Allahabad High Court
Karunesh Kumar Singh Son Of Shri ... vs State Of U.P. Through Secretary ... on 27 May, 2005
Equivalent citations: 2005(4)AWC3410
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Sri K. Ajit learned counsel for petitioners, Sri Raj Kumar Jain, learned counsel for respondent No. 7, and Sri Yogesh Kumar appears for respondent No. 8. Learned Standing Counsel appears for respondents 1 to 6.
2. By Writ Petition No. 42639 of 2002, the petitioner Sri Karunesh Kumar Singh has prayed for a writ of mandamus directing the District Inspector of Schools, Mainpuri not to accord approval to the appointment of the proposed selected candidates on the post of Lecturer in Physics in pursuance of advertisement dated 14.8.2001. In Writ Petition No. 19920 of 2003 Sri Gaurav Kumar Singh Rathor, the candidate selected by selection committee has challenged the order dated 28.3.2003 passed by the District Inspector of Schools, Mainpuri, for giving financial approval for his appointment and a direction to pay him salary with effect from 22.11.2001 with arrears in accordance with law. In Writ Petition No. 35525 of 2004, the petitioner Karunesh Kumar Singh has prayed for quashing the orders of the Joint Director dated 24.2.2004 by which he has communicated the resolution of the Regional Committee dated 23.4.2004 to grant financial approval to the appointment of Sri Gaurav Kumar Singh Rathor as Lecturer in Physics on the vacancy caused on the death of Sri Deputy Lal, Lecturer, Physics.
3. Brief facts giving rise to these three connected writ petitions are that the Christian Inter College, Mainpuri is a recognized and aided minority institution. Sri Deputy Lal Lecturer Physics in the institution died on 10.7.2000, causing substantive vacancy on the post. The vacancy in a minority institution which is exempted under Section 30 of the U.P. Secondary Education Services Selection Board Act, 1982 is required to be filled up in accordance with Section 16FF of the U.P. Intermediate Education Act, 1921, and the Regulation in Chapter II of the Regulations made under the Act.
4. The Committee of Management advertised the vacancy along with the vacancy of Lecturer in Mathematics in L.T. Grade Teacher. The qualification for Lecturer in Physics in the advertisement were given as M.Sc. Physics, with Computer. A corrigendum was published in daily newspaper 'Aaj' on 14.8.2000 providing for the qualification for the post of Lecturer in Physic (M.Sc. Physic) B.Ed. with one year diploma in computer. The petitioner Karunesh Kumar Singh is M.Sc. B.Ed. and holds diploma certificate in computer' application. He participated in the interview. The selection Committee selected Sri Gaurav Kumar Singh Rathor. The selection was not approved on the ground that the post of Lecturer was not filled up within ninety days of its falling vacant and has become dead after such lapse in view of Regulation 20 of Chapter II of the Intermediate Education Act, 1921. It was further found that the advertisement was not issued in two newspapers. The District Inspector of Schools, consequently refused to grant financial approval. This order dated 28.3.2003 was, challenged by Sri Gaurav Kumar Singh Rathor in writ petition No. 19920 of 2003 in which an interim order was passed on 8.5.2003 directing the petitioner to work as 'Assistant Teacher'. The question of payment of salary was to be considered at the time of hearing of the writ petition.
5. Sri Gaurav Kumar Singh Rathor with the help of Committee of Management of the College persuaded the District Inspector of Schools to submit a report in his favour and that vide letter dated 24.7.2004 the Regional Joint Director of Education communicated the financial approval to the appointment on 23.4.2004.
6. Sri K. Ajit, learned counsel for the petitioner submits that the corrigendum to the advertisement had clearly mentioned the qualification to be M.S. Physics, B.Ed with one year diploma in computer which is inconsonance with Entry 31 in Appendix 'A' to the U.P. Intermediate Education Act, 1921 and provides M.Sc. Physics with computer as educational qualification for the post of Lecturer in Physics in the Intermediate Classes. In Column-7 of Appendix - 'A' against Entry No. 31, the desirable qualification is that the candidate should be trained. Sri Gaurav Kumar Singh Rathor is not a trained teacher. The Selection Committee was not constituted in accordance with Section 16FF, it did not consider the quality point marks and in fact the entire record of selection annexed by the Committee of Management of the College with the affidavit of Sri Garib Masih does not show that the committee applied its mind and adopted any criteria for selections. The Committee did not prepare any chart of quality point marks and selected the candidates arbitrarily without assigning any reason. The selection process according to Sri K. Ajit was vitiated and that the petitioner was grossly discriminated in employment for which the salary is paid by the State Government.
7. The petitioner has relied upon the Judgment in Yogesh Kumar and Ors. v. Government of NCT Delhi and Ors., (2003) 3 SCC 548; Dr. Rajinder Singh v. State of Punjab (2001) 5 SCC 482 which provide that the requisite qualification on the relevant date cannot be ignored and the judgment in Amit Joseph v. Joint Director of Education, Kumaon Region, Nainital 2005) 1 UPLBEC 1, for the proposition that the procedure prescribed for selection committee for minority institutions require awarding of quality point marks as a method for selection, and the judgment in Kumaon Mandal Vikas Nigam Ltd. v. Girija Shanker Pant and Ors. (2001) 1 SCC 182, in support of the submission that in any administrative action, fairness is the essential condition of exercise of powers, which should be free from bias.
8. Sri R.K. Jain, on the other hand, submits that the minority institution has freedom to appoint any persons as a teacher. Sub-section (4) of Section 16FF of the Act restricts the power of Regional Deputy Director of Education or the Inspector as the case may be, to withhold the approval of the selections made only where the person does not possesses the prescribed minimum qualifications and is not eligible. Sub-section (4) of Section 16FF applicable to minority institutions is quoted as below:
"(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 is otherwise eligible."
9. Shri Jain further submits that the training in teaching for the purposes as appointment of Lecturer 'Physics' is only a desirable qualification and not a preferential qualification. Sri Gaurav Kumar Singh Rathor is M.Sc. Physics, holds essential qualification and is otherwise eligible. The advertisement and the corrigendum did not change the statutory minimum qualification provided in Appendix 'A' to the Act. The Selection Committee was constituted under Regulation 17 of Chapter II of the Regulation made under U.P. Intermediate Education Act No. 21 provide for filling up vacancies of Head of the Institution and teachers by direct recruitment in any recognized minority institution. Clause (e) provides that the provisions of Clause (c) and (f) of Regulation 10 and those the Regulations 11, 12 and 16 shall mutatis mutandis apply to selections made under the regulation. Clause (c) of Regulation 10 provides for interview fee, and Clause (f) of Regulation 10 provides for a preparation of forms in Appendix (c) to be placed before the each member of the selection committee at the time of interview. This statement provides the names, qualification and particulars in respect of every candidate called for interview. Appendix (c) provides for details in 19 columns. Column 14 provides for quality point marks awarded. Column 15 provide for observation of the members of the selection committee and Column 16 for interview marks. The total marks of quality point marks and interview marks are to be given in Column 17. Appendix (d) provides for method of awarding quality point marks, for qualifications teaching experience and interview as well as curriculum capacity.
10. In Yogesh Kumar (supra), the teachers training qualification was prescribed in the advertisement as essential qualification. The Supreme Court did not rely upon any statutory provisions providing minimum qualifications and had proceeded on the basis of advertisement for recruitment. In the case at hand we have the benefit of Appendix 'A' which provides training as desirable qualification. In case of conflict between the statute and advertisement, the statute will prevail., vide Ashok Kumar Sharma v. Chandra Shekhar, 1997(4) SCC 18; Bhupendra Pal v. State of Punjab, 2000(5) SC 2001; Zafar Ram 2002(1) SCC 124 followed in Shabbir Kumar Mandal v. State of Bihar 2003() SCC 519. In T.M.A. Pai Foundation v. State of Karnataka 2002(8) SCC 481, the right of minority institution of their choice to appoint staff (teaching as well as non-teaching)subject to regulatory measure designed towards the achievement of the goal of making the minority institution, effective instruction for imparting education was upheld In Leela Pavlus v. Regional Deputy Director, 1998 (1) UPLBEC 241, it was held that the Regional Deputy Director is not required to assess competitive merits of various candidates who had appeared before the selection committee and merits of various candidates who had appeared before the Selection Committee and record his finding as to whether the view taken by the exerts and other members of the selection committee was correct.
11. The scheme of the U.P. Intermediate Education Act, 1921 and the Regulations framed there under for minority educational institutions provide for qualifications, eligibility and a method of selection. Once these tests are satisfied, the approval of a teacher who is qualified and eligible cannot be withheld. Section 16FF(4) secures the guarantee under Article 30(i) of the Constitution of India, and is in consonance with the rights of the minority to be established and administer educational institution. The Regulations are made under the Act. These cannot override or be inconsistent with the mandatory provisions of the Act. At best it may be said that the Regulation for minority institution are by way of guidelines to be followed for the benefit of the selection committee. Any further restriction namely the assessment of comparative merit and to give reasons for selection from amongst those who are qualified and eligibly will effect the choice of the selection committee and will infringe the freedom guaranteed under Article 30(1) of the Constitution of India. The Slate cannot impose conditions, the acceptance of which would deprive a minority community of their rights guaranteed by Article 30(1) of the Constitution, vide Committee of Management St. Jhon's College v. Girdhari and Ors. (2001) 4 SCC 296.
12. For the reasons stated above, I do not find that there was any error in the selection of Sri Gaurav Kumar Singh Rathor. He was qualified and eligible. The Committee had a choice of selection to select him from amongst equals and appoint him as a teacher in the institution. The selection committee was not required to disclose reasons and to satisfy the state authorities as to why they had made selection from amongst those who are qualified and eligible.
13. Writ Petition Nos. 42639 of 2002 and 35525 of 2004 are dismissed. The reliefs claimed in Writ Petition No. 19920 of 2003 have became infractions and this writ petition also dismissed and do not require any further consideration as the Regional Committee vide its resolution dated 23.7.2004 communicated by the Regional Joint Director of Education, Agra vide his letter dated 24.2.2004 to District Inspector of Schools Mainpuri had given financial approval to the appointment of Sri Gaurav Kumar Rathor. There shall be no order as to costs.