Uttarakhand High Court
Smt. Soniya Singh vs State Of Uttarakhand And Others on 24 April, 2018
Bench: K.M. Joseph, Sharad Kumar Sharma
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Special Appeal No. 114 of 2015
Smt. Bhawna Mathews & Ors. ...Appellants
Vs.
State of Uttarakhand & Others ..Respondents
With
Special Appeal No. 69 of 2015
Committee of Management
Methodist Girls Inter College Roorkee ..Appellants
Vs.
Smt. Kavita Saini & Ors. ..Respondents
With
Special Appeal No. 153 of 2015
Smt. Soniya Singh ..Appellant
Vs.
State of Uttarakhand & Others ..Respondents
Mr. B.D. Upadhyaya, Senior Advocate assisted by Mr. Sunil
Upadhyaya, Advocate for the appellants
Mr. J.C. Pandey, Brief Holder for the State of Uttarakhand
Mr. A.V. Pundir, Advocate for respondent No. 5.
Mr. Tapan Singh, Advocate for respondent No. 6.
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on : 21.03.2018 Delivered on : 24.04.2018 SHARAD KUMAR SHARMA, J.
1. This is a bunch of three special Appeals, which arises out of a common judgment, passed by the learned Single Judge, dated 4th September, 2 2014, (for the purpose of convenience, as all these appeals involve same fact and law they are being heard and decided together by this common judgment). By the impugned judgment rendered by the learned Single Judge, dated 04.09.2014, in the Writ Petition (S/S) No. 500 of 2011 "Kavita Saini Vs. State of Uttarakhand and Others", preferred by respondent No. 6 to the present Special Appeal, has been allowed. Consequently, the relief as sought in the writ petition, challenging the appointment of private respondent nos. 6 to 10 (to the writ petition) as Assistant Teacher (Primary) (BTC) in the Recognised Minority Aided Institution, run and managed by respondent No. 5 to the writ petition (Appellants to the Appeal No. 69 of 2015), has been quashed and further a direction has been issued to the Director of Education, to call an explanation from respondent no. 3 to the writ petition, who has also been impleaded by name as respondent no. 4, and further directing that, if the explanation given by him is not found satisfactory, disciplinary proceeding be drawn against him.
2. Briefly put, the case of the respondent no. 6/writ petitioner, before the learned Single Judge, was as follows:
She contended that according to the provisions as contained under the Regulations of 3 2009, as framed u/s 24 of the Uttaranchal School Education Act, 2006, in its chapter II provides for minimum educational qualification and eligibility for the post of Assistant Teacher (Primary) (BTC). Since she was a graduate and having a BTC training certificate, as required by Regulations, she was qualified to participate in the selection process and be considered for in the process of selection for the post of the Assistant Teacher Primary) (BTC), in the primary school of respondent no. 5.
3. Under the Regulations itself, it provides that prior to issuing a publication under clause (a) of Regulation-17, inviting applications for selection, the Management after determination of the number of available vacancies will have to get a sanction from the appropriate authority before it is advertised.
4. It is the case of the writ petitioner that in pursuance to the provisions contained under Regulation 17(a), the Management i.e. respondent No. 5, to the writ petition had filed an application before the District Education Officer i.e. respondent No. 3 to the writ petition, for seeking an appropriate permission to advertise the vacancies, the said permission was granted by District Education Officer in favour of the 4 respondent no. 5, on 6th September 2010, with specific direction that the Management would proceed to filling the posts strictly in accordance with the provisions contained under Uttarakhand School Education Regulations, 2009.
5. The provisions regulating the appointment of the Assistant Teacher (Primary) (BTC), in a recognised aided minority institution, which Respondent No. 5 is, provide under Regulations 17(a) as promulgated u/s 24 of the Uttarakhand School Education Regulation, 2009, that the Management, after determination of number of vacancies shall advertise the posts in at least one Hindi and one English newspaper having wide circulation within area. In the advertisement thus published, under the regulation, Management is required to publish the nature of the posts, number of vacancies available in a discipline, the qualification required for each discipline, including the subjects, if at all needed the pay-scales and other admissible allowances, which could be drawn against the said posts.
6. Under sub-clause (a) of Regulation 10 as applicable to other institution, which deals with the provisions relating to putting of the advertisement inviting application, it contemplates that the advertisement would be 5 issued in at least two newspapers after seeking permission from the District Education Officer and the responsibility of the advertisement has been vested with the Manager of the Institution. The two newspapers, in which publications are required to be made, it contemplates that one of the advertisements should be of publication duly approved by the District Education Officer. Whereas, on the other hand, Regulation-17 which deals with the recruitment in an aided minority recognised institution, it is within the exclusive domain of the management to make publication in one Hindi and one English newspaper of their choice of wide circulation. The only stipulation contained therein is that the copy of the advertisement is to be sent to the District Education Officer. Unlike the process of advertisement under sub-clause (a) of Clause 10, no such permission from District Education Officer pertaining to the newspapers in which the publication is required to be made is contemplated under the advertisement to be issued for a minority recognised institution. Meaning thereby, the legislature in its Regulation framed under section 24 intended to provide a different status and conditions of selection of the teachers of the recognised minority institutions.
67. In the writ petition, it had been the contention of the respondent No. 6/writ petitioner, that after having learnt about the existence of vacancy for the post of Assistant Teacher (Primary) (BTC), which was advertised on 21st September, 2010 by respondent no. 5, in daily newspaper, "Amar Ujala", as being vacancies available to be filled in by direct recruitment in the institution of respondent no. 5, and she upon finding herself to be qualified as per the advertisement dated 21st September 2010, she extended her candidature in the prescribed format, to be considered by the Selection Committee for appointment as "Assistant Teacher"
(Primary) (BTC). As per the terms of the advertisement as issued on 21st September 2010, various other posts were also advertised, but since in the present Special Appeal the issue relates to the Assistant Teacher (Female) (Primary) (BTC), we would be dealing with the controversy in relation thereto, to the said post. In terms of the advertisement, it provided that the applications were being invited from eligible candidates, who have a degree of graduation from a recognised University or College and, should also have a Training Certificate in BTC/B.Ed. The qualification as advertised provided as under:-
"eSFkksfMLV xYlZ bUVj dkyst :M+dh ¼gfj}kj½ ¼vYila[;d fo|kky;½ 7 fo|ky; ds fuEu fyf[kr fjDr inksa ij fu;qDfr gsrq vgZ ,oa ;ksX; vH;fFkZ;ksa ls vkosnu i= vkeaf=r fd;s tkrs gSA 1 iz/kkukpk;Z ¼efgyk½gkbZLdwy Lrj & ,d in U;wure ;ksX;rk & fuEu ¼v½;k c es ls ,d& ¼v½ Hkkjr ls fof/k }kjk LFkkfir fdlh fo" ofo|ky; ls LUkkrdksRrj mikf/k ds lkFk fo" ofo|ky; dh ch0,M0 mikf/k ;k jkT; ljdkj ls ekU;rk izkIr laLFkku ls ,y0Vh0 fMIyksek rFkk ekU;rkizkIr gkbZLdwyksa ;k bUVj dkystksa esa 06 o'kZ dk f" k{k.k vuqHkoA ¼c½ Hkkjr ds fof/k }kjk LFkkfir fdlh fo" ofo|ky; ls Lukrd dh mikf/kA 2&fo" ofo|ky; dh ch0,M0 mikf/k ;k jkT; ljdkj ls ekU;rk izkIr laLFkku ls ,y0Vh0 fMIyksekA 3& gkbZLdwy ls 08 o'kZ dk v/;kiu vuqHko ;k gkbZLdwy d{kkvksa esa 05 o'kZ dss v/;kiu vuqHko ds lkFk tqfu;j d{kkvksa esa 07 o'kZ dk vquHko ¼dqy U;wure 12 o'kZ dk vquHko½ftlesa de ls de 05 o'kZ dk gkbZLdwy d{kkvksa esa v/;kiu vuqHko ;k tqfu;j gkbZLdwy esa iz/kkuk/;kfidk ds :Ik esa 05 o'kZ dk izk" kklfud vuqHkoA U;qure vk;q&30 o'kZ 2& lgk;d v/;kkfidk ¼efgyk ,y0Vh0 xzsM½ ¼fo'k; lkekftd foKku½&,d in ih0ch0&2] osrueku 9300-00&34800-00 xzsM osru&4600-00 U;wure ;ksX;rk&lekt" kkL=] bfrgkl] Hkwxksy] vFkZ" kkL=] ukxfjd" kkL= esa ls fdUghsa nks fo'k;ksa ds lkFk fof/k }kjk LFkkfir Lukrd dh mikf/k rFkk fo" okfo|ky; dh ch0,M0 mikf/k ;k jkT; ljdkj ls ekU;rk izkIr laLFkku ls ,y0Vh0 fMIyksekA 3&lgk;d v/;kfidk ¼efgyk½lEc) izkbejh ch0Vh0lh0 osru dze & ikap in ih0ch0&2 osrueku&9300-00&34]800-00 xzsM osru&4200-00 U;wUre ;ksX;rk& fof/k }kjk LFkkfir fdlh fo" ofo|ky; ls Lukrd dh mikf/k rFkk jkT; ljdkj ls ekU;rk izkIr csfld v/;kiu izf" k{k.k ikB;Øe ¼ch0Vh0lh0½@fo" ofo|ky; ch0,M0 mikf/kA 4& ifj/kkjd ¼iq:'k½ch0ih0 &1 osrueku 4440-00&7440-00 xzsM osru&1300-00& in ,d U;wUre ;ksX;rk & d{kk vkB 8 vkosnu i= :0- 100-00 ds cSad Mªk¶ V tks fd izcU/kd eSFkksfMLV xYlZ bUvj dkyst :M+dh ds inuke ls gksa vkSj Hkkjrh; LVSV cSad eq[; "kk[kk :M+dh ls ns; gks] tek djus ij izR;sd dk;Z fnol dks izkr% 10-00 cts ls 1-00 cts rd izcU/kd dk;kZy; ls izkIr fd;s tk ldrs gSaA lHkh "kSf{kd] izf" k{k.k ,oa vuqHko vkkfn vU; izek.k i=ksa dh Nk;k izfr;ka tks fd jktif=r vf/kdkjksa }kjk LR;kfir gks vkosnu ds lkFk layXu djsaA vkosnu i= foKkiu dh frfFk ls 21 fnu ds vUnj dsoy iathd`r Mkd }kjk izkIr fd;sa tk;saxsaA vkosnu i= ds fyQkQs ds ckbZ vksj inuke ,oa nk;h vksj fo|ky; dk uke vo" ; vaafdr fd;k tk;saA mijksDr lHkh inksa in "kSf{kd izf" k{k.k vkfn ;ksX;rk mŸkjk[k.M fo|ky;h f" k{kk vf/kfu;e 2009 esa of.kZr izko/kkuksa ds vuqlkj ekU; gksxh rFkk osru o vU; HkŸks o vU; HkŸks jkT; ljdkj }kjk lHkh inksa in vuqekU;rk ds vuqlkj gksaxsaA izcU/kd eSFkksfMLV xYlZ bUVj dkyst] :M+dh ¼gfj}kj½"
8. It is not in dispute, rather it is admitted by parties to the lis, that the Institution run and managed by the Committee of Management, i.e. Methodist Girls Inter College, Roorkee, District Haridwar, Respondent no. 5 to the Special Appeal No. 114 of 2015 "Smt. Bhawna Mathews & Ors. Vs. State & Others", (which is being taken up as leading Appeal), is an aided recognised minority institution falling within the provisions u/s 38 of Uttaranchal School Education Act, 2006. (hereinafter to be referred as, 'Act').
9. It is the contention of the writ petitioner that in accordance with the qualification as 9 advertised, since she being a Graduate and a holder of BTC Training Certificate, having applied so, has preferential right to be considered for appointment as compared to B.Ed degree holders, which the respondents were. It is her contention that in accordance with the qualification prescribed under the Regulations, it provides that the minimum qualification required for a candidate to apply and participate in the selection process, is provided under Chapter II Regulation- 3 (d) and ([k). It is also the contention of the writ petitioner that the candidature of the private respondents to the writ petition, who are the appellants before this Court, are graduates and B.Ed degree holders, their candidature could have only been considered by the Selection Committee as constituted under the Regulations, only in an eventuality when there was no candidate available having the minimum qualification prescribed i.e Graduation and a BTC training certificate. What she attempts to submit is that since she was having prescribed statutory qualification, she will have precedence in consideration of her candidature than that of the appellants who were B.Ed degree holders. Appellants could only be considered when she is considered for appointment.
1010. Case as projected by the writ petitioner is that she contends that since out of the total applications, which were received from the probable candidates for participation in the selection process, since she was the only BTC training certificate holder available, she ought to have been given preference in appointment over the appellants herein, for the reason that according to clause-3, their candidature could only be considered when the BTC training certificate holder candidate is not available. For the purposes of brevity, the qualification clause as provided under Chapter II of the Uttarakhand School Education Regulations, 2009 is quoted herein under:
**3- izkFkfed fo|ky; eas fu;qDr fd;s tkus okys v/;kidkssa gsrq vgZrk;sa fuEuor~ gksaxh& d fof/k }kjk LFkkfir fdlh fo" ofo|ky; ls Lukrd mikf/kA [k jkT; ljdkj }kjk ekU;rk izkIr csfld v/;kid izf" k{k.k ikB~;dze ¼ch0Vh0lh0½A ¼ch0Vh0lh0½ izf" kf{kr vH;FkhZ u feyus ij fo" ofo|ky; dh ch0,M0 mikf/k ;k jkT; ljdkj ls ekU;rk izkIr laLFkku ls ,y0Vh fMIyksek/kkjh vH;FkhZ ftUgsa vko" ;d lsokjr izf" k{k.k iznku fd;k tk;½A**
11. She specifically pleaded before the learned Single Judge that though she was qualified, her application was as per the norms, yet she was not issued with the interview call letter, which otherwise the Management was bound to issue in view of the provisions contained under sub clause 2 (d) of Regulation-17, as applicable to the aided minority educational 11 institutions, those covered by Section 38 of the Act. It is the case of the writ petitioner that when she learnt that the interview was being conducted on 31st December 2010 and her participation in interview has been deliberately avoided by respondent no. 5, she on her own, visited the office of the Management and called upon the Committee of Management and requested them to permit her to participate in the interview. On the said move, interview call letter was issued to her and permission was granted to her and she did participate in the interview which was held on 31st December 2010. She submits that looking to the conduct of the respondent No. 5 since right from the beginning, the respondent No. 5 intended to avoid the selection of the writ petitioner. They had avoided issuing call-letter to writ petitioner, so as to appoint the present appellants, who were the B.Ed degree holders.
12. For the purposes of holding the selection process, the respondent No. 5 is said to have constituted a Selection Committee in accordance with the provisions contained under sub Section (1) of Section 38 of the Act. On conclusion of the selection process, the writ petitioner contends that apart from the fact she was not included in the select list, she was not given information about the result of the selection. For redressal of 12 her grievance, it is the case of the writ petitioner that she submitted an application under the RTI Act to collect the information about the result of the selection. She submits that it was then only on receipt of information she could learnt for first time that the respondent had proceeded to pass the impugned order dated 23rd March 2011, whereby they have issued a select list by virtue of which the appellants of Appeal No. 114 of 2015 and the Appellant of Appeal No. 153 of 2015, are shown to have been appointed against 5 vacant posts of Assistant Teacher (Primary) (BTC), which was advertised by respondent No. 5. In the writ petition, writ petitioner has raised a question pertaining to the anomalies which is alleged to have been committed in the constitution of Selection Committee and the manner in which the marks were permitted to be assigned by the members of the Selection Committee, which according to her was contrary to the Regulation. Hence to seek redressal of her grievance, she filed a representation before the respondents on 15th May 2011, praying that the approval granted for the appointment of appellants of Appeal No. 114 of 2015 and appellant of Appeal No. 153 of 2015, maybe turned down and she may be appointed as Assistant Teacher (Primary) (BTC). But, since no decision was taken on the same, thus she had preferred the present writ petition with the following relief(s):
13"i) Issue a writ, order or direction in the nature of certiorari quashing the impugned approval of the selection of the respondent nos. 6 to 10 dated 23.03.2011 passed by respondent no. 3 (contained as annexure no. 9 to this writ petition).
ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent nos. 1 to 5 to conduct afresh interview against the advertised post in accordance with law.
iii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent nos. 3 to 5 to produce the entire record of selection before this Hon'ble Court.
iv) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent no. 1 to initiate the departmental inquiry regarding illegal selection of the respondent nos. 6 to 10."
13. In the writ petition, when the cognizance was taken up by the learned Single Judge of this Court, notices were issued to the respondents of the writ petition and they have filed their counter affidavits, denying the stand as taken by the writ petitioner. In the counter affidavit as filed by respondent No. 5 i.e. Management to the writ petition they have taken a stand that the writ petitioner was not eligible to be considered for appointment for the post on the ground that she had not annexed the "No Objection Certificate"
from her previous employer, because according to 14 respondent No. 5, she was working as Assistant Teacher in Government Primary School, Dugiyara, Chakrata, Dehradun, Respondent No. 5 submitted that call letter was not issued to writ petitioner on account of non availability of 'No Objection Certificate' issued in her favour from her previous employer. Another defence which was taken by the respondent No. 5 in the counter affidavit was that when the writ petitioner had been an unsuccessful candidate for the reason that she has scored lesser marks in the merit as compared to the appellants of the present Appeal and as such since she having being declared unsuccessful, she cannot raise an allegation against the decision of the Selection Committee, because, once a candidate participates in the selection process, it would be deemed that the candidate was conscious of the procedure of selection and hence he or she may take a somersault, questioning the propriety of the Selection Committee itself and decision taken thereof.
14. In the counter affidavit thus filed by respondent Nos. 1, 2 and 3 to the writ petition, they too, in para 5 and 6 have taken almost an identical stand as that of respondent No. 5. They submitted that rather the decision taken by the Selection Committee was rightly made and the 15 approval granted to the appointment of respondent nos. 6 to 10, suffers from no error, nor was contrary to the process of selection contemplated under the Regulation which could call for interference by this Court in the exercise of its writ jurisdiction under Article 226 of Constitution of India.
15. The writ petition, after the exchange of the pleadings proceeded on merits and has been allowed by the judgment impugned in appeal dated 4th September 2014. The present appellants, as revealed from records seems to have filed a Review Application, before the learned Single Judge on 19th February 2015, praying for review of the impugned judgment in appeal dated 4th September 2014 on the premise that they could not gather the knowledge of the pendency of the writ petition and the judgment dated 4th September 2014, was passed ex parte by the learned Single Judge of this Court. They submitted in the delay condonation application filed in support to the review application that they learnt about the judgment dated 4th September 2014 for the first time only on 23rd January 2015, when they were served with the order passed by the respondent No. 5 on 21st January 2015 (Annexure 3 to the review application). The review application came up for consideration before 16 learned Single Judge on 3rd March 2015, and the same did not find favour and has been dismissed on 03.3.2015. Consequently, the present Special Appeal challenging the judgment dated 4th September 2014.
16. Learned Single Judge, while passing the order dated 3rd March 2015 on the Review Application, has observed that the Court had issued due and proper notices to respondent Nos. 5 to 10 of the writ petition and as per the office report which shows that the respondent No. 5 to 10 have been duly served, as service was reported to be satisfactory and yet they have chosen not to contest the petition and hence the Writ Court direct the matter to proceed ex parte, thus the learned Single Judge found that there is no anomaly in the judgment dated 4th September 2014, sought to be reviewed on account of the fact that the present appellants, who were the respondents in the writ petition had chosen not to contest the writ on merits.
17. Hence the appellants have preferred the present special appeal for the following relief:-
"It is therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow this Special Appeal and set aside impugned order dated 04-09-2014 and order dated 03-03-2015 passed by the 17 Hon'ble Single Judge of this Hon'ble Court in Writ Petition No. 500 of 2011 (S/S), titled as Kavita Saini Vs. State of Uttarakhand and others, and review application no. 113 of 2015 filed by the present appellants and dismiss the writ petition of petitioner/respondent no. 6, otherwise the appellants shall suffer irreparable loss and injury."
18. Primarily, the grounds which have been agitated by the appellants to the appeal for challenging the impugned judgment are:
i) There was no notice served on them prior to 4th September 2014.
ii) They could get the knowledge of the judgment dated 4th September 2014 only by the order passed by the Chief Education Officer.
iii) Judgment dated 4th September 2014 is without a contest raised by them.
iv) Even the management has not informed about the pendency of the proceedings though they have already put in appearance in the writ petition.
v) They further denied that there was any endorsement made by them signifying the acceptance of the notices issued by this Court.
vi) They submitted that the view taken by the learned Single Judge that in the selection process, the provisions of Uttarakhand 18 School Education Regulation 2009 was not followed is erroneous based on misinterpretation of the regulation and procedure contained therein.
vii) They stressed upon the impact of Section 38 of Uttarakhand School Education which deals with the provisions of savings as to the minority institutions.
viii) They took a ground that the procedure for appointment of Assistant Teacher in a primary school teacher in an aided minority institution is different than that of the other institutions, other than minority.
ix) They took a ground that the procedure contemplated for appointment of Assistant Teacher in a primary school as given in Appendix-D is only applicable to the institutions other than minority institutions as it relates to the process of appointment contemplated under Regulation 10.
x) They took a ground that Section 38 of the Act starts with a non obstinate clause and would operate independently without being affected except for the provisions contained under sub Section (4) of Section 36 and Section 37 of the Act.
1919. The argument of the learned counsel for the writ petitioner/respondent is that in view of the qualification clause, as stipulated under the Regulations, the petitioner would be having a right of precedence to be considered since she being the only candidate available, who was qualified in accordance with the Regulation, since she was a graduate and was holding a BTC Training Certificate. She contends that if any right accrues to the respondent in the writ petition for being selected or considered for selection, it would be only after she is considered and granted an appointment as being only available candidate qualified. Until and unless her case is considered, the case of the respondent will not mature and fall within the purview of consideration under the Regulations. After the exchange of the pleadings, the learned Single Judge by the impugned judgment had allowed the writ petition and had set aside the appointment of the appellants, which is impugned in the present appeal. The learned Single Judge, while recording its finding pertaining to the Elementary Educational Qualification required and as contemplated under Appendix 'A', which pertains to the teacher of Primary School though has held that it contemplates that a candidate should be a graduate from a recognised university established under law and should be a BTC. The learned Single Judge, however aptly takes note of the fact 20 that the candidates having the B.Ed or L.T qualification are not excluded but are to be considered only when there is no other candidate available, having a graduation and BTC training certificate. However, the learned Single Judge, while considering the writ petition, took the view that irrespective of the qualification contemplated under the Appendix 'A', there has had to be an allocation of quality point marks for each candidate participating in selection as contemplated as Appendix 'D', for determining the eligibility of a candidate and it was based on the said premise the learned Single Judge had taken the view that the procedure of allocation of quality point marks contemplated under Appendix 'D' was to be followed for each candidate, which the learned Single Judge held since was not done it would render the selection process of Appellant/respondent to the writ petition as defective and quashed the selection of appellants and allowed the Writ Petition.
20. Based on the submission of the petitioner, the learned Single Judge took the view that the arguments as extended to the effect that there had been procedural violation of Regulation as the candidature was not considered as per Appendix 'D' and the B.Ed candidates have been wrongly selected. The learned Single Judge 21 further based the judgment and observed that according to the arguments extended by the learned counsel for the petitioner that the marks had not been evaluated as per the guidelines framed by the Uttarakhand School Education Regulations, 2009, because as a matter of fact, no marks have been given on the basis of academic records, hence has held that the selection process was faulty and the appellants could not have been appointed.
21. On scrutiny of the impugned judgment it reflect that the learned Single Judge has taken a view that despite of the fact that the Institution of respondent No. 5, though admittedly being a minority institution has protection under Article 30 of the Constitution of India, but has held the said protection as contemplated therein does not exclude the assessment of the qualification of the candidates by applying the procedure in terms of the provisions contained under sections 36 and 37 of the Uttaranchal Education Act 2006 and the view which has been expressed by the learned Single Judge that the remaining Regulation pertaining to scrutiny of eligibility of candidates by allocation of quality point marks based on the qualification would be applicable as it relates to determination of merits of a candidate and hence held that the appointment of the appellants in the 22 absence of the allocation of quality point marks would be faulty and contrary to procedure.
22. Even before the learned Single Judge, it had been the case of the appellant, that despite of the fact that the institution being a grant-in-aid recognised minority institution, yet, the argument of learned counsel for the petitioner that the Regulations pertaining to the allocation of quality point marks would be applicable is totally wrong. We feel and will deal elaborately at later part of this judgment that this reason assigned by learned Single Judge that irrespective of the institution being a recognised minority institution, still the view expressed that the quality point marks as contemplated under Appendix 'D' was to be assigned is contrary to the Act and Regulations contained therein. We would now proceed to consider this aspect as to whether the assignment of quality point marks as contemplated under Appendix 'D' would be applicable to the minority institutions or not. The analogy assigned by the learned Singe Judge for allowing the writ petition and setting aside the selection of the appellant is based on the rationale that the respondents failed to establish that the candidates, who participated in the selection process, there had been any evaluation of marks as per the Appendix 'D'.
2323. The learned Single Judge by the impugned judgment dated 4th September 2014, while allowing the writ petition filed by respondent No. 6/writ petitioner challenging the selection of present appellants had taken a view as recorded in its paras 16 and 17, which is quoted hereunder:
"16. The petitioner has been able to establish that the regulations which have been framed under Section 24 of the Uttaranchal School Education Act, 2006 is applicable in a minority institution, such as respondent no. 5, it is absolutely clear that Sections 36, 37 and 38 of the Uttaranchal School Education Act, 2006 and more particularly the conditions laid down in the Regulations have been clearly violated.
17. The Regulations, inter alia, clearly provides that it is BTC qualified candidates who have to be considered for the post of Assistant Teacher in elementary school and B.Ed. qualified candidates will only be considered in case of non availability of BTC qualified candidates. Since the petitioner was the only BTC qualified candidate, her candidature was liable to be considered and she was liable to be appointed on that post, subject to her other qualifications and performance in the interview. Moreover, out of all the candidates who have been appointed, none is BTC qualified, rather they all are B.Ed. qualified. From the above circumstances, it is abundantly clear that the entire selection process is vitiated. There is nothing on record to show that any of the candidates have 24 been evaluated on the basis of marks obtained in High School, Intermediate, Graduation and Post-Graduation. They have been given total marks out of 500 marks for the viva-voice/interview alone whereas under the regulations only 25 marks are to be given for the viva-
voice/interview."
The learned Single Judge held that in view of the provisions contained under the Uttaranchal School Education Act, 2006, as applicable to the Minority Institution, in particular under Section 38, the provisions of Sections 36 and 37 had been violated. The learned Single Judge in the impugned judgment, while considering the impact of Section 38 of the Act, has not considered the impact of interplay of Regulation 10 and 17 over the selection process in a recognize aided minority institution.
24. The provisions of Uttaranchal School Education Act, 2006, which stipulates with the procedure to be resorted by Management for having recourse to the appointment of the Primary Assistant teachers of the minority institution is contemplated u/s 38 of the Act. Section 38 of the Uttaranchal School Education Act, 2006, reads as under:-
"38. Savings as to minority institutions:- (1) Notwithstanding anything in sub-section (4) of Section 36 and in Section 37, the Selection Committee for the appointment of a Head of 25 Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution 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 the Head 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 selection shall be appointed, unless-
(a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Additional Director of Education; and
(b) in the case of a teacher such proposal has been approved by the District Education Officer.
(4) The Regional Additional Director of Education or the District Education Officer, may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible.
(5) Where the Regional Additional Director of Education or the District Education Officer, as the case may be, does not approve a candidate selected under this section the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Additional Director of Education in the case of teachers.
(6) Every order passed by the Director or the Regional Additional Director of Education on a representation under sub-section (5) shall be final."26
25. Under sub Section (1) of Section 38 of the Uttaranchal School Education Act, 2006, as applicable to Minority Institution, it starts with a non-obstinate clause and by virtue of language used in the section, only sub Section (4) of Section 36 and Section 37 has been excluded, so far it relates to the procedure of selection of teachers in an Aided Minority Intuitions are concerned. Section 36 of the Act in general in itself provides with a procedure to be followed for selection of the teachers and Head of the institution in relation to the intuition other than the minority institutions.
26. For selection in an aided minority institution Regulation 17 contemplates complete procedure which is quoted hereunder:-
**17- /kkjk 38 esa fufnZ'V fdlh ekU;rk izkIr laLFkk esa lh/kh HkrhZ }kjk laLFkk ds iz/kku vkSj v/;kidksa dh fjfDr dks Hkjus ds fy, fuEufyf[kr izfdz;k gksxh%& ¼d½ izcU/kkf/kdj.k }kjk lh/kh HkrhZ ls Hkjh tkus okyh fjfDr;ksa dh la[;k vo/kkfjr fd, tkus ds i'pkr laLFkk ds izca/kd }kjk de ls de ,d fgUnh vkSj ,d vaxszth nSfud lekpkj&i= esa ftudk jkT; esa i;kZIr ifjpkyu gks] in foKkfir fd, tk;saxs ftlesa fjfDr;ksa ds izdkj ¼vFkkZr~ vLFkk;h gSa ;k LFkk;h½ rFkk fjfDr;ksa dh la[;k] in dk fooj.k ¼vFkkZr~ iz/kkukpk;Z ;k iz/kkuk/;kid] izoDrk ,y0Vh0 ;k ch0Vh0lh0 Js.kh ds v/;kid rFkk ,slk ;k ,sls fo'k; ftlesa ;k ftuesa izoDrk ;k v/;kid dh vko" ;drk gks½] osrueku vkSj vU; HkRrs] visf{kr vuqHko] in ds fy, fofgr U;wure vgZrk vkSj U;wure vk;q ;fn dksbZ gks] ds laca/k esa fooj.k fn, tk;saxs vkSj ,slk fnukad ¼tks lk/kkj.kr;k foKkiu ds fnukad ls rhu lIrkg ls de u gksuk pkfg,½ ftl rd izca/kd }kjk 27 vkosnu&i= fy, tk;saxs fofgr fd;k tk;sxkA lkFk gh lkFk foKkiu dh ,d izfr lacaf/kr ftyk f" k{kk vf/kdkjh dks Hksth tk;sxhA laLFkk ds iz/kku ds in ds laca/k esa foKkiu dh izfr lacaf/kr eaMyh; vij f" k{kk funs" kd dks Hkh Hksth tk;sxhA fVIi.kh & ¼1½ v/;kidksa vkSj laLFkk ds iz/kku ds inksa dh leLr fjfDr;k¡tks foKkiu ds le; fo|eku gksa] foKkfir dh tk;sxhA ¼2½ dksbZ u;k in foKkfir ugha fd;k tk;sxk tc rd fd izca/kkf/kdj.k }kjk mlds l`tu ds fy, leqfpr izkf/kdkjh dh Lohd`fr izkIr u dj yh tk;A ¼[k½ izca/kkf/kdj.k }kjk lHkh vkosnu&i= fofgr izi= esa fy, tk;saxs vkSj mlesa vgZrk;sa] f" k{k.k vuqHko vkSj vU; fdz;k&dykiksa ds laca/k esa leLr vko" ;d fooj.k gksaxs vkSj mlds lkFk leLr vko" ;;d izek.k&i=ksa vkSj iz" klk&i=ksa dh izekf.kr izfr;ka gksaxhA izca/kkf/kdj.k vkosnu&i= ds fy, izi= dk ewY; tks fofu;e 10 ds [k.M ¼d½esa fufnZ'V /kujkf" k ls vf/kd u gks] ys ldrk gSA ¼x½ fdlh laLFkk esa fu;ksftr vkSj vU;= ;k mlh laLFkk esa fdlh in ds fy, vkosnu djus okys o;fDr dk vkosnu&i= mlds fu;kstd }kjk jksdk ugha tk;sxk cfYd mls laca) izkf/kdkjh dks rqjUr vxzlkfjr fd;k tk;sxkA ¼?k½ vH;fFkZ;ksa ls izkIr leLr vkosnu&i= dzekuqlkj la[;kfadr vkSj jftLVj esa ntZ fd, tk;saxs] vkSj vH;fFkZ;ksa ds fooj.k leqfpr LrEHkksa esa vafdr fd, tk;saxsA izR;sd in ds fy, lk{kkRdkj ds fy, cqyk;s tkus okys vH;fFkZ;ksa dh la[;k ;fn ¼vkosndksa dh la[;k mruh gks½ lkr gksxhA izca/kd] p;u flfefr ds leLr lnL;ksa rFkk leLr ,sls vH;fFkZ;ksa dks tks lk{kkRdkj ds fy, cqyk;s tk;sa] p;u djus ds de ls de nks lIrkg iwoZ p;u dk fnukad] le; vkSj LFkku dh lwpuk jftLVMZ Mkd }kjk nsxkA p;u lfefr rn~uqlkj p;u djsxhA ;fn fdlh vifjgk;Z dkj.ko" k /kkjk&38 dh mi/kkjk ¼1½ ds ijUrqd ds [k.M ¼d½ ds v/khu izcU/k lfefr }kjk p;u fd;k x;k fo" ks'kK fu/kkfjr fnukad dks p;u esa mifLFkr u gks lds rks p;u lfefr dh cSBd LFkfxr dj nh tk;sxhA ;fn lk{kkRdkj ds fy, mifLFkr vH;fFkZ;ksa dh la[;k 03 ls de jgrh gS rks lk{kkRdkj LFkfxr dj fn;k tk;sxk vkSj mlds fy, lHkh vH;fFkZ;ksa dks lwfpr djrs gq, nwljk fnukad fu/kkZfjr fd;k tk;sxkA 28 ¼³ ½fofu;e 10 ds [k.M ¼³ ½vkSj ¼p½ds vkSj fofu;e 11]12 rFkk 16 ds micU/k vko" ;d ifjorZu lfgr] bl fofu;e ds v/khu fd, x, p;u ij ykxw gksaxsA ¼p½ izR;sd e.My ds fy, funs" kd }kjk fo" ks'kKksa dh ,d&,d ukfedk ftlesa fofu;e 14 esa fufnZ'V izoxZ ls pqus x, 15 ;k vf/kd O;fDr gksaxs] rS;kj dh tk;sxh vkSj mls lEc) e.Myh; vij f" k{kk funs" kdksa ds ikl Hkst fn;k tk;sxkA e.Myh; vij f" k{kk funs" kd izcU/kkf/kdj.k ls fo" ks'kKksa ds uke Hkstus dk vuqjks/k izkIr gksrs gh mDr ukfedk esa ls rhu fo" ks'kKksa ds uke eqgjcUn vkoj.k esa izcU/kkf/kdj.k dks mlds izcU/kd ds ek/;e ls lalwfpr djsxkA fo" ks'kKksa dh e.Myh; ukfedk rc rd fof/kekU; jgsxh tc rd fd mlds LFkku ij dksbZ ubZ ukfedk u j[kh tk;A ¼N½ fdlh in ds fy, leLr vH;fFkZ;ksa dk lk{kkRdkj dj fy, tkus ds i" pkr~ p;u lfefr dk lHkkifr fd, x, p;u dh dk;Zokfg;ksa ij nks izfr;ksa esa ,d fVIi.kh rS;kj djk;sxk ftlesa pqus x, vH;fFkZ;ksa ds uke rFkk izrh{kk lwph ds nks vU; vH;fFkZ;ksa ds uke mfYyf[kr fd, tk;saxsA bl izdkj rS;kj dh x;h fVIi.kh ij p;u lfefr ds lHkkifr rFkk vU; lnL; gLrk{kj djsaxs vkSj viuk&viuk iw.kZuke] inuke vkSj irk rFkk fnukad mfYyf[kr djsaxsA lHkkifr bl fVIi.kh dh ,d izfr rFkk fofu;e 10 ds [k.M ¼p½ esa fufnZ'V fooj.k dh izfr /kkjk 38 ds v/khu ;Fkk visf{kr vuqeksnu ds fy, ;FkkfLFkr] e.Myh; viu f" k{kk funs" kd ;k ftyk f" k{kk vf/kdkjh dks rqjUr vxzlkfjr djsxkA lacaf/kr vfHkys[kksa ds izkIr gksus ds fnukad ds nks ekg ds Hkhrj] ;FkkfLFkfr] e.Myh; vij f" k{kk funs" kd ;k ftyk f" k{kk vf/kdkjh] mu ij viuk fu.kZ; nsaxs vkSj ,slk u djus ij vuqeksnu iznku dj fn;k x;k le>k tk;sxkA** Under clause (2) 'e' of Regulation-17 which is quoted hereunder:
**17 ¼2½¼³ ½fofu;e 10 ds [.M ¼M½vkSj ¼p½ds vkSj fofu;e 11 12 rFkk 16 ds micU/k vko" ;d ifjoZru lfgr] bl fofu;e ds v/khu fd, x, p;u ij ykxw gksaxsaA** By virtue of Regulation 17 (2) (e) as applicable to the minority institutions, only provisions of 29 clauses (2) 'e' and (2) 'f' of Regulation-10 and those of Regulations-11, 12 and 16 have been made applicable to the selection process contemplated under the Regulation-17, relating to institution referred under section 38 i.e. Aided Minority Institution. Regulation-11 as has been made applicable by Regulation 17(2)(e) to recognized minority aided institutions under section 38 is quoted hereunder:
**11- ¼1½fdlh laLFkk ds iz/kku ;k v/;kid ds p;u esa mifLFkr fo" ks'kKksa dk ;g drZO; gksxk fd os p;u ls lEcfU/kr lHkh dkxt&i=ksa dh Nku&chu djsa vkSj fo" ks'k :Ik ls ;g ijh{k.k djs fd lk{kkRdkj ds fy, cqyk;s x, vH;fFkZ;ksa dks vf/kfuf;e vkSj fofu;eksa ds micU/kksa ds vuqlkj bl izdkj Bhd rkSj ls cqyk;k x;k vkSj ;g fd fdlh vH;FkhZ dks lk{kkRdkj ds ,sls volj ls oafpr rks ugha j[kk x;k tks mls mfpr jhfr ls feyuk pkfg, FkkA os ifjf" k'V ^x^ esa fooj.k esa ;Fkk izLrkkfor p;u dh dk;Zokfg;ksa esa bl vk" k; dk ,d izek.k&i= nsaxsA ;fn os ;g vuqHko djsa fd fdlh vH;FkhZ dks fdlh =qfV ;k pwd ds QyLo:Ik lk{kkRdkj ds fof/k laxr volj ls oafpr j[kk x;k gS rks os ekeys ds iwjs C;ksjs ds lkFk ftyk f" k{kk vf/kdkjh dks lwfpr djsaxsA ;fn ftyk f" k{kk vf/kdkjh dk ;g lek/kku gks tk; fd blls lk{kkRdkj dh dk;Zokfg;ka nwf'kr gks x;h gS rks og lk{kkRdkj dh dk;Zokfg;ksa dks vd`r vkSj "kwU; ?kksf'kr dj nsxk vkSj ,sls ekeyksa esa fQj ls p;u djus ds fy, vkns" k nsxkA bl lEcU/k esa ftyk f" k{kk vf/kdkjh ds vkns" k vfUre vkSj lHkh lEcfU/kr O;fDr;ksa ds fy, vkc)dj gksasxsaA** It provides that the experts of the Selection Committee as constituted u/s 38 of the Act, in relation to minority institutions are duty bound and will scrutinize all the papers of the candidates and will ensure that no candidate, who is eligible under regulation is deprived of an opportunity to participate in the selection process, and it is upon this participation, the members of Selection Committee are required to furnish a certificate to this effect in form of Appendix 'C'.30
27. The certificate by way of Appendix 'C', provided in Regulation 11 as made applicable in relation to aided minority institution is given by the selection committee to District Education Officer is a document to fortify the conclusion of a valid selection as per the regulation. Furthermore, by it all the documents thus forwarded by the selection committee constituted by Management has to be preserved by the selection committee, on simple analogy that Appendix 'C' as applicable in a recognized aided minority institution is a conclusive proof of a valid selection. Appendix 'C' in itself does not contemplate allocation of any quality point marks. Thereby it could be concluded that in a minority institution falling within the ambit of u/s 38, in which a selection of Assistant Teacher (Primary) (BTC) is held it does not contemplate allocation of quality point marks in the manner as applicable to other institutions falling under the processes provided u/s 36 over the institutions other than aided minority institutions, whose procedure for selection is exclusively provided under Regulation-10, which attracts Appendix 'D' as provided under Regulation 10(2)(b) and 10(2)(d), which are quoted hereunder:-
**10 ¼2½¼[k½ vkosnu dk izi= ,slk gksxk tSlk fd funs" kd }kjk vuqeksfnr fd;k tk;A vkosnu i= ds lkFk in ds fy, fofgr U;wure vgZrk] vf/kekuh vgZrk vkSj U;wure vk;q ;fn dksbZ gks] ds 31 lecU/k esa foLr`r fooj.k tSlk v/;k;&nks ifjf" k'V&?k esa fu/kkZfjr gS] layXu fd;k tk;sxkA 10¼2½¼?k½ izkIr fd, x, vkosnu&i= ftyk f" k{kk vf/kdkjh ds dk;kZy; esa funs" kd }kjk vuqeksfnr izi= Ikj j[ks x, jftLVj esa Øekuqlkj la[;kafdr vkSj izfo'V fd, tk;saxs vkSj vH;fFkZ;ksa ds fooj.k izR;sd vH;FkhZ }kjk xq.k&fo'k;d izkIrkadksa ds lkFk leqfpr LrEHkksa ds vUrxZr ntZ fd, tk;saxsA izR;sd vH;FkhZ dk xq.k&fo'k;d vad ifjf" k'V ^?k^ esa vfHkdfFkr ekun.M ds vuqlkj vf/kekur;k ftyk f" k{kk vf/kdkjh }kjk bl iz;kstu ds fy, fu;qDr fd, x, dk;Zjr vFkok lsokfuo`Ÿk f" k{kk foHkkx ds jktif=r vf/kdkfj;ksa ;k iz/kkukpk;ksaZ ;k mikf/k egkfo|ky;ksa ;k fo" ofo|ky; ds v/;kidksa ;k laLFkk ds lsokfuo`Ÿk iz/kkuksa }kjk fn, tk;saxs vkSj bldh tk¡ p ftyk f" k{kk vf/kdkjh ;k mlds }kjk foHkkx ds bl fufefŸk izfkf/kd`r fdlh vf/kdkjh }kjk dh tk;sxhA bu vkonsu&i=ksa dks foKkiu esa vkosnu&i= izkfIr ds fy, foKkfir vafre fnukad ls ikap fnu dh lekfIr ds Ik" pkr~ izcU/k lfefr }kjk rhu fnu ds Hkhrj ftyk f" k{kk vf/kdkjh ds dk;kZy; ls laLFkk ds izcU/kd ds ek/;e ls laxzghr fd;k tk;sxkA ,slk u djus ij] ftyk f" k{kk vf/kdkjh vkosnu&i=ksa dks lEcfU/kr laLFkk ds izcU/kd dks fHktok nsxkA izcU/kkf/kdj.k Hkh blh izdkj dk ,d jftLVj j[ksxkA lk{kkRdkj ds fy, cqyk;s tkus okys vH;kfFkZ;ksa dk p;u muds }kjk xq.k&fo'k;d izkIrkadksa ds vuqlkj fd;k tk;sxkA izR;sd in ds fy, lk{kkRdkj ds fy, cqyk;s tkus okyksa dh la[;k ¼;fn vkosndksa dh la[;k mruh gks½lkr gksxh] izfrcU/k ;g gS fd ;g la[;k ,sls vH;kfFkZ;ksa dks volj iznku djus ds fy, c<+k;h tk ldrh gS tks izFke lkr LFkkuksa esa leku xq.k&fo'k;d vad izkIr djsaA ftyk f" k{kk vf/kdkjh p;u djus ds fy, ,sls fnukad le; vkSj LFkku tSlk fd mlds }kjk fu/kkZfjr fd;k tk;] dh lwpuk ,sls fnukad ds de ls de nks LkIrkg iwoZ izcU/k lfefr dks mlds izcU/kd ds ek/;e ls HkstsxkkA lwpuk izkIr gksus ij izcU/kd "kh?kz gh fo" ks'k;ksa ls fHkUu p;u lfefr ds vU; lnL;ksa dks lwpuk Hkstsxk vkSj Lkk{kkRdkj ds fy, p;fur lHkh vH;fFkZ;ksa dks ,sls p;u ds de ls de nks LkIrkg iwoZ jftLVªhd`r Mkd }kjk lk{kkRdkj&i=d tkjh djsxk ftlesa p;u fd, tkus dk fnukad] le; o LFkku fofufnZ'V fd;k tk;sxkA p;u lfefr rn~uqlkj p;u djus ds fy, viuh cSBd djsxhA ftyk f" k{kk vf/kdkjh ;FkkfLFkfr /kkjk 37 dh mi/kkjk&¼1½;k ¼2½ds [k.M rhu ds v/khu uke&fufnZ'V fo" ks'kKksa dks laLFkk dh lwpuk ,sls fnukad ds Ik;kZIr le; iwoZ HkstsxkA ;fn fdlh vifjgk;Z dkj.k ls dksbZ fo" ks'kK p;u djus ds fy, fu/kkZjfr fnukad dks mifLFkr u gks lds rks ftyk f" k{kk vf/kdkjh rqjUr gh izrh{kk lwph esa ls fo" ks'kK dk izcU/k djsxkA nks fo" ks'kKksa dh vuqifLFkfr esa p;u lfefr dh cSBd LFkfxr dj nh tk;sxh vkSj mlds fy, nwljk fnuakd fu/kkZfjr fd;k tk;sxkA ;fn lk{kkRdkj ds fy, mifLFkr vH;fFkZ;ksa dh la[;k 03 ls de jgrh gS rks lk{kkRdkj LFkfxr dj fn;k tk;sxk vksj mlds fy, lHkh vH;fFkZ;ksa dks lwfpr djrs gq, nwljk fnukad fu/kkZfjr fd;k tk;sxkA** 32
28. Under sub-Section (2) of Section 38 of the Act, as applicable to a minority institution, it provides the procedure to be followed by the Selection Committee, under sub Sections (1) and (2) of Section 38 shall be/as may be prescribed under the Regulation. On conclusion of the Selection as per the Regulation-17, made applicable in relation to the minority institution. In view of the applicability of sub clause (f) of Regulation-10 as made applicable by clause 2(e) of Regulation-17, the statement of copies of marks and qualifications is required to be given in Appendix 'C', which itself does not contemplate allocation of quality point marks for selection of Assistant Teacher in Minority Institution. 10(2)(f) is quoted hereunder:
**¼p½ izca/k lfefr }kjk ifjf" k'V **x** esa fn, x, izi= esa ,d fooj.k&i= ¼6 izfr;ksa eas½ rS;kj djk;k tk,xk ftlesa lk{kkRdkj ds fy, cqyk, x, izR;sd vH;FkhZ dk uke] mldh vgZrk;sa vkSj mlds lEcU/k esa vU; fooj.k fn, tk,axs vkSj mUgsa lk{kkRdkj ds le; ij p;u lfefr ds izR;sd lnL; ds le{k j[kk tk,xkA lHkh vkosnu&i= ftlds vUrxZr ,sls vH;fFkZ;ksa ds vkosnu&i= Hkh gSa ftUgsa lk{kkRdkj ds fy, u cqyk;k x;k gks] [k.M ¼?k½ esa fufnZ'V laLFkk }kjk j[kk x;k jftLVj] p;u lfefr ds lnL;ksa dks Hksts x, lHkh i=ksa dks vkSj lHkh lk{kkRdkj i=dkssa dh dk;kZy; izfr;ksa dks Hkh] ftlesa mls jftLVªhd`r Mkd }kjk Hksts tkus dh Mkd[kkus dh jlhn vkSj izkfIr Lohd`fr] ;fn dksbZ gks] lfEefyr gS] izcU/kkf/kdkj.k }kjk laLFkk ds ek/;e ls p;u lfefr ds le{k j[kk tk,xkA** On the reading of Regulation 10(2)(f), it specifically yet again excludes applicability of Appendix 'D', as Committee of Management has to 33 prepare Appendix 'C' to be placed before Selection Committee.
29. From a scrutiny of Appendix 'C', it is apparent that, it is only a tabulation of the particulars of a candidate, who had participated in selection before the Selection Committee as constituted u/s 38(1) and it is Appendix 'C' only, which has been made applicable in relation to the appointment of teachers in an aided minority institution. Non-mentioning of applicability of Appendix 'D' in a Selection for Minority Institution would mean its specific exclusion from its applicability in selection of Assistant Teacher in a Minority Institution. Meaning thereby, on harmonious reading of Regulation-17, pertaining to the selection process and in accordance with the procedure prescribed in sub clause 2(f) of Regulation-10, it is only Appendix 'C', which has been made applicable on the minority institutions. Whereas in accordance with clause 2(d) of Regulation-10, which deals with the selection process of the teachers of an institution other than the minority institutions, which has been excluded from its applicability by Regulation 17(2)(e) on a minority institution as the same does not find reference in regulation 17(2)(e), which attracts certain provisions of Regulation 10 over minority institutions, thus the procedure of 34 selection on its conclusion, under sub clause 2(d) of Regulation 10 is the only provision prescribed which provides the assignments of quality point marks to each candidates which has to be laid down in the form of Appendix 'D'. Clause 2(d) of the Regulation-10, as exclusively made applicable on the institutions other than aided minority institutions is quoted hereunder:
**¼?k½ izkIr fd, x, vkosnu&i= ftyk f" k{kk vf/kdkjh ds dk;kZy; esa funs" kd }kjk vuqeksfnr izi= ij j[ks x, jftLVj esa dzekuqkj la[;kafdr vkSj izfo'V fd, tk;saxs vkSj vH;fFkZ;ksa ds fooj.k izR;sd vH;FkhZ }kjk xq.k&fo'k;d izkIrkadks ds lkFk leqfpr LrEHkksa ds vUrxZr ntZ fd, tk;saxsA izR;sd vH;FkhZ dk xq.&fo'k;d vad ifjf" k'V *?k* esa vfHkdfFkr ekun.M ds vuqlkj vf/kekur;k ftyk f" k{kk vf/kdkjh }kjk bl iz;kstu ds fy, fu;qDr fd, x, dk;Zjr vFkok lsokfuo`r f" k{kk foHkkx ds jktif=r vf/kdkfj;ksa ;k iz/kkukpk;ksaZ ;k mikf/k egkfo|ky;ksa ;k fo" ofo|ky; ds v/;kidksa ;k laLFkk ds lsokfuo`Rr iz/kkuksa }kjk fn, tk;saxs vkSj bldh tk¡ p ftyk f" k{kk vf/kdkjh ;k mlds }kjk foHkkx ds bl fufeRr izkf/kd`r fdlh vf/kdkjh }kjk dh tk;sxhA bu vkosnu&i=ksa dks foKkiu esa vkosnu&i= izkfIr ds fy, foKkfir vafre fnukad ls ikap fnu dh lekfIr ds i'pkr izcU/k lfefr }kjk rhu fnu ds Hkhrj ftyk f" k{kk vf/kdkjh ds dk;kZy; ls laLFkk ds izcU/kd ds ek/;e ls laxzghr fd;k tk;sxkA ,slk u djus ij] ftyk f" k{kk vf/kdkjh vkosnu&i=ksa dks lacaf/kr laLFkk ds izca/kd dks fHktok nsxkA izca/kkf/kdj.k Hkh blh izdkj dk ,d jftLVj j[ksxkA**
30. Even under sub-section (2) of Section 38 contemplates resorting to the procedure as 'prescribed' which means prescribed by regulation. The Regulations have specifically excluded the applicability of Appendix 'D', which is the only provision which deals with the allocation of quality point marks from its applicability to the minority institution, for which the Selection Committee is only required to 35 provide the certificate and furnish the statements under Regulation-11 to be read with Regulation 10 (2)(f), in Form Appendix 'C'. We are of the view that Appendix 'C', as applicable, in an aided minority institutions for the purposes of appointment of Assistant Teacher (Primary) (BTC) by virtue of Regulation-10 (2) (f), read with Regulation-11, does not contemplate an assignment of quality point marks for the selection process as made applicable to the minority institutions under procedure prescribed by Regulation 17. It is quite apparent that the legislature intended in its specific terms to provide a special and distinct status to the Minority Institution recognised and aided under the Act and Regulations framed there under in the matters of appointment of Assistant Teachers (Primary) (BTC). As a matter of fact and for the above reasons law in its terms had provided freedom in selection so far it was to be made in minority aided institutions and hence has based the appointment to be made on the decision of the selection committee and the certificate provided by way of Appendix 'C' to the Management.
31. It is also necessary to take note of the impact of sub Section (4) of Section 38 of the Act, which as per the language used in it, provides that on a recommendation being made by the 36 Chairman of the Selection Committee to the Regional Additional Director of Education or the District Education Officer, in the manner as provided under Regulation-17 2(g), after the selection has been made by the Committee constituted u/s 38(1), the authority does not have a power to withhold the approval of the selection referred u/s 38(4) of the Act, when the candidates thus selected, possesses the minimum qualification prescribed and is otherwise eligible. This rather envisages that the process of selection as provided u/s 38 read with Regulation 17, 11, 12 and 16 on its culmination, for the minority institutions for the purposes of appointment of Assistant Teacher (Primary) (BTC) or Head of the institution enjoys a special status and the interference at various stages in the process of selection pertaining to allocation of marks by the Selection Committee, and various other stages of selection including approval as has been made applicable by Regulation-10 over other institutions, other than minority institutions aided and recognised under the Act has been avoided to be made applicable by law over the minority institutions.
32. Another important aspect, which cannot be overlooked by us to be considered for the present controversy, is that if Regulation-10 is 37 read in precision, vide its clause (2)(d), it contemplates a complete selection process, which is based on merits as after the conclusion of the selection, the management is required to prepare a register in duplicate based on the quality point marks obtained by the candidates and it also contemplates providing of the ratio of candidates to be called for interview as against the number of each vacant post available to the filled. Unlike the procedure as provided under Regulation-10, in Regulation-17 no such stipulation is contemplated as that of Regulation 10(2)(d), that the appointment of Assistant Teachers or the Headmaster of the institution in an aided minority institution is to be made on the basis of quality point marks or on the merits of the matter. Besides Regulation 10(2)(d), there is no other provision in the Regulation which deals with process of allocation of quality point marks. Since by Regulation 17(2)(e), Regulation 10(2)(d) has not been made applicable to selection of Assistant Teacher (Primary) (BTC) in Aided Minority Institutions, the argument of petitioner's counsel cannot be accepted by us to the effect that no quality point mark was awarded to the appellants.
33. The justification for the reasons assigned above is also to be derived from analysis of clause 2(f) of Regulation-17, which provides that on such 38 panel of selected candidates being communicated by the Selection Committee, it would be drawn by the Director of the region, and after considering the names supplied by the committee of experts. Under clause 2(g) of Regulation-17, it provides that all the candidates, who were interviewed by the Selection Committee, a list would be prepared in duplicate along with two other candidates in the wait list signed by the Chairman and the copy of the same would be sent with the statement as referred to in clause 2(f) of Regulation-10 to the Regional Director of Education for its approval. At the risk of the repetition, we reiterate that under clause 2(g) of the Regulation-17, the statement which is required to be sent by the Selection Committee is under clause 2(f) of Regulation-10 as made applicable by clause 2(e) of Regulation-
17. If clause 2(f)of Regulation-10 is taken into consideration and read in consonance to clause 2(g) of Regulation-17, it is yet again reiterated that it is only Appendix 'C', which would be applicable in relation to the selections for a minority institutions. Thus consequently we rule out the applicability of the Appendix 'D', which deals with the allocation of quality point marks in a selection as made applicable to the institutions covered u/s 36 of the Act. It has been excluded to be made applicable over the aided recognised minority institutions.
3934. The issue with regard to distinction in the selection process of a recognized institution and that of a recognized aided minority institution could also be drawn by the interpretation of clause 2(h) of Regulation-10, which has been exclusively made applicable to the institutions other than the minority institutions. Clause 2(h) of Regulation-10 has not been made applicable under clause 2(e) of the Regulation-17 as applicable to the minority institutions covered u/s
38. Meaning thereby, the provisions contained in the statute as framed there under provided a distinct and an independent procedure for the appointment of Assistant Teachers in an aided minority institution and the stringent procedure as applicable to the institutions other than minority institutions, particularly, that as contained under clause 2(d) of Regulation-10 has not been made applicable in its totality. Clause 2(h) of Regulation-10 is quoted hereunder:
**¼t½ [k.M ¼N½esa nh x;h fdlh ckr ds gksrs gq, Hkh ;fn nks ;k vf/kd vH;fFkZ;ksa dks fn, x, vadksa dk ;ksx cjkcj gks rks vk;q esa T;s'Bre vH;FkhZ dks ojh;rk nh tk;sxhA**
35. Clause 2(h) of Regulation 10, deals with a contingency when two candidates receive equal marks how they are to be dealt with for appointment. The provisions of Sub-Clause 2(h) of Regulation 10 has not been attracted and made applicable by Sub Clause 2(e) of Regulation 17, 40 over minority institutions because there may not arise a situation of equivalence of marks in a selection made in minority institutions because of non applicability of process of allocation of quality point marks and of Appendix D of Regulation 10(2)(d).
36. A scrutiny of Regulation 10(2)(g) reads as under:-
¼N½p;u lfefr }kjk p;u xq.k&fo'k;d vadksa vkSj lk{kkRdkj esa fn, x, vadksa ds ;ksx ds vk/kkj Ikj fd;k tk;sxkA bl iz;kstu ds fy, vadksa dk ;ksx xq.k&fo'k;d vadksa tSlk fd [k.M ¼?k½ ds v/khu vH;FkhZ }kjk izkIr fd, tk;sa vkSj p;u lfefr ds lnL;ksa }kjk 25 esa ls fn, x, vadksa ds vkSlr dks tksM+dj yxk;k tk;sxkA mnkgj.kkFkZ& ,sls vH;FkhZ dks tks [k.M ¼?k½ds v/khu 110 xq.k&fo'k;d vad izkIr djsa] ;fn lk{kkRdkj esa ik¡ p lnL; gksa vkSj mu lnL;ksa }kjk fuEufyf[kr vad fn, tk;sa%& lnL; la[;k 1 18 lnL; la[;k 2 15 lnL; la[;k 3 17 lnL; l[;k 4 11 lnL; la[;k 5 14 ;ksx 75 Rkks vadksa dk ;ksx 110$75@5 ¾ 125 gksxkA lk{kkRdkj ds fy, fu/kkZfjr iw.kkZd 25 esa ls ;fn fdlh vH;FkhZ dks 18 vadksa ls vf/kd vad iznku fd, tk, vFkok 10 vad ls de vad iznku fd, tk, rks ,sls vad iznku djus okys lnL; }kjk mldk fof" k'V dkj.k vfHkfyf[kr fd;k tkuk vfuok;Z gskxkA blds vfrfjDr izR;sd fo" ks'kK Hkh [k.M ¼p½ esa fufnZ'V fooj.k i= es ;g vadr djsxk fd og vH;FkhZ ds p;u ls lger gS ;k ughA vlgefr dh n" kk esa og la{ksi esa mlds dkj.k fy[ksxkA fdlh in ds fy, LkHkh vH;kfFkZ;ksa dk lk{kkRdkj dj fy, tkus ds Ik" pkr~ p;u lfefr dk lHkkifr ;k rks Lo;a ;k mlds fdlh vU; lnL; }kjk fd, x, p;u dh dk;Zokfg;ksa ds lEcU/k esa ,d fVIi.kh nks izfr;ksa esa rS;kj djk;sxk ftlesa pqus x, vH;kfFkZ;ksa ds uke vkSj de ls de nks ,sls fo" ks'kKksa ds uke Hkh fn, tk;saxs tks ,sls vH;fFkZ;ksa ds p;u ls lger gksaA bl izdkj rS;kj dh x;h fVIi.kh ij p;u lefr ds lHkkifr vkSj vU; lnL;ksa }kjk gLrk{kj fd, tk;saxs ftles mudk iwjk uke] inuke vkSj irk vkSj fnukad fn;k tk;sxkA bl fVIi.kh dh ,d izfr ds lkFk [k.M ¼p½esa fufnZ'V fooj.k&i= dh ,d izfr lHkkifr }kjk "kh?kz gh izcU/kd ds ek/;e ls 41 izcU/kkf/kdj.k dks Hksth tk;sxh vkSj nwljh izfr lEcfU/kr ftyk f" k{kk vf/kdkjh dks Hksth tk;sxhA Li'Vhdj.k&/kkjk 37¼5½ esa fufnZ'V ekeyksa easa] bl fofu;e esa izcU/k lfefr ;k mlds v/;{k ¼izslhMsUV½ ;k lnL; ds izfr dksbZ funsZ" k izkf/kd`r fu;a=d ds izfr funsZ" k le>k tk;sxk ftl [k.M ¼?k½ ds v/khu] lk{kkRdkj esa vad nsus ds iz;kstukFkZ p;u lfefr dk ,dy lnL; le>k tk;sxkA
37. Regulation 10(2)(d) is the only provision under the regulations framed u/s 24 of Act of 2006 which deals with the procedure for processing the application and allocation of quality point marks as per Appendix-D, for which the Manager has to maintain the Register.
Thereafter, the candidates would be called for interview and selected in accordance with quality point marks obtained. Under Regulation 10(2)(g) quality point marks obtained under Regulation 10(2)(d) are to be added together thereafter total marks is arrived at after adding marks of Regulation 10(2)(d). On scrutiny of Regulation-17, which deals with procedure in relation to appointments to be made in an aided recognized minority institutions, neither Regulation 10(2)(d) nor Regulation 10(2)(g) has been made applicable, by Regulations 17(2)(e). Hence, we are of the view that due to non-applicability of Regulation 10(2)(d) and 10(2)(g), no quality point marks are to be assigned for selection in a minority institution and that is why when Regulation 10(2)(h), where it deals with the situation when two or more candidates having obtained equal marks how they 42 would be appointed, has too not being made applicable by the law gives to the selection of assistant teachers contemplated under Regulation-17, in relation to institutions falling under Section 38 of the Act. Since, as deduced above that in a minority institution there is no allocation of quality point marks required under law, it had not contemplated any comparison of marks of two candidates, who obtained equal marks i.e why Regulation 10(2)(h), too has rightly not been made applicable.
38. For the reason of exclusion of applicability of clause 2(h) of Regulation-10, the choice of appointment has been exclusively given to the Selection Committee of the aided recognised minority institution, which has to make an appointment in accordance with certificate given in Appendix 'C'. The priority of choices based on assignment of quality point marks is not attracted over the minority institutions.
39. For the reasons assigned above, we feel that the reasoning as assigned by the learned Single Judge for quashing the selection of the appellants that there was no allocation of quality point parks to the appellants in accordance with Appendix 'D' and the view taken by the learned Single Judge that irrespective of the fact that the 43 institution of respondent No. 5 being a minority recognised aided institution, yet the selection of Assistant Teachers (Primary) (BTC) would still entail scrutiny of marks under Appendix 'D' is unsustainable. Having made the aforesaid determination, the question would still arise as wether the selection made is illegal in so far as the petitioner was the only candidate who had the qualification of B.T.C. The right of the selected candidates who were not being B.T.C but B.Ed, could arise only if the petitioner claim stood satisfied. If no, the candidate among the appellant selectees who secured even lowest marks would have pave way for the petitioner.
40. At this stage, the learned counsel for the writ petitioner/respondent, Mr. Tapan Singh, submits that based on the instructions of his clients, since she has been granted appointment in other institution, is not interested to press his relief claimed in the writ petition anymore, she does not want to press her writ petition. Accordingly, he has prayed for the dismissal of the writ petition, but since the judgment under challenge in Appeal has an effect of quashing the selection of appellants held as per law for the reasons given above it is still incumbent for us to deal with the appeal on its own merits.
4441. Hence, the judgment impugned in the Special Appeal dated 4th September, 2017 cannot be sustained and is set aside and consequently the writ petition is dismissed and the selection of the appellants is upheld. As a result of which the appeal is allowed. Impugned order dated 4th September, 2017 passed by the learned Single Judge in writ petition No. 500 (S/S) of 2011 "Kavita Saini Vs. State of Uttarakhand & others", is quashed. There would be no order as to costs.
42. This judgment would decide the other connected appeals.
(Sharad Kumar Sharma, J.) (K.M. Joseph, C.J.) 24.04.2018 24.04.2018 Mahinder