basis on full time, though they are referred to as part time lecturer under Section 7-AA, but that would not mean that the teacher is a part time teacher as understood in common parlance. Petitioner came to be appointed in a regular pay-scale, therefore, the finding that petitioner was a part time lecturer is perse perverse. Part time teacher is not granted regular pay scale. Petitioner came to be appointed in 1993 as lecturer (Sanskrit) and since then he has continued until his selection on the post.
It is further urged that petitioner did not commit any fraud/misrepresentation, of working in three different institutions simultaneously. Petitioner was appointed lecturer (Sanskrit) in 1993 and in 2008 petitioner came to be appointed lecturer in a degree college. With regard to the allegation that petitioner was earlier working in a junior high school is incorrect and false. Petitioner had never worked as an assistant teacher in a junior high school for the reason that petitioner since inception i.e. 1993 was appointed lecturer (Sanskrit) in an Intermediate college. The allegation of the sixth respondent that the petitioner had instituted a petition being writ petition No. 17342 of 2008, claiming salary on the post of assistant teacher of a junior high school is incorrect. It is urged that the petitioner had not instituted the said writ petition, rather, it was mischievously filed by some imposter in 2008. There was no occasion to claim salary for the post of assistant teacher for the reason that petitioner came to be selected in a degree college on a much higher post.
Be that as it may, this Court is not inclined to enter into disputed questions of fact, whether petitioner was employed in three different institutions at the same time, or whether petitioner was a part time/full time lecturer.
The issue that primarily arises for consideration is as to whether petitioner possesses the requisite qualification/experience mandated under Rule 12 of Rules, 1998.
Prior to the enactment of Uttar Pradesh Secondary Education Services Selection Board Act, 19824, the selection appointment and qualification of headmaster/principal of High School and Intermediate institutions was laid down in Appendix A of Regulation 1 of Chapter II of U.P. Intermediate Education Act, 1921, which, inter alia, provides that apart from the minimum educational qualification, four years teaching experience of class 9 to 12 was mandatory for the head of the institution i.e. headmaster/principal. In other words, lecturer appointed to teach class 11 to 12 was eligible for appointment as Head Master of High School. However, with the coming into force of Act, 1982 w.e.f. 14 July 1981, the posts were entrusted to a Commission, in order to ensure that good and competent persons were selected and appointed on the said post and relevant rules were framed by the State Government from time to time. However, vide notification dated 13 July 1988, Rules, 1998, enforced w.e.f. 8 August 1998, were notified. The selections of the contesting parties were held under the Rules, 1998. Act, 1982 came to be amended w.e.f. 20 July 1998, entrusting entire selection process to the Board in place of the Commission. Rule 5 of Rules, 1998 prescribes the academic qualification for appointment to the post of teacher which reads thus " 5. Essential Qualifications- A candidate for appointment to a post of teacher must possess qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921."
The Chapter II of the Regulations framed under Act, 1921 deals with appointment of heads of institutions and teachers. Regulation 1 of the said Chapter stipulates the minimum qualification for appointment as head of institution and teacher in any recognized institution whether by direct recruitment or otherwise, shall be as given in Appendix A. As per the said Appendix, the essential qualification for the post of head of the institution reads thus:
"1. Head of the institution:
(1) Trained M.A. or M.Sc. or M.Com or M.Sc (Agri) or any years 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 to 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 States or such other institutions whose examinations are recognized by the Board, or should the condition is also that he/she should not be below 30 years of age.
2. xx xx xx
3. xx xx xx"
Part III of Rules, 1998, lays down the procedure for recruitment to various categories of teachers. Rule 10(a) thereof provides, the mode of recruitment of Principal of an Intermediate College or Headmaster of High School. Rule 12 lays down the procedure for direct recruitment. The ''Note' appended to Rule 12 stipulates the teaching experience that shall be counted for the post of Principal/Head Master. Note reads thus:
"Note.- For the purpose of calculating experience the service rendered as Headmaster of Junior High School or as assistant teacher in a High School/Intermediate College shall be counted in the case of selection of Headmaster; and for selection of Principal, the service rendered as Headmaster of a High School or as a Lecturer shall only be counted. The provision of sub-rule (4) of Rule 12 regarding the certificate of experience shall mutatis mutandis apply."
The ''Note' further provides for calculating experience the service rendered as Headmaster of junior high school or as assistant teacher in a High School/Intermediate College shall be counted in the case of selection of Headmaster.
As noted supra, Rule 5 of the Rules, 1998 deals with academic qualifications for appointment to the post of teacher and contemplates that a candidate must possess qualification as specified in Regulation 1 of Chapter II of the Regulations. Appendix A of the Regulations mandates that a candidate should have four years experience of teaching classes 9 to 12. However, the `Note' appended to sub rule (5) of Rule 12 excludes the teaching experience of assistant teacher for classes 11 and 12 for the post of Headmaster. The ''Note' clearly stipulates that for selection to the post of the Headmaster, with which the Court is concerned, for the purpose of calculating experience, services rendered as assistant teacher teaching upto class 10 are qualified for the post of Headmaster. The ''Note' excludes lecturers (class 11 and 12) for being considered for the post of Headmaster. Act, 1982 being a subsequent Act, the ''Note' appended to sub-rule (5) of Rule 12 of Rules, 1998 has the effect of modifying the conditions of qualifying experience mentioned in Appendix A of the Regulations under the Intermediate Act. Section 32 of the Act, 1982, provides that the provision of the Intermediate Act and Regulations made thereunder will continue to be in force in case they are not inconsistent with the Principal Act and the Rules made thereunder.
The Supreme Court in Balbir Kaur and another Versus Uttar Pradesh Secondary Education Service Selection Board, Allahabad5, was called upon to consider sub-Rule (5) of Rule 12 of Rules, 1998 with regard to the qualifications for the post of principal of Intermediate college. It was held that experience mandated in the 'Note' to sub-Rule (5) of Rule 12 of Rules, 1998, prescribes the requirement of experience for the post, which is different from what is prescribed in the Appendix of the Regulations, there being a conflict between the two provisions, the `Note' shall have an overriding effect to Appendix in view of Section 32 of Act, 1982. Para 23 is extracted:
"23.Having come to the said conclusion, the issue which still survives for consideration is whether for appointment to the post of Principal, the qualifying experience as stipulated in the said `Note' would apply or the one prescribed in the Appendix-A to Regulation I of Chapter II of the Regulations made under the Intermediate Act. In our view, answer to the question can be found in Section 32 of the Principal Act, which provides that the provision of the Intermediate Act and Regulations made thereunder will continue to be in force in case they are not inconsistent with the Principal Act and the Rules made thereunder. As noted hereinbefore `Note' to sub rule (5) of Rule 12 of 1998 Rules prescribes the requirement of experience for the post, which is different from what is prescribed in the said Appendix A and, therefore, there being a conflict between the two provisions, in the teeth of Section 32, the said `Note' shall have an overriding effect over Appendix A insofar as the question of experience is concerned. In this view of the matter, we are in agreement with the learned Single Judge that the impugned advertisements were in conformity with the said `Note' and, therefore, the selection procedure could not be faulted on that score."
It is admitted by the learned counsel for the petitioner that the experience certificate placed before the Board calculating the experience of the petitioner since 1993 is on the post of lecturer (Sanskrit). The subsequent document relied upon granting pay scale to the petitioner is also on the post of lecturer. The documents i.e. experience certificate relied upon by the petitioner before the Board has been placed on record which clearly shows that the petitioner at any point of time was not appointed assistant teacher rather he had teaching experience of lecturer, i.e. teaching students of classes 11 and 12.
In view thereof, admittedly petitioner was not having the requisite experience mandated in the ''Note' to sub-Rule (5) of Rule 12. The finding to that effect returned by the Board while passing the impugned order cannot be faulted.
Reliance has been placed by the learned Senior Counsel on various notifications issued in the past by the Board to contend that a candidate appointed as assistant teacher in various universities/colleges affiliated to the University and working in L.T. Grade pay scale or higher pay scale and having four years teaching experience are also eligible. It is sought to be urged that the advertisement clearly prescribes that a candidate working on higher pay scale would have the requisite experience. The lecturer of a degree college/university can also seek appointment on the post of Headmaster.
In rebuttal, learned counsel appearing for the Board submits that the advertisement is strictly as per the provisions of Rule 5/12 of Rules, 1998. The four year experience mandated thereunder is that of an assistant teacher and not of a lecturer of an intermediate Institution and/or University/degree college. In the State there are colleges affiliated to Sanskrit University imparting education from Class 8 to graduation or higher level. But since 31 October 2008 colleges affiliated to Sanskrit University are imparting education for graduate classes. The teachers working in these universities/colleges as assistant teacher teaching class 8 to 10 would alone be eligible for the post of Headmaster, whereas, teachers appointed as lecturer to teach class 11 and 12 or higher classes would not qualify under Rule 12. The rule mandates experience of assistant teacher and not of higher post. An assistant teacher working on higher pay scale would certainly not mean that such a teacher would include the lecturer of intermediate/degree college.
On specific query, learned Senior Counsel does not deny that in the State of Uttar Pradesh the Sanskrit University/Colleges affiliated to the University are taking classes from class 8 to degree level.
In view thereof, I have no hesitation in holding that the finding returned by the Board that petitioner does not have the requisite experience mandated under the ''Note' to sub-Rule (5) of Rule 12 is justified and valid, therefore, calls for no interference.
Insofar as the eligibility of the sixth respondent/petitioner of Writ - A No.36446 of 2017 is concerned, the allegation against him is that he is B.Sc./M.Sc. (Agriculture). It is, therefore, urged that the sixth respondent was not qualified to have been appointed assistant teacher (Science). It is not in dispute that sixth respondent has been working as assistant teacher in High School and has the requisite experience mandated by the ''Note' to Rule 12 of Rules, 1998. The plea, that since vacancy in Science subject arose in the institution, therefore, only a Science teacher could have been appointed is not tenable. Under the Act, 1921, lecturers are appointed for a specific subject, but the number of assistant teacher is determined depending upon the strength of the students enrolled in the institution. It is left open to the Committee of Management of the Institution to appoint teachers as is required. In other words, where assistant teacher teaching Science or English retires, it is not incumbent upon the Committee of Management of the Institution to appoint teachers for Science or English subjects. The discretion is available with the Committee depending whether teachers to teach the subject are available. In case, the teachers are available the Committee of Management can appoint any other person eligible for teaching the subject for which teacher is required.
Division Bench of this Court in B.P. Tripathi Vs. State of U.P. and others6, held that the expression: -
"...... for teaching the subject in which the teacher ....... in the L.T. grade is required" cannot be read as "for teaching the subject which was being taught by the teacher whose vacancy is to be fulfilled".
It is thus clear that the Committee of Management is entitled to promote/appoint such teacher to the vacancy caused in L.T. grade who is required to teach the subject which the Committee of Management thinks necessary in the interest of the institution. The decision was followed by the subsequent Division Bench in Pati Ram Pal Vs. District Inspector of Schools and others7.
On specific query, learned counsel appearing for the petitioner and the Board do not dispute that the sixth respondent has the requisite experience for the post of assistant teacher, the only plea being raised that since he was B.Sc. (Agriculture), therefore, he could not have been appointed against the vacancy of assistant teacher (Science), lacks merit.
Learned counsel for the petitioner failed to show any provision of Act, 1921 or the Regulations and Rules framed thereunder that there is any embargo upon the Committee of the Institution for not making appointment for assistant teachers in other streams.
Accordingly:
(i) Writ Petition No.14490 of 2018 (Dr. Digvijay Nath Tiwari Vs. State of U.P. and others), is dismissed.
(ii) Writ Petition No.36446 of 2017 (Ajay Kumar Sahi Vs. State of U.P. and others), is allowed. Impugned order dated 24 March 2017 passed by the Board and consequential orders are set aside and quashed.
No order as to cost.
Order Date :- 13.11.2019 Atul